Professor worked on final Bundy appeals

Professor worked on final Bundy appeals

Bundy, Ted

Capital punishment

Michael Mello gave advice to Ted Bundy and his legal counsel.

Heil, Andrea

Valley News

HIST 298, University of Mary Washington

1989-02-13

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Connecticut

Serial killer Ted Bundy learned late on the night before his execution last month that the U.S. Supreme Court had denied his last-minute appeal for a stay of execution.

The phone message came from the Barnard home of Michael Mello, an assistant professor of law at Vermont Law School.

Mello, a nationally recognized specialist in death-row cases, advised Bundy's lead counsel during a frantic effort to save the murderer's life in the days leading up to his execution.
Mello has been either one of the main lawyers or advised other lawyers or advised other lawyers on some 125 capital punishment cases. He is arguing two death-row cases this month before a federal appeals court in Atlanta. He had been advising Bundy's attorneys in a peripheral manner for several years until the Friday before Bundy's death on Jan. 24.
Then he became centrally involved.

Mello never met Bundy. He did, however, pass messages to him. On the Sunday before Bundy's death, for example, the serial killer asked Mello through a paralegal what he should do about his confessions. Bundy had been meeting with detectives from four states and had so far told them he had murdered 23 young women since the mid-1970s.
Mello's message to Bundy: "Shut the (expletive) up."

Bundy's wife later told Mello that when she heard the message it was one of the few times she smiled during the final week of her husband's life.

An interview with Mello in his law school office last week provided a glimpse into the 11th-hour legal maneuverings to stop Bundy's execution and into the world of death row.

Mello's views on capital punishment have appeared everywhere from "The New York Times" to the "Washington Post" to "The Wall Street Journal". He also has appeared on the television program "Nightline".

His attitude on the death penalty can be easily summed up: He absolutely and totally opposes it.

Mello said that Bundy's question to him about confessions two days before he was electrocuted put him in a quandary.

"On the one hand, if he wanted to make it right with God and confess, who am I to say, "Don't". And as a citizen I liked the fact that the confessions were closing investigations and giving the families a sense of closure, too, so they could move on with their lives.

"On the other hand, I was also convinced that his confessions were devastating to his legal case, and were absolutely sabotaging his defense. They were offensive because it looked like he was trading on the bodies of his victims to save his own life.

"That's what did it," he said, "Judges are human."

Bundy would likely be alive today if it wasn't for those confessions, Mello believes.
Regarding his blunt advice to Bundy that Sunday, he said: "I thought the time had passed for subtlety and sugar-coating. When you're passing messages to people of questionable mental capacity, you have to be clear and direct."

Mello, who teaches criminal law and criminal procedure at Vermont Law School, first became involved in death-row cases while a law clerk with a federal appeals court judge in Birmingham, Ala., after graduating from law school.

"I became my judge's 'death clerk.' I did all the death penalty cases that came through the office. That's where I became aware and then outraged about what was going on, particularly in Florida."

What was going on, Mello says, was that there were minors on death row, along with mentally retarded and mentally ill people.

These people are not just legally mentally incompetent, he said, "but crazy the way my mother thinks of as crazy - people who talk to spaceships."

"I learned that there were a lot of innocent people on death row, and just in general that the legal system that decides who dies is lousy. It's class-based and racist. I learned that most people on death row are there because they had bad lawyers."

There are nearly 2,200 people on death row nationwide. Florida alone has about 320 death-row inmates.

And so Mello turned down an offer to work in the corporate law department at the prestigious national law firm of Cravath, Swaine & Moore and headed to Florida.

His first job was as an assistant public defender representing death-row inmates. Then in the fall of 1985 the Florida Legislature created a state agency to represent all indigent inmates on Florida's death-row. The idea, Mello says bitterly, "was if we give them lawyers we can kill them faster."

It had just the opposite effect, however. Mello, who joined the agency at its outset, said the agency attorneys "shot down executions left and right."

When he started work for the state. Mello immediately encountered the Bundy case, but the agency decided to farm it out to a private law firm from another state. Among other reasons, the five lawyers were already tremendously overburdened, representing 150 death-row inmates.

"You could have three lawyers working full-time on Bundy with an unlimited budget and still not do the complexity of that case and that man justice," Mello said.

The Bundy case, which actually was two cases proceeding on two different appellate track in different courts, was taken over by the Washington law firm of Wilmer, Cutler & Pickering. (Llyod Cutler was chief counsel for President Jimmy Carter.)

Mello then left the Florida state agency to work as a litigation attorney to work as a litigation attorney for Wilmer, Cutler & Pickering. Meanwhile, James Coleman, one of Wilmer's partners and an acquaintance of Mello's, had become Bundy's lead counsel.
When Florida Gov. Bob Martinez signed a death warrant for Bundy on Jan. 17, scheduling his death by electric chair seven days later, Coleman headed down to Florida to get appeals started, and he and Mello began a series of telephone discussions.

"On the Friday evening before the execution, Jim and I were on the phone together and he had the trail transcript in front of him, and we saw an issue that had gotten stays in half a dozen cases before Bundy, and, as it happened, two after him.

"In the course of the conversation we realized for the first time that Bundy's case had this critical issue in it - an issue I had helped to develop in other Florida cases."

Bundy had received death sentences for murdering 12-year-old Kimberly Leach in Florida 11 years ago and for the killings of two Florida State University sorority sisters just three weeks before that.

The critical issue was this: In the Leach trial the jury had been told "that sentencing isn't on your shoulders - it's merely a recommendation - when in fact, a recommendation of life carries great weight in Florida," Mello said.

Though a jury only advises a judge in capital cases on what it thinks is a proper sentence, the U.S. it is not on their shoulders, and so it goes to the judge. He then refers back to the jury - therefore neither judge nor jury has that awesome responsibility of deciding if an individual deserves to die. It's a very human emotion to not want to take on that responsibility.

"This isn't a legal technicality. This is a real big deal. This is exactly why so many people end up on death row who shouldn't be. And why so many stays are granted on this very issue."
Mello, working out of his office at the law school, dictated a short statement of the issue to be put in federal court papers that would be filed the next morning, which was a Saturday. The court papers filed that morning challenged the constitutionality of the death sentence.
At noon the federal District Court denied the petition, and at 6 p.m. the federal Court of Appeals for the 11th Circuit in Atlanta unanimously affirmed the District Court's denial.

"I was thunderstruck that we were in and out of the Court of Appeals already," Mello said.
On Sunday he and Coleman went through the Leach trial transcript and realized how powerful the issue was, stronger than those that had gotten stays in a half a dozen cases up until then. They gathered all the relevant information together and on Monday, the day before the scheduled execution, Coleman filed an application for a stay of execution at the U.S. Supreme Court. He also filed applications for stays at the trial court and the Florida Supreme Court.

"On Monday we waited and waited. The day got later. The state court litigation wasn't concluded until 6 p.m., and we immediately took it up to the U.S. Supreme Court."
Coleman and another lawyer went to the prison where Bundy was being held to visit with him for what might have been the last time. Mello was left to deal with the Supreme Court - which he did by telephone from his home in Barnard. It mainly involved checking in periodically that night to see if the justices had reached a decision and when the decision would be released.

"While I was waiting for the court, I took a couple of calls from people who told me about the increasing the line and came back and told me we had lost by one vote. Five to four. And the four were on the issue that we had not identified until that Friday."

Mello called the prison so Bundy could be told of the decision - and then he poured himself "a nice stiff glass of Wild Turkey."

Mello, who was not paid for working on the Bundy case, asked how he felt when he heard of the court's decision.

"Sick. Flattened. Guilty, because I hadn't identified the issue earlier. Real angry that somebody was going to be executed for what were mistakes by his lawyers."

Mello says he goes back and forth on that way of thinking. "This has not been a great day," he said earlier last week. "So today I blame myself."

He said he doesn't blame Coleman.
If not the death penalty for a man like Bundy, who was a suspect in as many as 36 sex murders across the country, then what? What do you do with the Ted Bundys of the world, Mello was asked. Life imprisonment?

"Yeah, life in prison. Incarceration," Mello said. "The important thing is to keep them away from us as long as they're still dangerous.
"The question is: What do we get out of killing the Ted Bundys? What we got was a spectacle that should make all civilized people pause. What happened outside that prison made people cringe all over the world."

The unfairness of how the death penalty is applied is so overwhelming, Mello said, that he has never had to confront the moral issue it presents. "But if push comes to shove, I'd probably have to say that I am opposed" on moral grounds.

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