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But there was enough income to allow the men to publish a local legal newsletter, Missouri Capital Case Update. The law in criminal defense, postconviction, and death penalty is arcane, complicated, and riddled with politics. Keeping up with changes in law, the rulings of the various courts, and the attitudes of prosecutors and judges is a job in itself. But it's what makes Gipson and O'Brien good at what they do.
Court payments help fund the Public Interest Litigation Clinic's public defense work and some postconviction representation for inmates. The rest comes from private donations and receipts from clients. Gipson and O'Brien also take payment in trade and family dinners, since most of their fees are steeply discounted. They write off fees for many of their clients.
The importance of the Public Interest Litigation Clinic and the work he and O'Brien do, Gipson says, lies in a fundamental bias in the criminal justice system. "In an auto theft case, for example, there is a presumption of innocence during the entire process," he says. "In homicide, the defendant is often presumed guilty and the jury has a higher standard of reasonable doubt. Because of this, there are a lot of innocent guys in prison." Many, Gipson says, are pushed there by the ambitions of prosecutors who want to bolster their careers or judges who have to worry about re-election or appointment to a higher court.
Gipson says the appointment of conservative judges to the federal bench, where a great deal of law gets made in the appeals process, has exacerbated that bias. Moreover, the country's lean to the right since Reagan's presidency, the war on drugs, and the importance of a tough-on-crime stance to a prosecutor's career all increase the likelihood of mistakes, particularly in high-profile crimes around election time.
It's easy to read media accounts and listen to the prosecutors and make a decision about a stranger's life or death, says Cindy Short, an attorney with the Jackson County Public Defender's Office Capital Crimes Unit. "It's a lot different when you are sitting across the table from a family who is about to lose a family member, across the table from those clients," she says. "I have a great deal of sympathy for the victims' families. But I can count on two or three fingers the number of people I have met who are not salvageable. I don't believe the majority of my capital clients are evil. I believe they were abused. Many are mentally ill. Others have mental deficiencies. Many are drug addicts who were never able to address that. They are sitting across from me for the first time sober, and I find they bring something to the table that is redeeming.
"With those experiences, it's hard to choose a small number who commit homicides and single them out for death. We have 20,000 homicides a year in the United States, and only 300 are singled out for the ultimate penalty. If you look at the numbers, most of the decisions to charge criminals with capital crimes are made around elections."
Former Jackson County Prosecutor Claire McCaskill, now Missouri state auditor, says she doesn't see such prejudice, and few, if any, prosecutors make political hay by pursuing the death penalty. She thinks a great deal of political pressure for elected prosecutors exists to make sure they are tough on crime. "I think that is more a function of them doing their jobs representing the people of the jurisdiction. In my case, I don't think I did anything that enhanced my career," she says.