Invitation to an Execution

By JAMES WILLWERTH/KANSAS CITY

Sean O'Brien is the sort who calls a hooker "ma'am." His wife admits he deals with "the most awful people." Serial killers, murderers, thugs and the like. "With some," he says, "you have to dig a little deeper to find the good in them." But O'Brien, 37, is the sort of lawyer who will drive 300 miles across Missouri from his home in Kansas City to see clients. Especially those on death row. Especially if he believes they're innocent.

This week O'Brien is sweating out the case of Lloyd Schlup, 32, a man who has been in prison for nearly half his life and who is scheduled to die by lethal injection at 12:01 a.m. Friday unless Missouri Governor Mel Carnahan commutes his sentence. Schlup, who was originally imprisoned for stealing a pickup truck in 1978, was convicted for assisting two other men to stab a fellow inmate to death in 1984. Since taking on the case in 1992, O'Brien, a former public defender who now runs the nonprofit Missouri Capital Punishment Resource Center, has collected piles of documents, affidavits that appear to prove that Schlup was not at the murder site -- and, in fact, that identify another inmate who may have committed the crime.

Unfortunately, such evidence is no longer enough to reopen a death-penalty case -- a situation resulting from Supreme Court rulings that attempt to shorten the sometimes interminable appeals process. O'Brien fears that the restrictions may, sooner or later, mean that an innocent man will die because his case was stopped before its full limit of constitutional protections could be tested. He is afraid Lloyd Schlup may be that man.

At lunchtime on Feb. 3, 1984, three white prisoners at the Missouri State Penitentiary confronted a black inmate, Arthur Dade, as he emerged from his cell. One assailant threw a container of steaming bleach water in Dade's face and another grabbed him from behind. The group's leader then stabbed Dade several times with a homemade knife. One suspect was caught immediately, another shortly after he fled. A guard identified the third as Schlup, whom authorities found eating a fish sandwich in the prison cafeteria.

Schlup insists he was never at the crime scene. And O'Brien's staff members found 23 inmates and former prisoners who saw the crime. "Every single one we talked to said that Lloyd was not there." Indeed, the name of another man, living in Chicago and a gangmate of the first two suspects, surfaced repeatedly as the third party. He has never been investigated. A guard has come forward to testify that he encountered Schlup walking casually to the dining room at the time the murder was committed. The prosecution had contended that Schlup ran down the corridors to escape detection. Meanwhile, a new witness has clarified evidence on a prison-surveillance tape, seemingly placing Schlup firmly in the dining room.

Before this year, such new evidence of "probable innocence" would have got Schlup a new hearing. No longer. Three recent Supreme Court decisions have narrowed the window of appeal considerably. In 1991 the high court ruled that "attorney error" could not be used as a basis for an appeal. "In plain English," says O'Brien, "if your court-appointed lawyer screws up, too bad." Then, in 1992, the court issued a ruling that struck down the "probable innocence" standard and raised one in which lawyers had to prove that "no reasonable juror would have found the ((prisoner)) eligible for the death penalty." Finally, in January 1993, the court ruled that a prisoner may be executed without a hearing unless the new evidence of innocence is virtually airtight. At that time, Justice Rehnquist wrote "of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases." He also wrote, "History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency."

O'Brien, who has been turned down on technical grounds with each attempted appeal, is angry and frustrated. "They're saying we shouldn't be looking toward the judicial process, but the political one. If that's how we're going to decide death-penalty cases, we may as well take the condemned man out to a football stadium and let the crowd decide thumbs up or thumbs down."

If that were the case, Schlup would have little or no hope. He was never an angel. After stealing a neighbor's truck on a prank, Schlup, high on insecticide spray, beat up and raped a fellow inmate at the county jail. "I can't tell you why it happened. There's no excuse for what I did," he said. Sentenced to 14 years' hard labor at Jefferson City, the state's maximum- security prison, Schlup slashed a predatory cellmate in a fight over sex and was sentenced to life in prison.

"He has a long record of horrendous violence," says Missouri State Attorney General Jay Nixon. "The system has provided him with incredible amounts of time and resources, starting with free lawyers. A minimum of 22 judges have reviewed this case, which has taken years of our time and hundreds of thousands of tax dollars. We feel that Lloyd had a trial and has been proven guilty beyond a reasonable doubt." Frank Jung, Nixon's representative at Schlup's last attempt at a new hearing, said, "This is not newly discovered evidence. This is newly developed evidence."

The thing that scares me is that I may be giving false hope," says Sean O'Brien, remembering a client he lost, a mentally retarded man who had found God in prison and expected redemption. O'Brien remembers calling the prisoner after the Supreme Court refused a stay. "Ricky asked, 'Where's our next appeal go to?' I said, 'Ricky, there isn't any appeal from the Supreme Court.' 'Well,' he asked, 'what are you going to do next?' I said, 'Ricky, it's over.' He asked what was going to happen. I said, 'Ricky, you're going to be executed in about an hour.' I've always wondered what Ricky thought between that moment and the moment he got injected -- whether the hope we gave him was a good thing, or whether, in the end, it just added to his family's suffering."

The scenario seems ominously similar with Schlup. "I've never really had any hope in my life until I met Sean O'Brien," says Schlup. "The only thing I've been able to do about my life before this was drugs. I just figured I was going to die in here." He adds, haltingly, "I don't want to die." He closes his eyes and presses the back of a tatooed fist against his quivering mouth to compose himself. "I just hope that things will turn out all right."