Washington Lawyer - September/October 2024 - 36

ON FURTHER REVIEW
In It for the Long Haul
By Lloyd Liu
S
ome wrongful conviction
cases take years, even
decades, to resolve. This
makes one wonder not only
how defendants endure the ordeal,
but also how their counsel persist
and remain effective.
Stephen Braga of Bracewell LLP has undertaken
two such cases - one involving Damien
Echols and the other Marty Tankleff, with each
representation lasting more than 15 years.
Tankleff was wrongfully convicted for the 1988
murder of his parents. After he spent nearly 18
years in prison, the case was vacated in 2007
thanks to the work of Braga and other attorneys.
Braga says that experience, and knowing
how long exoneration might take, made it easier
for him to agree to represent Echols.
Echols's fight has consumed his adult life, and
Braga has been involved since 2009. The case
was the subject of my September/October
2020 column on prosecutorial discretion.
Echols and his two codefendants (collectively
known as the West Memphis Three) were teenagers
when they were charged with the murders
of three children. All three defendants
were convicted, and Echols was sentenced to
death in 1994.
In 2002 Echols managed to obtain DNA testing
on certain evidence collected in the case. The
results established that neither Echols nor his
codefendants were the source of any biological
material tested, and the material was consistent
with DNA from other potential suspects who
had never been prosecuted. These results nullified
the legitimacy of the conviction. Nonetheless,
the state remained steadfast. In 2011, after
nearly another decade passed, Echols entered
an Alford plea, which enabled him to continue
36 WASHINGTON LAWYER
* SEPTEMBER/OCTOBER 2024
to maintain his innocence while being immediately
released from prison and death row after
serving nearly 18 years.
" When we were in discussion about whether
to take the Alford plea, " Braga says, " we told
Damien that we would continue to investigate
the case. We would try to solve it. We made
a commitment. "
In January 2022, Echols filed a petition to conduct
additional DNA testing under a 2001 Arkansas
law allowing those convicted of a crime
to access new testing developed through technological
advances. But five months later,
the Crittenden County Circuit Court denied
Echols's petition, saying it could not grant habeas
corpus relief because Echols was not in
custody when he filed his petition.
Braga appealed to the Arkansas Supreme
Court, which reversed the trial court's decision
and remanded the case on April 18, 2024. The
effort to obtain DNA testing is ongoing.
Sustaining advocacy for decades requires an
ardent and steadfast belief in your client's
cause. To believe anything so strongly also requires
seeing the situation with a clarity that
can be isolating or lonesome. Waiting for years
without any assurance or even a low likelihood
of vindication could make anyone furious or
drive them insane.
Braga recalls a conversation with a preeminent
white-collar lawyer in the 1980s about the latter's
criminal defense philosophy: " You have to
fight the government at every turn and never
give up. Make it the most difficult war you can
for your opponent and, eventually, they will
give up or they will screw up. "
Few defense attorneys live up to this idea, but
for Braga, it has become a personal mission.
" When you take on these cases, these clients
become part of your family, " says Braga. " No
doubt, Damien Echols and Marty Tankleff are
like my adopted sons. It's not just a firm enLloyd
Liu is a partner at BLL LLP where he focuses
on white-collar defense, government investigations,
and complex civil litigation.
deavor. It becomes a family endeavor. Thinking
about your clients' problems bleeds into your
weekends and late mornings. Your family is impacted
by it. " However, Braga adds, " the fact
they're impacted may be a good thing. "
Braga describes how he frames the potentially
long wait and uncertainty to the client. " You
need to give the client a reason to hang on
rather than go mad on the inside. Echols was in
solitary confinement for 14 years. He did not
get to go outside in the daylight at all during
that time period. I would have gone mad after
one day, " Braga says.
Wrongful conviction cases aren't the only
lengthy ones. " Many white-collar criminal investigations
go on for years as well. What I try
to do is tell clients up front that there is no
guarantee of how long this process will take,
and certainly no guarantee of the result. But if
[I] decide to take the case, I'm sticking with it 'til
it's over, " Braga says. " And I'd like to think that
gives the client an anchor. Whatever else happens
here, the lawyers will stick it out. This is
not some hotshot lawyer coming in for a quick
win. This lawyer is with me for the duration. "
Braga recalls a recent antitrust investigation
where his " in for the duration " representation
lasted three years, when the U.S. Department
of Justice finally declined to bring any charges
against his client. The much-relieved client
thought it took forever; to Braga, it was a regular
part of work.
For lawyers like Braga, seeking justice is more
than an act of civic engagement. In enduring
the years and the uncertainty, it resembles an
article of faith - and hope.
Washington Lawyer - September/October 2024

Table of Contents for the Digital Edition of Washington Lawyer - September/October 2024
