Legal Agitator of Our Time

Rodger Citron reviews Robert L. Tsai’s “Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All.”

By Rodger CitronFebruary 24, 2025

• Law

• Biography & Autobiography

IN JUNE 1972, the Supreme Court held that capital punishment was unconstitutional in the three cases before it. The court’s ruling in Furman v. Georgia resulted in a four-year moratorium on the legality of executions. This period marked the high point of an emerging campaign against the death penalty. Four years later, the court revisited the issue in cases involving revised death penalty statutes from Florida, Georgia, and Texas and upheld the statutes in what are known as the Gregg decisions. Executions resumed the next year.

The administration of the death penalty involves criminal law and legal procedure, but it is also about so much more than those things. Capital punishment—who is charged, who is convicted, who is sentenced, and who is executed—reveals a great deal about a society’s values and priorities. As Robert L. Tsai argues persuasively in Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (2024), capital punishment is an affront to equality in every way. Race is a factor at every stage in the process. Defendants charged with death penalty crimes often lack the resources to retain effective counsel. Mental illness is a factor in many cases but is often insufficiently explored.

Tsai examines the history of the death penalty since Gregg through the career of Stephen Bright, an extraordinary lawyer who has dedicated his life to representing poor people in criminal cases, many involving the death penalty. Tsai tells several stories in the book. The first takes the form of Bright’s biography. Bright came of age during the political unrest of the late 1960s, attended law school, and shifted his efforts to combating inequality from politics to law. It’s an inspiring story, one that will draw young lawyers into the fold and may rekindle the idealism of older ones.

The second story is political. Tsai charts the rise of tough-on-crime politics that contributed to Richard Nixon’s election in 1968 and Bill Clinton’s election in 1992. As president, Nixon reshaped the Supreme Court, starting with the appointment of Warren Burger to replace Earl Warren as chief justice. Subsequently, Nixon appointed Harry Blackmun, Lewis Powell, and William Rehnquist. All four Nixon appointees dissented in Furman but were in the majority in Gregg. The Burger Court began undoing the Warren Court’s protections for criminal defendants—a conservative project that has continued to this day.

Clinton campaigned as a New Democrat, one who was tough on crime and supported capital punishment. During his two terms, Clinton enthusiastically supported laws promoting incarceration (the 1994 Violent Crime Control and Law Enforcement Act) and restricting appeals in death penalty cases (the Antiterrorism and Effective Death Penalty Act [AEDPA], enacted in 1996).

This political landscape provides the context for Tsai’s third—and most detailed—story, which is focused on the judicial system. Bright was in college when Burger replaced Warren as chief justice in 1969. Even though the court has moved inexorably to the right since then, Bright nevertheless argued and won four death penalty cases—one before the Rehnquist Court, three before the Roberts Court.

Tsai writes about constitutional law with a focus on the conditions and structures in society that produce inequality. In Bright, the relentless litigator, Tsai found a lawyer who engaged daily in the struggle for equality and often, against formidable odds, triumphed. The irony is that Bright’s successes show that the path of legal reform through the courts is narrow and daunting. Procedural obstacles litter the way, and courts are receptive mostly to case-specific arguments about fairness. In death penalty appeals, as in litigation over other rights previously protected by courts, substantive reform must be pursued politically.

¤

Tsai sets the stage by sketching Bright’s biography. Bright grew up on a farm in Kentucky, wrote for a local newspaper while in high school, and was fascinated by politics. Born in 1948, he attended the University of Kentucky during the politically turbulent late 1960s. Bright was the student government president when, in response to the National Guard’s shooting students at Kent State University in May 1970, Kentucky students occupied an administration building. “For as long as possible,” Tsai writes, Bright sought to be “a mediator to facilitate dialogue and defuse crises” and “an activist when it came to voicing the grievances of his generation.”

The center did not hold on campus, however. An Air Force ROTC building was set on fire during a protest. Kentucky’s governor, Louie B. Nunn, imposed martial law on the campus. This resulted in guardsmen “deploy[ing] tear gas against students and arrest[ing] several protest leaders,” including Bright. Subsequently, Bright participated in litigation against the governor and the university over their actions during the unrest; he also faced disciplinary charges by the university. Bright contested the charges and was disciplined but not expelled. Nevertheless, Tsai observes, “Bright’s encounters with the state radicalized him.”

Bright graduated, enrolled in law school at Kentucky, took a leave of absence to campaign for George McGovern in what turned out to be a quixotic quest for the presidency in 1972, and then returned to finish his studies. After law school, Bright began his career representing individuals against the state. He worked for the Appalachian Research and Defense Fund, the Public Defender Service for the District of Columbia, and Law Students in Court, where he worked on his first death penalty case. Early in the 1980s, Bright moved to Atlanta to head an organization that represented indigent defendants in capital cases. (Soon after he arrived, the organization changed its name to the Southern Center for Human Rights [SCHR], and among its attorneys in that era was Bryan Stevenson, an acclaimed lawyer and activist.)

¤

Under Bright’s leadership, SCHR represented defendants in capital cases, litigated prison reform cases, and pushed for more effective assistance of counsel for indigent criminal defendants. Bright argued his first death penalty case at the Supreme Court in 1988. It involved Tony Amadeo, who had been convicted of murder and another charge in Georgia state court in 1977 and sentenced to death. As Tsai recounts, Amadeo, then 18 years old and AWOL from the marines, went on a drug-fueled spree with three other men and robbed a store clerk in Alabama. They ended up in Georgia, where Amadeo tried to rob a man and shot him dead.

While Amadeo was pursuing a direct appeal in the Georgia courts, an attorney doing research for an unrelated voting rights lawsuit discovered a document in the Putnam County clerk’s office on which, according to Tsai, “someone had scrawled figures for how many African Americans and women should be placed on master jury lists if one wanted to underrepresent their numbers on juries.” The document came from the district attorney’s office and was a smoking gun of a constitutional violation. Although the Georgia Supreme Court refused to consider Amadeo’s appeal based upon the composition of the jury because it came “too late,” a federal district court granted Amadeo’s writ of habeas corpus. The United States Court of Appeals for the 11th Circuit then reversed, and Amadeo petitioned the Supreme Court for review.

In 1988, Justice Sandra Day O’Connor was the swing vote on the court, and Tsai shows that she provided the fourth vote to grant Amadeo’s petition. (The other justices who voted to grant review were William Brennan and Thurgood Marshall, unyielding opponents of the death penalty, and John Paul Stevens.) When Bright argued Amadeo’s appeal before the Supreme Court, he spent a fair amount of time sparring with Justice Antonin Scalia. When Georgia’s lawyer argued her case, asserting that Amadeo’s lawyers could have raised the underrepresentation issue earlier, she faced skeptical questioning from justices Stevens and Byron White.

The Supreme Court unanimously ruled in favor of Amadeo. Marshall, who “had remained curiously quiet” during oral argument, wrote the court’s opinion reversing the 11th Circuit. On remand, the district attorney—likely in response to Bright’s argument that he should not be allowed to retry the case given “his documented disdain for the principle of equality”—offered a deal: no death penalty in exchange for Amadeo’s guilty plea to murder and a promise not to seek parole for 25 years.

Amadeo took the deal, became a model inmate, and was paroled in 2011 after spending 38 years in prison. Eventually, Amadeo moved to Texas and became an operations manager on a ranch. “Every day I count my blessings,” he wrote in a letter to Bright. “God bless, and thanks for my life.”

¤

Bright did not argue another case at the Supreme Court for nearly 20 years. In the interim, he continued to serve as the director of SCHR, represent indigent criminal defendants, and pursue reform of systems providing lawyers to poor criminal defendants. In 2003, a legal newspaper in Georgia named Bright “Agitator [and Newsmaker] of the Year” for his efforts to create a public defender system in the state.

In 2007, Bright returned to the Supreme Court to argue on behalf of Allen Snyder, who had been convicted of murder in a Louisiana court in 1996 and sentenced to death. In his appeal, Snyder asserted that the prosecution improperly exercised peremptory challenges (or strikes) of certain jurors based on race, a practice prohibited by the Supreme Court in Batson v. Kentucky in 1986. Significantly, as Justice Samuel Alito noted in his opinion for the court, “all 5 of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes.” Further, the prosecutor invoked the O. J. Simpson case during his closing argument. “The obvious message to the all-White jury” was, according to Tsai, “remember O.J.?, don’t let this Black man get away with murder.”

The Supreme Court had moved further to the right since Bright’s first argument before the court. Nevertheless, his mastery of the facts of the jury selection process at Snyder’s trial and emphasis on procedural fairness persuaded the Supreme Court to grant Snyder’s appeal. Alito wrote the majority opinion while Justice Clarence Thomas, joined by Scalia, dissented. Interestingly, Tsai notes, the court did not discuss “the prosecutor’s O.J.-inspired call for the death penalty.” After the Supreme Court remanded Snyder’s case back to the Louisiana courts, the prosecutor did not seek the death penalty. Snyder was tried for second-degree murder, convicted by a jury with three Black members, and sentenced to life in prison without the possibility of parole.

Seven years after the Supreme Court’s decision in Snyder, Bright argued a similar equal protection claim on behalf of Timothy Foster. An all-white jury in Georgia convicted Foster of capital crimes for sexually assaulting and killing a white teacher during a burglary in 1986 and sentenced him to death. On appeal, there was litigation over whether Foster was too intellectually disabled to be executed.

Then, as Tsai describes, SCHR attorneys in 2006 obtained access to the prosecutors’ notes, which “showed that [they] kept close track of the race of citizens during jury selection,” including “notations of N (for “No”) […] next to all the Black jurors’ names.” Foster’s attorneys asserted a Batson claim in the Georgia state courts. Unsuccessful there, they sought review in the Supreme Court. Bright presented argument on behalf of Foster in November 2015 and prevailed by a 6–1 vote, with Chief Justice John Roberts writing the majority opinion. Thomas dissented, while Alito concurred in the judgment and wrote a separate opinion. Scalia participated in oral argument but died before the court issued its decision in May 2016.

As Tsai discusses, the court’s decisions in Snyder and Foster are noteworthy in several respects. A conservative justice—Alito in the former, Roberts in the latter—wrote the court’s opinion in each case. Indeed, only the most ardent conservative justices dissented in each case. Most notably, Bright’s victories illustrated the type of equal protection constitutional claim that would succeed before the Roberts Court: one that is narrowly framed, anchored in specific facts, and emphasizes procedural fairness. To put it another way: The Roberts Court is not receptive to broad, systemic claims against institutions, such as the class actions brought decades before against school districts and prisons.

¤

Bright’s final argument before the Supreme Court in 2017 was his most challenging. It involved a straightforward legal issue: whether a prior Supreme Court decision, in the words of Justice Stephen Breyer, “clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution” to effectively assist the defense.

The issue was presented in the case of James McWilliams. As Tsai acknowledges, the facts regarding his crimes “were chilling.” On an evening in December 1984, McWilliams robbed a convenience store. During the robbery, “he pushed the clerk working that night […] into the back room, raped her, and then shot her dead.” McWilliams was captured and tried in Alabama nearly two years later.

The jury convicted McWilliams of rape and murder and recommended a sentence of death. Before the sentencing hearing, McWilliams’s lawyers received a medical report about their client’s neuropsychological problems. They asked for a continuance and an expert, but according to Tsai, the judge proceeded to sentence McWilliams to death.

While these facts indicated that the issue of McWilliams’s intellectual disability had not been sufficiently explored, the AEDPA established an imposing hurdle: in subsequent post-conviction proceedings, Tsai explains, “no federal judge could grant relief unless Bright could demonstrate that, by the time of McWilliams’s trial, he ‘clearly’ had a right to an independent mental health expert.”

The relevant Supreme Court case, Ake v. Oklahoma, held that an indigent defendant must be provided a state-funded psychiatrist to guarantee “meaningful access to justice.” Ake had been decided in 1985, before McWilliams’s trial. But there was genuine disagreement over what was required—specifically whether the psychiatrist must be a member of the defense team or, in the words of Alito, “a neutral expert who examines the defendant,” reports the conclusions, and is available to both sides.

At oral argument, the justices peppered the attorneys with questions about how to read Ake. Two months later, Breyer wrote the opinion for the court agreeing with Bright’s reading of the case. On remand, the 11th Circuit found that his rights had been violated. Rather than try the case again, the prosecutor agreed to a sentence of life without parole for McWilliams.

Unlike the previous three cases Bright had argued, McWilliams was decided by a 5–4 vote and could have gone either way. It’s an artifact from the era of the so-called “Kennedy Court,” when Justice Anthony Kennedy so often provided the fifth vote for the prevailing side. True to form, Kennedy joined Breyer’s opinion in McWilliams, while Alito wrote a sharp dissent joined by the other three conservative justices. Given changes in the composition of the court since 2017, it’s reasonable to believe that the case would have been decided the other way if it came before the court today.

¤

Tsai’s admiration for Bright is apparent throughout his elegant account of the lawyer’s life and the cases he litigated. Analytically, what seems most critical in the pursuit of equality in capital cases—and criminal cases generally—is effective assistance of counsel. Bright’s success at the Supreme Court in all four cases literally saved the lives of his clients. (Tsai notes that Bright did not always succeed in preventing his client’s execution in the capital cases he worked on.) That’s why Bright’s efforts to improve the provision of indigent defense services are just as admirable and meaningful as his successful arguments on behalf of individual clients at the Supreme Court.

Politically, it seems, we are in a time of transition regarding the death penalty. Progressive prosecutors emerged in the last decade in response to tough-on-crime politics and legislation. Such prosecutors reflected the view that law enforcement and criminal prosecution should not aggravate societal inequality. They encountered resistance, and their efforts were stymied in part by the pandemic. Capital punishment has been part of this debate; some states have turned away from the death penalty while others have continued to embrace it. Bright’s extraordinary career will inspire those who oppose the death penalty—politically, by voting to limit or abolish it, and legally, by advocating for it to be administered as fairly as possible.