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Life and Death

The state thinks it can do a better job of defending death-penalty cases. John B. Boatwright III may have to prove it.


After Boone was charged Aug. 4, he automatically became Boatwright’s client. In the past, the court would have appointed a lawyer, drawing from a pool of area defense attorneys with experience in capital cases. But today, as a result of legislation passed in 2002, anyone charged with a capital crime in the commonwealth will be represented by the Office of the Capital Defender. Heading up the Richmond branch — the first of four to open across the state — Boatwright officially is Virginia’s first capital public defender.

The office now could be the determining factor in life and death for capital defendants in Virginia. Considering that, surveying his new corner office in Main Street’s 700 Building is, well, a little scary. A giant poster for the movie “Caddyshack” (Boatwright’s favorite movie) hangs on one wall. A clearly boss sound system takes up most of the coffee table below. Nearby is a framed Virginia license plate that once hung on Boatwright’s car. It says “BOAT” in big, blue letters. A picture of him receiving his University of Richmond Law School diploma captures the essence of “The Boat.” Hair flopping over collar and ears, he’s wearing shades and smiling broadly as he pumps the dean’s hand. His hair isn’t as shaggy now, but he has added an earring.

If entrusting human life to a grown-up Ferris Buehler isn’t enough to make your knees wobble, consider the challenges that capital public defense in Virginia by definition presents. First, four regional capital defense offices share a combined budget of between $400,000 and $500,000, less than half what the state expects to shell out on the trials of serial sniper suspects John Muhammed and Lee Boyd Malvo. Secondly, Boatwright and his colleagues around the state will be going head to head with attorneys who prosecute murders on a daily basis.

“Capital litigation has gotten so complicated and frequent that it is developing into a specialty,” says defense attorney David Baugh, a colleague of Boatwright’s for two decades. For a court-appointed attorney with a legal practice, it can be more than daunting. “There’s so much paper,” he says. “Your business suffers and you’re not going to make enough money, so turning it over to an office like that makes so much sense.”

Baugh, who has defended a half-dozen capital defendants, should know. “It’s very exacting work,” he says. You have to devote your entire life to a capital case for a matter of months. If it’s done right, it can consume an attorney’s entire office. And a lot of lawyers don’t know how to handle death cases.” Boatwright, he says, does.

Anyone who knows Boatwright knows that one of the biggest weapons in his arsenal is his own self-confidence. Since he’ll be going up against prosecutors who make their livings trying only murders, it’s an essential tool.

In the sentencing phase of capital trials, both prosecution and defense rely on outside sources to provide expensive testimony to help build the case. By the end of a capital trial, juries often have heard from mitigation specialists, investigators, psychiatrists, neuro-psychologists and more, each hired to balance the testimonies of both sides. While his budget looks like David compared to the prosecution’s Goliath, colleagues don’t expect money matters to hamper Boatwright. “He has the professional stature and the connections in the profession to access those people who can provide a resource for him,” Baugh says. “And he doesn’t mind asking.”

In a state that consistently holds second place to Texas in the nation in number of executions, even prosecutors see the capital public defender’s office as an important step in the evolution of criminal law. Deputy Commonwealth’s Attorney Learned Barry, who has prosecuted some 300 murders, including a dozen capital cases, agrees. “If all they do is murder defense, it puts us on equal footing,” he says. “It’s a very specialized area. Because you deal with people who are geared to the intricacies of capital cases, you don’t have to reinvent everything on every case.”

There seems to be no question that Boatwright is the person for the job. He’s run the defense in eight capital trials. And he doesn’t rely on legal sleights of hand to win a trial. “He’s a grunt,” Baugh says. “A trench fighter. A lot of people are lofty, professorial. Boatwright knows the difference between theory and practice. It’s nice to have someone who is a scholar with a theory down pat. But it’s more important to have someone who knows what he’s doing.”

Defense lawyers are accustomed to being assailed by the righteous. They’re out there, center stage, arguing on behalf of people charged with committing the ultimate crime against God and nature. The death penalty in Virginia is reserved for the worst of the worst. To rate a capital charge, a murder has to be committed in connection with another felony (such as robbery or abduction). Short of that, a death penalty is warranted only in murders that are particularly egregious, such as overkill or multiple victims, or for the defendant who displays potential for future danger to society. Consequently, people tend to think of defense attorneys as black knights, fighting for evil. That doesn’t bother Boatwright.

“You’re going to defend people who someone hates,” Baugh notes. “Boatwright doesn’t mind bucking the system, and he has the stones to do what it takes.”

Defiance isn’t something Boatwright acquired. The seeds sprouted when little Johnny was cruising chicks and lipping off to teachers at Tuckahoe Middle School in Richmond’s West End. By the time he got to Douglas Freeman High School, things hadn’t changed much. He was still telling teachers to mind their own business and getting suspended. “I thought getting suspended was great,” he says. “I learned that a little defiance isn’t a bad thing.”

Fortunately for Boatwright, there is a library and an entrance road to the University of Richmond named for his well-thought-of great uncle Frederic William Boatwright who was the university’s third president, serving from 1895 to 1946. “It makes people think I’m rich,” Boatwright says. “But it ain’t my road, and it ain’t my library.” Still, legacy got him in, but it wasn’t enough to keep him there. “I think I flunked out twice,” he says.

No big deal to Boatwright at the time. His primary motivation for college was a student draft exemption. After flunking out the second time, he rethought his future and enlisted in the Army. His defiant streak wouldn’t let him settle for long, though. In basic training at Fort Jackson in Columbia, S.C., he changed his mind again. “We were shooting pop-up figures with those little rice paddy hats,” he recalls. “It wasn’t for me.”

But tenacity is part of defiance. So Boatwright hung in and was sent to study Korean at The Presidio of Monterey in California. No guns. No combat. But his blood still found cause to bubble. “Park Chung Hee was president of Korea then. So I said, ‘He’s really a dictator, isn’t he?’ Comments on the political climate in South Korea were not welcome.” So in 1972, Boatwright was honorably discharged from the service as a conscientious objector, a solution that seemed to suit both Boatwright and the U.S. Army. He harbors neither regrets nor grudges: “I have no fault with people who served. They thought they were right. So do I.”

In 1973, after working a succession of jobs and getting nowhere, Boatwright decided it was time to try college again. “Because my academic record at Richmond was so miserable, I had to go to VCU, part time until they thought I was worthy to go full time.”

For the next four years, he supported himself by delivering home heating oil, often working 40-plus hours a week. He wasn’t making enough for anything but student-level digs and, like other students, moved from one wretched Fan apartment to another. “Let’s just say some were better than others,” he says.

College should’ve been harder the third time around. “I had no time or money for a social life,” he says. “There was a period when I was going to 8 a.m. classes, going home, getting into my oil-stained clothes, working all day, going back home, showering and heading to night school.” But for a couple of reasons, it was easier. “Back then I had boundless energy, and I was psyched. I was working toward a goal. That was something new for me.”

By 1978, Boatwright’s class schedule seemed heavy in criminal justice courses, so it seemed a natural major. Still, he wasn’t entertaining any thoughts of a career in the law. “One of my professors asked me what I was going to do with the degree,” he recalls. “I said I didn’t know. I just like the topic.” Why not be a lawyer? the professor asked. The obvious became apparent. Boatwright’s father and grandfather both had been lawyers. The professor didn’t know the Boatwright legal legacy. “But I did,” Boatwright says.

“I thought about it. I was finally doing well in school, holding a 3.9 at VCU. I took the LSATS to see if I was in the ballpark.” Back in Boatwright’s day, the LSAT grading scale was different. But “98th percentile” translates to “near the top” in any grading system. To Boatwright, the prospect of law school was not only logical, it might even be easy. That, not legacy, is what drew him to the profession. “The only impact that my father’s and grandfather’s profession had on me was that it was familiar,” he says.

In Boatwright’s mind, defense was the only way to go. “The day I become part of the government [prosecution] is the day I walk out the door,” he says. Although there’s potential for more money in defense litigation than in state-funded prosecution, Boatwright says money was never a motivating factor. “I never set out to be rich,” he says. “I just wanted to be a good lawyer.”

Two years ago, after 21 years of being a good lawyer Boatwright heard about the new Office of Capital Defender. It seemed tailored for him. “I’d met every challenge someone could in private practice,” he says. “This is the only job I’d change to.”

So when the advertisement for the job first appeared, Boatwright applied. Once offered the job, he walked the walk, giving up a lucrative, private criminal-defense practice to work for state wages. He makes just under $80,000, while many of the top defense attorneys in Richmond can make hundreds of thousands of dollars a year.

Now he practices what arguably might be the most intense litigation to see the inside of a courtroom. And the most thankless. During the course of his career, he says, less than 5 percent of his clients have expressed any appreciation.

“It’s frustrating,” he says, “because you deal with clients who don’t understand what you’re doing for them. When a client gets acquitted, they tend to act like they were innocent all along, and it turned out the way it should have. Those same people, when they’re found guilty, think it’s all your fault.” But Boatwright finds validation, even in the losses. “Sometimes the reward is that I lost the case horribly, but I did everything that could be done.”

For Boatwright, the defining moment came after a capital murder plea in 1994. His client, Tony Fry, went with a friend to Bennett Ford in Chesterfield County, ostensibly to take an SUV for a test drive. The salesman, naturally, wanted to go along to ensure safe return of the vehicle. The two drove down a dirt road. They shot the salesman several times, then tied him to the bumper with his own necktie and drove him into the brush where they left him.

“Tony didn’t deserve the death penalty,” Boatwright opines. Indeed, Fry’s sentence likely would have been a subject for debate today. “He was very limited in intelligence and ability.”

Absent his mother and his grandmother, Fry was raised by his great-grandmother. “He was the one every kid at school thought was weird,” Boatwright says. When he found friendship with the juvenile also charged in the murder, he was wont to give it up. “He was dominated by the juvenile,” Boatwright says. “The juvie brought the gun and said he was going to shoot the man. When the moment came, he shoved the gun in Tony’s hand and told him to shoot the man.” When Boatwright asked Fry why he’d done it, Fry gave what he thought was a logical answer. “He looked at me with this sad look in his eyes, and said, ‘[The juvenile] wouldn’t do it. We had agreed to do it, so I had to.”

Fry avoided trial by pleading guilty to capital murder, which meant he would bypass a jury and go straight to sentencing by a judge. In the sentencing phase of capital murder trials, the defendant’s family has an opportunity to plead for their loved one’s life. When Fry’s mother was apprised of that opportunity, she wrote a letter to the judge, begging off. Her chiropractor, she wrote, advised against it.

“I fully appreciate the suffering of the victim’s family,” says Boatwright, “but Tony’s life was a tragedy from the day he was born.” Before sentencing, Boatwright wasn’t optimistic, but he didn’t think the death penalty was a foregone conclusion. “Here’s this guy, he’d met his mom twice. No one even knew who his father was. And the only person who could tell us was at the chiropractor.”

As soon as the sentencing hearing began, Boatwright could see it coming. “Tony stood to be sentenced,” he recalls. “I don’t know what I expected. He looked the same as always: respectful. He was the politest client I ever had. I think he respected the judge’s decision.” Tony Fry was executed Feb. 4, 1999. His accomplice, the juvenile, was sentenced to 88 years.

“The night Tony was executed, I knew it was happening, had known for a long time it was going to happen. I accepted it as reality. I will never accept it as right.” After that night, Boatwright was resolute. “It saddened me that a judge would fail to see that Tony was one of the seriously walking wounded. I never wanted that to happen again.”

Hypothetically speaking — because he is, after all, gagged by the court — Boatwright hopes to derail efforts to litigate Boone’s case, scheduled for Dec. 8. “The conventional wisdom in any capital case is to avoid trial, because someone can get the death penalty there.”

Whatever the outcome, it will be the first test of the state’s new model for in defending capital murder cases. Boatwright’s vision for the office is admirable, if vague. He wants his office to be “a positive force of representation of indigent capital defendants.” To quote an overused adage, the jury is still out. But he has big plans. “We’re going to raise the bar for every lawyer who does capital defense. It needs to be raised. Because the death penalty has been around awhile, some people are stupid enough to regard capital cases as routine. When someone’s life is in the balance, there is no freakin’ routine.” S

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