Professor, students take on death row appeal

At Holman Correctional Facility, just north of the Florida panhandle in Atmore, Ala., Jeffrey Day Rieber waits to die – and some Madison lawyers, UW–Madison law students and a law professor are laboring to prevent his death.

Convicted in the shooting death of a convenience store clerk in 1992, Rieber is one of about 160 inmates on Alabama’s death row. A jury sentenced Rieber to life in prison without parole, but the judge overruled the verdict and sentenced him to death. Alabama is one of only four states that allows a judicial override of a jury verdict.

“When I started working on the case, I wondered if you can separate yourself as an attorney from your clients, and in some sense you can. With this case, I think it’s a lot different. When it’s 10 p.m., I can close my books on my homework, but I stay up and work on this project. The stakes are different.” Tina Galbraith Law student

Rieber’s case now rests with UW–Madison Law Professor Frank Tuerkheimer, several law students and two Madison attorneys. They are seeking to overturn Rieber’s death penalty verdict because of what they believe was inadequate legal representation.

Because of attorney-client privilege and confidentiality concerns, Tuerkheimer and his students are prevented from discussing the specifics of their legal work on the case. But in general, they are re-examining the defense by Rieber’s former attorney, researching death penalty laws at the state and federal levels and investigating Rieber’s background.

“We are going back and doing everything his lawyer should have done,” says Tuerkheimer, a former U.S. attorney and former Watergate special prosecutor.

Like most of his fellow death row inmates, Rieber is poor and was represented by a court-appointed lawyer during the robbery/murder trial in Huntsville, Ala., where he had been living and where the crime occurred. In overriding the jury’s verdict, the judge in the case cited evidence that the clerk was shot twice, the second time when she was helpless.

After Rieber exhausted his appeals and lost his state-funded attorney, a UW–Madison alumnus who works with Alabama death row inmates turned to her alma mater for assistance.

Ellen Wiesner, a 1992 UW law school graduate and lawyer with the Montgomery, Ala.-based Equal Justice Initiative, called Tuerkheimer in 1996. She asked him to represent Rieber, who has been on death row since 1992, saying her firm can only handle a few death row cases at a time.

After getting the support and financial backing of LaFollette & Sinykin, the Madison law firm where he also works as an attorney, Tuerkheimer took the case. LaFollette & Sinykin attorneys Larry Bensky and James Friedman are assisting.

Yet Tuerkheimer knew he needed additional assistance to prepare the defense for such an important case. He recruited students to help and created a clinical class at the Law School titled “Law and Contemporary Problems: The Death Penalty.”

Tuerkheimer first recruited Elliott Milhollin, who joined Rieber’s defense team as a first-year law student in 1997. Milhollin was later joined by law students Fred Burnside, Tina Galbraith and Mary Sowinski.

Among other things, Milhollin is researching state and federal Supreme Court decisions on standards of review concerning attorney performance. He has also interviewed Rieber twice on death row: in the summer of 1997 with Tuerkheimer and Bensky, and this past summer with Friedman and the other students.

The student journeys to the prison where Rieber is incarcerated mark the first time Wisconsin law students have visited death row while working on a capital case. Capital punishment is legal in 38 states, but not Wisconsin.

“It was strange at first to meet your client on death row,” says Milhollin, who is from Washington, D.C., and will graduate this spring. “It puts an interesting take on things. I’m doing all this research on constitutional standards, which is very abstract until you meet Jeff.”

Tuerkheimer recruited Galbraith and Burnside for the case after they clerked at LaFollette & Sinykin this past summer. Sowinski, who researched Rieber’s social and family background, graduated in December and is now working in the Milwaukee district attorney’s office.

“When I started working on the case, I wondered if you can separate yourself as an attorney from your clients, and in some sense you can,” says Galbraith, a second-year law student from Westfield. “With this case, I think it’s a lot different. When it’s 10 p.m., I can close my books on my homework, but I stay up and work on this project. The stakes are different.”

Galbraith and Milhollin say their work on the Rieber case has deepened their opposition to the death penalty. Their main concern, they say, is that the death penalty is applied predominantly to poor people with inadequate legal representation.

Tuerkheimer, however, does not consider a student’s stance on the issue when recruiting them for the case.

“I don’t believe in litmus tests or political preconditions for taking a course,” he says.

A motion to set aside the conviction is currently pending before an Alabama judge. The motion maintains that Rieber had a significant drug problem that his attorney failed to mention. Tuerkheimer and his team have asked the court for permission to retain experts and examine numerous documents. Following that, they plan to file an amended petition, which, if granted, means Rieber could be resentenced or get a new trial.

Tuerkheimer says the students’ efforts on the case have been invaluable.

“Their assistance is essential; we couldn’t do the representation without them,” he says.