20 Questions with Kathleen Zellner
Growing up, I wanted to be a journalist or an FBI agent. After law school, I was an appellate clerk for one year and then I worked for a prominent plaintiff and criminal defense trial lawyer.
2. I have reviewed a significant number of impressive verdicts and results that you have obtained during your career. Several of the fact scenarios are particularly intriguing to me, and I would certainly imagine to the LCA Fellowship as well. The case of Larry Eyler is nothing less than fascinating. Will you share with us whatever information you can about your success in getting him to confess 21 murders to you?
It took me a number of months and many hours of meetings with Larry Eyler to persuade him to confess to the 21 murders. I would start by telling him what I thought had happened in each case and he would usually stop me and say "no, no. it actually happened this way." My goal was to plead him guilty to the 21 murders in exchange for a life rather than death sentence. As it turned out, he had a fatal illness (AIDS) and died while his case was on appeal.
3. Your successes in representing wrongfully imprisoned clients may just be rivaled by your successes in recovering monetary damages for them. What have you learned from the courts' willingness to remunerate people who were coerced, convicted and incarcerated wrongfully within the system?
My experience, with civil trials for wrongfully-imprisoned clients, is that jurors are more than willing to award substantial monetary damages if they believe a plaintiff's constitutional rights have been violated. I think this bodes well for the state of our democracy.
4. You have also had a number of medical negligence recoveries that were seemingly David and Goliath situations. Which one or more of those cases brings a smile to your face because of otherwise apparent insurmountable odds?
Without question, the Maryann Martino suicide malpractice verdict. The perception of suicide malpractice cases was that most were impossible to win. I think the Martino case and its $13 million verdict (reduced by 60% to $6.5 million because it was a suicide) changed the perception of many plaintiff's attorneys about the odds of winning a suicide malpractice verdict. I was fortunate to have a wonderful family and an outstanding psychiatrist expert. I was able to demonstrate that the hospital had significantly increased Maryann's chances of suicide by their callous and indifferent treatment of her. She was not married nor did she have children which made the size of the jury verdict even more significant.
5. What do you consider your most unusual accomplishment?
Obtaining the exoneration of Joseph Burrows, who was on death row with an execution date set. I was able to persuade the real murderer to confess to the murder on the witness stand at the post-conviction hearing.
6. You have a national reputation in the areas of wrongful conviction and false imprisonment. Did you have personal values, commitments or motivations in those areas upon entering practice or were there events or cases that lead you toward the type of practice you now maintain?
I was appointed to represent death row inmate Larry Eyler. After I had obtained the 21 confessions from him, I decided that I would make a conscious effort to only represent people I believed were innocent. Almost immediately after the conclusion of the Eyler case, I represented the first innocent man of my career. I obtained his release and also obtained the confession from the real murderer. Those two contrasting cases transformed me into an attorney for the innocent.
7. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners, beginning when we were associates, kept a list of "Zeanahisms." They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
Francis X. Riley, a veteran trial attorney and professor. He said no matter what, never make a joke or try to be humorous in court. A recent illustration proving this point is the "knock knock" joke in the Zimmerman trial- it bombed.
8. What has been the biggest change in the way law is practiced between the time you first began until now?
Technological changes in research with Westlaw, electronic filing, ability to search thousands of pages of documents with computer programs.
9. I started out as a prosecutor in West Texas, not too far from your birthplace of Midland. Not too far in Texas terms at least. At one point the district attorney for whom I worked, a fantastic trial lawyer named John T. Montford, discovered he had previously convicted an innocent man and, to his credit, sought to reverse the conviction, which was not an easy task under Texas law. So often we see on investigative documentaries attitudes of infallibility by the prosecutor seeking to maintain a conviction that is clearly questionable. What have been your experiences with the other side when seeking to have exonerated the clients you have chosen to represent for these purposes? Specifically, what about the Kevin Fox case?
My experience with prosecutors has been mixed. In the Kevin Fox case, the newly-elected prosecutor who succeeded the prosecutor who had originally charged Kevin Fox, agreed to my request for DNA testing which led to the exoneration of Kevin Fox. In Cook County, Illinois, I have found the most progressive attitudes by prosecutors about the possibility that a mistake has been made in a particular case. In other jurisdictions many prosecutors are reluctant to admit error even though they have absolute immunity. I believe absolute immunity is a seriously flawed legal concept. We have all heard the saying "absolute power corrupts absolutely." In my opinion, absolute prosecutorial immunity corrupts prosecutors absolutely.
10. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
New Orleans. Greatest City in America to do a trial.
11. If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?
I have had the good fortune to have had wonderful judges on my various cases so I would not do anything differently.
12. How about another softball? What was the last fictional lawyer book you read and was it on point?
I never read fictional lawyer books. The real stories are so much better.
13. What is your greatest extravagance?
My pro-bono work.
14. If you could meet anyone from history, who would it be, and why?
Clarence Darrow to ask him what is the one attribute of all great trial lawyers.
15. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Litigation Commentary & Review, as well as the Diversity Law Institute's new website. So in a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
The promotion of diversity in our justice system and in the legal profession does not make us weak rather it is the source of our strength. Without diversity, the public will cease to have confidence in the legitimacy of our justice system.
16. If you could not be a lawyer, what would you like to be?
A storm chaser.
17. What object in your office serves to re-energize you when your mood needs an adjustment?
A replica of an oil drilling rig used to extract oil from the North Sea given to my father for his discovery of the North Sea oil field in the late 1970's.
18. Your mother retired from being a chemist and nurse at 82 years of age. Your father was a cutting edge pioneer in petroleum exploration. Over your career, what values from them have been most valuable to you in your pursuits for clients?
My mother was an astute observer of other people. From her, I learned to empathize with all types of people. My father taught me that to succeed you must be able to bounce back from disappointments (such as hitting dry wells). He loved what he did and his enthusiasm for his work inspired everyone around him. I am the same way and after so many years of practicing law I still can't wait to get to work each day. I still get wildly excited about an idea or strategy for one of my cases. I love having new insights into old criminal cases or discovering new forensic evidence. It reminds me of the late night calls my father would get from all over the world when one of his wells hit oil. All of that effort and persistence finally succeeded...it was magic.
19. I noted in reading the many articles about your cases that one prosecutor said DNA evidence can be "ambiguous." In many instances, DNA evidence has been a key ingredient in your evidentiary presentation. What are your thoughts about DNA evidence in general? Is it a two-edged sword from the defense side? Should it ever be a two-edged sword from the prosecutor's perspective?
I think that DNA technology has revolutionized criminal law. DNA evidence has led to the exoneration of hundreds of innocent victims of miscarriages of justice. It's true that DNA evidence can result in the conviction of a guilty person, but that is not a bad thing.
20. What is your motto?
When you love what you do, you'll never have to work another day in your life.
By G. Steven Henry