Christopher Johnston wrote this article for the January/February 2009 issue of Northern Ohio Live.

1. 4:J
One Man v. The Odds
Attorney Alan Rossman is the last resortfor Ohio's
death row inmates.
By Christopher Johnston death row.
Scott Peterson, the California
On a chilly Monday night in man sentenced to death in 2005 for
December, Alan C. Rossman stands killing his eight-month pregnant
before a group of students armed wife, Laci, is the only name that
with laptops, BlackBerries and a jumps into Rossman's mind. It is
thick textbook titled Capital mostly poor criminals who find
Punishment and the Judicial Process. themselves at the wrong end of a
They have gathered in a library class- state's nearly limitless legal resources
room at the Cleveland-Marshall - which Rossman often refers to as
College of Law at Cleveland State the state's killing machine - and con-
University, where this fall, Rossman, demned by society as individuals
55, a federal public defender in worthy only of execution. He can
Ohio's new Capital Habeas Unit, confirm that there are none in his
Northern District (CHU), began territory, Ohio's death row: popula-
teaching his first class as an adjunct tion 180.
professor. Then he mentions OJ Simpson.
As a habeas or post-conviction As expected, this draws a laugh,
attorney, Rossman is the last hope for because the infamous capital case
a death row convict to present the turned into an appalling media circus
final appeals that may convert a death and fodder for countless late-night
sentence to life in prison. comics. The soft-spoken Rossman
Tonight, he's walking his students smiles, but quickly tells his students
through the nuances of using ineffec- how he sees it differently.
tive assistanceof counsel as an appeal, "OJ Simpson's trial was not the
aberration, but the epitome of the
~
because the Sixth Amendment of the
U.S. Constitution entitles all citizens system," he says."If every defendant
to counsel. Midway through the had the resources of the state, then
class, a student raises his hand to every trial would be like that."
C
_
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•••••••.,...~
. •.
inquire as to whether or not any
ailluent people currently reside on
Relying on millions of dollars,
Simpson hired the best defense team
77

2. and countered the state, expert wit-
nesses for expert witness, to get an
acquittal. Most death row convicts
joined the Cuyahoga County Public
Defender's office for six years, before
embarking on seven years' practice
Mike Benza, longtime friend and
visiting associate professor of law at
CaseWestern Reserve University, con-
l
must rely on the maximum of with one partner and 13 years of pri- curs with Doughten: "You'll be hard-
$25,000 allotted by the state to vate practice. Initially, he handled civil pressed to find somebody who has a
employ the two public defenders rights and capital and noncapital greater understanding of the nuances
required for a capital case. habeas corpus cases, but by the late of the law than Alan."
If the defendant is lucky, the court 1990s, he specialized in the labor- Another one of Rossman's close
will allow one expert witness. If he is intensive post-conviction field. friends and fellow public defenders
really lucky, his attorneys will be com- "You're looking at 10 years of liti- who all met in the county office,John
petent, committed and clever enough gation for habeas work, and records Parker, says:"Alan's new job with the
to maximize the roughly $12,500 they that, by the time they get to habeas, are CHU has been a fantastic opportunity
will each receive to log more than 500 10,000- to 15,000-pages long," he to use his tremendous experience in
hours of investigation. As Rossman says."So you couldn't commit to that the field and finally have the resources
instructs, this must include a thorough honestly, without committing a large to do what he does best."
search of school, medical and institu- portion of your practice to it." As a member of CHU, Rossman
tional records, as well as interviews Joining the unit in June and teach- currently enjoys the company of two
with family, friends, coworkers and ing at CSU this fall gave Rossman a other attorneys, two investigators and
neighbors who can give insight into a chance to come in from the cold. Not a paralegal. One of those attorneys, an
defendant's life. only do capital cases pay poorly, but assistant federal public defender, Vicki
Back in class,the student, searching solo public defenders often wait two Werneke, keeps an office next to his.
for an absolute in the infinitely com- years or more before judges pay their She moved here from a similar office
plex field of capital law, £lings up his bills.With minimal resources, irregular in Oklahoma to join the unit last
hand once more. "So, everyone on cash flow and no staff, Rossman summer. She and Rossman hit it off
death row is indigent?" became somewhat of a hermit. He immediately, and they spend a lot of
Mter surfing his mental database for went to his Public Square office early, time discussing their cases and assist-
a few moments, Rossman responds: "I ate lunch at his desk, and left at 5 or ing each other.
wouldn't swear to that. But I wouldn't 5:30 p.m. so that he could spend time "Alan's been doing this for 10 years,
bet against it, either." with his wife Nancy and two young and he's never had a client who was
children. An attorney herself, Nancy executed," she says."So that's an amaz-
*** had chosen to stay home for eight ing record." She adds, though, that one
years to raise the kids before returning day,one of his client's luck will proba-
Since obtaining his Juris Doctor to practice. bly run out, like it has for seven of hers.
from Marshall in 1981, Rossman has As if on cue, the phone rings.When In fact, she witnessed their executions,
spent the majority of his career betting Rossman hangs up, he says,"My wife an experience she labels horrible and
against the belief that there's nothing said to make sure to tell you that she is surreal.
to be done for indigent clients. "The the wind beneath my wings, so I'm Within the field of post-conviction
state's machinery is committed to officially on record for that." work, it is extremely rare to have no
killing someone, so everybody deserves clients executed. In Oklahoma - a state
a representative to stave that off," he *** that kills prisoners with greater fre-
says. "As a civilized country, I don't quency than Ohio, and "takes the
think you can sit back and let the gov- David Doughten, a sole practition- death penalty seriously," saysWerneke
ernment execute people without tak- er who's known Rossman since their - she worked hard to make her clients
ing on the fight." days in the county office, recalls being feel human. Her office is filled with
A native of a different civilized asked by Dennis Terez, who directs artworks that they made for her, from
country, Canada, Rossman left Port CHU, to recommend a habeas attor- paintings to handmade sailing ships.
Colborne, Ontario, with Bachelor and ney for the new unit. "Alan was the One executed client's family couldn't :
Master of Arts degrees from York first name that came to mind," he says. afford a burial, and he didn't want his
University, and moved to Cleveland "He's one of the best at finding ways to remains on the prison grounds for
one summer to sell paint. A year later, keep issues alive,where someone with eternity, so she raised the money to pay
he decided to get a law degree. After lesser knowledge and ability would for a cremation; she keeps a small bot-
passing the bar in 1981, Rossman have just, frankly,let it go. But he wins tle of his ashes on her bookshelves.
worked brie£ly for the ACLU, and then those cases."
78 NorthernOhioLive i Jan/Feb 2009
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3. *** Rossman has also worked diligently clients commit leads to good and bad
to change Jells' story. In one of the days for public defenders, says
Habeas attorneys frequently navi- briefs submitted to the U.S. Sixth Rossman.
gate through the dark side of civiliza- Circuit Court of Appeals, Rossman "It's very dangerous to become
tion that defines death row.Whatever and co-counsel William T. Doyle spent insensitive to the pain and suffering
their level of guilt, the great majority nearly two pages providing a partial list that's been caused, so you can't be," he
of these prisoners have emerged from of the torments of Jells' childhood that says."On the other hand, that doesn't
hellacious backgrounds that common- were never presented to the trial court: detract from your commitment to
ly feature physical, psychological and a mother with boyfriends who regu- what you're doing, and that's the great
sexual violence; neglect; malnutrition; larly beat her while he watched or bat- challenge of this work."
lack of education; and alcohol and tered him until he was bruised and Another challenge is occasionally
drug abuse. bleeding; constant moves to escape finding ways to dodge the darkness,
Describing the pool of death row these men; his mother's descent into according to Doughten. "We all deal
clients, Rossman told his class,"When alcoholism; regular beatings at the with it in different ways," he says.
you're casting a play in hell, none of the hands of school bullies; and the inabil- "Some people watch Indians baseball
actors will be angels." His ability to ity at age 14 to read more than one games. Some people drink. Some peo-
embrace such melancholy clientele is word at a time due to severe,unattend- ple do art."
built upon his belief in the Buddhist ed learning disabilities and Jells' own Doughten's preference is the for-
teaching that calls for the "joyful par- borderline intelligence. mer. When Rossman's crew of capital
ticipation in the sorrows of the world." At one point, frustrated and inse- law chums - the only ones who can
For one client, Reginald Jells, cure from the ongoing victimization, fully understand what the others expe-
Rossman has applied the ineffective Jells locked himself in a closet and set rience - were younger, they often
assistanceof counsel strategy as part of the closet on fire. spent their evenings at Municipal
his appeal efforts.Arrested in 1987 for While it's true that Jells is a deeply Stadium for beer, baseball and non-
the murder of Ruby Stapleton, Jells troubled man, what of the victim, legal badinage. These days, Rossman's
first entered a plea of not guilty, and Ruby Stapleton, who was killed, her main escape is art.Although Doughten
then waived his right to a jury trial. family devastated? Dealing with that doesn't understand all of the intense
The three-judge panel that heard the dilemma and with the ongoing burden images created by his cohort, he keeps
case sentenced Jells to death. of getting past the violence their a number of Rossman's paintings in his
79

4. law offices, mainly because, he jokes, intriguing balance of gentleness,tough- state resumed capital punishment in
"Nancy wanted to get them out of ness and smarts." 1999. He was the 34th condemned
their basement." inmate put to death in the United
"There are few guys who do habeas *** States in 2008, and the 1,133rd over-
work in the afternoon, come home and all since the nation resumed execu-
deal with their kids,and then paint,"says This fall, concurrent with tions onJanuary 17,1977.
Rossman's friend James Levin, an attor- Rossman's class at Cleveland State, They probably would have pre-
ney who knows the arts well - Levin is two men were executed in Ohio: ferred otherwise, but for Rossman,
co-founder of Cleveland PublicTheatre Richard Cooey and Gregory Bryant- the two executed men served as case
and executive artistic director of Bey, who became the second con- studies of the social theories of justice
Cleveland's Ingenuity Festival."Alan is demned inmate put to death this year and the deterrent effect of capital
an unflappable guy, who possesses an in Ohio and the 28th overall since the punishment, particularly Bryant-Bey,
whose execution was not widely cov-
ered. "The Plain Dealer, Ohio's largest
newspaper, ran no mention of it,
according to Rossman.
"There are real legitimate argu-
web + print ments now that we've sanitized execu-
tion so much that if it's not even news,
then maybe there are no more retribu-
tive underpinnings," says Rossman.
"Because, if you don't announce the
punishment, then there's some ques-
tion as to whether or not it serves any
social theory at all."
So for now the death penalty, fairly
administered or not, deterrent to
homicide or not, remains, keeping
Rossman fully employed helping "the
worst of the worst" in their lonely fight
against the state killing machine. Has
there ever been anyone so remorseless,
so inherently evil, who he wouldn't
even consider representing?
"There are not too many fights in
cases of execution that I wouldn't take
on, but ... " saysRossman. He pauses."I
don't know of any cases of execution
that I wouldn't take on."
Sitting in his office, Rossman leans
down and pulls another escape mech-
anism from his briefcase: a dog-eared,
rubber-banded, 50-cent paperback
copy of Walt Whitman's Leaves oj
Grass. At his desk, under a portrait of
Abraham Lin-coln, hero to Whitman
and altruistic attorneys everywhere,
Rossman quotes the poem, "Song of
the Open Road," and then says:
"Whitman was able to find a sense of
peace even amidst the jarring tragedy
of life itself. That's where we all need
to go." •
80 Northern Ohio Live Jan/Feb 2009