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Photos by MARY ANN GERTH, C-J "You can't think about what your client did when you talk to somebody like Tim McVeigh," Kevin McNally, a top death-penalty lawyer, said. Bobby Cruz of Arizona, one of Kevin McNally's clients, gave him this sign with a quote from former Indiana University basketball coach Bobby Knight. McNally prepares rigorously for his capital trials. Some of his books in the foreground, in his Frankfort office, concern death-penalty issues.

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Frankfort lawyer Kevin McNally has advised and counseled mass murderers, the deranged, a serial killer and a hit man — people whose misdeeds could fill an encyclopedia of evil.

There was Oklahoma City bomber Timothy McVeigh, whom he helped find a lawyer, and tried, unsuccessfully, to talk out of abandoning his appeals. There was the "Doctor of Death" — Michael Swango — a physician who may have murdered up to 35 patients from 1983 to 1997 as he moved from hospital to hospital in the United States and Africa.

And in Kentucky, there was LaFonda Fay Foster, whom he saved from execution after she was initially sentenced to death for her role in a 1986 Lexington killing rampage in which five people were shot, stabbed, run over and set on fire.

McNally — an avowed death penalty opponent — acknowledges that "going into denial" is sometimes the only way he can deal with his clients' unspeakable acts, whether alleged or proven.

"You can't think about what your client did when you talk to somebody like Tim McVeigh," he said. "It would be like a heart surgeon saying, 'I can't do this operation because there is blood everywhere.'"

Twenty-five years after McNally tried his first death penalty case as an assistant public advocate, the fiery and combative criminal defense attorney now stands at the pinnacle of that high-pressure specialty.

McNally, 54, has represented clients in 50 capital cases and, as one of three appointed members of the 11-year-old Federal Death Penalty Resource Counsel Project, has advised hundreds of lawyers and their clients in federal death penalty cases. He and the two other project members recommend qualified defense lawyers to federal judges in such cases and then advise those attorneys. McNally also has emerged as one of the leading and most vocal critics of the man who authorizes every federal capital prosecution — U.S. Attorney General John Ashcroft. He has condemned Ashcroft for seeking the death penalty disproportionately against minorities; for authorizing it in jurisdictions such as Michigan and Puerto Rico, where local law bars it; and for overruling U.S. attorneys 30 times when they sought more lenient dispositions.

McNally — now the go-to source for national news organizations — also has disclosed in interviews that federal prosecutors failed to persuade juries to impose the death penalty in 22 of the past 23 cases in which they sought it, including three cases that ended in acquittals. McNally and other critics say those results show Ashcroft has authorized capital prosecutions too often and too indiscriminately.

"If they were a corporation," McNally told The New York Times in June, "there would be an investigation."

McNally's skills as a strategist and in the courtroom earn high marks from allies and adversaries. Acclaimed litigator and law professor Michael Tigar, himself best known for persuading a jury to spare the life of McVeigh's co-defendant, Terry Nichols, said, "Nobody knows more about the federal death penalty statute than Kevin McNally." McNally has conducted training sessions on the death penalty in 30 states, Tigar said, and is considered the leading expert on jury selection in death cases.

Prestonsburg lawyer Ned Pillersdorf, who has defended more than 20 capital cases, said that while McNally can come across as arrogant and abrasive, "his advice on (the) death penalty is the most sought after in the country. He is a master strategist."

And assistant Kentucky Attorney General David Smith, who has tangled with McNally on appeals through six administrations, said: "I have never gone up against anybody tougher or craftier. He is an extremely dangerous lawyer for anybody on our side of the fence."

In Kentucky, McNally may still be best known for helping killer Todd Ice avoid the death penalty. Ice, once the youngest person on death row, was 15 in 1978 when he stabbed a 7-year-old Powell County neighbor to death and cut her mother's throat in a crime that kindled sharp emotions in Eastern Kentucky.

McNally and his wife, Gail Robinson, who is also a lawyer, won Ice a new trial, a lesser conviction for manslaughter, and ultimately, in 1993, his freedom.

In what other lawyers call his most remarkable triumph, McNally also won a new trial, and an acquittal, for an Arizona man, Bobby Cruz, who had twice been sentenced to death and had spent 14 years on death row for allegedly orchestrating the 1980 contract killing of a Phoenix print shop owner and his mother.

In Chicago, McNally is best known for a case he lost — as attorney for Harry Aleman, whom the Chicago Tribune once called "the mob's killing machine."

Aleman, who was acquitted of murder 25 years ago, became the only American retried after an acquittal when it was shown that the judge in his first trial had been paid a $10,000 bribe.

For his second trial, in 1997, Aleman hired McNally on the recommendation of Cruz, his cousin. But Aleman didn't fare as well — he was convicted of murder and was sentenced to 100 to 300 years in prison.

In an ominous postscript, Cruz disappeared after the trial and has not been seen since. In a book about the case, "Everybody Pays," Tribune reporters Maurice Possley and Rick Kogan suggest Cruz vanished because he had recommended McNally. Both McNally and Aleman insist that is ridiculous.

In a letter to The Courier-Journal from a prison in Dixon, Ill., Aleman said he still admires and respects McNally. "Lawyers on the whole are sharks," Aleman said. "Kevin is not."

McNally said he was never scared of Aleman or his associates.

"Generally speaking," McNally said, "the mob doesn't kill the lawyer who loses the case."

A trial by fire for rookie lawyers

As a fledgling public defender in 1978, McNally tried his first death penalty case before trying his first misdemeanor.

Larry Otis Bendingfield, convicted of murder and kidnapping and sentenced to death when he was represented by private counsel, was so impressed that two public advocates — McNally and his then-girlfriend Robinson — won him a new trial that he insisted they defend him at retrial, though they were practically rookies, recalled their supervisor in the Department of Public Advocacy, Vince Aprile.

Aprile drove to Louisville in October 1978 to watch McNally's closing argument.

He remembers McNally telling the jury in his summation: "You probably wonder why Mr. Bendingfield wore the same suit every day. Well, it wasn't his suit, it was my suit. He doesn't have a suit. And if you take away his life, he will have nothing."

"The jurors were crying," Aprile said. "It was wonderful."

Bendingfield was convicted again but this time got the minimum sentence of 75 years in prison.

Twenty-five years later, McNally gestures toward the closet in his Frankfort law office and says he still has that suit, although, "I just can't fit it in anymore."

McNally says his position on the death penalty is simple: He is morally opposed to it for any crime — a belief he said he came by as a boy, studying to become a priest at St. Pius Preparatory Seminary in Uniondale, N.Y.

"Going to church every day I spent a lot of time focusing on a man being executed at the altar," McNally remembered.

He changed career plans, he said, upon discovering girls and what he considers the Catholic Church's poor record on civil rights; he is no longer a practicing Catholic.

McNally said some of the clients he has counseled have been "manipulative, unattractive or plain crazy." Even so, other capital defense lawyers say he spends an extraordinary amount of time with them, which McNally says is often the key to saving their lives.

"You have to get your client to trust you enough to get them to agree to be put in a cage for their rest of their life with no hope for parole," he said. "Most of my victories are won not from juries, but in dingy meeting rooms in the bowels of prisons" — with clients who agree to plea bargains rather than taking a chance at trial, where they could be sentenced to death.

Some critics, including Aprile, say McNally and other death penalty "abolitionists" are too quick to pressure clients into taking deals that get the death penalty off the table.

McNally makes no apologies.

"I am proud to be a cop-out artist when it comes to the death penalty," he said. "It's always the client's choice, but these are people who haven't usually made the best decisions in life."

At the same time, McNally also is known as one of the first lawyers in capital cases to reach out to the families of victims, said Nancy Ruhe-Munch, executive director of the Cincinnati-based Parents of Murdered Children.

"They were initially ready to stone him," Ruhe-Munch said of her members, "but he opened a dialogue which helped reduce their trauma."

David Bruck, a lawyer from Columbia, S.C., who also serves on the Death Penalty Resource Counsel Project, said McNally's outreach sometimes has persuaded victims' families to support plea bargains that averted capital prosecutions.

At the center of federal death-penalty cases

Portraits of Nelson Mandela and Thurgood Marshall hang on the walls of McNally's office, which is also the nerve center for the defense of federal death penalty cases in the United States.

By marshaling data on the 305 cases in which the U.S. Justice Department has sought the death penalty in federal courts since the sentence was enacted in 1988, McNally has emerged as an authority on Attorney General Ashcroft's pursuit of the federal death penalty.

Justice Department critics, including former federal prosecutor Jamie Orenstein, who advised Attorney General Janet Reno on death penalty prosecutions, say the figures compiled by McNally show that Ashcroft is "swinging at the wrong pitches" — seeking the death penalty in too many cases and not deferring to local prosecutors who know their cases best.

The Justice Department declined to respond to questions about McNally, but a spokeswoman has said that the process through which Ashcroft reviews and approves death penalty prosecutions is designed to ensure "consistency and fairness."

Capital defense experts, however, say the government's recent poor track record in part reflects the success of McNally and the other two lawyers who are paid $110 an hour and work part time for the resource project, which was founded in 1992.

"They have made sure that people accused in federal death cases are represented by competent counsel — you don't have farcical trials where lawyers are drunk or asleep or totally incompetent," said Stephen Bright, a Danville, Ky., native who is director of the Atlanta-based Southern Center for Human Rights.

George Kendall, former counsel for the NAACP Legal Defense and Education Fund, said, "One of the reasons there are so few people on federal death row in this country" — there are 26 — "is because of Kevin's many skills and hard work."

Last year, representing an alleged heroin dealer accused of murdering a government informant, McNally won a ruling from a federal judge in New York throwing out the federal death penalty on the grounds that erroneous convictions have shown capital punishment is "tantamount to foreseeable, state-sponsored murder of innocent human beings." Although the ruling was reversed on appeal, death penalty opponents predict it may someday form the basis for the U.S. Supreme Court to abolish the death penalty.

Prosecutors and judges say McNally prevails by dint of intense trial preparation, rather than fire-and-brimstone courtroom oratory.

For example, retired Superior Court Judge Michael Dann of Phoenix, Ariz., cites pretrial legwork as one of the reasons for McNally's victory for Cruz in the Arizona death penalty case.

McNally still has a poster that Cruz gave him before his trial that quotes former Indiana University basketball coach Bobby Knight: "The will to win," it says, "is not nearly as important as the will to prepare to win."

Understanding defeats, regrets, big victories

McNally has lost three death penalty cases at trial, although two of those defendants, including Foster, who was convicted in the Lexington murders, later won lesser sentences.

None of his own clients have been executed, although one is on Kentucky's death row — David "Little Britches" Smith of Pike County, now 55, who was convicted in 1983 of the Pike County murders of his teenage girlfriend, her daughter, the girlfriend's mother and the girlfriend's sister. McNally calls that case his most agonizing defeat.

He also says his biggest regret so far is leaving a capital defendant in the lurch in 1988, when he resigned after 12 years from the state Department of Public Advocacy, saying he was burned out after representing "the worst of the worst with no resources." McNally had agreed to represent at trial Gregory Wilson, who was charged with murder and kidnapping in Kenton County; instead Wilson ended up with two last-minute volunteers, one of whom previously had arrived at court while intoxicated and practiced out of a tavern. Wilson, who was sentenced to death, is still fighting his conviction on the grounds that he had ineffective counsel.

"I thought the system was going to come to the rescue, and it didn't," McNally said.

He said his most his most gratifying results were preserving the lives of Foster and Ice, in part because he had developed a relationship with them.

Foster's crimes were "terrible and pointless," McNally said, "but she had been physically and sexually abused by a dozen men yet was still a compassionate person and a life worth saving." In a letter to The Courier-Journal from the Kentucky Correctional Institution for Women, where she is serving life without parole, Foster said McNally's unwavering opposition to the death penalty and belief that life is "precious and valuable" dissuaded her from taking her own life and convinced her that no person is born evil.

"He saved me from homicide and suicide," she said.

Ice's case ended as tragically as it began. Once a straight-A student and church-camp counselor with no criminal record, he deteriorated in prison as he served out a 20-year sentence, growing increasingly mentally ill and delusional until he finally threatened to kill the lawyers who had saved him.

After he was released from prison, Robinson found herself forced to testify in favor of the involuntary hospitalization of the client she and McNally had fought so hard to free, and Ice was briefly committed before finally being released to the streets in another state.

"Gail's testimony broke her heart, but it had to be done," McNally said. "It was just awful."

Two top death penalty lawyers in same family

McNally and his wife met in a criminal law class at the University of Louisville's law school. They have three sons, the youngest of whom is named for the late Supreme Court Justice William Douglas, whom McNally describes as among his heroes.

"He believed in the Constitution and in protecting the most hated in society with the same rights everybody else enjoys," McNally said.

Many lawyers say McNally is only the second-best capital defense attorney in the family; Robinson, a longtime assistant public advocate, won an acquittal last year for 22-year-old Larry Osborne, who became the first person in Kentucky on death row to be found innocent since the state reinstated the death penalty in 1976; Osborne was acquitted at a retrial ordered by the state Supreme Court.

McNally said his wife "reeks of character and credibility in front of jury and I don't think I do," although he added, "I can do the Darth Vader thing better on cross than she can."

Colleagues in the defense bar say McNally can come across as abrasive.

"He is so knowledgeable that he can be intimidating," said Lexington lawyer Russell Baldini, who added that it doesn't help that he is a "Yankee."

Pillersdorf, who describes McNally as "unquestionably committed and brilliant," said he could be overzealous in defending clients at risk of death when he ran the capital unit of the Department for Public Advocacy.

Pillersdorf, who worked for McNally, recalled one case in which Pillersdorf represented one of two defendants charged with killing a busboy at Columbia Steak House in Lexington in 1986. Pillersdorf said that when the judge ordered him and the other defendant's lawyer not to consult with each other on juror challenges, "I told Kevin and he said, 'Defy the order! They are trying to kill your client.'

"I wouldn't do that," Pillersdorf said.

McNally said he didn't recall making that recommendation and that it doesn't sound like something he would urge.

But he said "death is different" and that death penalty defense lawyers can't worry about offending others or embarrassing themselves.

"To get an acquittal, somebody has to be lying," he said. "And if you're embarrassed to say that in the courtroom, you better get another job."

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