The Great God Chance
A few years ago, my son, Greg, called me and asked me if I would be willing to participate in a Merrimack College project that his best friend, Andrew Ferrara, had been assigned. I indicated that I would be glad to and invited Andrew to call me. Andrew called me and outlined his project which was to interview a professional. He already had a set of questions that had been provided as an outline for the project.
I welcomed the opportunity to work with Andrew who was almost part of the family in that Greg spent a considerable amount of time at his house and he spent a considerable period of time at our house. I asked Andrew to email me the questions so that I could sketch out some answers in advance and then we could schedule the interview.
Andrew sent me an email with a list of the questions. At that time, I used a Blackberry and, as you may be familiar, the screen of the Blackberry was very small. As I was in the habit of doing when answering questions, interrogatories, and, ultimately, editing drafts, without reading the email, I immediately copied it, hit reply and then pasted the set of questions in the reply so that I could see and address them one at a time.
The first question asked me to discuss the individuals and events that played the most significant role in my choice of my life’s work. I began the answer by confessing that there were too many individuals and evens that contributed to my choice of my life’s work. I continued saying that, if I was boldly honest, I would have to say that the Great God Chance was the most significant influence on my choice of my life’s work. I then went to the second question. The second question asked, “what role did CHANCE play in your choice of your life’s work?”
I tell that story as a springboard to this essay whose goal is to outline, simply stated, “from there to here” and the role that chance played.
Ignoring for the moment the substantial chance event that, as a 12 year old, I lost my father, the Great God Chance overtly intruded in my life, again, as a plebe at the United States Military Academy. I entered the Academy on July 1, 1970. In large part as a result of my unparalleled Jesuit preparation, I was fortunate to perform well as a student, ranking as a star man in the top 2% of my class of 600 cadets. I also had an extraordinary run as the leading plebe wide receiver and return man. My quarterback was Kingsley Fink. He and I lit it up. We had something special. My plebe coach was a wonderful man who loved me very much, Col. John Johnson. Coach Johnson was a two-time decorated Vietnam Veteran who had played and starred, going both ways for Paul Dietzel in the famous1964 game in which Army upset the Navy team lead by Heisman trophy winner, Roger Staubach. In spring practice, now as a varsity player, I had the opportunity to play under Bill Carpenter, the famous Army lonely end, who coached the receivers. Fink to Farrell would soon make its mark on Army and college football.
However, in the spring of that year, Chance, again, visited. My high school sweetheart, Meg, was expecting our first child. We loved each other very much. We decided to marry, a decision which would require me to leave the Academy since cadets were not permitted to be married.
At that time, the football program made public that I was leaving the Academy. The former Army coach, Paul Dietzel, had moved to coach the University of South Carolina. Larry Smith, who had been Dietzel’s first assistant at Army, moved as head coach to Florida State. Both offered me the opportunity to play on NCAA Scholarship at their universities. I also received an offer from Idaho State which was also coached by another former Army coach.
Coach Dietzel had coached Coach Johnson who also happened to hail from Winnsboro, South Carolina, about 25 miles from Columbia, the home of the University of South Carolina. I decided on the University of South Carolina. My oldest daughter, Kristin was born on December 9, 1971. I was 19. My daughter Margaret Mary was then born on January 22, 1974. Meg and I, now, had 2 children before we were 21.
I, now, found myself married, with 2 beautiful daughters, living in Hendley Homes, a public housing project where the only families, not of color, were Gamecock married football players. Our rent was $25 a month, and we lived on food stamps and a $135 monthly food, board and laundry check that we received from the Athletic Department as part of my football scholarship. Neither Meg nor I ever imagined, in our wildest dreams, being in the place we found ourselves.
As I briefly referenced above, I had the great fortune to have received a classical humanities, unparalleled high school education at the Jesuit high school in Philadelphia, St. Joseph’s Prep. I had four years of Latin and three years of Greek. I also had advanced mathematics covering calculus and analytic geometry. I had started my college education at West Point with its concentration on math and engineering. When I came to South Carolina, I explored being a math major as well as a major in the sciences. Initially, I was a math major. Unfortunately, as an NCAA Scholarship football player, my obligations to play spring football as well as our fall season precluded me from taking labs in the spring semester or the fall semester. I was married and had two children before I graduated, having my first child before I completed my first year at South Carolina. Also because NCAA rules prohibited athletes from working while in school, I needed to earn during the summers and, therefore, couldn’t stay in Columbia, South Carolina for summer school and those labs. I had to return to Philadelphia to earn money to support our family for the year. Therefore, I changed my major to history with a minor in International studies.
For a long time, I was unable to view myself as a scholar-athlete. The meaningful life for me had always been as a warrior-poet — the path of Ulysses, my first and continuing hero. Then, as a junior, I took a course taught by Peter Sederberg, entitled, “Violence and Revolution”. In this course, chance, again, intruded. I was introduced to Abraham Milgram’s landmark Yale study on human nature’s ability to do evil, if ordered to do so by legitimate authority. At the time, each day, I was observing the “Meat on the Hoof” environment of big-time college football and its daily affirmation of Milgram’s findings. I now found myself, again, as scholar and resumed my contest living as a warrior-poet. I read Jake Scott’s “Athletic Revolution” and met the poet-wide receiver “Shake” Tiller in Dan Jenkins “Semi-Tough”. Even though it did not occur to me at the time, I would later acknowledge college football radicalized me.
Even though I had been a two year starter and leading receiver, I was not good enough to play professionally. On a whim, I took the LSAT in the winter of my senior year and did well. I had a high GPA and decided to apply to a number of law schools, and, of those that accepted me, I chose Georgetown because of its commitment to clinical education. I believed that the only way to really learn was by doing, so after a disappointing summer in Louisiana, I showed up in D.C. in late August, 1975 with just $50 in my pocket and nowhere to live.
I found a place to live and successfully completed my first year of law school. First year law students at Georgetown had no access to clinical programs, but, in the second year, there was a single clinical program called “Street Law” that was available. I ventured into it.
Street Law was a program designed by Professor Julius Neumann at Georgetown Law School, and its vision was to train second year law students at Georgetown to teach seniors in the D.C. high schools all of the law that they needed in their everyday lives — contract law, property law, family law, criminal law, etc. When I entered the program in 1976, it had broadened is scope to include juvenile and adult correctional institutions in Southern Maryland and Northern Virginia. I was assigned to teach the first Street Law course at Lorton Prison, the prison for the District of Columbia. At that time, the District of Columbia had one of the leading murder rates of any American city, and, therefore, many persons convicted of violent crimes were guests of Lorton.
After teaching three or four weeks, approximately six or seven classes, I was sitting in tax class when a messenger came in and handed a message to Professor Sobiloff. Professor Sobiloff looked up and said, “Farrell, you are wanted in the Dean’s office.” I had never met the Dean and, inescapably, concluded that this was a problem andI was in trouble. As instructed, I immediately left class and proceeded to the elevator up to the floor where the Dean’s office was. The Dean was waiting for me as the elevated opened. He said to me, “Mr. Farrell? I’m glad to meet you. I’m Dean McCarthy. Thank you for coming as quickly as you have. We have a problem.” This was no surprise since I was convinced that I had a problem. The Dean walked me to the private entrance to his office, invited me to sit and sat behind his desk. He then addressed me and said, “Mr. Farrell, as I already said, we have a problem. I have the Commissioner of the Department of Corrections of the District of Columbia on the phone. The inmate population at Lorton prison has went on strike. They will not leave their cells, and they won’t talk to anybody but you.”
My being launched into this standoff must be considered in the context of coincident historical events. The Attica Prison riot, also known as the Attica Prison rebellion or Attica Prison uprising, occurred at the Attica Correctional Facility in Attica, NY in 1971, just five years before. The riot was triggered by prisoners’ demands for better living conditions and political rights. The riot was one of the times most well-known and significant uprisings of an emerging Prisoners’ Rights Movement.
On September 9, 1971, two weeks after the killing of George Jackson at San Quentin State Prison, about 1,000 of the Attica Prison’s approximately 2,200 inmates rioted and took control of the prison, taking 42 staff hostage. During the following four days of negotiations, authorities agreed to 28 of the prisoners’ demands but would not agree to demands for complete amnesty from criminal prosecution for the prison takeover or for the removal of Attica’s superintendent. By the order of Governor Nelson Rockefeller, state police took back control of the prison. When the uprising was over, at least 43 people were dead, including ten correctional officers and civilian employees, and 33 inmates.
Until the 1960s, prisoners were slaves of state. Then, a few key U.S. Supreme Court cases, combined with the power of the civil rights movement drastically changed how prisoners were treated in the United States. In 1866 the U.S. Supreme Court of the United States ruled that prisoners have no constitutional rights in the case Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1866). In 1871, a Virginia court, actually, called a prisoner a “slave of the state.” These cases said that a prisoner forfeits not only his liberty but also personal rights if convicted of a crime. For nearly 100 years, this “hands-off” doctrine meant the federal government did not interfere with state incarceration practices and policies.
Then, in the 1960s, a prisoners’ rights movement emerged. Jones v. Cunningham, 371 U.S. 236 (1963), argued in the Supreme Court of the U.S. in 1962 and decided in 1963, said that state inmates had the right to file a court order of habeas corpus and challenge both the legality of their sentencing and the conditions of their imprisonment. This set the stage for a landmark case for prisoners’ rights: Cooper v. Pate, 378 U.S. 546 (1964).
Cooper was an inmate at the Illinois State Prison. He was denied permission to buy certain religious publications, and stopped from consulting with ministers of his faith or attending religious services, solely because he was a Black Muslim. The Warren Court agreed to hear his case. In 1964, the Court ruled in a unanimous vote that prisoners had the right to protection under the Civil Rights Act of 1871.
The floodgates for prisoners to air their grievances about the conditions of their imprisonment were now opened. Lawsuit after lawsuit was filed in the 1960s and 1970s. Many leading prisoners’ rights lawyers had a significant amount of experience working for black civil rights, and they used the language and ideas of the civil rights movements to start a new body of law for prisoners.
Prisoners were getting attention around the United States, not only for the abundant amount of lawsuits but also because of interest in rights due to the Attica Prison riot. As prisoners gained rights, they also began to write and publish books about their experiences, and prison memoirs became very popular.
Two of the notable cases for prisoners’ rights following Cooper v. Pate were Johnson v. Avery, 393 U.S. 483 (1969) and Bounds v. Smith, 430 U.S. 817 (1977). Johnson recognized, under the 1st Amendment, constitutional right of meaningful access to the courts, the right to the assistance of a jailhouse lawyer. Bounds, again under the 1st Amendment, recognized the right to access to a law library. Both of these cases and others, further solidified a turn away from the “hands-off” doctrine of the past and advanced the quality of jailhouse lawyering.
After meeting with Dean McCarthy, I proceeded immediately to Lorton and met with Anton Forbes who was the leader of the inmates and a student in my class. Along with a classmate of mine, Stewart McCloy, we founded a program which we called Legal Awareness Within (LAW). As part of this program, we exacted an agreement from the DC Department of Corrections to permit Stewart and I to train 15 jailhouse lawyers a semester and they agreed to provide us with a clinic office where the jailhouse lawyers, that we trained, could staff and provide legal assistance the inmate population. Inescapably, the content of the jailhouse lawyer program outlined the tools to attack an individual’s conviction and conditions of confinement both in the D.C. Superior Court, D.C. Court of Appeals, as well as in the United States District Court, and US DC Circuit Court. The specific tools covered were statutory and common law state and federal habeas corpus as well civil rights actions. The tools included but were not limited to Petitions for Post-Conviction Relief under the D.C. code, federal habeas pursuant to 42 USC £ 2254 and/or 2255 U.S. District Court for the District of Columbia, 42 USC £ 1983 and appellate advocacy on appeal. We trained 15 jailhouse a semester for 3 semesters.
Additionally, the D.C. Department of Corrections agreed to our request that law students be permitted to represent inmates at disciplinary hearings on Saturday mornings. As a result of that agreement, every Saturday morning for almost two years, with few exceptions, I traveled early Saturday morning to represent inmates charged with a range of disciplinary offenses, from a full range of assaults, between inmates as well as assaults on correctional guards, to possession of contraband (i.e. weapons, drugs, food from the cafeteria, pornography). This opportunity to cross-examine correctional officers and inmates for a couple of hours every Saturday for almost two years provided extraordinary experience and started me on the pursuit of the 10,000 hours needed to approach trial lawyer genius.
The program got some attention. The D.C. Bar Association was supportive. The Park Avenue Edna McConnell Clark Foundation, headed by the accomplished Jack Coleman, also supported the program.
Add to the mix, the fact that the Congress of the U.S. established the LEAA by the Omnibus Crime Control and Safe Streets Act of 1968. The Law Enforcement Assistance Administration (LEAA) was a U.S. federal agency within the U.S. Department of Justice. It administered federal funding to state and local law enforcement agencies and funded educational programs, research, state planning agencies, and local crime initiatives. The Act ,subtly, increased incarceration by enabling corporations to re-introduce prison labor.
The purpose of the Agency was to encourage and provide federal funding for law enforcement officers all across the country to obtain their Bachelors, Masters and, ultimately, Ph.D. and spawned a new field, criminal justice. Criminal Justice programs were born in every state and private universities to take advantage of this service station opportunity to serve the law enforcement market of their state with solid, guaranteed federal funding.
Our LAW program and my role in it came to the attention of my alma mater, the University of South Carolina. When you score touchdowns, they make you offers that you don’t deserve. I went down to South Carolina and interviewed, and they offered me an Assistant Professor position in their young College of Criminal Justice. I accepted it.
The Great God Chance continued its direction. Within months of teaching, I had a student by the name of Bob Grisso in one of my classes. He approached me one day and asked if I would have lunch with his father. He indicated to me that his father was a former U.S. Attorney for SC, and the lawyer, who had recently been asked to represent James Terry Roach, who was a guest of SC’s death row, only blocks from my University office. Terry, 17 at the time of the crime, was the first of three defendants charged in the first Capital murder prosecution after the U.S. Supreme Court’s resurrection of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). For years earlier, the High Court, in 1972, had struck down the death penalty as unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972), essentially created the hope that America had abolished the Death Penalty.
The crime was a horrific double murder of two teenagers, necking in a school parking lot. One of the victims was related to a prominent politician. However, the facts established that Terry, 17 at the time of the crime, was under the influence of a 24 year old military policeman, was borderline mentally retarded, and was suffering from a brain deteriorating disease called Huntington’s Chorea. Further, Terry was represented by an attorney who was under investigation for distributing cocaine. Terry was arrested, pled guilty before a Judge who had voted for the death penalty, and was sentenced to die in 44 days. His conviction and sentence had just been upheld by the South Carolina Supreme Court, and he was on the threshold of his first Petition for Writ of Certiorari in the U.S. Supreme Court and, ultimately, state post-conviction and, if unsuccessful, federal post-conviction.
I agreed to represent Terry. I represented him for almost eight years. Terry was executed on January 10, 1986, the 2nd person executed by SC Post-Gregg. JC Shaw, the 24 year old military policeman, was also executed before Terry.
Three times on petitions for certiorari, I failed to interest the U.S. Supreme Court in holding that the 8th Amendment bars the application of the death penalty on a minor, that is, an individual who is under 18 at the time of the crime. Less than 25 years later, in the case of Roper v. Simmons, 543 U.S. 551 (2005), a majority of the U.S. Supreme Court agreed with me.
I also unsuccessfully argued that the 8th Amendment barred executing the mentally retarded at the time of the crime. Sixteen years later in Atkins v. Virginia, 536 U.S. 304 (2002), a majority of the Court agreed with me.
Further, Terry was never found to be the trigger man. Twenty-one years later the U.S. Supreme Court in Tison v. Arizona, 481 U.S. 137 (1987) ruled that the 8th Amendment barred the execution of non trigger men except in exceptional circumstances which did not apply in Terry’s case. Terry’s trial attorney had specifically pled Terry guilty on the doctrine of “the hand of one is the hand of all”. Terry never admitted or was factually found to be a trigger man.
We put on a state post-conviction hearing for a number of weeks, calling an expert pharmacologist who testified that Terry, who had mainlined PCP 30 minutes before the crime, was substantially impaired and his capacity for intent substantially diminished. We also introduced a reading comprehension expert who opined hat Terry’s guilty plea was not knowing or voluntary, because the only words that Terry uttered during his plea were yes or no. The reading comprehension expert testified that Terry couldn’t read the transcript, let alone understand what was being said orally.
The Great God Chance, again, revealed its magic. Only days before the hearing, Bud Grisso’s son Bob, my student who had introduced us, was in a head-on collision in Hilton Head and was in critical condition. Bud, without question, had to be with his son. This did not create too significant a crisis since O. Grady Query, an experienced Charlestown criminal defense attorney, was lead counsel. I was second chair and Bud was, only, in a consulting role.
However, on the morning of our first day, Grady was unable to appear because his young son, the night before, had been involved in an accidental shooting with a neighbor’s child. I was on my own. I had prepared all the experts and had assembled the evidence, so I carried on and handled the entire hearing, solo. We lost. The specially appointed trial judge, not the original trial judge, appointed by the S.C. Supreme Court rejected all our evidence in support of our request to vacate the conviction and sentence and grant a trial.
It was upheld in the Supreme Court of South Carolina, and we were unsuccessful the second time on Petition for Writ of Certiorari in the U.S. Supreme Court. We, then, went into federal court on habeas corpus, 2254, were unsuccessful there, and found ourselves in the Fourth Circuit. The Fourth Circuit required me to argue my motion for leave to exceed the page limit in their Circuit and spent more time with me on that argument than on the argument that I made to save Terry’s life. I remember distinctly arguing to the Fourth Circuit that, in 1929, the eminent jurist Benjamin Cardozo had the opportunity to speak to the American Medical Association and stated to them as follows:
“We lawyers are becoming increasingly aware that the problem with resolving legal problems has little to do with knowing what the law is; but has everything to do with knowing what the facts are. Men of science, show us in the law the facts, and the law will burst forth from its seed and turn its branches to the light.”
We had established facts, without question, that Terry was a minor, under the influence of mainlined PCP, mentally retarded, ineffectively represented by an attorney with an undisclosed conflict of interest, and never found to be a trigger man.
We had presented evidence that Terry suffered from Huntington’s Chorea and that his mother and maternal uncle had both died in the state hospital of Huntington’s Chorea, and, without dispute, he was 17 at the time of the crime. We presented unrebutted expert testimony that he was borderline retarded with a 72 I.Q. We proved that he was under the domination of a 24 year old military policeman, who was also sentenced to die and executed, and under the influence of PCP that he mainlined under the direction of the 24 year old military policeman 30 minutes before the crime. It should be noted that David Bruck, the nationally famous death penalty lawyer who represented Susan Anthony and, recently, was on the defense team of the Boston Marathon murderer, represented J.C. Shaw on appeal, post-conviction, and Clemency.
I had left teaching after two years, perceiving, inescapably, that I was a fraud, a token criminal defense lawyer and prisoner rights lawyer who had not done and was not worthy to teach. However, I continued to represent Terry.
I applied and took a job with the Philadelphia Public Defender’s Office for two years and then went to a personal injury law firm because it was my conclusion that the only way to represent criminal defendants zealously and without conflict was to be financially independent. It was during my period with that FELA firm, trying approximately two jury trials a month in 38 states, that Terry was executed. I had taken a leave of absence to handle the clemency proceeding before the Governor, and the last ditch efforts to stay Terry’s execution. I was on the steps of the U.S. Supreme Court hoping for word of a stay when Terry was executed.
Upon his execution, I resigned from the firm and began my own practice, committed from that point forward to always representing individuals for which the state sought to kill them. A full blown criminal defense practice naturally followed.
For the next 30 plus years, I “Defended America, One Person at a Time.”
“From there to here.”
