Death defyingLawyer Kelley Sharkey fights for theaccused in capital punishment cases

By Peter McDermott

At a family wedding recently, Kelley Sharkey, a 38-year-old New York lawyer, was asked a question by some Irish cousins over from County Longford. “They said, ‘Kelley, what is it with the death penalty?’ They wanted me to explain how a civilized country like America could have it. I was embarrassed,” she said.

Sharkey’s embarrassment was on her country’s behalf, not her own. She is passionately opposed to capital punishment. But for her, the issue is more than an abstract one: she has spent her entire career working as a defense attorney in New York City.

“I never thought the death penalty would come back to New York,” Sharkey said. But when it did, in 1995, she joined the staff of the New York Capital Defender Office, a state-funded agency that represents indigent defendants who are charged with capital offenses. The CDO is a Sixth Amendment office, she stressed, providing people with legal counsel, not an anti-death penalty lobbying group.

Sharkey’s boss, and New York’s official capital defender, is another Irish-American lawyer, Kevin Doyle, a 42-year-old Bronx native and son of a former policeman. Doyle, who for five years worked on death-penalty cases in Alabama, warned the state’s prosecutors that the CDO would defend each capital case “with an intensity and a depth with which they are not familiar.” In a 1996 New Yorker profile of Doyle, James Traub wrote: “You have to wonder if New York’s Governor George Pataki knew what he was doing when he agreed to include an independent, well-financed public defenders’ office in the death-penalty statute.”

In court, the CDO works in teams: often with one lawyer, such as Doyle, with capital trial experience from other states and another, like first deputy Susan Salomon or Kelley Sharkey, with experience in New York courts.

In addition to its 19 trial lawyers, the CDO has nine investigators and mitigators. “The investigators hit the streets and the mitigators delve into the defendant’s background,” Sharkey said.

In capital trials, mitigating evidence is presented in an effort to convince the jury that the defendant might be spared his or her life. But it can be just as important in the pre-trial stage: defense lawyers can persuade a district attorney not to seek the death penalty.

“The DA has 120 days to determine whether they’re going to seek the death penalty. This is a period of massive investigation of the defendant’s life history,” Sharkey said. However, prosecutors in New York State have so far “declared for death” in 16 cases where that 120-day period has elapsed. In the first case to go to trial, Darrel K. Harris of Brooklyn has been convicted of murder and sentenced to death.

Jurors who serve in capital trials must be willing to impose the death penalty. This puts a defending lawyer like Kelley Sharkey at something of a disadvantage. At the outset, the prosecutor and the jurors are at one philosophically. General arguments against capital punishment would be of little benefit to the defendant and, in any case, may be inadmissible. Capital Defender Kevin Doyle tells defense attorneys that they must meet the jurors in their “moral world.”

Social conscience

Kelley Sharkey’s moral world was one shaped by her family. She grew up in rural New Jersey, where her parents still live. Meg and Joe Sharkey were teachers, both influenced by the idealism of the 1930s and 1940s. “They’re New Dealers,” she said. Her father, a former Christian Brother, was a union activist. His parents came from Roscommon and Longford and worked in this country as domestics. Kelley Sharkey said that though her family became middle class, they remained conscious that it was “the person on the lowest rung who is going to catch the heaviest heat.”

Of her upbringing, she said: “There was a real awareness of not only right and wrong, growing up in the Catholic church, but also of equality and power – that people should be treated fairly and equally.”

Sharkey graduated from Maryland University, and then, at her parents’ urging, went on to study law at Boston University. Once she opted for law, she didn’t have a difficult choice to make after that. “I knew that I wanted to do some sort of public interest work,” she said. For 12 years she worked for the Legal Aid Society in Brooklyn.

Sharkey’s parents also taught her that “people can make terrible mistakes in their lives.” It was a good lesson for a future defense attorney to learn. In her time in Brooklyn, Sharkey would see that the criminal justice system had its flaws too. However, it is capital punishment that tends to throw the system’s fallibility into sharp relief.

The late U.S. Supreme Court Justice William J. Brennan, the son of immigrants from Roscommon, said in 1994 that “the death penalty is imposed in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.”

In a 1987 Stanford Law Review article, Hugo Adam Bedau and Michael L. Radelet presented 350 cases in the United States in which “defendants were convicted of capital or potentially capital crimes in this century . . . [and] later found to be innocent.” One hundred and thirty-nine were sentenced to death, of whom 27 were executed. Eight of those 27 were put to death in New York State in the years 1914-1938; several others on the state’s death row had a close call. In 1937, for example, Isidore Zimmerman had had his head shaved and had eaten his last meal when his sentence was commuted to life imprisonment. He served 24 years. In 1982 the New York State Court of Claims agreed that, in Bedau and Radelet’s words, “the prosecutor knew Zimmerman was innocent, suppressed evidence, and intimidated witnesses into perjuring themselves.”

Miscarriages of justice of that type are the death-penalty opponent’s strongest argument and the defense attorney’s worst nightmare. But sometimes a perversion of justice is not the result of malicious conspiracy. Kelley Sharkey has seen convictions “where the defendant was truly innocent or their culpability wasn’t as great as the jury found it to be. That’s the kind of thing that sends shivers down any experienced attorney’s spine. We used to say, ‘But for we’re in the state of New York, that person would be on death row.’ ”

Campaigners point out that mistakes are made all the time in states that regularly execute people. The Washington, D.C.-based Death Penalty Information Center says that 69 death-row inmates have had their convictions overturned since 1973.

It was because Bronx DA Robert Johnson once helped convict an innocent man that he has refused to ask for the death penalty. “Rob Johnson is a very aggressive DA who has prosecuted more murder ones than anybody,” Sharkey said. But when he declined to press capital charges against the alleged killers of NYPD Officer Kevin Gillespie, Gov. Pataki removed him from the case.

This sort of political pressure has transformed the criminal justice system in an important way, Sharkey believes. “Now it’s a vehicle for media attention. Someone who would never have condoned it [the death penalty] before sees as a means to an end, and I think that’s a tragedy,” she said.

“The politicization of the death penalty is a scary process. Nobody thinks it’s a deterrent, nobody thinks it’s cheaper. It’s about vengeance and politics, and that’s playing to the basest motives in somebody’s character,” she said.

“I understand holding somebody accountable for crimes that they’ve committed.” But people go beyond that; they go beyond the teaching of their church, if they’re Catholics, she said. “They just get vengeance in their hearts.”

Represented Diaz

Sharkey was a member of defense team for Angel Diaz, one of the men accused of killing Kevin Gillespie. When he was arrested, Diaz is said to have told the police, “Why don’t you kill me now? It’ll be better than going back to prison.” According to some reports, his murder trial was going to be the “capital-punishment showdown” for New York state. Diaz had other plans. He committed suicide.

“A tremendous amount of pressure is brought to bear on persons who are accused,” she said. “A lot of people don’t have great coping mechanism anyway and keeping them together going through it is much different to the regular case. You have all this media pressure.”

Sharkey said she felt “haunted” by Diaz’s suicide for a time. “It’s sad to know someone so well and have them abandon all hope like that,” she said.

In a capital case, a defense attorney will get to know the defendant more intimately than in a normal case. “We do such an extensive investigation into someone’s life. You find out what makes them tick.

“None of us fails to condemn a heinous crime,” Sharkey said. But it’s useful to understand that defendants typically come from society’s “disenfranchised,” she believes. “They have horrible backgrounds. Many of them have had experiences you and I wouldn’t wish on our worst enemies. It just gets played out later in a very sad, tragic way for the victim and for the defendant and his family.”

The lawyers of the CDO often reach out to the members of the victim’s family, aware that their attitude could be important, just as it was – as Kevin Doyle once pointed out to a jury in Alabama – in the cases of the men who killed Martin Luther King, Jr. and Robert Kennedy.

One of the most difficult parts of a CDO lawyer’s job, though, is talking to a defendant’s family members who are unaware that prosecutors are considering the death penalty.

“Every time we go to talk to a mom, or a grandma, or a father, there is despair. You say, ‘Would that I didn’t have to have this conversation with them.’ ”

Kelley Sharkey remains a happy warrior even though the specter of death hovers over all of her clients. “My family helps me get through it. They keep me grounded,” she said. “I’m married to a great guy.” She has a 5-year-old son, year-old twin girls and a 21-year-old stepdaughter. “I have a very rich life. I’m very lucky,” she said.