Page 4 of 15
Gipson says he and O'Brien have an advantage over many wealthier attorneys. "We don't have to take any case we don't believe in," he says.
"We were never the kind of attorneys who graduated from law school looking to represent wealthy clients and make a lot of money," O'Brien says.
Gipson graduated from Washington University Law School in 1984 and joined the Jackson County Public Defender's office, where O'Brien was chief counsel. He wanted to practice criminal law and found he enjoyed representing indigent clients. "It was a place where I could quickly get into the heat of battle and stay there," he says. In the 1980s, the Jackson County, Mo., public defender's office did quite well, Gipson says, winning one-third of all the cases that made it to juries. But there were problems. "The bureaucrats in Jefferson City, where our money came from, had less interest in us doing a good job than with things like time sheets, budgets, and tracking the number of cases we did."
In 1989, O'Brien and Gipson, due to changes in funding for the public defender's office, moved exclusively into capital defense cases. Federal law had changed to fund special Capital Defense Resource Centers in an effort to make sure that death row inmates were getting quality representation after the reinstatement of the federal death penalty in 1988. Congress, Gipson says, recognized that many crimes had been made federal crimes in the 1980s and that many more federal crimes were made capital crimes.
O'Brien headed the resource center for Missouri, based at the University of Missouri-Kansas City Law School. The resource centers specialized in federal death penalty cases, but funding was also provided to the centers to represent inmates in the appeals process in high-death-penalty states. Missouri was one of 22 states where resource centers were established. The centers also provided information for private attorneys who had been appointed to criminal defense and appeals by courts in jurisdictions with limited public defense resources. "In more rural areas or jurisdictions with a limited number of public defenders, as a criminal defendant you may have gotten a tax or development or antitrust attorney appointed to your case," says Gipson, who believes the situation hasn't changed. "Those lawyers needed the information and expertise we had."
Funding for the resource centers ended with the 1994 "Republican revolution," that party's takeover of Congress. "We were one of the first targets," says O'Brien. "They just couldn't stand the fact that criminals might be getting a fair shake in the criminal justice system with government funding."
"We just weren't popular in Congress and had been a target for a long time," Gipson says. "There weren't and aren't a lot of people there with the constitution and the courage to stand up for defendants in capital cases."
When the money for the resource centers was cut off at the start of 1995, O'Brien says, "We had to do something. We had clients on death row who depended on us. We weren't going to leave them there, but we had to make a living. Plus, the tough-on-crime environment was growing more hostile toward the accused all the time."
To resolve the situation, O'Brien established the Public Interest Litigation Clinic, a nonprofit organization, in 1995. He expanded the focus of his practice to include criminal defense and postconviction representation. Gipson joined the office soon after and worked for a few months without pay. But the broadened focus and nonprofit status allowed the clinic to widen its sources of funding, bringing Gipson and O'Brien modest paychecks and allowing them to use private investigators and researchers.