\\4:J

death row.Scott Peterson, the California

man sentenced to death in 2005 forkilling his eight-month pregnantwife, Laci, is the only name thatjumps into Rossman's mind. It ismostly poor criminals who findthemselves at the wrong end of astate's nearly limitless legal resources- which Rossman often refers to asthe state's killing machine - and con-demned by society as individualsworthy only of execution. He canconfirm that there are none in histerritory, Ohio's death row: popula-tion 180.

Then he mentions OJ Simpson.As expected, this draws a laugh,because the infamous capital caseturned into an appalling media circusand fodder for countless late-nightcomics. The soft-spoken Rossmansmiles, but quickly tells his studentshow he sees it differently.

"OJ Simpson's trial was not theaberration, but the epitome of thesystem," he says."If every defendanthad the resources of the state, thenevery trial would be like that."

Relying on millions of dollars,Simpson hired the best defense team

One Man v. The OddsAttorney Alan Rossman is the last resortfor Ohio'sdeath row inmates.

By Christopher Johnston

On a chilly Monday night inDecember, Alan C. Rossman standsbefore a group of students armedwith laptops, BlackBerries and athick textbook titled CapitalPunishment and the Judicial Process.They have gathered in a library class-room at the Cleveland-MarshallCollege of Law at Cleveland StateUniversity, where this fall, Rossman,55, a federal public defender inOhio's new Capital Habeas Unit,Northern District (CHU), beganteaching his first class as an adjunctprofessor.

As a habeas or post-convictionattorney, Rossman is the last hope fora death row convict to present thefinal appeals that may convert a deathsentence to life in prison.

Tonight, he's walking his studentsthrough the nuances of using ineffec-tive assistanceof counsel as an appeal,because the Sixth Amendment of theU.S. Constitution entitles all citizensto counsel. Midway through the

C ~class, a student raises his hand to~~ inquire as to whether or not any

_ •••••••..,...~ •. ailluent people currently reside on

77

and countered the state, expert wit-nesses for expert witness, to get anacquittal. Most death row convictsmust rely on the maximum of$25,000 allotted by the state toemploy the two public defendersrequired for a capital case.

If the defendant is lucky, the courtwill allow one expert witness. If he isreally lucky, his attorneys will be com-petent, committed and clever enoughto maximize the roughly $12,500 theywill each receive to log more than 500hours of investigation. As Rossmaninstructs, this must include a thoroughsearch of school, medical and institu-tional records, as well as interviewswith family, friends, coworkers andneighbors who can give insight into adefendant's life.

Back in class,the student, searchingfor an absolute in the infinitely com-plex field of capital law, £lings up hishand once more. "So, everyone ondeath row is indigent?"

Mter surfing his mental database fora few moments, Rossman responds: "Iwouldn't swear to that. But I wouldn'tbet against it, either."

***

Since obtaining his Juris Doctorfrom Marshall in 1981, Rossman hasspent the majority of his career bettingagainst the belief that there's nothingto be done for indigent clients. "Thestate's machinery is committed tokilling someone, so everybody deservesa representative to stave that off," hesays. "As a civilized country, I don'tthink you can sit back and let the gov-ernment execute people without tak-ing on the fight."

A native of a different civilizedcountry, Canada, Rossman left PortColborne, Ontario, with Bachelor andMaster of Arts degrees from YorkUniversity, and moved to Clevelandone summer to sell paint. A year later,he decided to get a law degree. Afterpassing the bar in 1981, Rossmanworked brie£lyfor the ACLU, and then

78

joined the Cuyahoga County PublicDefender's office for six years, beforeembarking on seven years' practicewith one partner and 13 years of pri-vate practice. Initially,he handled civilrights and capital and noncapitalhabeas corpus cases, but by the late1990s, he specialized in the labor-intensive post-conviction field.

"You're looking at 10 years of liti-gation for habeas work, and recordsthat, by the time they get to habeas, are10,000- to 15,000-pages long," hesays."So you couldn't commit to thathonestly, without committing a largeportion of your practice to it."

Joining the unit in June and teach-ing at CSU this fall gave Rossman achance to come in from the cold. Notonly do capital cases pay poorly, butsolo public defenders often wait twoyears or more before judges pay theirbills.With minimal resources, irregularcash flow and no staff, Rossmanbecame somewhat of a hermit. Hewent to his Public Square office early,ate lunch at his desk, and left at 5 or5:30 p.m. so that he could spend timewith his wife Nancy and two youngchildren. An attorney herself, Nancyhad chosen to stay home for eightyears to raise the kids before returningto practice.

As if on cue, the phone rings.WhenRossman hangs up, he says,"My wifesaid to make sure to tell you that she isthe wind beneath my wings, so I'mofficially on record for that."

***

David Doughten, a sole practition-er who's known Rossman since theirdays in the county office, recalls beingasked by Dennis Terez, who directsCHU, to recommend a habeas attor-ney for the new unit. "Alan was thefirst name that came to mind," he says."He's one of the best at finding ways tokeep issues alive,where someone withlesser knowledge and ability wouldhavejust, frankly,let it go. But he winsthose cases."

Mike Benza, longtime friend andvisiting associate professor of law atCaseWestern Reserve University, con-curs with Doughten: "You'll be hard-pressed to find somebody who has agreater understanding of the nuancesof the law than Alan."

Another one of Rossman's closefriends and fellow public defenderswho all met in the county office,JohnParker, says:"Alan's new job with theCHU has been a fantastic opportunityto use his tremendous experience inthe field and finally have the resourcesto do what he does best."

As a member of CHU, Rossmancurrently enjoys the company of twoother attorneys, two investigators anda paralegal. One of those attorneys, anassistant federal public defender, VickiWerneke, keeps an office next to his.She moved here from a similar officein Oklahoma to join the unit lastsummer. She and Rossman hit it offimmediately, and they spend a lot oftime discussing their cases and assist-ing each other.

"Alan's been doing this for 10 years,and he's never had a client who wasexecuted," she says."So that's an amaz-ing record." She adds, though, that oneday,one of his client's luck will proba-bly run out, like it has for seven of hers.In fact, she witnessed their executions,an experience she labels horrible andsurreal.

Within the field of post-convictionwork, it is extremely rare to have noclients executed. In Oklahoma - a statethat kills prisoners with greater fre-quency than Ohio, and "takes thedeath penalty seriously," saysWerneke- she worked hard to make her clientsfeel human. Her office is filled withartworks that they made for her, frompaintings to handmade sailing ships.One executed client's family couldn't :afford a burial, and he didn't want hisremains on the prison grounds foreternity, so she raised the money to payfor a cremation; she keeps a small bot-tle of his ashes on her bookshelves.

l

------------------------------------------------------------~NorthernOhioLive i Jan/Feb 2009

***

Habeas attorneys frequently navi-gate through the dark side of civiliza-tion that defines death row.Whatevertheir level of guilt, the great majorityof these prisoners have emerged fromhellacious backgrounds that common-ly feature physical, psychological andsexual violence; neglect; malnutrition;lack of education; and alcohol anddrug abuse.

Describing the pool of death rowclients, Rossman told his class,"Whenyou're castinga play in hell, none of theactors will be angels." His ability toembrace such melancholy clientele isbuilt upon his belief in the Buddhistteaching that calls for the "joyful par-ticipation in the sorrows of the world."

For one client, Reginald Jells,Rossman has applied the ineffectiveassistanceof counsel strategy as part ofhis appeal efforts.Arrested in 1987 forthe murder of Ruby Stapleton, Jellsfirst entered a plea of not guilty, andthen waived his right to a jury trial.The three-judge panel that heard thecase sentenced Jells to death.

Rossman has alsoworked diligentlyto change Jells' story. In one of thebriefs submitted to the U.S. SixthCircuit Court of Appeals, Rossmanand co-counsel WilliamT.Doyle spentnearly two pages providing a partial listof the torments ofJells' childhood thatwere never presented to the trial court:a mother with boyfriends who regu-larly beat her while he watched or bat-tered him until he was bruised andbleeding; constant moves to escapethese men; his mother's descent intoalcoholism; regular beatings at thehands of school bullies;and the inabil-ity at age 14 to read more than oneword at a time due to severe,unattend-ed learning disabilities and Jells' ownborderline intelligence.

At one point, frustrated and inse-cure from the ongoing victimization,Jells locked himself in a closet and setthe closet on fire.

While it's true that Jells is a deeplytroubled man, what of the victim,Ruby Stapleton, who was killed, herfamily devastated? Dealing with thatdilemma and with the ongoing burdenof getting past the violence their

clients commit leads to good and baddays for public defenders, saysRossman.

"It's very dangerous to becomeinsensitive to the pain and sufferingthat's been caused, so you can't be," hesays."On the other hand, that doesn'tdetract from your commitment towhat you're doing, and that's the greatchallenge of this work."

Another challenge is occasionallyfinding ways to dodge the darkness,according to Doughten. "We all dealwith it in different ways," he says."Some people watch Indians baseballgames.Some people drink. Some peo-ple do art."

Doughten's preference is the for-mer.When Rossman's crew of capitallaw chums - the only ones who canfully understand what the others expe-rience - were younger, they oftenspent their evenings at MunicipalStadium for beer, baseball and non-legal badinage. These days, Rossman'smain escape is art.Although Doughtendoesn't understand all of the intenseimages created by his cohort, he keepsa number of Rossman's paintings in his

79

law offices, mainly because, he jokes,"Nancy wanted to get them out oftheir basement."

"There are few guys who do habeaswork in the afternoon, come home anddealwith their kids,and then paint,"saysRossman's friend James Levin, an attor-ney who knows the arts well - Levin isco-founder of ClevelandPublicTheatreand executive artistic director ofCleveland's Ingenuity Festival."Alan isan unflappable guy, who possesses an

intriguing balance of gentleness,tough-ness and smarts."

***

This fall, concurrent withRossman's class at Cleveland State,two men were executed in Ohio:Richard Cooey and Gregory Bryant-Bey, who became the second con-demned inmate put to death this yearin Ohio and the 28th overall since the

web + print

80

state resumed capital punishment in1999. He was the 34th condemnedinmate put to death in the UnitedStates in 2008, and the 1,133rd over-all since the nation resumed execu-tions onJanuary 17,1977.

They probably would have pre-ferred otherwise, but for Rossman,the two executed men served as casestudies of the social theories ofjusticeand the deterrent effect of capitalpunishment, particularly Bryant-Bey,whose execution was not widely cov-ered. "The Plain Dealer, Ohio's largestnewspaper, ran no mention of it,according to Rossman.

"There are real legitimate argu-ments now that we've sanitized execu-tion so much that if it's not even news,then maybe there are no more retribu-tive underpinnings," says Rossman."Because, if you don't announce thepunishment, then there's some ques-tion as to whether or not it serves anysocial theory at all."

So for now the death penalty, fairlyadministered or not, deterrent tohomicide or not, remains, keepingRossman fully employed helping "theworst of the worst" in their lonely fightagainst the state killing machine. Hasthere ever been anyone so remorseless,so inherently evil, who he wouldn'teven consider representing?

"There are not too many fights incases of execution that I wouldn't takeon, but ... " saysRossman. He pauses."Idon't know of any cases of executionthat I wouldn't take on."

Sitting in his office, Rossman leansdown and pulls another escape mech-anism from his briefcase: a dog-eared,rubber-banded, 50-cent paperbackcopy of Walt Whitman's Leaves ojGrass. At his desk, under a portrait ofAbraham Lin-coln, hero to Whitmanand altruistic attorneys everywhere,Rossman quotes the poem, "Song ofthe Open Road," and then says:"Whitman was able to find a sense ofpeace even amidst the jarring tragedyof life itself. That's where we all needto go." •

Northern Ohio Live Jan/Feb 2009