THE DIFFERENCE A MILLION MAKES

By Adam Cohen/New York

Though Federico Martinez Macias spent almost 10 years on death row in Texas, the case against him was never strong. He was charged with a double murder arising from a 1983 El Paso burglary. The prime witness was himself a suspect, who was allowed to plead to a lesser charge for testifying against Macias. This man first told a grand jury that he had waited in a car while Macias committed the crime. But when confronted with evidence to the contrary -- including a failed polygraph test -- he subsequently admitted that he had gone into the victims' home and tied one of them up, though he still insisted that Macias had committed the murders. Armed with this testimony and shaky corroborative evidence, the state sought the death penalty.

Macias, a laborer for a spice company, was represented by court-appointed lawyers who were paid little to work on his case and allotted just $500 for investigators and expert witnesses. The trial was riddled with attorney errors. For one, his lawyer failed to call an alibi witness who would have placed Macias miles away from the crime scene. One court that reviewed the trial transcript commented that this oversight alone could have meant the difference between conviction and acquittal. Macias' trial lawyer contends that the lack of money was not a factor, noting he devoted eight months to the case, but the U.S. Court of Appeals for the Fifth Circuit disagreed. "The state paid defense counsel $11.84 an hour," the court noted. "Unfortunately, the justice system got only what it paid for."

Macias' break came when the postconviction phase of his case was assigned to Skadden, Arps, Slate, Meagher & Flom -- one of the nation's largest and wealthiest corporate law firms. Douglas Robinson, a partner in the firm's Washington office, had volunteered with the American Bar Association to take a capital case, and he was randomly assigned to Macias. Robinson and a team of Skadden lawyers and paralegals went at the Macias case the way they would that of a private client. They spent money ($11,599 just for expert psychological testimony); they ran down leads (a partial eyewitness was located who said Macias was not either of the two men she saw near the victims' house); they brought the uncalled alibi witness's testimony to the attention of the court. In all, the Skadden team invested about a million dollars of billable hours and resources, producing a 173-page petition that convinced two federal courts Macias had been wrongly convicted. When prosecutors presented his case to a new grand jury, it found there was insufficient evidence to reindict. After almost 10 years on death row, Macias was a free man.

Macias' brush with death is not as rare as it might seem. In the 1992 book In Spite of Innocence, co-author Hugo Bedau, a Tufts University philosophy professor, identified more than 400 Americans who he contends were wrongly convicted of capital crimes this century. Robinson believes many death sentences would be set aside if the defendants received the kind of no-expense-spared representation Skadden gave Macias. Not all the cases would result in findings of innocence, he says, but many would end in lesser sentences. "If a good close look were taken and there were some real lawyering, I wouldn't be surprised if as many as half of them ended up with a different result," he says.

Macias left Texas after his release from prison in 1993, and has begun a new life as a landscape gardener in rural Mississippi. "I've had some of the worst representation and some of the best," he says. "Money makes a big difference."