Interview with James Lohman

HINZ-FOLEY: Would you like to tell us a little bit about your childhood, where you came from, where you were born?

JAMES LOHMAN: Sure. I was born in December 1951, in New York City and I spent the first nineteen years of my life in New York City and the immediate surrounding areas. I would say that I grew up in a sort of liberal Jewish northeastern family, where my parents were A.C.L.U. members and I sort of got as my starting point, philosophically and politically, was a fairly liberal perspective. I went to a high school that was very much encouraged political activism, and community involvement, and so I was always politically active and interested in social issues. I would say that in the late sixties, during the Vietnam era, I graduated high school in 1969, so that was the height of the Vietnam War, and I went to Columbia University, where the year before I went they had pretty much come close to burning down the whole university, so there was still a lot of sort of smoldering political activism on campus at that time, although it was a little over the peak at that point. And then, I dropped out of college in 1971, and just sort of went on this odyssey to find other things. And I went back to school, except for one semester in seventy-three, back to Columbia, and then I dropped out again. And I ended up in north Florida, in Tallahassee, Florida, in 1974, and around 1976 or so I decided that I had gotten very interested in prisons as a humans rights issue and went back to school at Florida State University where they have a major criminology program. I got my undergraduate degree in criminology. I did some studies during my undergraduate degree of prison conditions and when I was lucky enough in my last year or so there to become involved with a thing called the Center for Participant Education at Florida State, which was a free university, where we were offered— anyone could teach a class to the community, anyone who had a skill or interest could teach any class they wanted to. And so we had about a hundred classes per semester that were offered to the community, no charge and we also would put on a film series and bring in guest speakers about international issues and domestic/political issues and social issues, and so my last year in school I was the director of that program, and that was a great experience of also being involved in all sorts of issues: Central America, poverty issues in the United States. And so when I got my degree, almost immediately when I graduated, I was approached by a remarkable person named Scharlette Holderman, who was probably the mother of mitigation and death penalty work. She has trained hundreds people in how to interview family members and develop mitigation and psychological issues. She, at that time, was the director of a small nonprofit in Tallahassee called the Florida Clearinghouse in Criminal Justice, and there has actually been quite a bit of stuff written about that organization. There is a whole book about it really called, Among the Lowest of the Dead, I don’t know if you’ve seen that book, by David von Drehle, he is a Washington Post writer. He wrote a book, pretty much about that office. Half of the book is really about that office, and Scharlette’s work. So Scharlette asked me if I would come and work with her. So that was in May of 1979, I went to go work with her there, and that happened to the month of the first execution in Florida. And she was pretty sure that was going to be an execution that month. I went to work on May first, and I sat down with her and she said, “We’re going to probably have an execution in a few weeks. Organize a protest.” And so that was my first assignment, really. And we did in fact have an execution May 25, 1979. It was the first execution in Florida since the death penalty came back, and it was the first non-volunteer execution in the United States. There had been two executions before that in the entire country, both of whom had given up their appeals. So this was the first guy actually fighting his execution to be executed. His name was John Spenkelink, and it was a very famous case at the time. I should also mention that a couple of years before that, I had gotten involved in the death penalty issue in probably 1976 or so when I was an undergraduate. The United States Supreme Court of 1976 approved Florida’s death penalty. They approved it in several states, North Carolina, Florida, Georgia, and right around that time, there was some discussion about the fact that the death penalty was back and I noticed a poster on campus saying, “Meeting of Tallahassee citizens against the death penalty.” So I started going to those meetings in about 1976 or so, which was basically the beginnings of trying to organize against the death penalty down in Florida. So in seventy-nine, we geared up for this execution. We had some massive protests at the state capitol around his execution. And actually that execution became a symbol for the national anti-death penalty movement because he was the first person to fight his execution. He was executed and Bob Graham, who is actually a fairly progressive governor and senator, was the governor at the time, but because he had maintained this very mechanistic, robotic approach towards executing this guy, he became a symbol of the death penalty nationally. And for several years, death penalty activities around the United States targeted Bob Graham as a symbol for pro-death penalty.

In retrospect, it turns out he was actually relatively moderate on the death penalty. He actually granted six commutations while he was governor. Since then, not one has been granted in Florida. So it is kind of ironic that he was set up as this sort of villainous pro-death penalty person, and in actuality, he was actually relatively— he never took any— he always said, “I don’t take any pleasure in carrying these out. This is my job,” etcetera and so forth. One other sort of activist thing that I think is very interesting before I get into maybe why I became a lawyer and got involved in more in the direct representation of cases. At the 1980 Democratic convention, Jimmy Carter was up for reelection and re-nomination, and he was challenged by Teddy Kennedy as an insurgent, progressive insurgency within the Democratic Party. We read it some months, a couple of months before the convention. It was announced that Bob Graham would be making the nominating speech for re-nominating Jimmy Carter to be president. This was now maybe one year after the Spenkelink execution, so this light bulb went on in my head that maybe we should organize a protest at the convention, an anti-death penalty protest during Graham’s speech. And so I spent the next two months pretty much organizing a protest event at the Democratic National Convention, which was kind of guerrilla, Yippee-type action. I used as my base Kennedy delegates, because I knew that probably Carter delegates were not going to participate in the protest during the nomination speech of their candidate. So I started identifying Kennedy delegates all over the country and getting in touch with them and asking them if they would be willing to participate in an anti-death penalty action during Graham’s speech. Of course most of the Kennedy delegates were strongly anti-death penalty and they were eager to participate in something like this, so we made black executioner hoods, like hundreds of black executioner hoods, and reproduced pictures of John Spenkelink, and during Graham’s speech, several hundred delegates to the convention put on black hoods and stood up and just pointed at Bob Graham and held pictures of John Spenkelink. And we also brought Spenkelink’s mother to the convention, who was this seventy-year-old, very obese woman from California, a sort of very working class poor woman. Her son-in-law and daughter drove her from southern California to New York, where the convention was. It was in Madison Square Garden in New York City, and my friend and I who were putting this whole thing together literally stood out on the sidewalk in front of Madison Square Garden waiting for their beat-up old station wagon to come in from California. We had gotten people, some delegates to give us their I.D.s so we could actually get into the convention as delegates, and we had passes for Spenkelink’s mother, Lois, and so we got her into the convention and she weighed about three-hundred pounds and could barely walk, so this was kind of, I describe it as trying to smuggle a refrigerator into the convention. And so we got her seated in the New York delegation with this gigantic sign that said, “Bob Graham Killed My Son.” And so Walter Cronkite, when he introduced the nomination speech on CBS News, gave this whole, one or two minute introduction about how Bob Graham had executed John Spenkelink and it was very controversial and all the newspapers were kneeling down at Lois Spenkelink’s chair, interviewing her and Graham who was actually, even in 1980 considered a potential presidential candidate, which he was actually as recently as probably eight years ago he ran for president, several times he has run for president. And the headline in The Miami Herald about his speech, instead of, “Our wonderful governor nominates Jimmy Carter,” was— God, I wish I could remember the actual headline. It was something like, “Graham Bombs at Convention” or something like that, and there was a picture of Lois Spenkelink holding this big sign that said, “Bob Graham Killed My Son.” So we felt we were pretty successful about the protest. Of course, all it did was increase Bob Graham’s popularity. He was overwhelmingly re-elected as governor and largely because he was seen as very pro-death penalty. So we actually advanced his career. I take a lot of credit for advancing Bob Graham’s political career. So, in about 1983, actually during the next few years working with Scharlette, I worked on prison condition cases, did a lot of work going into the worst prisons in Florida and trying to find out what kinds of abuses were occurring in the prison systems: beatings of prisoners, locking up prisoners in isolation for literally six or seven years with no contact with the outside world, some really horrible things that were going on. And we would do a lot of media around that, exposing abuses in the prison system, and we were kind of these gadflies to the prison system and they just hated us, and we literally were afraid our car would blow up going home from the prison sometimes, and the friendlier guards, when we would leave, they would say, “You be careful driving home,” and look me right in the eye. And I was thinking, “Do you know something I don’t know?” Because this was really Ku Klux Klan country where these prisons are, which is true in almost any state, but where Florida has this whole thing I call the Valley of Death, where there are six or seven— the equivalent of Huntsville in Texas, where there is just institutions everywhere and the entire economy for hundreds of miles, it’s all built around incarceration and executions. So during those few years, I worked on death penalty cases with Scharlette, as well as organizing around executions. Actually the next execution in Florida wasn’t until four and a half years later, that was our second execution and that was in November of 1983, which was actually my first semester at law school.That was a guy named Bob Sullivan who was a very, really highly intelligent guy. One the things I should also say about Spenkelink that I think that was so powerful was he was a very beloved person on Death Row. He was this sort of redneck-ish guy, but he was totally non-racist. Like his best friends on Death Row were Black and he was really beloved by everyone on the row and all their families. That was one of the things that made it personally so compelling to people, he was a very interesting guy, was very likeable person. Sullivan, who was the next execution in November 1983, he was also kind of like that. He was not as personable as John, but he was very smart. He did a lot of work on his case and he was very active in promoting his own case. He was Catholic and in fact, one of the amazing things about his execution was he had actually gotten the Pope to intervene on his behalf. Through his own efforts, he contacted clergy and worked his way up through the Catholic hierarchy to where the Pope wrote a letter to the governor of Florida saying, “Please do not execute this man.” And so we organized some massive protests around his execution also that consisted of several hundred people camping out at the governor’s mansion in Tallahassee overnight, and it was a really moving experience. The very famous peace activist and antiwar person, Daniel Berrigan, Father Daniel Berrigan came to Tallahassee for a few days to participate in these protests. I got the pleasure of spending a couple of days with him. He was just totally an inspirational character. I remember the night before the execution, before Sullivan’s execution, there were probably one hundred and fifty people at the governor’s mansion singing songs and banging on this cast iron fence with tire irons, just making this huge racket, and at about midnight, or maybe ten p.m., out comes Bob Graham, the governor to talk to the crowd. And it just drove me crazy because I thought, “This is such a beautiful political move,” because he was the consummate politician, really. His way of dealing with this was to come out and try to quell the mob by showing how accessible and reasonable he was. So he came out and all the cameras were out there, it was ten o’clock at night, and this dark, the lights were all shining on him, and this crowd of all these protestors, all these people that I’d worked with for five years organizing protests, were standing around in this semi-circle, kind of mesmerized that the governor was coming out to talk to them, and he had them in the palm of his hand.

I went over and I sat down on the curb and I started crying, because I was so upset that he had gotten the upper hand. Daniel Berrigan came over and sat down next to me and he put his arm around me and it he said, “It’s okay. I’ve seen far worse than him.” And I know he was thinking of L.B.J. and the Vietnam War and all the things he had been through. He was arrested dozens and dozens of times in protests. It was just so comforting to know that this guy who had been through so much, who had fought in so many struggles in the civil rights movement, was just putting it in perspective, this is just one more politician, “It’s okay, this too shall pass.” And it was a really incredible moment for me. So that was my first semester at law school. Needless to say, I didn’t spend a whole lot of time on my studies. I was organizing protests and working on death penalty cases and whenever I could find the time I would read my assignments and go to class. So the first semester was really rough for me. In fact, I was still working with Scharlette full time at the Florida Clearinghouse of Criminal Justice and going to law school. We had written an article in our newsletter about the parole commission, and we had mentioned a few parole interviewers who had never been on parole, which we mentioned them by name and they sued us. So I had to miss a week of my first semester at law school to go to trial to be in a trial, a libel trial, that we were sued by the parole commission, which fortunately we won the case, but missing the whole week of work of my first semester of law school was, I was on the verge of dropping out at that point, I really was. I thought, “I can’t do this, this is just a mess.” But how fortunate I hung in there and actually I think I was able to get through law school because it was about the third priority in my life and that made it easier for me to get through it. So during law school I worked on death penalty cases. In 1984 a remarkable person came to Tallahassee to head the legal efforts on behalf of guys on Death Row and fighting their cases, a guy named Mark Olive. He is probably one of a handful of the best death penalty lawyers in the country. At the time, that was 1984, so it was twenty-five years ago. He was kind of a young lawyer, but still you could tell he was really incredibly dedicated. He ran a little law clinic at the law school, the Florida State University Law School. He had maybe eight students who worked with him doing research on death penalty cases. So immediately I started doing that with him. Then, in 1985 Florida was one of the first states to actually fund, I won’t say adequately, but with a considerable amount of resources, an office, a public defender office just to represent the people who had been sentenced to death and lost their appeals, and doing what was called post conviction. I don’t know if you have studied the distinction between these different parts of the process. But post conviction is after the person’s sentence, and they have lost their one automatic appeal to the highest court of the state. There is this whole process called post conviction, where we try to undo all of that. In 1985, Florida opened an office called the Office of Capital and Collateral Representatives, it sounds more like a loan company, but we didn’t want it to sound like what it was. That opened in 1985 and it had probably a staff of eight or ten full-time lawyers to actually do post conviction. And the reason this is very interesting politically how this happened was for a year or two before that a number of executions had been scheduled and the guys did not have lawyers. At that time, it was much like Texas is now. Even though that was twenty-five years ago, Texas has gotten nowhere in those twenty-five years towards providing lawyers. All we could do was try to buttonhole lawyers to do these cases for free. There was no provision for them to get paid in Florida, and so what happened around 1984 is a couple of guys were scheduled for execution and they had no lawyers. And the judges in those particular cases, the trial judges who had jurisdiction over the execution initially, refused to allow the executions to happen because the guys had no lawyers. And these were redneck judges, guys who were law and order pro-death penalty but they just simply said, “Look, I can’t allow a man to be executed if he has no lawyer.” So the very pro attorney general of the state went into the legislature and said, “Folks, if we’re going to be able to have executions in Florida, we’re gonna have to give these guys lawyers.” So the motivation for giving lawyers was to execute them, which is one of the anomalies of this whole process is that this institutionalization of lawyers enables the executions, and that has kind of been paradox in the whole process, but all in all it slowed down executions. There would have been probably a lot more executions without lawyers, and I think as lawyers we are able to create issues that slow down the process. Hopefully we’ll eliminate the process eventually by showing innocent people have been executed, that it’s totally racist, and that it can’t be done right. In 1972 when the United States Supreme Court brought the death penalty back, at least in principle, they said, “It’s okay to have a death penalty, but you have to do it fairly and you have to do it without arbitrariness and with rhyme and reason to it.” They said in 1972 in the Furman case, “The death penalty is not cruel and unusual, if it’s done fairly and if it’s done with rhyme and reason, if there is a rational system for deciding who should get the death penalty and who shouldn’t.” Well that was now thirty-seven years ago, and clearly we have not been able to do that. It is so patently obvious that if we had a United States Supreme Court that had one iota of honesty, they would look at it now and say, “We’re not doing what we said in 1972 had to be done.” Thirty-seven years of experience to proves that we can’t do it right, so we just shouldn’t do it at all. Two justices had the integrity to say that: Thurgood Marshall and William Brennan. I’m not sure when exactly they started saying it, maybe in the mid 1980s. They refused to agree with any death sentence because they said, “Look, we said it has to be done fairly and obviously it can’t be, and so we are just against the death penalty in every single case.” But now there is nobody in the court who believes that. With so many years of Republicans and Democrats who are like Republicans picking people on the court, we haven’t been able to get any good justices on there for so long, any really solid humanitarian ones. So in 1985, I graduated law school, and I went to work for that office. I worked there for several years as a full time public defender on capital cases. I took about a year and a half after that and went to work with a private lawyer in Jacksonville who did a lot of mostly criminal, a lot of prison rights litigation and also had several death penalty cases and he brought me on board to work on those kinds of cases. So I continued working mostly on prison rights issues, and some death penalty cases while I was with him.

Then I went back in the very beginning of 1990, I moved back to Tallahassee, at which point there was a fairly new federally funded death penalty defender organization. What happened in the late 1980s, the feds created a large pool of money to create the same kind of offices to do federal habeas. Once state post conviction had been included, there was the remedy in federal court, and so the feds had created— had put something like twenty million dollars available to states to create offices to represent death sentence people in federal habeas proceedings. So in 1990, I went to work in that office in Florida. I worked there until 1993, and then in 1993 I went out and just became a solo, opened my own practice in my house and since then, I have been doing nothing but death row representation out of my house basically, since 1993. For six years, I did that in Tallahassee, Florida, and then I moved to New Orleans and I did it out of my apartment there, and in the very beginning of 2003, Rachel and I moved to Austin and I have been doing it out of our house since we’ve been in Austin. Right now I represent Death Row prisoners, two guys from Florida, a guy in Louisiana, a guy in Arkansas and one person on Death Row in Texas. So I have five Death Row clients right now, and also in addition to those, in which I am lead council, I’ve got a bunch of other cases I’m helping out with, consulting in some capacity, or I have been hired to actually work on ligation or some other aspect of the case. So since I’ve been a lawyer, I became a bar member in June of 1986, I’m only a member of the Florida bar, in all these other states I’ve been admitted specially for this one case, and generally speaking, the courts will allow you to do that because there is a need for lawyers, so there is a special admission you get for just one case where you don’t have to be admitted to the bar of that state. Since becoming a lawyer in 1986, I’ve probably worked on— represented twenty or thirty people, and worked on another twenty, and then since 1979, when I first really started working on cases, I’ve probably worked on fifty or sixty cases. I’ve known more than that with people on Death Row, who have talked to me about some aspect of their case. I could literally speak for weeks about all the different cases I’ve worked on. Every single one is an amazing story. I’ve never known a death penalty case that was not just an incredible story of the person’s life that led up to this incident, that gives you some insight into some aspect of society that is totally dysfunctional, or several aspects of our society that are totally dysfunctional, that contributed to just exactly what your project is about, which is why is this country so violent. Why is society so violent? The answers to that are found in these cases, whether it’s family violence, which exists in almost every single case I’ve ever seen, where our guys were just kicked around, literally picked up when they were infants and just thrown at the wall by stepfathers, had their heads stomped on, been locked in closets, been hung upside down. I mean you name it and it’s happened to these guys and there’s a reason that people do these things. It doesn’t just happen in a vacuum. It’s not that they’re bad people. One of the things that has always struck me about getting to know people on Death Row, it sounds corny like it’s glorifying, and it’s really not glorifying at all, it’s just knowing them as people, I have never, never known anyone who was a bad person, and that’s especially true of kids. You hear people talk about juveniles, “Oh, he’s just a bad kid.” There’s no such thing as a bad kid. There isn’t any such thing. There is such a thing as a kid whose been neglected, who has been shunted, who’s been abused. They’re not bad. They just are survivors. They find how to survive, and maybe surviving means stealing. We have a case right now of a guy on Death Row in Texas who— Texas has some of the stupidest quirks in its law. It’s so obvious to me. I’ve only been working in Texas for six years, and there are certain things about the Texas process that make it very clear why there are so many people on Death Row in Texas. One of them is that they have this idiotic provision in their statute, which says that the jury should vote to execute somebody if they believe he will be a danger to society in the future. Well, almost anybody who’s killed somebody, they’ve already decided the person is guilty of first-degree murder. So the chances are, that person would be deemed a danger to society in the future. They just killed somebody. So it almost automatically gives them the death penalty once they’ve been found guilty. Anything that the person has ever done that could be considered bad is allowed to be admitted as proof that they would be a danger in the future.

So that this one guy who I represent—one of the main things they introduced against him, was when he was fourteen years old, he broke into a food bank and stole a loaf of bread, when he was fourteen years old. He did not have any food. And so this was used to represent that he would be a danger to society in the future. It’s just unbelievable how much our society hates kids. It just vilifies them for this kind of thing. So anyway, I’ve never met a bad person in all of this, with the possible exception of prosecutors and judges, and some of the judges I’ve encountered are the worst people I’ve ever— they’re far worse than any client I’ve ever had. They will execute people for political gain, as will prosecutors. They will— prosecutors will falsify evidence to advance their careers, which to me is worse than any crime I’ve ever seen on Death Row. I have to qualify that I’ve never met a bad person in this work by saying that prosecutors and judges are the exceptions to that. But among our clients, they’re just people who had horrible lives and tried to learn how to survive, and many of the crime were of situations that got out of hand, that did not start out to be a crime, but due to their often terrible substance problems, which are just used to blot out the traumas of their early lives, they get into these situations and one thing leads to another and something terrible happens. But a lot of times, since I do post conviction, I don’t often meet these people until they’ve already been on Death Row for five years. They haven’t drank for five years. They haven’t smoked dope for five years or snorted cocaine or shot up heroin for five years, and they are really vastly different people from the people who committed the crimes. They are thoughtful. They’re sensitive. They’re in touch with their feelings. They care about other people, and so we see these transformations that people go through. We are really dealing with a very different person than the person who committed the crime, and can really see they’re human and their good side in a way that maybe was not as apparent as the time of their trial. It certainly was not apparent to their lawyers, who nine times out of ten, don’t even bother to figure out who they are or where they came from. It’s too bad that people can’t get to know people on Death Row because I think if they did, they would really find it a lot harder to put them to death. That’s what we try to do, we try to humanize them in our work and present them as nice people worthy of life. We’re not saying what they did was good, we’re not saying that the victim deserved it, ever. We’re just saying that this person deserves to live and I think that is one thing that is really forgotten a lot by the public is that we’re not trying to get this person off. They say, “Oh, so you’re trying to get them off?” And usually, no, we’re not trying to get them off. If they committed the crime, if they have a lengthy criminal background, probably the best we’re trying to do is get them a life sentence. In most cases, that’s all we’re trying to do, is get the person a life sentence, which, another thing the public doesn’t realize is that it’s cheaper than executions and also people would rather have a life sentence ultimately than be executed. Most people, especially middle class people think, ”I would rather die than do the rest of my life in prison.” But with a lot of our clients, they’ve spent a lot of their lives in prison already and they know how to function in prison. In fact, in many cases they’re even more comfortable in prison than they are out of prison, which is a sad state of affairs, but I’ve had homeless people call me up, homeless criminals call me up from jail, and say, “Hey, I’m back in jail.” And I said, “Oh really, what happened?” They said, “Well, I robbed somebody because I wanted to go to jail ‘cause I was hungry.” And that’s a sad, terrible commentary on our society, that we have people who are so desperate for food and shelter that they will commit a crime just to go to jail so they can have food and shelter. That is clearly a failure of our society rather than a failure of that individual. So really in our work we see, I guess there is Dostoevsky, I’m sure you’ve heard the great quote, that you judge a society by its prisons and there are many variations on that quote: you can judge a society by the way the lowest people are treated, and I think that’s one of the reasons why a lot of people like me and Rachel and our colleagues work on this work is because it is a focal point for social ills or our society’s failures. And we feel like if we can work at the lowest level and bring that up then maybe that brings everything up. So, if we can humanize the most dehumanizing people, and create compassion for the people who have the least compassion then maybe we can just kind of bring up the level of compassion in society. Unfortunately it doesn’t always work that way because what I find in trying to get programs in prisons, for example, like reading programs in prisons, or better living conditions for prisoners is, how are you going to get that for prisoners when you can’t even get that for people on the outside? Are we going to have a reading program for prisoners when we don’t have literacy programs for people who haven’t committed a crime. But still, it’s the same approach. If we can get it done in there then maybe we can get it done on the outside. So that’s how I got involved and what motivates us. If you want, I can talk about individual cases that stand out.

HINZ-FOLEY: I would love to hear about any individual cases or people you’ve become close to on Death Row, more specifics about your experience, that would be great.

JAMES LOHMAN: You know, I think the cases that come to my mind are the ones that show the futility of the process, and the hopelessness of the entire criminal justice process. I think anybody in the public who has ever been on a jury, or has ever sat in a courtroom for twenty minutes can see what a joke it is. I mean, really, if you talk to someone who has served on jury duty, they invariably come away from that process saying, “I had no idea how ludicrous the system is, how unfair judges are, how stupid the rules of evidence are.” And when I encounter someone who has had that experience, I say to them, “Can you imagine a system like that deciding that someone should die?” And they may even be pro-death penalty. And they’ll pause and they’ll think, “Wow, I didn’t think of that. We had a shop lifting case, we had a D.U.I. case and even there, I could see how crazy the court process is.” Obviously, I would really have to pause to think that process could end up taking someone’s life. We extol our criminal justice system as the greatest in the world, just like we do all our other systems, our educational system, our health system, and we know that that’s not true. Any informed person knows that we don’t have the best health care system, we don’t have the best education system. And we don’t have the best criminal justice system. It’s a political system. Judges in most places are elected. Prosecutors are elected and they’re all about political advancement, and it’s not about finding the truth, the way it’s supposed to be. In a lot of other countries in Europe, they’re more advanced than us in many, many ways, they’re professionals. Judges are just professional jurists, they’re not politicians. They don’t have any vested interest in the outcome of the case. They sit on cases and they get a basis of comparison. Prosecutors are the same way. They’re not politicians, it’s not an adversarial system. Our so-called adversarial system is supposed to protest this side versus that side, and arrive at the truth¬—really isn’t a very effective truth finding process. The cases that I think of, having experience with, are the ones that really show the fallibility of that system. I could talk about really any case, my current cases or almost any case I’ve ever worked on to show how stupid the process is, and how many loopholes and how fraught with potential for error the process is. But there are a couple that really stand out for me.

One was a guy who was executed in nineteen-eighty-nine, named Willie Darden. His case, it went to the United States Supreme Court many times, and it’s unusual in the extent that he had two full reviews by the United States Supreme Court. They heard the case on the merits, they evaluated the case on the merits, they heard oral argument on it, and they wrote long written opinions about the case, and in both cases, he lost by a five to four vote. One was on the issue of prosecutorial misconduct, because the case happened in nineteen-seventy-three in rural Florida, rural southwestern Florida, a very conservative, notoriously racist community. And the crime was in nineteen-seventy-three, when really it was still the civil rights era practically speaking. The prosecutor called him an animal in closing argument and all sorts of nasty, racially implicit expressions. The case went all the way to the United States Supreme Court on whether the prosecutor’s argument was so improper that he should get a new trial. By a five to four vote, they voted no, it wasn’t so improper. Then years later the case went up again in a five to four vote decision. The New York Times even had an editorial called “Kill ‘Em, five to four.”—The New York Times editorial page was the second time his case went—I got very involved in his case in the mid nineteen-eighties when he was facing execution for one of the many times he had an execution date. I don’t remember exactly how many times, at least five times he had an execution scheduled, and all but one of those times, it might have been more than five times, maybe seven times. I was not actually working on his case the time he was executed, but I worked on it during an earlier scheduled execution. Interestingly, the first time his execution date was scheduled was the same time John Spenkelink was executed. They were both scheduled to be executed on May twenty-first, nineteen-seventy-nine. Spenkelink was actually executed four days later on the twenty-fifth and Willie Darden got a stay of execution and was not executed until ten years later. But, I worked on his case in probably nineteen-eighty-six, I think it was around nineteen-eighty-six, and I feel proved his innocence. The facts were very interesting in the case. What happened was, a furniture store owner was robbed in his furniture store in Lakeland, Florida, and Willie Darden was arrested for it. He was an ex-con working—who had been incarcerated at work release center, which meant that he was close to being released. He had a job he would go to, and then come back to the work release center to sleep. When he went on trial in— think it was nineteen-seventy-four, there was a woman who had always said that she had an alibi for him. A total stranger. She was a white church lady. Willie was an African American. And she never gave a thought to this—to Willie Darden—until she saw his picture in the paper that he was charged with this murder. I forget how long after, it was probably just within a matter of days. And she said, “Wow, that’s the guy who was at my house the other day.” She immediately ran and told his lawyers that his car had broke down in front of her house. He came and knocked on her door and asked if he could use her phone to call a tow truck. It happened to be at the time this murder happened. So, she told his lawyers this. They never called her. They never put her on the stand. She sat outside the courtroom waiting to testify and never did. The lawyer’s explanation for this was that it wasn’t really an alibi because her time was not exactly when the murder happened. For one thing, the time of the murder, if you look at the police report in the case, is whited out. They actually whited out when the call came in about the murder, and made it an hour different from the actual time the call came in. If you go back and look at the police logs you can see there was a one hour discrepancy there. When they found out about his alibi, they changed the time of the murder. We had to try and reconstruct this in nineteen-eighty-six, thirteen years after the fact. I went to go see this woman. Her name was Christine Bass. She said, “I was so sure it wasn’t him because I remember reading what time this happened and he was at my house, and in fact, there are two other guys who could help us on this, these two ministers, these two Baptist ministers who also knew about all this, because one of them had gone to the scene, because he was the minister for the guy who was murdered, and his wife. She is the first person he called, after the police.” So she said, “You need to find this guy, Reverend Hess, because I didn’t even know about these ministers until a few years after the fact I was working in the chaplain’s office at the hospital. And he came in and we started talking and somehow this case came up and he said, "I went to the scene that day with my friend Reverend Sam Sparks, and so we know when it happened. Let's get in touch with Sam and see if we can reconstruct this." So I went and found Reverend Hess and Reverend Sam Sparks, and we sat down and reconstructed what time it was.” And it was the weirdest thing because one of the them¬—and I can’t remember the exact details of this—but they remembered what time it was, because one of them distinctly remembered he had to be somewhere at a certain time, and what happened was the widow, the woman whose husband was killed called Reverend Sparks and said—I think his name was Levi—“Oh, you know, Levi was just shot and the police are on their way, and it’s just horrible, can you please come over here, by the way.” Sparks then called Reverend Hess and said, “Can you pick me up and we’ll go over to this furniture store.” For some reason, I think it was Hess remembered that he had someplace he had to be at five o’clock that afternoon. So he remembers he had to leave by—and I may have the times wrong—I don’t remember exactly what they were, it may have been six o’clock that he had to be somewhere, but it all turned out that it was during that hour, that earlier hour that Willie had been at this woman, Christine Bass’s house, and not the hour that was whited out and put on the police report. So we presented affidavits from all three of these people to the courts in nineteen-eighty-six, and we got the traditional blow off that they give you when you have new evidence that proves innocence that it could have been done earlier and there are a lot of people buried under this rationale. The law is basically this — and this is a horrible, horrible procedural obstacle that we face in these cases. The court asks you why was this evidence not developed the last time you were in front of me. And as I mentioned before, Willie got his first death warrant in nineteen-seventy-nine. That would have been the first opportunity to go back and prove that the lawyers screwed up by not getting this all together and unless you can answer the question that it was impossible for this to have been done the last time, you’re basically shit out of luck. They’re going to say, “Sorry, no reason why this could not have been figured out last time. There has to be some end to this process. How do we know you didn’t just hold out so as to stretch this out so you could come back ten years later with no evidence and just drag this out forever and ever, and there must be finality.” And so for all of those reasons, they just won’t listen to it. And that’s basically what happened with this evidence. They said, “You haven’t given a good reason why these answers couldn’t have been found back in nineteen-seventy-nine.”
We can get over the hurdle of saying, “Why weren’t they used at trial” because we can say the trial lawyers blew it. Therefore, we should win a new trial because ineffective assistance of his trial counsel. But there is no law that says you are entitled to a good post conviction lawyer. There is law that says you’re entitled to a good trial lawyer, but there is absolutely no constitutional right to a good post conviction lawyer. So therefore, the guy can’t say, “Well, my post conviction lawyer just screwed it up. Don’t I get another chance?” You don’t. As of now, you don’t get a new chance because of post conviction. You’ve got to get it done the first time, even if there was no provisional statute to provide you a good lawyer. It doesn’t matter. It all makes no sense logically, it’s just mumbo jumbo. So Willie Darden is basically executed, five to four, because we got the stuff, it was too little, too late, is basically what the court said. And I could tell you another ten cases where guys were executed, people I knew, where there was too little, too late, where it probably would have saved the person’s life. Because in effect might have even gotten them out of prison, if it had been come up with sooner. And due to one reason or another, it wasn’t found the first time. There are cases where I was the person who should have found it the first time, and didn’t, for whatever reason. And years later, somebody else found it, and it was my fault that it wasn’t found the first time, for whatever reason. Maybe I had too many cases at the time. Maybe I just didn’t think of it, whatever, whatever reason it was. Maybe we had limitations on resources, and there is only so much we can do within that one month to try and win the case. I mean, there was a guy who was executed in Florida, who the main witness against him was a guy who did the crime with him. And that guy testified that my client took him to this victim’s house, who was a prominent rural preacher’s son, who sold pot, and they supposedly robbed this guy and killed him. The co-defendant testified, “I had never been to this house before, it was all Mike’s idea,”—and I don’t mind mentioning their names, he’s executed.” And then, years later, he was facing execution and they found these witnesses who had been to this guy’s house with the codefendant before. These kind of street level prostitutes, who said, “Oh no, Mike had brought us out to this guy’s house several times to have sex with this guy, the preacher’s son, and to get drugs from him and to bring drugs to him.” And I had never found this when I worked on this case. And so, they said, “Too little, too late. Should have been done last time.” So I have to bear that burden of knowing that maybe, had I found this, when I represented the guy, that we would have won the case, or at least gotten him off Death Row. There are just so many aspects to it. Another case that comes to mind that was probably the most grievous case for me, was a guy who was executed in 1987 named Buford White from Miami, Florida. He grew up in absolutely the inner ghetto of Miami, in Liberty City, which is sort of their—one of their worst, poorest, dilapidated neighborhoods, they had riots there, numerous times there have been riots there due to the conditions there.

After the McDuffy verdict, after the cops beat up a guy in Liberty City, they had massive riots there. This guy Buford White, it was a really sad story, he was the youngest of ten kids, on welfare, in the projects and he was an A student. Inexplicably. He was just a really smart, motivated kid. He was a star baseball player. And the head of parks for that section of Miami is a guy named Joe Cromartie. And Joe’s son was a major league baseball player named Warren Cromartie, who was a terrific professional baseball player. Joe Cromartie said, “I coached Buford when he was a kid. He was major league baseball potential.” And when he got to be about fourteen-years-old, somebody asked him to carry some heroin across, over to another street, just to make twenty bucks. Buford was poor, and needed to make twenty bucks. And he ends up becoming a heroin addict, drops out of school. No more baseball. No more A student. He becomes a heroin addict and goes to prison. Never injured a person in his life. A little bit of a guy, a really, really nice guy. To know him was to love him. Nobody said an unkind word about him. Ever. But he had a heroin problem and he did a couple of incarcerations for heroin. He got out of prison. He had been out of prison for two months and had been doing—had not done any drugs, and these guys came to him and said, “Would you like to make 200 bucks?” And he said, “Sure.” And they said, “Well, what we need you to do is, there is a big coke deal going down, and we’re gonna go and rob the drugs. We need you to hold the gun. Just come and hold the gun and we’ll give you two hundred bucks.” And Buford said, “Okay.” So they went to the scene and what happened was, two of the guys knew all along that they were going to kill some people there. Four people were killed. Two people were injured, they were shot but didn’t die. So three of them were tried. There were four guys involved. The three guys got death sentences, and the fourth guy who was the driver for this got nothing and testified against the other three and the two people who got shot and lived were also key witnesses as to what happened there. What everybody testified at the trial, the driver testified that he and the other two guys knew they were going to shot people, but they didn’t tell Buford that. And the two people who survived said that when the shooting started, Buford started yelling at the other two guys, “What the hell are you doing? Are you crazy? Don’t shot those people.” And the driver said when they got in the car to leave afterwards Buford was like screaming at these other two guys the whole time, that he was like close to tears, and shaking with fear and couldn’t believe this had happened.“ So they went to trial, and the jury did hear this evidence, that he opposed them when it was happening, that he didn’t know that was going to happen, but the other two guys knew that. Actually the jury didn’t know that. The jury only knew that he freaked out when the shooting started. It wasn’t until years later when I got involved in the case that we found these police reports that had never been provided to the defense, where the driver had told the police, “We knew all along that they were going to shoot people, but we didn’t tell Buford because he wouldn’t have gone if he had known that, and when we got in the car afterwards he was screaming at these guys and he was furious.” That never came out at trial.

There was also a lot of other stuff in the police reports that had never been provided to the defense lawyers. Buford’s jury voted twelve to zero against the death penalty for him.
Florida was one of only three states in the country where you can get a death sentence anyway, even if the jury votes for a life sentence. And in his case, it was twelve to zero, every single juror voted for life for him, But this judge who was famous for going against the jury when they voted for life. He had done it in five cases, where the jury had voted for life sentences and he had just gone ahead and given them death anyway. And it went up on appeal, and now he would not have been able to get the death sentence under current Florida law. So, that was the same kind of thing where it was too little, too late. They executed Buford. I was with his sisters until right up to the execution. I was on the phone with Buford, virtually right up to the execution. Buford was executed in the later part of 1987, I think it was July or August, maybe September, and that was probably the hardest thing I’ve been through in all of this work personally. One thing that was really grueling about that experience was his death warrant was signed and eight weeks later he was executed. It was the second or third time he had a death warrant. I got handed his case when his death warrant was signed. I had never heard of the guy before. It was not on my radar screen at all. Also it happened to be the same time that Ted Bundy’s first death warrant was signed, and our office was handling both of those. So all of our offices resources went in to saving Ted Bundy, because it was just so high profile—whatever—it was the whole Ted Bundy mystique. And I was one year out of law school, and his case was dumped on my desk. “Here. Buford White is scheduled for execution in eight weeks. Stop it.” And it had already been through the courts, completely all the way through the courts. So anything I could come up, we would have to explain why it wasn’t done last time, what we call a successor, which means, the case has already been through absolutely every post conviction court you can go to, and you’re gonna have to go back a second time and explain why anything new and juicy that you come up with couldn’t have been brought up last time. And that’s called a successor, or a successive application.
So here I am with eight weeks, brand new case, didn’t know anything about the case and one year out of law school, although I had been working on cases through law school and before law school. And I didn’t take a day or night off for eight weeks. I literally worked from eight AM until midnight for eight weeks to try—it was a huge case too. It was an enormous amount of material in the case, and I got to know Buford really well during that. I went to go see him a few times during it, but I couldn’t go see him a lot because I had so much other stuff to do, but I would talk to him on the phone every day, and I went to Miami and I got to know some of his family very well, including two sisters who also were ex-junkies, maybe not even ex. And I got to be very close to them. They were really helpful and everybody loved this guy. Nobody I ever ran into anyway ever had an unkind word about him He was just a really sweet, nice guy, who was in the wrong place at the wrong time. “Hold a gun for two hundred dollars.” Not a great thing to do, but at the same token, he had never hurt a flea in his life. When it got down to the day or two before and we were racing around to courts. I went down, we had a hearing in Key West. The federal court was sitting in Key West. So we had to fly into Key West a few days before the execution and make our case before this federal judge, who is now a federal appeals judge on a court in Atlanta. He was what I would call when of these smart Nazis. I don’t have any hesitation saying his name, Stanley Marcus. I can’t stand him. He’s high regarded, highly respected for his knowledge of the law, scrupulous—whatever. A horrible experience going in front of him in Key West. The whole thing was, “Why didn’t you bring this up before?” We had a good reason for why we hadn’t introduced this evidence before. When his case first went through a post conviction, Florida’s public records law did not provide for all of the police reports being given to his lawyers. It was after his first time through all the courts that the law was changed by the Florida Supreme Court to require that all, every single piece of paper in the police and prosecutor possession be turned over to the lawyers. So at least one reason that his lawyer did not present this stuff the last time was he didn’t have the paper, and it was not required to give the paper. That was lost on Stanley Marcus. He didn’t care. He wanted to kill this guy and he was gonna kill this guy. That was just horrible experience being in front of him down there, just feeling the sense of doom, and we thought maybe this was where we were gonna have a shot, and we couldn’t get the time of day out of this guy. When we lost in the federal appeals court, we knew it was pretty much curtains, because the only last shot is the U.S. Supreme Court and as you probably know, in fewer than one per cent of cases, they agree to hear. So at that point, it’s pretty much over. I then went down to the prison to say goodbye to Buford, to give him some moral support, and two of his sisters came up Miami to stay in a hotel so they could have their final family visit with him. Nick was with me. That is when Nick was working in Florida, a very good friend of ours, who is in Louisiana. I went to go see Buford, I got to stay with him up until one in the morning, and then he was going to be executed at seven A.M., so six hours before the execution. I think his sisters got to go in for a little with him after I did, and we waited for them. We took them back to the hotel, in a town called Stark, Florida, which was the closest town to the prison with any hotels. Of course there are like eight, because of the prison industry. The only reason anyone would stay in a motel in Stark is to go to the prison. So we sat up with the sisters through the night, talking with Buford on the pone because we had the opportunity to call him several times during the night. So I think we talked to him at two in the morning, and here it is now five hours before execution, and you’re on the phone with this guy and you know that in four hours they’re going to execute him. And there’s no way to describe what that’s like. It’s maybe the closest thing to a terminal patient who is in their last hours of life, but then you don’t even really know, I mean that would be the closest thing in anyone else’s realm of experience. But to know that at seven o’clock they’re going to kill, is just so weird. And I remember being on the phone with them at four o’clock in the morning, three hours before the execution, the last time we talked, and just going, “This is so weird, this is so weird. I’ve never been through anything like this before. This is weird, this is just so weird,” and tears coming down my face and handing the phone to his sister, and her talking to him, and they’re crying. And hearing them say, “We can’t do this anymore” and handing me back the phone and saying— just sitting on the phone, neither of us staying anything. And him just saying, “I can’t do this anymore, let’s just hang up. I can’t do this anymore.” The next few hours went by, I think, I don’t think I even went to sleep, the sisters kind of dozed off and Nick, who is from New Orleans, he can stay up all night without batting an eyelash. And seven o’clock rolled around and we knew it was going to happen at seven o’clock and as I recall the sisters were sleeping, and we just thought, you know, they don’t need to think about it being seven o’clock, and we got up—no, I forget what time, but we all went out to breakfast. We went into a restaurant in Gainsville, Florida, which is only about twenty minutes away, where the University of Florida is, and Nick and I knew that the execution happened, and they didn’t exactly, they weren’t totally in touch with that, but we sort of knew it.

I picked up the newspaper—the Gainesville newspaper, or the Jacksonville newspaper—and my boss at the time, at this state funded office that I referred to early, the [inaudible], there was this guy, not too swift guy, who was the head of that office who did a lot of things that I had a lot of problems with, and I don’t know if it’s worth going into the personal reasons, people have life-long grudges against people, but one thing is when I got back to the office, this was on a Friday that he was executed. Saturday I was in the office packing up all my Buford files, it was like a ritual that I do after an execution to just move on to the next thing, to go in, you’ve got all these files and papers every place from this case, to just scoop them all up and try to put them into some kind of semblance of order, and put them in a box and just get them the hell out of your life, so you can move on to the next one. So I was sitting there doing that, and this guy, the head of our office walks in, because I had returned a rental car that morning and I had put the receipt in his box and he comes in and he goes, “You know, why did you return the car 24 hours after the execution.” He was giving me shit about returning the rental car late, the day after the execution. And this is the kind of bureaucratic idiots you run into in the course of this work, who are put in charge of these offices, who are just out of touch with the work and are just penny counters, and just stupid bureaucrats. What outraged me that morning of the execution was opening up the paper and reading a quote from him saying “He’s gonna go,” like, the day before, which he would never be that defeatist about a case. When it’s still pending in the courts. You know, here he is being interviewed the day before the execution saying, the execution was going to happen. It was just so politically stupid, and counterproductive to the case to say that, when we were still fighting. I was in Stark for the execution, but lawyers in Tallahassee—there were still some lawyers trying to get a stay, at that point I actually put it in the hands of more experienced lawyers to take the appeal to the U.S. Supreme Court. And I just dealt with the family and with Buford at that point. And, while that ligation is going on, this guy is being interviewed saying basically, “The execution is going to happen.” So I think one of the really exasperating things about the work for a lot of us is dealing with the bureaucracy that we work for. I know people who are dealing with that today as we sit here, trying to do the work but being impeded, thwarted and obstructed by higher ups in their own office who are more concerned about budgetary concerns, about pleasing judges who fund them, pleasing legislators who fund them. Like, “Don’t do anything to upset the legislature.” We have a lot of things we have to work against, even within our own offices a lot. So, that was a rough couple of months for me. There was a guy who I had helped a lot, a former prisoner who was a fantastic person, an artist and poet, a just amazingly magical person who spent most of his life in prison and despite that, was just a joyful, creative spirit who died of AIDS within a month or two of Buford’s execution. On top of that I lost one of my favorite relatives, who was a great aunt of mine and she had no kids and she was just one of those— sometimes you have relatives who don’t have any kids and they’re like the most wonderful, loving relatives. So I had three deaths within about a two or three month period. Buford’s was the last of the three and I was just a mess. I was really, a walking zombie. Everybody just said, “You need to take some time off.” So I took off a month and went to Europe for three weeks and actually was manipulated by Scharlette, the woman I went to work with in nineteen-seventy-nine, who was working in that same office. She was in charge of investigations in that office and was a very close friend.

My father had called the office and Scharlette ended up taking the call, and she said, “Jimmy’s just a total mess right now. He’s thinking of going to Nicaragua.” And there was a lot of heat in Nicaragua at that time and so my father said, “I’ll buy him a plane ticket to Spain.” It was like a classic Scharlette manipulation. She’s one of these people who can get anyone to do anything. So he bought me a plane ticket to Europe and I went for three weeks, it was a really good experience. It cleared my head out a lot. Then actually by the end of that year, I quit that job. I left that office. I think the thing with the guy who gave me hell about the rental car was the last straw with that office. There was a lot of fighting within the office. That office was notorious for its civil war within it. The people doing the work were fighting the people who had to sign vouchers and stuff. It was kind of open warfare between the people trying to do the work and the people who were concerned about the budget. So by the end of the year I resigned from that office, and then I went to Jacksonville for my stint over there. Any questions? Any sort of general things?

HINZ-FOLEY: When you came to Texas, was that in 2003 when you moved to Austin?

JAMES LOHMAN: It was in New Years between 2002 and 2003.

HINZ-FOLEY: So did you just worked out of your home the whole time?

JAMES LOHMAN: Yes.

HINZ-FOLEY: Are there any pretty good cases in Texas, or how is your experience is Texas different from California, or Florida, or any of the other places?

JAMES LOHMAN: I have sort of a joke that I tell people, because a lot of people work in different states or they move into other states. I’ve done in cases in probably six or eight states, in federal court. If you think your state is bad, just try some other state, because they all have weird quirks of their own. Every state has something quirky that makes it hard for us, whether it’s more limited public records law. The public records law is a great vehicle for us, especially in post conviction because we can find out stuff that the police should have given the defense lawyers that they didn’t. The discovery laws, which are what the prosecutors are required to provide at the time of trial, at the time of trial they are required to provide anything that basically would help the defense, that they know are in their possession. You’re basically at the mercy of them doing that, you don’t know whether they’re doing it or not. Later, under the Public Records Act, for example, in Florida and some other states, Florida for example has a terrible public records act, you got to go and look at everything in their file. So you’re not at the mercy of them, unless they go and take stuff out, which they really don’t tend to do. Unless it’s usually years and years later and there are different prosecutors, there is a different head prosecutor. They’re not as invested in the conviction. So, you send them a letter saying, “Pursuit to the Public Records Act, I want to look at these files and I’ll be there in a week.” And you go in and there’s the file. And a lot of time, you find stuff in there that wasn’t provided at the time of trial that would have helped the defense, that should have. That can be a way of winning the case. Some states are much more limited, like Louisiana in their public records law. Louisiana is still in the thirteenth century approach to everything. It’s just all, the sheriffs are all powerful. The local prosecutors are all powerful. There’s very little central authority for anything. It’s just, what does the sheriff in Nacadogches parish want to do. Nobody is looking over his shoulder. Texas is a lot like that also. It’s very decentralized, extremely decentralized. So a lot of the time you’re at the mercy of local prosecutors in Houston, for example, Harris County. They just elected a new district attorney there, who claims she is going to change some of these rules, but up until this election, they had a very strict, extremely limited access to their files policy. You basically, you were not given copies of anything. You had to go there, look through their files and write down anything you felt was interesting. You could not have actual copies of things. So the new D.A. who happens to have been the trial judge in the one Texas case that I know, which is really complicated and not a good thing. This is a case from 1984, eighty-five. This guy has been on Death Row all that time. I inherited the case about two years ago. The woman who was just elected D.A. for Harris County, a huge, huge position, was my guy’s judge at the time of his trial. So it’s going to be kind of hard in a way for me to attack her trial judge performance, in a way, while she’s the head D.A. for the county, but that’s just problem, I’m going to have to deal with it. It’s the kind of stuff that happens.I had a case in Florida, a German guy on Death Row. It was a really fascinating experience. I got to go to Germany, among other things, for three weeks and do background investigation on this case. It was a fascinating case. It was widely covered in the German press. I tell you that because I know your mother’s German, you spoke German, you go to Germany. We had several weeks of evidentiary hearings, which is the equivalent base of the trial in post conviction, where you put on all your evidence to convince the judge to throw out the conviction and/or the death sentence. We had a guy who w as considered to be a very fair judge in Miami on the case.

This was a case where this guy, Dieter [Riechmann], came to Florida in 1987 with his girlfriend. They had been together for thirteen years. She was murdered in their rental car. Dieter immediately flagged down a police car and said in broken English, “My girl, my girl, help, help. She’s been shot.” And she was sitting strapped into her seat with a bullet wound in the passenger side of her head. It turned out that they were rather shady characters. He had guns in his hotel room. They owned two brothels on the Swiss-German border, and he had been a pimp and all this stuff. She had been a prostitute for many years. They were glamorous looking. Very movie starish looking people. Great media stuff in Miami. Well, the cops decided Dieter did it. He said they had gotten lost in Miami and some thug on the side of the road robbed them and shot her. And I totally believe that’s what happened. I am utterly convinced he got railroaded in this case. Some of the main evidence of the case was that there was blood on his door, and that therefore he—the state’s theory was that he went out and walked around and shot her through the window, came back in and drove off and faked this whole thing with the police. The cops, the prosecutors had a witness testify who was supposedly a crime scene analyst/expert who said that the blood on Dieter’s door—let’s see how it went, yeah, that the blood on Dieter’s door came from splatter from the gunshot wound and the state’s theory was that therefore, Dieter could not have been sitting in his seat when she was shot, which is how it happened, according to his version of it. So Dieter says, “I was sitting here, we were talking to this guy through the window. He turns and talks to somebody else to come over with a gun, grab her gold necklaces and shot her.” And their blood analyst said, “There’s blood splatter on his door, and it couldn’t have jumped over his body and gotten there from her head. Therefore, he’s lying. He wasn’t in his seat when she was shot.” So I bought a book about blood splatter evidence, and tried to study up on this. And I called the guy who wrote the book and I sent him all the evidence in the case. I said, “You analyze this and tell me what you think.” He said, “They got this so wrong.” First of all, he looked at the stains, pictures of it, and he said, “That was not from the shot. That was from his hands, because he had also said he reached over, that he immediately drove off and he put his arm around her and he got blood all over his hands, it was on the steering wheel, and basically all this blood was secondary from his hands. Because then he had gotten out of the car, to flag down a police car, and that was not blood splatter. He could perfectly well have been sitting in his seat when it happened. There is also a beautiful piece of evidence to corroborate his story, which was on her lap, was some folded up money. And Dieter had said that when the guy turned away, because they asked the guy for directions, he walked away for a second, Dieter said, “Should we give him a couple of dollars for this?” And she reached into her purse and put this money on her thigh, and there’s blood around it. If you pick up the money from her leg, there is a perfect square of where the money was. The money was obviously on her thigh when the shooting occurred and our blood expert thought that was extremely significant evidence to support his whole version of what had happened.

We went to an evidentiary hearing in Miami. We presented all this evidence, all sorts of great evidence, like we brought over a whole bunch of people from Germany who knew them, and the judge, we had several weeks of hearings spread out over a several month period. We would go for a week and then come back for a month and do another week. And at the conclusion of all of this, we were sitting in the courtroom, in fact I think we had gone back to make our final arguments in the case, and the judge’s secretary came in and whispered something in his ear. And we had been told by everybody, “Oh, Dieter’s going home.” The bailiff, who had been guarding Dieter for the whole time, the court reporters, everybody was saying to us, “Wow, Dieter’s going home, you guys are going to win this.” It’s just so obvious what happened, that he was framed on this. We even had witnesses he saw the murder, saying that there was a robbery. We found people. I had a Black investigator go into that neighborhood and spent two months combing the pavement to find someone who knew anything about this. And one word led to another and another, and he found people who said they were out there, they remembered it happening. These two blonde people in a car, in a rental car, when that happened. We put that testimony on the stand. So this secretary comes over and whispers in the judge’s ear, and he calls a recess and he goes out and then comes back in, and is sort of beaming, something wonderful had happened that he heard about, it had nothing to do with our case. So we finished our arguments, and we went back into the judge’s office and we had gotten friendly with his secretary throughout this long process and she said, “He was just told he was going to be nominated to be a federal judge.” This was a state court judge at the time. So I’m thinking, “Oh great. Now he’s got to rule on this case while he is being up for consideration for being a federal judge.” Not really the position that we want to be in given the political realities of the world. At that point, if I’m not mistaken, it was a Republican controlled senate. If not, there were enough Republicans, they were filibustering and making it really hard for any Clinton appointment that they didn’t like. And so, it was like I knew the writing on the wall, this guy is not going to have the guts to do the right thing with his confirmation pending in the U.S. Senate to be a federal judge. And what happened was, I don’t remember the exact chronology, but it was before he was ratified as a federal judge, he threw out Dieter’s death sentence, but he didn’t throw out the conviction, which was a bitter, bitter disappointment for us. Just crushing disappointment. I was so sure. When his secretary called to tell me this news, she was crying, to tell us that we only got half a loaf, that we got the death sentence thrown out, she could barely get the words out of her mouth, she was so disappointed.

[MATERIAL WITHELD]

HINZ-FOLEY: Can you talk a little bit more about your experiences in here in Texas? Are a lot of those cases?

JAMES LOHMAN: Well, I only have one client in Texas. Rachel has had a lot of cases in Texas and I’ve sort of been brought in to help out—normally out of state law firms on cases that she’s been working on. They’re all active cases, so they’re a little bit harder to talk about right now. In terms of the Texas process, there are a couple of things that jump out at me that are real defective in the Texas process and among the reasons why Texas has so many executions. As we’ve mentioned before, this future dangerousness business is just, an almost impossible thing to surmount. I know a few people who would be able to convince a jury that they are so angelic that there’s not the possibility of them being, actually the word, if I’m not mistaken the statute says—I forget the word, but it’s probably, it’s probably, ‘would be a danger in the future.’ Actually, I forget what the actual word is. But there is a big issue in the Texas process which is called the Penry issues, is that because of the future dangerousness thing, that negates all the mitigation you could present. And in fact, a lot of the mitigation makes you look like you’re more likely to be violent. Like, if you’ve ever been subjected to a tremendous amount of child abuse, and that that has in a way made you more likely to act violent. Then the mitigation becomes aggravating. So, there are a lot of quirks in the law that work like that. There’s another thing, say with mental health issues. If a person is psychotic or really crazy, that should be mitigating. But it ends up being aggravating. One of the things about future dangerousness, too, that I find to be especially ridiculous is that really we’re only taking about whether they’re going to be a future danger in prison. Because the only option is life in prison. It’s not like they’re going to be a future danger at the mall, or at Whole Foods market. I mean, they’re going to be a future danger if at all in prison, where number one, it’s a lot harder to do anything really violent, you don’t have weapons. Sure, prisoners stab each other and they hurt each other but very rarely is a guard assaulted in prison, and what I find to be so stupid about the future dangerousness thing is that all of a sudden, all these jurors who could care less about the well being of prisoners, it’s the furthest thing from their mind, all of a sudden when it comes to whether to execute somebody because they might hurt another prisoner, all of a sudden they become very worried about the safety of other prisoners, if it means they could execute somebody. So I don’t know if that makes any sense to you, but it’s like when they would never care about the prison environment, all of a sudden they care about the prison environment because this person might be a danger to other prisoners, if they so conclude, then they can vote to execute. And of course, you know, that in any state, to be on a jury, you pretty much have to be for the death penalty to be on a capital jury. I’m sure you’ve heard that described time and time again. If you can’t impose the death penalty, you cannot be on a capital jury. So we’ve got twelve essentially pro death penalty people on these juries. You might once in a while get somebody who is against the death penalty, but says, “Well, I could give it under rare circumstances.” Maybe they’ll get allowed on the jury. But, in Florida, we have to get at least six votes from pro death penalty jurors in order to get a life sentence, which is why Florida has so many people on Death Row. The third most people, most populous Death Row.

Other things about Texas: You know, one of the really terrible things about Texas is the Court of Criminal Appeals. And one of the terrible things about the Court of Criminal Appeals is that they’re elected. And most modern states, all modern states, the highest court members are not elected. They’re picked as a process of a very careful and conscientious bar, a legal profession review process that’s not ideological, that’s not political. Do these people have legal qualifications? Not “Are they the most convincing law and order politicians running around convincing everyone, the voters, that they’ll hang everybody.” So a serious, serious problem in Texas is electing the Court of Criminal Appeals. And I know there is legislation up now to change that. There was actually a recommendation from a commission, one of the things they need to do, and I think there were even some republican legislators on that commission who support this, changing this system so you don’t elect the Court of Criminal Appeals anymore. Depoliticize it. So, there are a lot of things in Texas that make it worse.

[MATERIAL WITHELD]

HINZ-FOLEY: When you were still doing work in Florida, I guess wherever you were doing work, I’m not sure if you already told me, did you actually witness an execution before?

JAMES LOHMAN: No. The closest I’ve come is that one with Buford, down to three hours. Another case where I went to about six hours before on the telephone with somebody. He wasn’t actually my client, but he was a guy who I knew and the lawyers had asked me to keep him company in the final days and hours on the telephone. What’s sad about his case is he was eventually proved to be innocent, after he was executed. A guy named Jesse Tafero. His wife also got a death sentence. Her sentence was reduced to life on her initial appeal and eventually during post conviction; she proved her innocence and was released from prison. She’s free now, and she goes around on speaking tours on the death penalty a lot. We met her at a conference in Montreal, the International Death Penalty Conference. His name was Jesse Tafero. Basically they proved that he was innocent, and he was executed. But I haven’t once seen an execution and don’t want to see an execution, and don’t think it would be a good idea for me to see an execution.

HINZ-FOLEY: That’s probably not a good idea. I know you’ve probably worked on cases as well where you have proven innocence and you managed to get life for those prisoners. Can you talk a little about those experiences?

JAMES LOHMAN: You know, I have to tell you some of those are some grueling experiences. We had a case, this was really probably one of the cases that will always haunt me. We had a case out of Tampa, Florida. The defendant, and I don’t mind mentioning his name at all, Clarence Jackson, C.J. Just a great guy, really, really a gentle, really, really sweet guy. He was tried in Tampa, convicted and sentenced to death. On appeal, he won a new trial, a whole new trial. He was tried again, sentenced to death again. It went up on appeal, his death penalty was affirmed by the Florida Supreme Court. There were two murders. The whole case against this guy was a person who was there the whole time named Crunch. That was his street name, Crunch. And Crunch was the whole case against C.J. What he said was, C.J. was a retired drug dealer who had made a lot of money, was married to a stock broker in Tampa. They lived in a beautiful house in the suburbs. All C.J. wanted to do at this point in his life was basically get together with a couple of junkies and shoot up, speed ball, which is a mix of heroin and cocaine. He had the connections for one of those, but he needed the street druggies to provide the other one. And so the four of them would get together and shoot up all the time. These two guys, who had other street names, I forget, one’s name was Bowink, and I forget whatthe other guy’s name was. So Crunch is the whole story here. Crunch says, “We would get together and do drugs, Bowink and what’s-his-name would get the heroin, or the coke, and C.J. would get what the other one was, and we would get together and we would mix it up and we would ride around, or we would go someplace and shoot up.” Well, according to Crunch, on one of these occasions, they’re in C.J.’s brand new Volvo, and C.J. I guess got so stoned or something, he asked Crunch to take over the wheel, and they were shooting him up, one of the other guys was tying off C.J. and shooting him up, and was having a hard time finding a vein, because C.J. had been a junkie for so long. His veins were weak, and it was sort of messy and C.J. got really pissed off and just shot—blew away these two little junkies. So this is Crunch’s version, right? Well, I’m pretty damn sure Crunch did this. It just didn’t make any sense at all that C.J. would do this. It was his new car, he’s got a perfectly good life. Meanwhile, the other ones were cutting in on Crunch’s action. You know, they’re doing half of the drugs, these two junkies, that C.J. is mostly providing a lot of. So the only one with a motive here was Crunch. He got a deal for nothing to provide this testimony. His deal was he gets off totally scot-free for anything. And the only other real evidence was a guy in jail testifying, there were two guys in jail, and these jailhouse snitches are the most unreliable evidence, of course. There was one guy who testified that C.J. had said to him in jail, “I’m a thoroughbred killer from Detroit.” Ridiculous, just ridiculous piece of evidence. So they put this guy named Sylvester Dumas on the stand to say, “Oh, he told me in jail, ‘I’m a thoroughbred killer from Detroit.’” Just preposterous testimony. And then, another guy from the jail named Gilbert Sutton, when I went to go interview Gilbert said, “Oh, the cops gave me drugs and money to testify that he told me he committed this crime.” So we got ready to go into a hearing to prove our case in post conviction in Tampa. We’re going to go to hearing on Monday and it’s a Friday afternoon and we’re in court and I was actually assisting a law firm. I was working at a federally funded agency, I told you about, where we would basically a lot of times find law firms to do the cases and we would help them do the cases, because we knew how to do these cases. They’ve got lots of resources and smart lawyers, but they don’t really know anything about death penalty, so we had these collaborations and that’s a very common model that’s done today in a lot of places, where you have a well heeled smart lawyer and law firm, death penalty specialty lawyers working as part of a team to do the case. And that was our model for this case. So we’re sitting in the courtroom on a Friday to iron a few last minute details before we go into hearing on Monday, and the prosecutor comes over to talk to the lead law firm lawyer and says, “Come here, I need to talk to you.” They got out in the hallway and we see them in the hallway having this very animated conversation. And, the lawyer comes back in and we’re going like, “What’d he say, what’d he say?” And he says, “Well, they’re offering us a deal that we can plead C.J. to life and case closed.” And so we’re thinking, “What do we do?” I kind of think that C.J. got screwed. Crunch was dead, by the way, at this point. Crunch had been killed on the streets. So they were just going to read Crunch’s testimony. If he ever had a retrial, in fact, I think Crunch had been killed before the retrial, but they just read Crunch’s testimony at this retrial, without being able to cross examine him or anything, just read the cross examination but you don’t actually get to cross examine him in front of a jury. And we decided we had to try and talk C.J. into this deal. And so we went, and they said, “You got to decide today.” And I think one of the most difficult things I’ve ever done was going back into this little room, the pressure of that day, and see C.J. and say, “Man, I think you should do this. You should take life in prison, and that will be the end of your case, you can never appeal again, you’re just going to have to do life.” And he was old by then. He was probably in his fifties. And he had been in prison a lot of his life. And he took the deal. And now he’s doing life, and he may not have killed these people. I mean, that’s just brutal. And, one of the reasons I bonded with C.J. was he used to sell heroin to jazz musicians in New York City in the early nineteen-fifties. He had friends who used to sell heroin to obscure jazz players, who I have records of. So I totally fell in love with him over that, you know. And, I’ve won a new trial in a number of cases, I’ve won certainly reduced death sentences in a number of cases, Dieter, the German guy. We had a guy out of Ocala, Florida who we won a new trial for because his lawyers had basically, for two reasons, his lawyers hadn’t done proper mitigation in a case. That’s the case I wanted to show the videotapes of. A guy named Don Gunsby, how is now doing life. He got retried, he was convicted of the murder, and they decided not to seek the death sentence against him. A really sad story of the guy’s life. I mean, he, Don was born in nineteen-fifty in a shack with no running water or electricity to a fourteen-year-old girl who was retarded and epileptic. She had seizures while she was pregnant with Don—she was raped by—and they lived in these row houses of an old sawmill in rural north Florida. And, of course none of this was ever figured out by his lawyers.

We got all this information years after his original trial, kind of by pounding the pavement in the middle of nowhere in north Florida, about five miles south of Georgia, in the middle of the northern part of Florida. And, it was an old saw mill town, a company town, where the saw mill company virtually owned people and back when he was born in nineteen-fifty, his mother lived in a house with her sister, and her husband in this row of shacks along the railroad tracks, where they would bring the wood back and forth. She was this fourteen-year-old retarded girl who had walked funny and was not all there, and the millworkers would get off and go have sex with her, they would get off work and get rip roaring drunk and go have sex with this fourteen-year-old. So she got pregnant with Don. She was actually—Don was her second child. I think she had a child when she was thirteen, and I actually met him. He died during the time that I’ve known him. He was a totally dysfunctional person who lived in Gainesville, Florida. But Don was her second child when she was fourteen or fifteen. And when she was eighteen she was institutionalized, never to return. She was sent to—you can imagine, a horrible mental institution, an eighteen-year-old retarded Black girl was sent in 1954, in Florida. And so, that’s where she lived the rest of her life, and died. So Don was raised by his aunt, this woman’s sister, who was quite a bit older, and there was all this speculation about who Don’s father was. And nobody really knew because there were these various millworkers who had come by. And there were just two or three different theories, whether it was old Ollie so-and-so, or these different guys. Nobody really knew. His aunt, Johnny Mae, had theories and there was this old lady who lived next door to them named Panky McBride. And I have a videotape of me interviewing Panky about those years, that’s just beautiful and she’s just the sweetest little old lady, still living in the same house along the railroad tracks. It was the only house left of all those shacks. So I want to find that interview and give it to you. It’s V.H.S., but I guess you could make it into a disk, but its just beautiful documentary stuff. And then I also have a video of the guy who owned the mill. Unbelievable racist. I did this video interview of him in his home, in his great big stately home. His father owned the mill where all these guys worked and he was sort of the foreman at the time. He was the son of the owner. He would go around and check on this stuff. He’s this big fat guy, and he’s drinking, like during our interview. He’s got this plastic cup. It’s probably scotch and water and he’s belching and drinking during the interview and slurring his speech. It was eleven o’clock in the morning. And he was totally overtly racist. He uses the N word on film describing what the conditions were like where all the millworkers lived. And he said how they would go and cut each other up, they had fights, as these Ns would: “And we didn’t even prosecute them, it was just one N cutting up on another.” It was just unbelievable.

So we showed that to the judge in our hearing that we wanted a new trial because there are the conditions Don was born in. And we also had a guy who was a school board member in that county, the first Black school board member, school board or count commission—I forget which—for that county and he was describing what it was like when he was a kid. His bother was lynched, and he’s describing this on film, about what the conditions were like in this county where Don was born. And we’re showing this videotape in court to this judge, he said, “Turn that off. Counselor, what’s the purpose of this?” And I get up and explain, I said, “We’re trying to show the conditions of where Don was born, the condition that his formative years were spent in. If you’d just listen to a little bit more, we think you’ll understand.” And so this guy starts describing how his brother was lynched, and the judge was like, “I understand now. Now I get it.” He threw out Don’s conviction and granted a whole new trial. So I’ve got the footage of the drunk guy, I’ve got the footage of the school board member saying, “My brother was lynched.” And I’ve got Panky McBride. It’s just awesome stuff that you guys are welcome to have.

HINZ-FOLEY: Thank you.