Richard Bourke leans back in his chair and spreads his arms open wide, as though he were being crucified. Eyes transfixed on the ceiling, he exhales long and slow, and tears prickle at the corners of my eyes. This is what it looks like when death row inmates – Richard’s clients – are strapped down and the life is taken from their bodies. As a capital defence lawyer, Richard has had to watch this scene unfold too many times.
“He’s lying there, crucifixed, strapped to a table with a microphone dangling over his face to catch any last words. They leave that there during the execution and so at the point he is given the drug that collapses and paralyses his system, there’s this large exhalation of air as his lungs collapse, it’s like,” Richard makes a whooshing sound, exhaling his whole breath, “[in] the microphone. And you stand there and you watch… Your client’s face turns sallow and their lips turn blue and eventually a doctor comes into the room and confirms that they’re dead.”
The US death penalty was reinstated in 1976 and since then 1423 people have been executed. At last count more than twice that – 2984 people – are currently on death row, waiting for their moment in the chair. The practice is particularly prevalent in Louisiana, where Richard works as the director of the Louisiana Capital Assistance Center (LCAC), a non-profit legal office in New Orleans that provides legal representation for people without large financial means who are facing the death penalty. The state of Louisiana has the country’s highest rate of incarceration, while New Orleans’ murder rate is more than triple the average for comparably sized US cities.
But real-life crime productions like Serial and Making a Murderer have recently showcased how guilt isn’t always so cut-and-dry. Columbia University School of Law looked at just over half the US states and found that, over a 23- year period, two thirds of death penalty cases were later deemed by higher courts to have serious flaws. In fact, for every 10 people executed since 1976, one person has been released from death row before execution.
“You see a really mixed bag in these exonerations,” says Richard. “Very often it’s the prosecutor on misconduct, the prosecution hid evidence or cheated or so on – it’s very common. You see simple errors; eye witness identification is very error-prone, but in the courts it’s treated as if it’s gospel. You see defence lawyers who are appointed for poor people who can’t afford their own lawyer who make terrible mistakes because they’re just not well-trained, not well-funded, not well-resourced.”
He’s not exaggerating. Clive Stafford Smith, an English lawyer who was key in establishing the LCAC, worked on a retrial of a death penalty case where the initial lawyer had actually slept through the trial. Clive only needed to stay awake to do a better job. Because of the work from organisations like LCAC and the Innocence Project, which helps exonerate prisoners through DNA testing, more wrongful convictions are being overturned.
Just last year, Anthony Ray Hinton, who spent 30 years on death row after being convicted without evidence or witnesses linking him to the crime, was released, becoming the 152nd person exonerated since 1983. The year before, a Louisiana judge released Glenn Ford, an African American man who was convicted by an all-white jury and who spent 30 years on death row, much of it in solitary confinement, for a murder he didn’t commit.
“The prosecution agreed in the end, they just had the wrong guy. They got the wrong guy,” says Richard. “When he was released, he was released with stage four cancer because of the terrible medical treatment within American prisons and [the cancer] not being identified or responded to earlier.” Glenn had 15 months of freedom before he died from lung cancer in June 2015.
But even in cases where innocence isn’t a question, Richard believes the system is skewed. For a juror to even serve on a capital trial, they must be ‘death-qualified’ or, in other words, they must say they’re willing to vote for the death penalty before anyone takes the stand. And when it comes to the case being presented to the jury, if a black murderer’s victim is white, prosecutors are several times more likely to seek the death penalty. In Louisiana, the odds of a death sentence being handed down is 97 per cent higher for those whose victim was white.
These trends may have historical roots – a study by New York’s Columbia Law School found southern counties, where lynching was once most frequent, are today’s most “enthusiastic” death-sentencers. It can be a confounding situation in what is essentially the nation’s Bible Belt. In one of Richard’s cases, the prosecutor told the jury that, “Jesus had said that anyone who killed a child should have a millstone put around their neck and be thrown in the deepest ocean,” and that the jury “shouldn’t lightly disregard what Jesus himself had said.”
“But Jesus didn’t say that in his scripture and when we got on the case we got affidavits from Biblical scholars to say, ‘No, he didn’t say that at all,’” says Richard. “Being part of the Bible Belt just depends on which Bible you’re reading I guess.” It’s a world away from the Melbourne-based criminal law practice Richard once ran. The fifth child of a GP and a lawyer, Richard spent a lot of time working with homeless youth while studying law; one summer attending five funerals.
Though he wasn’t sold on a legal career, he realised the underprivileged needed good lawyers. In 1998, he interned at LCAC before returning home and setting up Reprieve Australia, an organisation that sends volunteers to help with death-penalty cases. In January 2002, the then-31-year-old took an extended break from the Victorian Bar, shutting his practice for what he thought would be no more than a year, and heading to Louisiana.
“It’s 13 years later and I’m still there,” laughs Richard, who, along with his wife (an LCAC lawyer), was forced to seek refuge in Houston, sleeping on a mattress on the floor and borrowing electricity from the house next door, after Hurricane Katrina hit in 2005.
“I’m in a very specialised and narrow area, and so I didn’t have to learn all of the law. It’s a learning curve, there’s no doubt about it, but the actual technical aspects of the law are the least challenging part of the job. That’s just learning something and remembering it.”In the years since, Richard has interviewed countless jurors who have voted for the death penalty, trying to understand their reasoning. He still recalls sitting in one man’s living room, discussing the ballet class of his primary school-aged daughter and the man’s dreams for his own family. “He was a good man. He had a different view of the death penalty than I did, but that didn’t make him a barbarian,” says Richard.
The LCAC have found the best strategy they have for fighting capital punishment is storytelling. They aim to share the defendant’s story: what their childhood was like, the moments that broke them, the family members that care.
It’s a powerful strategy. In 2003, Richard was defending Chuck Winfree who had been in a complicated situation where he was both a victim (he was tied to a chair and threatened) and a perpetrator, eventually shooting three people. The last victim was a 17-year-old girl whose final words were, “Please don’t shoot me, I’m pregnant.”
The defence team made a video of Chuck telling his life story from inside his cell – how he lost his mum when he was young, the experience of having a child of his own and the remorse he had for his crime. The teen’s mother watched the video and requested to meet Chuck. They met alone, no lawyers, no rules and Chuck shackled to a bench. The meeting lasted an hour and a half and ended with her hugging him saying, ‘I’m going to fight for you, Chuck.’ She did just that, asking for a life sentence and not the death penalty, in court three days later, while Richard had tears running down his face.
But not every story has the same ending. Another client, John ‘Jackie’ Elliott, was imprisoned when his son was only two months old and Richard helped raise money to fly the now-18-month-old to see his father before his execution (though the State denied a contact visit and they spoke through Plexiglass). “To be able to be there and help bring Jackie’s son from another state to be with him at the end, and put them back together before his death, was tremendously meaningful,” says Richard.
Despite new evidence of a key witness lying and the discovery of 40 previously undisclosed police statements, a stay for the execution wasn’t granted. Instead, Jackie – who, on his last day, gave his lawyers a message that he hoped would help another prisoner – was executed. Richard stood next to Jackie’s sister and son as they watched Jackie turn his head to the side and mouth to his son, “I love you”. His son touched him for the first time, in a long time, at his funeral. So how does Richard still have hope?
“I think you’ve got to look for hope wherever you can find it. Human beings are wonderful. And so this terrible thing happened but I got to meet Jackie, I got to meet his family and what I’ve got to say of them was really uplifting. You get to work with people and see them choose not to kill. And you get to help your clients, even if you can’t save their lives.”
It was a sentiment he shared at TEDxSydney in 2015. “My daughter saw me do a rehearsal for the TEDx speech and told me it was the worst speech ever and it was just too depressing. Fair enough for her to say that, but you know, my work is not depressing, I have a great job and every day I get to go to work and try to persuade people not to kill. And that’s a great job.” Ideally, Richard would like to see the death penalty removed from the judicial system and believes the first step would be a moratorium – a temporary ban while capital punishment is debated and evaluated.
“But those who are pushing the death penalty bandwagon know that if that ever happens, that’s the beginning of the end,” says Richard. “If you stop the momentum, if you prove that you can go without the death penalty for a few years and the earth doesn’t stop spinning on its axis, then it will be eliminated, because it makes no sense as a matter of public policy.“It’s obviously a mess, we’ve got innocent people being sent to death row. In Louisiana, where they’re exonerated from death row, [we’ve] established the innocence of three times as many prisoners as we’ve executed in the last 10 or 12 years. I mean, the system’s a mess,” says Richard. “Then you’ve got these, ‘We can’t do the executions’ problems.”
It’s this latest problem that’s been driving a recent wave of anti-death penalty campaigns. Officials have been facing shortages of the drugs used in lethal injections as drug companies pull them from sale and even the European Union banned their export. Instead many states have turned to compounding pharmacies, whose names are kept secret, to develop drugs without any transparency as to what they contain. In October 2015, the state of Arizona tried to illegally import a lethal injection drug, before it was stopped by federal agents at the airport.
From Richard’s description, the system seems stuck running in a hamster wheel breaking apart under its feet.“They’re violating federal laws, importing drugs, lying to pharmacists about what they’re going to do with them when they get them. They’re buying drugs off each other like some weird interstate cartel. You know, the posture they’ve gotten themselves into is ridiculous and it’s because they won’t stop and say, ‘Let’s look at this seriously.’”But there’s hope yet. Despite officials placing an illegal order for lethal injection drugs from an Indian company just days before, during our interview the state of Nebraska abolished the death penalty. “I think human beings are amazing. I think we do terrible things to each other but it is amazing to see the strength and resilience of human beings in responding to that.”