Justice too long delayed is justice denied.
--Martin Luther King, Jr., Letter from Birmingham Jail
Last week we learned that our client had died only fifteen months after his release from prison. He had been sent there at age 16 to serve a term of life plus twenty years, after being convicted of murder and robbery in a 1972 jury trial that lasted only two days. Jurors in his case had been told that they were the judges of the facts and the law—that the Court’s instructions on the presumption of innocence, the State’s burden of proof, and the need for their verdict to be based solely on the evidence were “advisory,” and that, in any event, they were not bound by this “advice.”
Forty years later, in Unger v. State, 427 Md. 383, 48 A.3d 242 (2012), the Court of Appeals held that same jury instruction violated Merle Unger’s right to due process of law. In 1976 Mr. Unger had also been convicted of felony murder and robbery, but 36 years later he was granted post-conviction relief in the form of a new trial when the Court of Appeals determined that his trial had been tainted by this constitutional error. Mr. Unger’s conviction, our client’s conviction and the convictions of 130 other lifers that had been entered decades earlier (before the Court’s 1980 opinion in Stevenson v. State, 289 Md. 167, 180, 423 A.2d 558, 565) were now ripe for challenge.
The Office of the Public Defender for the State of Maryland, led by BAMC Past President Paul DeWolfe, mobilized his appellate and trial defenders. The OPD’s Post-Conviction Unit Chief Attorney Becky Feldman mobilized a small army of pro bono criminal defense lawyers from across the State to represent these prisoners. The lawyers brought post-conviction challenges for the Unger inmates, most of whom like our client had spent more than half of their lives in prison and, until Unger, had no expectation of ever living free again.
Faced with the prospect of retrying cases that had been investigated and tried more than 30 years ago, prosecutors throughout the State had to consider whether to negotiate agreements for release or retry. Many of the Unger inmates had been sentenced under far more severe statutory schemes and sentencing philosophies—those sentenced today for the same crimes by and large receive more remedial/less punitive sentences. Some of them, like two of the three Unger inmates our firm represented, had been convicted after trials tainted by other serious errors. The trial transcript of one reflected that his counsel had fallen asleep repeatedly during trial. Even so, his pro bono counsel had to argue for a new trial over the objection of the State’s Attorney in his rural home jurisdiction. It was only after being granted a new trial that an agreement could be negotiated for his release.
But being released into the cold of a November evening in downtown Baltimore, wearing nothing warmer than a t-shirt and without family, friends or resources, was just the first hurdle for many of the Unger clients. Were it not for their pro bono lawyers and social workers (from both the Office of the Public Defender and the University of Maryland School of Social Work), these clients would have lived on the streets or, with luck, found themselves in homeless shelters. Instead, they received help they needed to cope with the new world into which they were thrown. Post-conviction Chief Attorney Becky Feldman helped pro bono counsel coordinate every step.
The client I mentioned at the beginning of the column, left prison after 44 years. At age 60 he had nothing and no one. Fifteen months later, he had a job, an apartment, the support of social services and even a female friend. He finally achieved what too many of us take for granted—he had a life. And he was extremely grateful for it. That he spent only fifteen months as a free and law abiding citizen before suffering a fatal heart attack does not diminish that life, nor the great satisfaction of those who helped make it possible. Not every pro bono representation is so dramatic. But each time we help someone else expecting nothing in return, we rediscover the value of things we may take for granted—whether it is freedom or time with our children or something far more mundane. We are reminded to treasure what we have, as well as our unique ability to help others less fortunate. I hope you will consider volunteering to perform intake or to accept a pro bono case in your area of expertise. If nothing else, I promise you that some aspect of the experience will make you feel grateful.
Our client experienced his first moments of freedom in 44 years, met by his pro bono counsel, Stan Reed.