Lawyer A Lifeline For Death Row Dwellers Joan Fisher Runs Small Operation That Tilts At Capital Punishment

A wall in Joan Fisher’s office features art produced by clients. Drawings by one man include a polar bear that is the embodiment of solitude.

The artist might know something about that. He has been held in solitary confinement 23 hours a day for the past 13 years.

And the painting reminds Fisher that the man who created it, Bryan Lankford, did more in life than murder two campers in an Idaho forest.

Fisher’s legal practice is fundamental. She represents death row inmates in Idaho and Washington. Every day she works to keep her clients from being executed.

“A defense attorney is probably the only one who sees this person as a human being, who stands between this person and a whole society that wants to kill them,” she said.

Fisher is the senior capital habeas attorney for Eastern Washington and Idaho. Her program is a branch of the federal public defender’s office in Spokane. Fisher developed the habeas unit with Judy Clarke, who is the region’s federal public defender executive director. Clarke is representing Unabomber suspect Theodore Kaczynski. She is the same Spokane lawyer who two years ago convinced a South Carolina jury that Susan Smith did not deserve to die for drowning her two young sons.

Fisher’s staff operates from a former bank on the northern end of Moscow’s Main Street, a building without a sign and with tinted windows. Fisher, attorney Bruce Livingston, two investigators, two law school interns and an office manager comb legal proceedings searching for constitutional flaws in the way a death sentence is handed down.

The office is an experiment, Fisher said. It opened in October 1996, taking the place of federal resource centers that Congress closed in 1995. The centers had offered technical support to attorneys defending clients in capital cases.

Fisher still does that. But her primary charge is to be society’s conscience, to force courts to consider every mitigating circumstance before carrying out an execution. For death row inmates, as a final, desperate line of defense, she is one step removed from the last-minute phone call from the governor.

Fisher grew up in Spokane, went to college at the University of Washington and to law school in Houston. She came to Moscow in 1981 to go into private practice and, three years later, got her first death penalty client when she was appointed to defend Lankford during sentencing in Idaho Second District Court.

Lankford is awaiting an appeal of his death sentence.

“I came up from Texas believing there were real problems in the application of the death penalty, but I was not opposed to it. I believed you could remedy the defects,” she said. “But seeing what actually happens rather than what should happen, I believe it is an immoral act and beyond the criminal justice system to apply it fairly.”

That’s not a stand she can take into court, however.

She must approach the issue with abstract, finely shaded semantics - arguing, for instance, that because Death Row inmates are held in isolation, often for years before the sentence is carried out, the death penalty is cruel and unusual punishment, which the U.S. Constitution prohibits.

“I think maybe my life has taken a perverse turn,” she said, grinning.

She was recently in court debating the exact definitions of the words “heinous, atrocious, cruel.”

“I was happy, exhilarated … even the people in this office didn’t understand it,” she said.

So far, she has not lost a client. Not Lankford; not Randy McKinney, who took a friend target shooting and killed him; not Paul Rhoades, who robbed and killed two people and raped and murdered a third; not David Card, who murdered two newspaper carriers; not Timothy Dunlap, who shot and killed a cashier during a bank robbery - none of the murderers society sees as malignant monsters and Joan Fisher sees as people.

“Generally, I like them,” she acknowledged. “A friend told me never to say that, but for the most part, I do, maybe because of their adverse circumstances.

“They don’t feel valued. They have no esteem. Generally, they have lower intellectual abilities and can’t process legal proceedings very well,” she said. “It’s really hard to keep their morale up. There is not an arrogance you have with so many defendants. There is a greater level of appreciation, a greater level of dependency.”

In the Lankford sentencing, Fisher appeared before Idaho Second District Judge Ron Schilling.

“Joan is very sincere, thorough, and she does an excellent job representing criminal defendants,” he said recently. “It seems she is able to establish good working relationships with her clients. As far as Mr. Lankford was concerned, she was able to stress many of his redeeming characteristics.”

Fisher is not unsympathetic to society’s desire to eliminate dangerous, evil characters. But she insists the general public does not want to believe prosecutors withhold evidence and misrepresent it, defense attorneys are denied adequate resources or are not qualified to defend clients in capital cases.

No one wants to believe the death penalty is applied unfairly, but Fisher believes it as arbitrary as anyone can imagine.

“The people we kill are the mentally impaired, the poor, minorities and those who kill whites,” she said. “And unless you see how the system works you can’t make valid judgments on it.”

From 1988-91, Fisher was on the faculty of the University of Idaho College of Law.

“I’ve known Joan since she first moved up to this area,” said Neil Franklin, associate dean of the law school. “I think she’s smart, tenacious, very focused and effective. One of the things she brought to the law school is she is a role model for how someone can do that level of work.”

Franklin said the public, even other lawyers, often think a small-town attorney can’t be good. “Well, here she is, practicing some of the finest law available.”

In the past, Fisher has walked the other side of this street. As a deputy prosecutor in Houston she successfully argued for the death penalty in a robbery and rape case.

“The jury came back in 17 minutes,” she recalled. “I was not convinced the victim actually knew who held the gun and who committed the rape. She showed some hesitancy, uncertainty, but the defense attorney couldn’t ferret it out. But there was no question she was raped and no question our guy was involved in it, and my district attorney said, ‘Somebody’s got to die.”’

“The defendant had an IQ of 57. Afterwards, he turned to his attorney and said, ‘When do I get to tell my side?’ I felt kind of bad about that.”

“When I took the case, I really wanted to believe we were doing the right thing, that we had a system in place and as long as I worked hard to perform my role, and the defense attorney did his job and the judge and jury did their jobs we would arrive at justice.”

The death sentence in that case was ultimately reversed, Fisher said, not at all displeased.

MEMO: Cut in Spokane edition