The Last Best Hope

Sometimes Melinda Pendergraph is the only thing standing between her clients and execution

Published in 2006 Missouri & Kansas Super Lawyers magazine

By Maggie Hessel-Mial on October 23, 2006

When tough cases wear her down or when she needs a little encouragement to keep going, Melinda Pendergraph reads a card from a former client. Keep fighting for us on death row, it reads.

And she does.
As an assistant public defender for the state of Missouri, Pendergraph, who is based in Columbia, handles death penalty appeals from post-conviction action. “She is dedicated to her clients. That is probably the driving force behind her practice,” says Janet Thompson, another assistant public defender who has worked with Pendergraph for many years. “She is someone who always looks for ways in which she can better herself as a lawyer so that she can do a better job for her clients.”
Pendergraph is assigned clients who cannot afford representation on their own. She meets with them, studies their cases and familiarizes herself with every detail of their history, arguing the cases primarily for the Missouri Supreme Court.
Even with intense preparation, victory is far from guaranteed. And even when she triumphs, other courts later reverse some of her wins. But she ignores the long odds and focuses on each client’s unique story.
“I think almost all of my clients have an unfairness and an injustice that needs to be told,” Pendergraph says. “When you’re in a death penalty case, losing one is losing too many.”
Beyond the research, Pendergraph emphasizes building a relationship with her clients — something they may never have had with previous lawyers. Gaining her clients’ trust and showing them she cares, she says, is just as important a part of her job as her time in front of the Supreme Court.
It’s difficult, stressful and emotionally draining work, but small tokens of gratitude keep her going. She receives phone calls and notes of thanks, and cards during the holidays. She receives letters from family members of her clients, expressing their appreciation for the faith she’s had in their family member.
I just want you to know how deeply I respect you, your position and your willingness to go to the end, the sister of one of her clients wrote in a letter. You’ve left a permanent mark on my life, for which I’m grateful.
It isn’t just the clients and their families who appreciate her hard work. The National Legal Aid & Defender Association recently honored her with the 2006 Kutak-Dodds Prize. She was one of two recipients of the prestigious national award this year, which she accepted in Washington, D.C.
During her acceptance speech, Pendergraph said, “This award is so special to me because it is offered to those who care about ‘those persons unable to afford legal representation.’ I have been a public defender for nearly 20 years — because of my clients.”
One client in particular stands out when Pendergraph looks back. In 1992, Joseph Whitfield was charged with first-degree murder, assault in the first degree and two counts of armed criminal action for the shootings of Ronald Chester and Maria Evans in St. Louis.
Chester died from his injuries, but Evans lived and testified against Whitfield in the case.
It was Pendergraph’s first case involving death penalty post-conviction at the trial level. She and fellow attorneys found that Whitfield had suffered brain damage from prior head injuries, information that had not been presented during his first trial. The team received a reversal in the case on a discovery violation.
Pendergraph helped Whitfield with the retrial, and when the second jury heard the evidence of brain damage, the jurors voted 11-1 for life without parole instead of the death penalty.
The victory was short-lived. The trial judge overrode the jury’s decision and gave Whitfield the death penalty. While Whitfield’s appeals were pending, the U.S. Supreme Court ruled that juries, not judges, must make factual findings that increase punishment. The Missouri Supreme Court gave Whitfield relief because the jury had not made the findings necessary for death, and Whitfield is now serving a life without parole sentence.
Another unique case involved Jim Butler, who was charged with first-degree murder for the shooting death of his wife in 1997. Pendergraph helped litigate the post-conviction action at the trial level with co-counsel Pat Berrigan. With the help of investigators, they found evidence that showed the previous counsel was ineffective. The trial judge denied relief, but the Missouri Supreme Court reversed, finding that the trial counsel was ineffective, and ordered a new trial.
“This case is special for many reasons,” Pendergraph says. “But especially because it was the first time since the death penalty was reinstated after Furman that the Missouri Supreme Court has reversed a death penalty conviction because of ineffective assistance of counsel.”
Melinda Pendergraph’s work is her life. And, as she often reminds herself, her work is a matter of life and death for her clients. The support of her family helps her through the tough times. Her husband, Bill Swift, also works for the Missouri Public Defender’s office as an assistant public defender. Having a spouse who understands the business is a great support to her.
Her two young sons help give her perspective. Once, she was talking to her 11-year-old son about an oral argument she was to make in front of the Missouri Supreme Court. Her son looked at her and said, “Just think about what your client must think about this.”
It’s the support of the people she works with each day that makes a lasting impact on her career. Day in and day out, the camaraderie with her co-workers and fellow public defenders keeps her ideas fresh and her workload manageable.
“I think one of the things that helps is when you have a good support system,” Pendergraph says. “I have wonderful public defenders I work with. We brainstorm cases, talk things over, discuss issues or problems. That really helps for legal analysis, but it also helps for emotional and moral support. I don’t think you can do this work alone.”
Pendergraph originally went to law school because she felt a strong need to help others.
“I really have this desire to help the underdog, to help those less fortunate than myself,” she says. “I really went into the legal field hoping to help.”
When she graduated from the Washington University School of Law in St. Louis in 1986, she immediately began work at the Missouri Public Defender’s office. Although she didn’t expect to stay there, it has been a good fit. She can’t imagine doing any other kind of work. Her co-workers cannot imagine her doing anything else either.
Debby Wafer is an assistant public defender for the state of Missouri, based in St. Louis. Pendergraph was her supervisor in the appellate office.
“She is an incredible mentor,” Wafer says. “She really represents the best in criminal defense work. The people she represents get the best of the best.”
Giving her best is what Pendergraph strives to do for every client. She often works for her clients even after her part of their casework is completed. She follows each of her client’s cases as they move through the system. She wants to know where they end up, she wants to know how they are doing.
In the end, it’s the clients who keep her going every day. It’s the little notes, the little poems that keep her motivated.
A poem written by a former client sums up Pendergraph’s dedication:
My trust in you is immeasurable
For you’ve shown me that you care
It’s a blessing you are on my side
Not many have ventured there

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