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CHAPTER 1
Behind the Curtain
"If People Mess Up, My Client May Die"
"This practice, it's nothing like I thought it would be." Jacob is a veteran public defender who handled traditional felony cases for more than a decade before transitioning to capital practice. Still, the difference surprised him. "I did not understand how emotionally hard it would be for me," he explained. "I thought I understood, but it's very different when you actually start meeting these clients and realize the weight of what the state is trying to do to them, and when you start developing relationships with them and caring about them it becomes very different. I also did not realize how much of the practice was really motions focused and how much I would be trying at any cost to avoid going to trial."
In a country obsessed with its criminal justice system, we are regularly treated to media depictions of criminal defense lawyers. On any given day, one of the cable news channels will likely cover an infamous criminal trial, including the obligatory shot of the attorney whispering into his client's ear or standing before a bank of microphones answering reporters' questions. Many movies and television shows revolve around criminal defense lawyers, from classic shows such as Perry Mason and movies like To Kill a Mockingbird to more modern fare like The Good Wife or Matthew McConaughey's turn in The Lincoln Lawyer. Even lawyers and law professors have published on their defense work. These offerings include such books as Defense Lawyer Confidential by Alexander Benikov, David Feige's Indefensible: One Lawyer's Journey into the Inferno of American Justice, or Abbe Smith and Monroe Freedman's edited volume How Can You Represent Those People?
Despite such a broad collection of publications, virtually none has applied a research perspective to criminal practice. Academics have examined civil law, investigating how lawyers and law firms organize themselves, what pressures lawyers face, and how lawyers relate to their clients, among other topics. But even in the civil sphere the books have typically examined either large commercial law firms or divorce lawyers. Little work exists, for example, on small-town generalists, government lawyers, or even in-house or nonprofit lawyers. Where scholars have examined public interest law, they have typically envisioned the lawyers as advocates — in the vein of cause lawyers — rather than bringing the tools of sociology or cultural anthropology to investigate the nature, motivation, and effects of legal practice.
As a result, much of what we know about the character of criminal law and practice comes from lawyers' first-person accounts of their cases. Certainly, some of these are entertaining and have sold well, but they don't purport to — or at least shouldn't be considered to have — surveyed the field or distinguished exceptional cases from typical practice. For that matter, the authors are usually too close to the cases to critically assess their actions or the strategic decisions of their brethren. And, of course, those books deal almost exclusively with "garden variety" criminal defense, the kinds of misdemeanor and felony cases that end in probation or a prison sentence, rather than the possibility of a death sentence. For all the interest in criminal cases or curiosity in the work of defense lawyers, the world of capital defense is usually shrouded from public view, let alone opened to explication or analysis.
In this chapter, we begin to peel back the curtain on capital representation, exposing a field that raises fascinating questions about expectations, cultural norms, professional obligations, and interpersonal relations. We begin by explaining the process of capital defense — the nuts and bolts of the work, so to speak — showing how it differs in practice from more everyday defense representation. We explore the goals of capital defenders, consider notions of quality representation, and probe lawyers' attitudes about their brethren and the prosecutors and judges who appear with, and, indeed, against, them in court. Ultimately, we argue that capital defense should be understood as a geographically diverse community of practice, with "elites" and "commonplace" lawyers, "insiders" and "outsiders," that make the field both a specialized community and a distinct culture within law, even among criminal defense as a whole. This approach provides a fuller, more substantive understanding of capital defense, one that allows for comparison with previous studies of legal practice in the civil realm. It also serves as a reminder that capital defense is a subfield worthy of scholarly examination, not an anomaly relegated to the Hollywood treatment.
Criminal Defense as a Whole
Several authors have previously depicted the professional life of a public defender, those lawyers who often handle "everyday" criminal cases for the indigent. From the book, Courtroom 302 to Defending the Damned or Indefensible, the lawyers-cum-authors have described a scene of constant triaging, law practiced akin to medicine in a MASH unit. Public defenders are overburdened with cases, often meeting clients for the first time on the day of trial, where there is too little time to do much of anything but convey the prosecution's plea offer and secure a deal. The entire process can be as quick as thirty minutes in a "meet them and plead them" jurisdiction. Even in cases in which the defendant can afford to retain his own lawyer and take the case to trial, the depiction has the same locus — the courtroom. We see lawyers on their feet, clashing with prosecutors, conferring with clients, making motions of judges, and delivering their arguments to jurors. As an attorney succinctly explains in Kevin Davis's account of Chicago's criminal courts, "the odds are completely stacked against" public defenders laboring in the bowels of America's criminal justice system.
These efforts are in service of clients who are often publicly reviled for the crimes they are accused of committing. "Try telling a person at a cocktail party that you represent criminals and watch them flee," explains a criminal defense lawyer we interviewed. "Rightly or wrongly, our clients are tainted, if not in court, then certainly in the court of public opinion." Criminal defense lawyers are aware of that stigma, a blot the public also applies to them for having the temerity to defend those accused — and often convicted — of frightening crimes. From the days of John Adams, who notably defended British soldiers accused of shooting protesting colonists, to the famous advocates of today, criminal defense lawyers have not been shy about explaining their work, delivering epistles on the necessity of defending the innocent and even the guilty. As the famous trial lawyer Clarence Darrow once said, "I have known men charged with crime in all walks of life. ... When you come to touch them and meet them and know them, you feel the kinship between them and you. ... I have friends throughout the length and breadth of this land, and these are the poor and the weak and the helpless, to whose cause I have given voice."
A Different Type of Practice
Darrow's explanation is well and good when defending a nonviolent offender charged with a minor crime. Maybe the infraction was a onetime mistake; perhaps the suspect is young and uneducated but shows promise if only opportunities can be arranged; maybe the offender is also addicted to drugs and needs placement in a rehabilitation program. It's easier for a defense lawyer to justify her work in those cases, to believe that what she is doing will "make things better." But what if your client is accused of raping and murdering a child? What if he has a substantial criminal record, if he is an admitted terrorist, or if he is accused of stabbing and burning a family of four? What then? Criminal defense lawyers have long represented the shunned and scorned, admirably committed to constitutional principles and a sense of duty, but how does a defense lawyer explain her work in the most harrowing of capital cases, involving crimes that turn the stomach and inflame the public's desire for vengeance?
"Death penalty cases are an entirely different kettle of fish, different from anything I thought I understood as a defense lawyer," explained Karen, a veteran capital defense lawyer. Starting as a "baby public defender right out of law school," Karen made the transition to capital cases after over a decade of trying misdemeanor and felony drug cases. "I'm not sure I understood what it would be like before I took the job," she said, "but immediately after starting I knew the practice was different."
Like her, Jacob was unsure what to expect when he first made the transition from traditional to capital defense. Describing that move, he mused:
It doesn't even really make sense to me what I was thinking it was going to be like when I interviewed for the job. I was a trial attorney and [I thought] I would go to trial, and that is the furthest thing in my mind at this point [laughing]. I thought that my boss was hiring me because he thought I would be an excellent capital trial attorney and I think that's why he hired me. But that did not translate in my mind to "You're going to be in the courtroom once a month arguing a couple motions," which is kind of what it is.
To be sure, many of the tasks in a capital case are similar to those in "typical" defense work. A lawyer still needs to determine what evidence the prosecution will use, she must meet with her client ahead of court, and she remains the bulwark between her client, conviction, and a harsh sentence. But the process is different, the office environment is distinctive, and, of course, the consequences of conviction and sentence are much more serious. The differences, however, begin with the little things, the day-to-day tasks. For starters, capital defense lawyers spend much less time in court than do other defenders. Again, Jacob expounded:
I miss court. I just miss being in the courtroom, and I miss doing what I think of as more triage. I like multitasking and doing things quickly and being on the go all day long and being super busy. And this is very much more like a self-starting [job]. Like, "You're going to do this giant project of a brief right now and sit at your desk for the next two weeks and figure this all out." It's not really what I think I was born to do [laughs]. You know? So it has been a really big adjustment for me.
Those differences, though, can make the work more interesting. Jacob's colleague, Russell, who has handled capital cases for over many decades, explained his continuing interest in the work:
There are a variety of activities that we do in death penalty cases that you don't do in traditional criminal cases. [In] a traditional criminal case, you take the case and you'll do some legal writing and you'll go to court. And you'll hire an investigator and you'll do some investigation, maybe no investigation, maybe you're satisfied with what you get from the prosecutor, and your client comes in and talks to you. Well, maybe you'll hire an investigator to do a little work, but you have to do a lot of the work yourself. [In capital cases, however, there are] a variety of activities that [make the] job much more interesting and satisfying. And when you work on death penalty cases you go to the prison to meet with your clients, because it's the only way you can really form this very, very important relationship. You do a lot of legal research and writing, you go to court, and court is always interesting when you have a capital case because it's usually the most important case they've got, and you get room on the judges' dockets.
Most fundamentally, capital cases differ from other criminal matters because the case is tried in two parts. First, the prosecution must establish that the defendant is guilty of the crime(s) charged. If convicted, the case then proceeds to the penalty, or mitigation, phase, in which the jury must decide whether to sentence the defendant to death, a term of years, or life imprisonment. There might be a tendency to see the two phases as separate: "Fight like hell to take apart the government's case. Then, and only then, if your guy is convicted, pull out all the stops to convince jurors that they should spare his life." But, as many capital defenders noted, "you really can't think of [the process] as two different trials. You have to think of them as two different parts of the same trial." What you tell jurors in the guilt phase will certainly be on their minds come the penalty phase, and it's crucial to "humanize or 'soften up' your client" in the jury's mind from the beginning, so that "the prosecution doesn't get to keep beating on your guy as a monster" through both phases of the trial.
The Client and His Story
Defending a capital case requires "a consistent story" throughout the trial, explained Jacob. It's that "piecing together [of] the client's story" that "grabs" him, the chance to investigate the multiple layers of the defendant's past. He described his interest with the hint of a surprised smile:
That is the part of the job that I found to be interesting to me in a way that I never even thought about before I came here. I love going out with the mitigation specialist and doing interviews and talking to her about mental health stuff that I thought I understood when I was a public defender but really just didn't. I've always found it interesting to try to figure out how people tick, and family histories are really interesting to me. I just like people. I find people fascinating. Most of the time I feel like the clients have a really important story and are not good at telling us where they came from and what things have made them who they are or what things have made them into the kind of person that would react to the situation by killing. So, just trying to piece together, that stuff is really interesting to me.
Defense lawyers used words such as "exceptional," "rarity," and even "a gift" in describing the time they have in capital cases to meet with clients and more fully investigate a case. They contrasted their experience in capital cases, in which they can spend time with the client, with the speed and volume of other criminal matters that often has them feeling like they're on "a sped-up conveyor belt." Recent studies have found public defenders carrying caseloads as high as 230 noncapital felony cases, whereas many of the better capital defenders we interviewed were working on as few as two death penalty cases at a time. Although even this caseload keeps capital lawyers busy, for those who worry regularly about having sufficient time to do their jobs adequately the fewer number of cases — the "room to breathe," as one lawyer described it — is appealing. Rachel, who has defended multiple kinds of criminal cases, explained her preference for capital practice: "One of the things that was hard for me as a public defender was dealing with caseloads and the constant feeling I was never doing enough. It's much easier for me [handling capital cases]. I still feel overwhelmed, but I feel less overwhelmed when the volume is smaller."
Reduced caseloads make it possible for capital defenders to spend more time on a single case, but attorneys also pointed to a different influence — the heightened commitment of those who take on capital cases. "It's all encompassing if you do it right," said one defender who was in the midst of a difficult investigation at the time we interviewed her. "You need to be fully invested in the client and the case." Here, many capital defenders distinguished themselves from their brethren who handle "everyday cases." Russell, who spent two years in a public defender's office before joining an office specializing in capital cases, described the difference: "I think that capital defense attorneys identify much more closely with their clients, and they want to do everything they can to save their clients. I think that's really great. ... There are a lot of criminal defense lawyers who feel like their clients are over there and we're over here. Capital defense attorneys oftentimes feel much closer and much more as one with their clients."
One of the most celebrated capital defense lawyers takes it as a badge of honor to be closely aligned with her clients, a relationship that she said motivates her best work:
There is a model of criminal defense that I reject that others might not that says "compartmentalize the work." The defense lawyers are thinking, "I work for the [defendant] whether I like him or not." They talk about the client as being an asshole, which just puts a knife in my heart. They're thinking, "I try to get the best result I can for him. Then I move on." If that's your model, your belief is that you're not affected [by the results]. I don't aspire to that model and don't believe it's an accurate representation of what happens to human beings. It doesn't reflect capital defense.
(Continues…)
Excerpted from "Capital Defense"
by .
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