AN UNEXPECTED CAREER PATH

I studied business as an undergraduate and went to law school thinking I would become the lawyer for my father’s corporation but then married a girl from Charleston and found myself living in Columbia while she attended law school. Practicing criminal law was the farthest thing from my mind when my father-in-law helped me land a job as an associate with Senator Isadore E. Lourie’s law firm in Columbia.

I don’t think the ink was dry on my first paycheck when Jack B. Swerling, a partner in the firm, was appointed to represent Wendell Moye in a death penalty murder case. Moye and a co-defendant shot and killed an employee during the robbery of a TransSouth Finance office in downtown Columbia. South Carolina had reinstated the death penalty in 1974 and the new statute allowed for vior dire or the questioning of prospective jurors. Problem was no South Carolina lawyers had any experience with vior dire as the practice wasn’t allowed in other criminal cases. The practice is so fraught with risk, the lawyers appointed to the previous death penalty case, a case involving a minor accused of capital murder, decided to try their death penalty case non-jury hoping the judge would impose a life sentence. They were wrong and the judge sentenced the minor defendant to death.   

I certainly never expected to be involved in a death penalty murder case right out the blocks. I didn’t know anything about the real practice of criminal law but was immediately impressed by the response of the criminal defense bar to Jack’s appointment. They freely offered their time and advice. It was based on the advice of Kermit King and Walter Brooks, both excellent criminal defense lawyers, who tired the minor’s death penalty case non-jury, Jack and his co-counsel, Gaston Fairey, decided they had to request a jury trial in their case. Never having done vior dire before,they asked legendary criminal defense lawyer, Millard Farmer, from the Southern Poverty Law Center,  to help teach them how to conduct voir dire in a death penalty case. Like the local criminal defense bar, Millard Farmer and other lawyers with the Southern Poverty Law Center volunteered to come to Columbia at their own expense to offer help and advice.

I sat in on the meeting wide-eyed as they taught that qualifying jurors during the vior dire process predisposes the jury to impose the death penalty right from the start. Any juror who says they can’t impose the death penalty on religious or moral grounds is stricken from the jury for cause. The rest, more often than not, are gung ho to execute the defendant. During the meeting they handed over two large notebooks on jury selection in death penalty cases and I was assigned to review and digest the cases to help prepare for vior dire and jury selection.

When jury selection began I was surprised how easy it was for Solicitor Jim Anders to get prospective jurors he didn’t like to testify they were opposed to the death penalty. He’d start by asking whether the prospective juror attended church. From there whether they believed in the supremacy of God’s law including the commandment “thou shalt not kill.” And finally, to get them to admit they couldn’t impose the death penalty based on their religious beliefs. Not surprisingly a good number of the jurors who fell into this category were of African decent. Jack Swerling had the task of rehabilitating those jurors to keep them from being stricken from the jury for cause.

Jack was a big man who had a commanding presence in the courtroom, but he also  had a surprisingly light touch. He rehabilitated jurors by walking them through the multiple steps required under the death penalty statute before the death penalty could be imposed. First, a defendant would have to be unanimously found guilty beyond a reasonable doubt of the unlawful killing of another being with malice aforethought. But Jack explained the intentional killing with malice aforethought wasn’t enough and, before the death penalty could be imposed, those same jurors would have to unanimously find beyond a reasonable doubt the murder was aggravated. The State would have to prove again beyond a reasonable doubt the murder was aggravated such as it occurred during the commission of a felony, the defendant had previously been convicted of murder, the murder involved torture, multiple people were murdered, or it was the murder of a police officer or a child. By precisely defining the kinds of murder required in order to impose the death penalty, Jack put the minds of many prospective jurors at ease. Then Jack explained that even if the jury unanimously found the defendant committed a premeditated, aggravated murder, they would also hear mitigating evidence and would not have to impose the death penalty. By explaining the process in greater detail, Jack gave the jurors the courage to say they could do their duty and follow the law despite their personal moral nor religious beliefs. Jack Swerling’s vior dire was so masterful, after exhausting all his preemptory challenges striking Jack’s rehabilitated jurors, Solicitor Anders was stuck with a jury morally opposed to the death penalty. He gave up and accepted a plea for life in prison.

The plea for a life sentence in the Moye case was a victory and a good story in its own right but that’s not the end of the story. The law-and-order mayor of Columbia , Kirkland Finlay, himself a lawyer, decided to make political hay out of tax dollars having been spent on the lawyers who kept Moye out of the electric chair. Much to his chagrin his political grandstanding got him appointed to the very next death penalty case. Findlay bitterly complained he weas a real estate lawyer and unqualified to serve. The Columbia criminal defense bar agreed, so they got together and requested he be removed from the case to prevent an obvious miscarriage of justice. Jack Swerling, who knew full well the sacrifice required, volunteered to represent the defendant in his place. When the Court agreed and appointed Jack, Solicitor Anders was forced to accept another guilty plea for life to avoid being embarrassed again.

I don’t think I’d finished my first year as a lawyer and the lawyer I was working for had won two death penalty cases back-to-back. I don’t think even Clarence Darrow could claim such a record. Impressive, but what impressed me most, and what I most admired was the willingness of criminal defense lawyers like Jack Swerling, Gaston Fairey, Kermit King, Walter Brooks, Millard Farmer, the lawyers from the Southern Poverty Law Center to stand up for justice at great personal sacrifice.

I spent the next five years traveling around the State of South Carolina trying criminal cases with Jack Swerling. During this time I served my first term on the Board of the South Carolina Trial Lawyers Association and was priviledged to hear, Gerry Spence, from Wyoming talk about his volunteering to represent the minor defendant in Kermit King’s and Walter Brooks’ death penalty case being argued on appeal. My admiration of such lawyers caused me to take a career path I never could have imagined. A career that included criminal defense spanning fifty years over which that same generosity was extended to me by members of the criminal defense bar and the South Carolina Death Penalty Resource Center when I was twice appointed to death penalty cases of my own. I am proud to have known so many great crimninal defnse lawyers in my practice and grateful they pointed me in a new direction on an unexpected career path.