This story originally ran on July 12, 1987 after murderer Richard Lee Whitley was executed in Virginia's electric chair. Tim Kaine had represented Whitley on appeal.

When the state sent 2,500 volts through the body of murderer Richard Lee Whitley on Monday night, a little bit of Timothy Kaine died, too.

It's not that Kaine, Whitley's lawyer, thought his client was innocent. Whitley had a long criminal history and had confessed to the 1980 murder and sexual assault of an elderly Fairfax County neighbor.

"His crime was a terrible crime. It was a tragedy. I don't have any doubt about that," said Kaine.

But just before Whitley died, the young lawyer stepped outside the prison at 500 Spring St. to face the media, and he hurt.

Carrying a Bible, Kaine offered the television cameras a prayer for what he said was a society that would execute a brain-damaged man who had a diminished ability to see that murder is wrong. But it wasn't even that perceived injustice that bothered Kaine so much.

Two days earlier, while waiting for word on Whitley's last chance for a stay of execution, Kaine said, "If Spring Street wasn't there and the chair wasn't there, you can still look around Richmond and see an awful lot of pain.

"For somebody who has a view like mine" about life, said the 29-year- old Harvard University law graduate, "the pain is a very real thing. ... Something personal in me will die, too," when Whitley dies.

"There are a lot of little deaths in that way every day."

Kaine's commitment to Whitley led to more than two years of trips to the Virginia and U.S. supreme courts, U.S. District Court and the U.S. 4th Circuit Court of Appeals. The trips were, for the most part, exercises in frustration. In the 48 hours before an interview a week ago, Kaine had lost efforts in three courts and failed to win a commutation of sentence from Gov. Gerald L. Baliles.

On Monday, four hours before the execution, the U.S. Supreme Court denied Whitley's last chance. "It's been hard," Kaine said. "It's been hard, these setbacks. It's hard to keep going back and giving bad news to your client."

Kaine was not optimistic as he neared the end of about 1,000 hours of largely free legal work on the case. Kaine has been practicing only since late 1984 and Whitley has occupied a substantial part of his career.

Psychologically, said lawyer Dennis Balske, the demands of a capital case are traumatic. "It's even more psychologically draining to be coming down to the execution wire trying to save your client's life.

"It's a very frustrating experience. So much so that it's almost impossible to get lawyers who have done it to do it again," said Balske of Montgomery, Ala. He is a legal director of the Southern Poverty Law Center. Balske also has represented clients in capital cases.

"Everyone is mad at you. The judges are mad at you. The public is mad at you. The attorney general is mad at you. Everybody feels that you are the bad guy," said Balske.

Instead, Balske believes lawyers such as Kaine are "the unsung heroes of the day. All that they're doing is seeing that their client's constitutional rights are being enforced."

"A capital case is not just another case," agreed David E. Boone, a local lawyer who has represented nine clients facing the death penalty, a half-dozen of them as a court-appointed attorney.

"It's a different animal. You're pretty much devoting your life," said Boone. "I don't care about money, I don't care about the time spent when I take the case. I become totally devoted to that client. I don't even know what day it is.

"He might be the worst person in the world and you might despise him, but by God, when you take his case, you take his life on your shoulders."

Unlike Kaine, who has represented Whitley in post trial matters only, Boone began handling capital murder cases at the trial level in 1974. None of his clients got the death penalty. "I've been lucky," said Boone.

"I guess the (Alvin E.) Alley case was probably the toughest I've had," said Boone. Aside from the gravity of the Alley case, in which a Henrico County policeman was murdered, and the hundreds of hours of work it required, Boone also had to contend with threats, some left on his home answering machine.

"During the Alley case, I literally had to turn that thing off for about four months. I got death threats. I got threats against my children, threats against my wife," he said.

"I guess that goes with the territory . . . but you worry about your family and your children. There's some real loonies out there."

Kaine, originally from Kansas City, contacted the American Civil Liberties Union when he moved here in 1984 with his wife, who is also a lawyer. He volunteered to assist in post trial constitutional questions for death row inmates.

Instead of assisting, however, Kaine at first became Whitley's only lawyer. His previous lawyer, also a volunteer, had to drop the case because she moved to another state, said Kaine.

Although he normally handles civil cases, he volunteered his services because of his opposition to the death penalty. That opposition stems, he said, from "my fundamental belief about life. There's a lot of pain and suffering and evil everywhere in the world (and capital punishment) is one example of it.

"I think it's a religious perspective. I spent a year in Central America working in a Jesuit mission and saw an awful lot of hunger and infant deaths caused by malnutrition.

"The essence of human life is probably suffering and pain. . . . The thing that redeems that is the presence of God in every person," he said.

"What the public generally doesn't understand about (execution) delays is that they think it's only some lawyer out there doing something" aimed at delaying it.

"The reason there's a delay is because the U.S. Supreme Court has set up a system of a lot of protections for persons facing execution. And that is to protect against society imposing the death penalty" in an unfair way.

"The reason it takes time is not because somebody out here, like me, is doing this, although the fact is, if he didn't have an attorney he probably would have been executed in 1983," Kaine said.

"All we're doing is saying the U.S. Supreme Court has set the rules and we're just playing by the rules. I think society has an interest in that.

"I know that makes people mad, but the alternative is to just have immediate executions and then what you end up with is innocent people being executed," said Kaine.

"People's anger and fear really ought to be addressed to the Supreme Court -- and that's not, at this point, a real radical, liberal body. These are conservative justices who still believe that certain protections have to be allowed to make sure that it's done fairly."

The principle injustice in the death penalty in Virginia, he said, is that, "Nobody, as far as I know, is on death row in Virginia who had enough money to pay an attorney. If you had enough money to pay an attorney like David Boone . . . you're not going to get the death penalty."

Kaine said he did not wish to criticize Whitley's original trial lawyers, but, "In Whitley's case, his (court-appointed) attorneys never investigated his background.

"They didn't know that he had been diagnosed as completely clinically incompetent when he was an adolescent. They didn't know that he had a long history of childhood head injuries, that he had organic brain damage, that he had psychiatric disorders, that he had a borderline retarded IQ.

"They didn't know his childhood was about the worst possible childhood that anyone could ever imagine.

"All of that stuff, in my mind, is critically relevant to a jury in terms of what they might want to do . . . the difference between life and death frequently weighs on exactly those factors."

Yet, because of state rules, Kaine said he never could argue an issue such as Whitley's mental health during the appeals because it never was raised as an issue in the trial. Also stacking the odds against those on death row, Kaine said, is that the state will not pay for lawyers raising post trial constitutional claims.

"It's just shockingly unequal," he said. "That is one of the real frustrating things about doing these cases.

"In my case . . . most of my work in the 2 1/2 years (with Whitley) has been trying to get courts to consider claims that had never been considered and at each stage I'd get turned down." With only one exception, "I've never gotten a court . . . to look at the substance of his constitutional claims.

"It adds an element of sort of existential absurdity to be spending your whole time arguing whether the court should even consider" the real issues.

A lawyer's biggest fear when a death sentence is handed down against a client, said Boone, is that "I'm going to wonder the rest of my life if there was something I could have done."

Boone said the feeling must be like those of a person with a loved one who has committed suicide. "You always feel guilty, even though you did not have anything to do with it.

"My beard was not gray before I took the first capital murder case but it was gray after I finished," said Boone.

"I will not hold myself responsible for having lost," Kaine said. "The facts are facts, the law is the law and the judges are the judges. I can't control all those factors.

"I'll feel bad when it happens. . . . I think it's a tragedy to execute somebody who had the kind of background that he has had. His crime was a tragic crime, but executing him would only compound that tragedy.

"And I'll also feel bad just because I think it's outrageous that there is the death penalty. It's not the biggest outrage in the world, but it's one of a number of outrageous (things) where people don't appropriately value the sanctity of human life," Kaine said.

"I feel confident that I've worked as hard as I can on it and I think (Whitley) feels confident, too.

"While I may feel some twinges and while maybe I'll wake up a year from now and think, `You know, wait a minute, there's an argument there I could have made,' " Kaine said, "it's not me that's killing him. I'm trying to do everything I can to stop it.

"I felt like there is one way that I could lose the case and that is if my client felt like I did not do everything for him that I could. That, then, is a loss and I have to avoid that at all costs.

"He has to know that there is at least one person out there who really fought for him," said Kaine.

"There's something therapeutic in that, even for somebody who is going to be executed."

Get the Virginia Politics Insider email update every evening during the GA and weekly all year

* I understand and agree that registration on or use of this site constitutes agreement to its user agreement and privacy policy.
Load comments

You must be a full digital subscriber to read this article You must be a digital subscriber to view this article.