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You Can't Unring the Bell

Catholic Lawyer Takes on High Profile Death Penalty Cases

BY BARTHOLOMEW JAMES

San Francisco attorney Robert R. Bryan had no intention of fighting the death penalty or battling racism or becoming Catholic. Attending law school at Samford University in Birmingham Alabama, he even had no intention of becoming an attorney. "I wasn't really interested in practicing law when I went to law school," he said. "I went just because I thought it would be a good background for whatever I ended up doing." Shortly after he graduated from Samford in 1967, what he ended up doing was working as an assistant to the vice president at De Havilland Aircraft in Toronto, Canada, a plum position with a bright future.

But, having grown up in the Deep South in the 1940s and '50s, Bryan had seen racial disparity and injustice first hand, and the experience had left an indelible impression on his psyche. "And I got a real guilty feeling about leaving the South because of the racism, which was so thick you could cut it with a knife," he said. "I felt badly about having left with all that going on; my feeling was that if everybody who had distaste for that sort of thing left the South, then it probably would not change very quickly." Bryan 's restless conscience compelled him to consider reactivating his dormant law degree. Since, after law school, he had passed the state bar exam and joined the Alabama State Bar Association, all he needed to do to begin his personal crusade was to leave Toronto and return home. "I thought, 'damn it, I have this ticket where I can go out and do some good, and I ought to go back to the South and do it,'" he said.

Bryan resigned from De Havilland and returned to Alabama at the end of '67. Doing criminal defense work, he noticed that the criminal justice system seemed to consist of mostly white juries, white judges, and black defendants. In his first capital case at age 26, Bryan won an acquittal for a client and then continued on, specializing in death penalty and civil rights cases. "And as they say, the rest is history," he said. That history included a conversion from his original Baptist faith to Catholicism and an eventual move west, as race relations and the political climate in Alabama improved. After nine years of practicing law in the South, Bryan decided to migrate to California at the suggestion of a lawyer from New York, who was working on a case with him. "He said to me, 'things are changing here, and you ought to think about bigger fields of battle,'" Bryan recalled.

In the ensuing years, Bryan has been involved in several of the most high-profile criminal and death penalty cases in the country, including one of the defendants from the controversial shoot-out between American Indians and the FBI at the Pine Ridge Indian Reservation in South Dakota in 1975. Bryan, the following year, won a dismissal of murder charges against defendant Jimmy Eagle. Beginning in 1981, Bryan represented Anna Hauptmann, the widow of Bruno Richard Hauptmann, who was electrocuted for the 1932 kidnap-murder of the infant son of aviator Charles Lindberg. Anna, who had maintained her husband's innocence, asked Bryan to help her clear his name. Bryan worked on the case for more than a decade, eventually unearthing evidence from FBI files and other government sources that called into question Hauptmann's guilt.

Bryan said this evidence, including an FBI fingerprint report, was withheld from the jury in Hauptmann's trial. "It was suppressed material," he explained. The fingerprint report revealed that the FBI had taken the prints of the kidnapper from ransom notes. When Hauptmann was later arrested in September 1934, his prints were compared with those on the ransom note, and they were different. "But that was suppressed," Bryan said. "Now that would have been pretty impressive to a jury; that's right up there with DNA evidence. But he was electrocuted." Bryan plans one day to tell the full story in a book.

Bryan served a stint as chair of the National Coalition to Abolish the Death Penalty, from 1987 to 1990. That role required periodic trips to the coalition headquarters in Washington D.C. and interaction with Catholic priests who were involved with the organization. Impressed with their commitment to the cause, Bryan began to consider changing faiths.

It was the second time in his life that he had noticed that Catholics seemed unusually committed to social justice causes. Between college and law school, he had spent a short time on Capitol Hill when civil rights legislation was enacted in the mid-1960s. "And I was just very impressed that in the civil rights struggle these [priests] were out marching and fighting and manning the barricades, so to speak, fighting against injustice and oppression." At that time he was still a Baptist. "And it wasn't the Baptists you were seeing out front. The Baptists and these other fundamentalist denominations were trying to keep black people out, whereas [the Catholics] were on the barricades saying, 'we're all the same, we're all equal, and discrimination is wrong,'" he said. Bryan decided to disassociate himself from the Baptist Church. "I got to the point where I felt that it was just totally out of step with my beliefs, and I could not morally continue, so I stopped going to the Baptist Church," he said. "I thought it was the ultimate hypocrisy that these deacons who sit in the front row on Sunday are the people hollering for executions and saying that black people should not sit at the same lunch counter, or attend the same schools and churches."

Bryan became a Catholic in 1994 after marrying his French-Catholic wife, Nicole, who, along with the birth of their daughter, provided the final catalyst. "It did seem to me like Catholicism was a natural thing, and I felt very strongly about it; I just felt like it was the right thing to do," he said. The couple initially married in a non-Catholic ceremony and then, later, after Bryan's confirmation, had a Catholic wedding.

Last year, Bryan agreed to represent Mumia Abu-Jamal, who was convicted and sentenced to death in 1982 for shooting a police officer in Pennsylvania. For years, the Abu-Jamal case has drawn international scrutiny of the death penalty in the United States, and Bryan is in the process of preparing a new post-conviction challenge to the conviction. In connection with the case, Bryan has lectured at universities in Europe and at small gatherings of Abu-Jamal supporters.

The 62-year-old Bryan attributes his drive to his parents, who insisted that their children had to do better than they did. "Not necessarily financially," said Bryan, "but we had to do better things with out lives -- each generation had to improve over the previous one." Bryan said his mission to end the death penalty stems from his moral beliefs and not just his faith. "I just think it is wrong to kill people," he said. "And it's not any less wrong to kill somebody through the judicial process, invoking the name of God, [saying] 'may God have mercy on your soul' as they're about to [execute] them," he said. A 1976 Supreme Court decision reinstated the death penalty in the United States, and Bryan believes politicians have exploited the issue for self-promotion ever since. "Politicians, even people running for garbage collector, are the ones who shouted the loudest, 'I'm going to be tough on crime and execute people,' and that translates to votes," he said. "It's something I call the politics of death."

But Bryan sees public opinion gradually shifting away from acceptance of the ultimate punishment. A steady stream of death row inmates have been exonerated through DNA evidence, and in November, a Houston Chronicle investigation revealed that Ruben Cantu, executed by the state in 1993, was probably an innocent man. "Our legal system does make mistakes that can't be undone when somebody's life is taken, and I think that scares people," said Bryan. "It's been said that support for the death penalty is a mile wide but only an inch deep. And I think now it's less than an inch."

Bryan pointed out that DNA exonerations represent only a small proportion of faulty death penalty convictions, while equally significant mistakes made in other cases cannot be proven. Perhaps the most frequent "mistake" is ineffective defense counsel. Public defenders and court appointed attorneys who represent poor and indigent defendants often do inadequate pre-trial investigation, don't effectively communicate with the client, and don't do psychological or psychiatric evaluations of the defendant. Bryan emphasized that the problem of ineffective counsel is often the difference between a defendant getting the death penalty instead of life in prison. Even if a client is guilty, pre-trial investigation and mental evaluations are critical in finding mitigating factors that tilt sentencing to life in prison. "In most cases," said Bryan, "DNA is not even an issue; there can be a mistake but there is no way to prove it conclusively," he said.

Bryan rejects the logic of some Cath olics who say the death penalty is necessary to protect society, an argument often anchored by the writings of Saint Thomas Aquinas. "If there was any validity to that [logic] at the time [of Aquinas], it is much less valid today," Bryan said. "Executing is not necessary to protect society; there are alterna tives." One alternative is a sentence of life without the possibility of parole. In addition, most prisons are now set up with special housing for inmates who will never be released, protecting prison staff and other inmates from the worst of the worst. "The death penalty is not necessary to protect society, and if a mistake is made, you can't unring the bell once a person's executed," said Bryan. "It's too late then."

Robert R. Bryan may be contacted at 2088 Union Street Suite 4, San Francisco, CA 94123; (415) 292-2400.

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