This article was originally published by The Marshall Project, a nonprofit news organization focused on the U.S. criminal justice system. You can sign-up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
“Happiest person alive,” is how she identifies herself on Twitter. On her website she writes, “Hi, I’m Jennifer, a mom, entrepreneur, and business growth specialist.” Her Facebook cover says: “MAKE MONEY * SERVE PEOPLE * LOVE LIFE.”
Jennifer Herndon is all over social media – on Google+, YouTube, Pinterest – promoting her online career as a business coach and Internet marketer. She’s written more than 150,000 words on her blog, which she started seven years ago after getting home from Celebration, Fla., where she had attended a three-day “Millionaire Training Camp.”
She tells readers that she has spent so much money – “$53,000 is a conservative accounting of things!” – on get-rich-quick materials, only to discover it’s not so easy. But what she’s learned along the way, she wants to share with others. She promotes products on her website and can be hired to consult.
She mentions on her blog that she has another job – “j-o-b” – that she would like to be rid of. But in those 150,000-plus words, she never says what the other job is.
She refers to it simply as her “offline business.”
Her other job is defending the lives of convicted murderers the state of Missouri would like to execute. In this job – as a solo practitioner, working from home in a St. Louis suburb – Jennifer Herndon is desperately unhappy.
“I’m not doing anybody any good,” she says.
“There’s no joy in it whatsoever. They execute people no matter what.”
Her condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.
In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.
Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.”
The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.
Herndon, starting in November 2013, had five clients executed in just 15 months.
In all, she’s had seven clients executed since 2003.
And she has another execution scheduled next week.
Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.
That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.
Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”
On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.
“Mr. Strong is at least entitled to a ‘fair fight.’ Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.
While confronting this procession of execution warrants, Herndon has also faced the prospect of losing her law license. The Missouri Supreme Court already suspended her license for four months in early 2013, because she was delinquent on her state income taxes. Although she got her license back, the state has been threatening to suspend it again, because she is again delinquent.
“They think I care,” Herndon says. “They always threaten to suspend my license – and I’m like, ‘OK, suspend my license. Then maybe my clients will live longer.’”
‘When You’re Young’
Herndon, who is 49, earned a bachelor’s degree in psychology and political science from what is now known as Missouri State University. There, a political science professor suggested law school.
“I always had an interest in helping the underdog,” she says.
“I guess when you’re young, you think you can save the world.”
Plus, she figured, what can you really do with an undergraduate degree in psychology and political science?
She earned a law degree from the University of Missouri and was admitted to practice in the state in 1990.
Between 1997 and 2009, federal judges appointed Herndon, usually with co-counsel, to handle final appeals for at least 11 condemned inmates, according to court files. That work can be exceptionally demanding, with attorneys called upon to reinvestigate evidence, canvass a client’s criminal, social and family history, and probe the state’s execution protocols.
Assigned the appeal for condemned inmate Christopher Simmons – who, at age 17, wrapped a woman in electrical wire and duct tape, then threw her from a bridge – Herndon helped win a landmark case, convincing the Missouri Supreme Court that it was cruel and unusual punishment to execute anyone for a crime committed as a juvenile. In 2005, in Roper v. Simmons, the U.S. Supreme Court agreed.
Asked about the case, Herndon recalls less the triumph than how it eventually became the equivalent of a pro bono venture, with her putting in long hours for no additional pay.
The first of Herndon’s clients to be executed was in 2003. Eight years passed before a second client was executed. That same year, in 2011, another of Herndon’s clients, Richard Clay, had his sentence commuted to life by Gov. Jay Nixon. The government capped its pay for the clemency work done by Herndon and a second attorney at $7,000, with the chief judge of the federal appeals court writing: “[N]o lawyer is entitled to full compensation for services for the public good.”
Herndon says she didn’t see even a dollar of the $7,000. That money went to specialists tapped to help with the case.
Then, in 2013, Missouri initiated a wave of executions, with death warrants sweeping up one after another of Herndon’s clients. In a Time article a law professor attributed the wave to a “perfect storm,” conservative judges wielding influence at the same time backlogged appeals were being exhausted.
Lee Kovarsky, post-conviction director of Texas Defender Service, a nonprofit established by veteran capital attorneys, says Missouri’s determination to empty its death row as quickly as possible was bound to have an unusually great impact on its defense bar. Although Texas executed just as many inmates last year, Texas has been executing a comparatively large number of inmates for decades. (In 2000 alone: 40.) Kovarsky says that through the years, Texas has spawned more organizations such as his to share in the work of capital defense, which helps disburse the impact.
The same year Missouri ramped up its executions, Herndon confronted mounting financial pressures that jeopardized her law license.
In 2010 and 2012, according to court records, the state Department of Revenue had filed two tax liens against Herndon, alleging that she owed $23,098.69 for unpaid state income taxes in 2006, 2007 and 2008, with interest accruing.
“It is what it is,” she says. “Am I going to pay my state income taxes or am I going to feed my kids?”
In Missouri, if a tax debtor is a lawyer, the revenue department can seek to have the person’s law license suspended. Under that rule, the Missouri Supreme Court suspended Herndon’s license in February of 2013.
Afterward, Herndon resolved the dispute and provided a certificate of tax compliance, according to state records. The Missouri Supreme Court reinstated her license in June of 2013.
Two months later, the same court issued execution orders for two of her clients, presenting Herndon with the extraordinary challenge of fighting back-to-back executions.
Ultimately, the execution dates settled upon were Nov. 20, 2013, for serial killer Joseph Franklin and Dec. 11, 2013, for Allen Nicklasson, who was condemned for shooting to death a Good Samaritan who had offered to help Nicklasson with his stalled car.
Herndon says that once an execution warrant is issued, there isn’t enough time to do all that needs doing, even if you give all your time to that one case. And she can’t devote every waking hour to any one case, she says. She’s a single mother, with four kids to take care of. She has other cases. And she has her other job.
Jennifer Herndon started her blog in June 2008, fresh off the “Millionaire Training Camp,” where attendees received “true insider secrets” and a “fully operational million dollar business,” according to the event’s promotional materials.
She paid “nearly $10,000” to attend, including tuition, hotel, airfare and other costs, Herndon wrote. But it was worth it, she wrote, for reinforcing her understanding that “a successful home business is 90% mindset and 10% method.” “[I]t’s almost too good to be true. … To know that I already HAVE 90% of what it takes to be a millionaire blows me away.”
“I’ve found the keys to success. I’m going to share them with you,” Herndon wrote in her initial blog post, thereafter directing readers to a website where they could claim a free CD.
Herndon said in an interview that she launched her online career when she began burning out on her law career. “I just decided I didn’t want to do it anymore,” she says. She didn’t view her online work as in addition to. “It was instead of.”
She has said the same on her blog, describing her goal – not yet realized – as a “seven figure income working from home.” She wrote in 2009: “Often while I’m working at night I find myself thinking ‘when am I going to be successful?’ Which, to me, means ‘when am I going to be able to leave my other career and devote all of my work to my online business?’”
On her blog, Herndon describes how she makes money online. One way is being an “affiliate.” She promotes a product on her blog – for example, “Jim Rohn’s One Year Success Plan” – with an accompanying link. If readers click through and buy, Herndon gets a commission. Plus, she writes: “If you are in a two-tier affiliate program (and you should be), your buyers become your affiliates.” Herndon also has private clients whom she coaches on such matters as time management, according to her blog.
Online she offers advice on topics ranging from personal interaction (“the secret is to simply … smile”) to the formula for success (“burning desire” plus “massive action”) to search engine optimization.
People fall into two camps – “millionaire mentality” and “minimum mentality,” she writes. “At least 97% of the people in this country have the minimum mentality. These are all the people that caution you against those ‘work from home scams,’ or ‘pyramid schemes.’ … If you want to begin to succeed in your home based business, you’ve got to get away from these people.”
Herndon posts dozens of inspirational messages on her social-media accounts, the sources ranging from Buddha to Maya Angelou to herself. She writes of eschewing the morning news – “details of the city’s 59th murder was not a stellar start” to the day – in favor of a motivational CD, and relates how she stays positive by singing “happy Mary Poppins-like songs” and by embracing daily affirmations (“I like my affirmations to be a little shorter so that I can mindlessly repeat them throughout the day”).
At times, Herndon describes being disillusioned with the online world. She writes of ordering a “‘free’ CD” from an Internet marketer, which leads to a “free strategy session” on the telephone, which leads to a sales pitch for a $5,000-plus seminar (which she thought of purchasing, only to be billed for it before giving authorization).
Offline, Then Online
Beginning in the 1970s, Joseph Paul Franklin, a white man from Alabama whose goal was to start a race war, traveled the country shooting people, murdering, among others, two black teens in Ohio, two black joggers in Utah, and an interracial couple in Wisconsin. He also admitted shooting and wounding civil rights leader Vernon Jordan and pornography magnate Larry Flynt.
Although convicted of or linked to at least 18 killings, the only case in which Franklin got the death penalty was in Missouri, for the 1977 shooting of a man outside of a synagogue.
Before Franklin’s scheduled execution on Nov. 20, 2013, Herndon and other members of Franklin’s defense team mounted challenges in the state and federal courts, and in a plea to the governor’s office.
On Nov. 18, the governor denied Franklin’s clemency request. But on Nov. 19, on the eve of execution, the defense team won stays from two different federal judges, on two different issues. One judge ruled that Missouri’s use of pentobarbital threatened to cause “unnecessary pain beyond that which is required to achieve death.” A second judge issued a stay based on concerns about Franklin’s mental competence.
Dorothy Otnow Lewis, a psychiatry professor who examined such notorious killers as Ted Bundy, had interviewed Franklin years before and concluded that he suffered from paranoid schizophrenia. Franklin experienced hallucinations and delusions, attributed magical powers or dangers to certain numbers and words, and nursed bizarre beliefs, insisting, for example, that he needed to be castrated or else he would burn in hell.
Lewis told The Marshall Project that she “very rarely” makes a finding of paranoid schizophrenia, adding: “You don’t have to be a bleeding heart liberal to say, ‘You don’t execute schizophrenic people.’”
But as midnight approached and passed, the 8th U.S. Circuit Court of Appeals lifted both stays. This precipitated a pre-dawn scramble from the defense team, which asked the 8th Circuit to reconsider (denied, at 2:45 a.m.) and the U.S. Supreme Court to grant a stay (denied, at 5:43 a.m.).
The execution went forward at 6:07 a.m. Ten minutes later, Franklin, 63, was pronounced dead. Herndon called Franklin’s daughter in Alabama, to deliver the news.
One day later, on Nov. 21, Herndon went on Facebook and wrote: “Super-excited to be making the long drive to Atlanta to meet some online friends in real life! Although, I REALLY wish this had not been our average speed for the last hour …”
Below her note was a picture of a dashboard, showing the car was going 3 mph.
Herndon was heading to another three-day event for online entrepreneurs, akin to the Millionaire Training Camp. This one was called “Hell Yeah! Star,” an event focusing on “personality brand packaging,” with sponsors that included a coach promoting “Unlimited Profits for Intuitive Women” and an abundance astrologer.
The next day, in Facebook’s comments section, she wrote: “[W]e finally made it! The event has really been awesome so far. I am in the middle [of] rebranding and this has helped me tremendously!”
Herndon had another client scheduled to be executed in less than three weeks. She also was about to receive more bad news that could jeopardize her law license.
‘I Haven’t Been Compliant’
On Dec. 4, 2013 – two weeks after Franklin’s execution, and one week before the next execution – the Department of Revenue filed a new lien against Herndon, citing unpaid state income taxes in 2009, 2010, 2011 and 2012. Added up, she owed $24,172.54 for those four years, according to the lien.
Herndon could have been, and still could be, suspended again. But, she says, while the state has made threats – the latest letter came from the revenue department just within the past few weeks – there has been no follow through.
“I think they don’t do it because they know they can’t execute my clients if they do it, honestly,” she says. For a condemned inmate, having an appellate lawyer suspended could be powerful grounds for relief. That, she says, is the only logical reason not to suspend her for failure to pay. “Because I haven’t been compliant, and I’m not compliant now,” she says.
Because of confidentiality rules governing taxes and attorney discipline, the state’s position in all this is not public record, at least not yet. (Asked about Herndon, a Department of Revenue spokeswoman said in an email that the agency is prohibited from “discussing confidential taxpayer information.”) What’s clear is that Herndon has kept practicing – a member of the bar in good standing – while the revenue department tried another means of recovering the debt, garnisheeing a bank account.
After Nicklasson was executed in December 2013, Herndon had clients executed in March and December of 2014, and in February 2015. One, Paul Goodwin, was executed despite concerns about his mental capacity. His IQ had been scored as low as 72.
And all the while, Herndon has continued to juggle her offline and online careers, along with her financial challenges. One day after her client was executed in March 2014, a collection agency filed a lawsuit against Herndon, alleging a delinquent credit-card debt of about $8,000. And one day after Goodwin was executed in December 2014, Herndon tweeted: “Really good stuff! ‘Twitter Marketing: How To Get Followers That Actually Matter’ http://bit.ly/1IFsdCq via @MelonieDodaro.”
Instead of seeking to withdraw from her cases once she began feeling burned out, Herndon says she kept them “out of a sense of loyalty. A lot of these guys I represented for 10 years or more. I really didn’t want to be a deserter.”
In addition to Richard Strong, Herndon represents Roderick Nunley, another death row inmate whose appeals have just about been exhausted.
“I feel like I’m not doing the best work I can or should be doing for my clients right now,” Herndon says.
Asked what she plans to do after her two remaining capital cases are finished, Herndon said: “Oh, I quit.”
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