Capital Defense: Inside the Lives of America's Death Penalty Lawyers 9781479806973

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Capital Defense

Capital Defense Inside the Lives of America’s Death Penalty Lawyers Jon B. Gould and Maya Pagni Barak

NEW YORK UNIVERSIT Y PRESS New York

NEW YORK UN IVERSIT Y PRESS New York www.nyupress.org © 2019 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Gould, Jon B., author. | Barak, Maya Pagni, author. Title: Capital defense : inside the lives of America’s death penalty / Lawyers, Jon B. Gould and Maya Pagni Barak. Description: New York : New York Unviersity Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018026987 | ISBN 9781479873753 (cl : alk. paper) Subjects: LCSH: Capital punishment—United States. | Defense (Criminal procedure)— United States. Classification: LCC KF9227.C2 G685 2019 | DDC 364.660973—dc23 LC record available at https://lccn.loc.gov/2018026987 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook

Contents

Introduction

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1. Behind the Curtain: “If People Mess Up, My Client May Die”

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2. A Cruel and Unusual Job: “You’ve Got Someone’s Life in Your Hands”

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3. Race and Identity: “It’s Not Always What We Think”

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4. The Client: “Everyone Is More Than the Worst Thing They Ever Did”

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5. Gender Dynamics: “I’m Your Lawyer”

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6. The Toll: “You Can’t Just Turn It Off ”

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Conclusion. Defending the Defenders: “I’ve Helped the Lowest of the Low. . . . I’m Proud of Doing That”

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Acknowledgments

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Appendix: Interview Protocol

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Notes

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Index

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About the Authors

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Introduction

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev became instantly infamous when their homemade bombs exploded at the finish line of the Boston Marathon, killing three and wounding more than 260.1 Four days later, Tamerlan was dead and Dzhokhar was in custody, the latter’s arrest eventually leading to a lengthy and well-publicized trial. It would be difficult to have lived through this period and not recognize the Tsarnaev brothers. But what of Judy Clarke? Hardly a household name, Clarke was Dzhokhar Tsarnaev’s lead attorney in the federal trial that ended in his death sentence. That verdict was rare for Clarke, who has succeeded in sparing many other notorious defendants execution. Her roster of former clients includes Unabomber Theodore Kaczynski, the Atlanta Olympics bomber Eric Rudolph, Arizona assassin Jared Lee Loughner, and Susan Smith, the South Carolina mother who strapped her two young children into car seats and rolled the vehicle into a lake, killing them both. In each of those cases, Clarke’s clients remain alive, albeit sentenced to life in prison. Those who know her call Ms. Clarke one of the nation’s best capital defense lawyers, the proverbial “ace in the hole,” and yet she assiduously avoids press attention. The few profiles of Clarke describe her as “modest, unassuming,” and “reticent” to draw attention to herself.2 She refuses to grant reporters interviews, and a profile of her in The Guardian even described a scene from the Tsarnaev trial in which Clarke walked into a bar one evening only to find a pack of journalists gathering for a drink. Seeing the crowd, she turned around and left for a different location.3 It might be tempting to see Clarke as an exception among capital defense lawyers. To be sure, she has handled a remarkable number of notorious cases, and her record at sentencing is outstanding. But the 1

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depiction of Clarke as a kind of hermit savant misunderstands the nature of capital defense. By and large, the best lawyers in Clarke’s field avoid press coverage, choosing instead to go about their professional lives with a low profile. It’s not simply because the work they do is unpopular. Certainly, many people consider their clients to be the “worst of the worst,” criminals whose ghastly deeds may justify execution. Yet, to hear the lawyers describe their lives, few have faced serious harassment for the work they do. There is the occasional letter or comment in passing—perhaps even an amateurish crank phone call at home—but these seem to be the exceptions, even for advocates who stand before the public and argue on behalf of defendants who are alleged to have killed many. So, if it’s not the threats or concerns for their own safety or reputation that silence capital defense lawyers, what keeps them quiet? Their reticence is rooted in a greater, almost Hippocratic notion of professionalism—to do no further harm to the client. “There is no good to be gained by talking to the media,” says one such lawyer, “nothing I can say that will get a reporter to cover my client like we need.” “Besides,” explains another attorney, “I’m not the story. This case isn’t about me. If I ever forget that, if I ever step out front and accept the spotlight, I’d be letting ego get the better of me. That’s not what I do. We’re here to serve those who need us, not advance ourselves.” The result is that capital defense attorneys end up hiding in plain sight. Handling the most notorious cases, seen on television walking to and from court, rendered in a courtroom artist’s sketch while arguing at a trial, we can identify their faces and may recognize their names, yet we know next to nothing about them. Why, for example, do they perform this work? What are the challenges of the position, and how do lawyers handle the incredible stresses of a job where failure is quite literally a matter of life and death? Some lawyers must even be witnesses to that failure—their client’s execution. How can someone work on another’s behalf for months, sometimes years, watch him die, and then go back to the office to take on another case?

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It is unfathomable. Or at least it seemed unfathomable to us until we started talking to capital defense lawyers. Over the course of two years, we interviewed more than sixty capital defense lawyers and some of their staff. From Virginia to California, from Texas to New York, our research took us across the country, talking to attorneys in state and federal courts, at the start and near the end of distinguished careers, in firms big and small and in public defender’s offices, too. The one commonality was that the lawyers had handled death penalty cases at the trial stage, where verdicts either “take death off the table” or put clients on “the conveyer belt toward” execution. We are far from naïve about the criminal justice system, and in fact, one of us has more than a decade of experience studying capital cases. We number several capital defense lawyers among our friends. Still, it was remarkable how anxious defenders were in speaking to us. Some joked that the practice is like a cult at times, its members fearful of letting anyone in who might even inadvertently share their thinking, allowing it to reach the hands of a prosecutor who would use the “inside” information to convict and sentence one of their clients to death. Caution is understandable when the stakes are so high, but there is a lot to be gained by opening up the world of capital defense for examination. Not only can we explore the attorneys’ motives and professional challenges, but even more, it gives us a window into the gravest corner of the U.S. criminal justice system: the workings of the death penalty. The United States is among a minority of countries in the world, and arguably one of only two developed, democratic nations, that has executed a defendant in recent times.4 Regardless of one’s stand on capital punishment, it ought not operate in a secret, almost antiseptic world in which the public is treated to the most horrific details of the underlying crimes but is left out of the grueling, often tragic process that leads to a verdict. Defense lawyers are central players in that drama—along with prosecutors, judges, jurors, and, of course, the families of the victims and defendants. But unlike many of the others involved, capital attorneys chose this work, assuming a responsibility that few other Americans, or even

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American lawyers, would voluntarily accept. As one capital defender explained, “To many people, we’re seen as the garbage collectors of the law. Who would want to do this dirty job?”

How Can You Represent These People? Yet they do it, thus raising one of the most central questions for this book—what motivates someone to make a career out of defending some of the worst killers in the country? It’s a question that gets asked of criminal defense attorneys in general—phrased often as “How can you represent those people?”—but the stakes are undoubtedly higher when the lawyer is handling a death penalty case. Some attorneys have sought to answer this question in print,5 but their accounts are typically specialized and limited. By contrast, we find multiple motivations. Perhaps the easiest to understand is zealous opposition to the death penalty. With few exceptions, each of the capital defense lawyers we interviewed opposes the death penalty in all cases. For some, though, the mission is even greater. As one attorney explained, “One of my jobs is to get the human rights world to see my clients as victims of systemic human rights violations.” Many of these lawyers are driven by a religious zeal, seeing the task of preventing state-sponsored killing as akin to a moral crusade. “I just felt called,” said an earnest young attorney. “I’m somewhat of a religious person, and I felt very much called by this work.” For others, the attraction was the chance to work with smart, talented mentors handling the kind of litigation seen as the most difficult—and, thus, most prestigious—in the criminal defense community. “You’ve got to understand . . . and I’m not proud of it,” explained one lawyer, “people like me are naturally ambitious. [We take on capital cases] because it’s the most serious work.” Repeatedly, lawyers mentioned mentors like Stephen Bright, president and former director of the Southern Center for Human Rights; Bryan Stevenson, founder and executive director of Equal Justice Initiative; and senior counselors like John Blume and Mark Olive as the reason they entered the field. In their telling, these lumi-

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naries offered attractive examples of what top-quality advocacy could involve and provided direct entry into a world of committed and welleducated lawyers. Still other attorneys “just fell into the work,” confused to this day as to how they ended up representing notorious criminals, although as many interviewees noted, there may be multiple psychological, perhaps unconscious reasons that attract attorneys to the work. “A lot of us . . . have had some trauma in [our] past and keep replaying it,” described one lawyer. If they’re not careful, the lawyer told us, “we’re taking on these cases . . . trying to remaster [our] own trauma again and again and again.” Added a more jaded attorney, “Some [defenders] are crazy, they’re so emotionally involved with their clients. It’s like a freshmanyear psych student. They’re drawn to this work because of their personal craziness. . . . It’s the cause that attracts them, even though they’ll say it’s the client. You often hear them say, ‘You’re killing my client.’” They get “too emotionally wrapped up” in the cases. If some attorneys can’t explain what brought them to the work, most are clear on why they stay. “It’s all out there to see,” explained one senior litigator. “Some want to ‘stick it to the man.’ Some do it for ‘race reasons.’ Some do it for the money. Some fight for constitutional and civil liberties. Some want to ‘do everything I can for [this] particular human being.’ Some people like or respect their clients.” The rewards, too, are multifarious and often extend beyond the lawyers’ initial expectations when they first entered the field. It’s “the feeling that you are living life, that you’re seeing life for what it is,” radiated one seasoned advocate. He continued: The best thing about this job is you learn so much about life and yourself because of the opportunities it gives you. Being exposed to the clients and the crimes, I know so much more about the world than I ever did. . . . The parallel is, I think it makes you appreciate the good things too, because, there’s this whole world of awfulness out there. I feel like I am more engaged in things. I’m more alive. And I really appreciate that. I think it’s

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made me such a better person—more knowledgeable, more accepting, more tolerant, humble.

Other lawyers spoke of the “privilege [of] observing humanity” even in the depths of a murder trial. Many of their clients suffer from low IQ or struggle with mental illness, past abuse, or drug or alcohol addictions. In those circumstances, “what’s eye-opening—[what becomes] the real privilege of this job—is you recognize how beautiful it is that life and affirmative values [still shine] through [a client’s] impairment.” And sometimes the judge, jurors, and witnesses come to recognize this, too—“that no matter how horrible the defendant’s act, there is still a person in there.” Yet, for all the “privileges” of the job, capital defense can take a heavy toll on defense practitioners. A client will “live or die,” defenders explained. “That’s what makes [the work] unlike everything else. It makes it terrifying and so real. You’re dealing with such deep, human realities.” Working on capital cases “informs everything you do.” The “pressure is enormous, and the work is enormous and never ending. There is always more you can do. You don’t sleep at night.” Some lawyers thrive on the pressure, but that kind of constant stress “has damaged people.” It’s almost like being a survivor of abuse, but “the [defense] community never talks about secondary trauma” and its effects on lawyers. “We as a community spend vast amounts of time as individuals listening to people talk about being raped and burned and starved as children,” described a luminary in the field. “We examine the detailed facts of multiple homicides; that’s tragic enough. And having clients executed. This is all traumatic. When you’re watching a man being murdered before your eyes that you were charged with saving, that’s pretty traumatic. Even just working on part of a case and having the client executed is traumatic.” And yet for all that focus on trauma, the capital defense bar is strangely silent about the effects on its members: “As a community, we internalize some of it but don’t pay mindful attention to how it’s affecting us. [Why?] I don’t know. We seem to have PTSD and don’t examine this.”

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Were the plight of capital defense lawyers merely a human-interest story, it would still be a good read. There are few other jobs in which the stakes are truly life-and-death: a surgeon during a tough operation, a police officer when confronting an armed intruder, a fighter pilot. The list is small. For capital defense lawyers, the failure to investigate a fact, litigate a motion, or properly advise a client can lead to the defendant’s death, and the prospect exists in every single case. What’s more, defense counsel must perform those functions in a culture that is understandably revolted at the underlying crimes and with little sympathy for the advocates who will stand with the suspect accused of such horrific acts. We could tell these stories several times over and they would still be relevant and gripping.

A Bigger Picture But this book is more than a human-interest story. It is a study of the capital litigation process and the effects it has on the people who participate in it. It is also, centrally, an examination of the workings—and weaknesses—of the American criminal justice system. According to many defenders, “the courts are so unfair, so loaded against poor people. You come to recognize that the death penalty is about demonizing people for poverty, mental illness, [and] race.” This is a systemic indictment of capital prosecutions in the United States, and for many defenders the entire process is infected. Leveling charges like a fighter lands punches in the ring, one attorney described a system that fails to deliver justice: “Arrayed against you is a lethal force, [managed by a] bumbling, prejudiced [system]. Race prejudice is so intense and infects everything in the courts. Resources are so limited. Jurors aren’t a representative group of the community. Prosecutors have too much power, and there are no repercussions when they violate law or ethics. Judges [can be] stupid and mean.” Are these charges true? Certainly, many of the criticisms have been established elsewhere. Public defenders have extraordinary caseloads

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in many jurisdictions and cannot take on the additional, often overwhelming responsibilities of a capital matter. In turn, some of the nation’s most experienced trial lawyers are excluded from capital representation. Resources, too, are limited in many jurisdictions, meaning that the defense’s investigation and trial preparation pales in comparison to the prosecution’s case. Even in the federal system—where resources are more plentiful than in most any state—we already know that capital defendants whose resources fall at the low end of the continuum have twice the risk of a death sentence at trial.6 Race infects the entire criminal justice process, no more so than in capital sentencing, where multiple studies over the years have shown that nonwhite defendants are at a greater risk of a death sentence if their crime involved white victims.7 The composition of juries matters, too, the most troublesome research finding that the risk of a death sentence at trial rises with the number of white men on the jury.8 We do not accept the defenders’ claims merely on face value, nor do we suggest the reader reach a conclusion about the legitimacy of the American system of capital punishment only on reports of the defense bar. Despite its topic and sources, this is not a book intended to bring down the death penalty in the United States. Rather, we offer critical commentary about the system based on credible sources whose perspectives are rarely heard and whose insights speak to the reality of capital litigation. Are there other perspectives? Absolutely. But it would be a disservice—indeed, it would be the height of malpractice—to ignore the systemic challenges and critiques lodged by capital defenders. Finally, this is a book about the sociology of law and the sociology of the legal profession. The former goes back at least a century to social theorists Max Weber and Émile Durkheim with more modern roots in legal realism. Its central tenet rejects law as immutable “black letter” rules that sit bound on a shelf, instead envisioning law as a process of interpretation, understanding, and implementation that is influenced by the backgrounds, preferences, and even biases of the people who use or seek to change it. We see this approach often in scholarship on the crim-

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inal justice system, where the authors of such books as Felony Justice, Courtroom 302, and The Craft of Justice9 describe criminal court outcomes as dependent on the personalities and negotiations of “courtroom workgroup” members like prosecutors, judges, and defense lawyers. Even where a state statute might set a sentencing range at two to five years, prior research tells us that there will likely be a common “going rate” in each jurisdiction based on the preferences of prosecutors and defense lawyers, hammered out over repeated cases and brokered by the local judiciary.10 There is no reason to believe that this phenomenon is any different among capital cases. Even as the stakes are heightened, the process is administered by individuals—at least some of them elected in some jurisdictions—who have their own personal and professional motives in reaching a particular outcome. If the indictment rate for capital cases can vary based on the location of the crime, if the resources that judges authorize show tremendous geographic disparities,11 why wouldn’t we expect that the style and quality of defense advocacy in capital cases might vary based on nonlegal factors? As defense lawyers talk about their cases and describe their strategic decisions in the pages that follow, pay attention to how much of the practice is governed by social, cultural, and even political influences that never appear in statutes or case law. Those decisions also speak to the attorneys’ professional identity, a topic that has been closely examined in other subfields of law. Examining divorce lawyers, for example, Mather, McEwen, and Maiman posited three leading theories for attorney behavior: that “formal codes of responsibility and law school socialization . . . create shared norms and obligations”; that lawyers are influenced by “economic incentives and [the] conditions of work facing” them; and that their “social backgrounds, personal values, and identities . . . affect professional conduct.”12 The same is true for capital defense lawyers, for, as political scientists remind us, “we are accustomed to learning and re-learning that institutions matter, economics, matter, cultures (mass and local) matter, and individual human beings matter.”13

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Just as Mather and colleagues identified “communities of practice” among divorce lawyers, we see the same with the capital defenders we interviewed, both in comparison to general criminal defense lawyers and in geographic niches. For all the past publications on criminal defense, few consider the field through a sociological or anthropological lens, accepting that criminal law, and most particularly the lawyers who defend capital cases, have a distinct culture. Certainly, prior work has described the professional lives of criminal defense lawyers, but most of the sociolegal research on legal professions has concentrated on attorneys in civil matters, whether it’s how law school affects their career choices, the differential impact of gender on lawyers’ career paths, or how they structure their practice in large commercial law firms or when handling small, individual matters.14 Even when authors have addressed capital litigation— like Susannah Sheffer’s book Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys and Austin Sarat’s essay “Lawyering against Capital Punishment”—the focus has been on post-conviction habeas corpus litigation, and the approach has been at times to lionize the “courageous” lawyers who challenge death sentences.15 In this book, by contrast, we approach the subject neutrally, employing the tools of socio-legal research to describe, theorize, and explain the structure and culture of triallevel capital defense in the United States.

Outline of the Book The book itself is laid out in six chapters and a conclusion. The first chapter describes the nature of capital defense, seeing the field as a geographically diverse community of practice. We explain how capital defenders differ from “garden variety” criminal defenders in the tasks they undertake, the goals of their representation, and the status of their work. We distinguish between “insiders” and “outsiders” in the field and discuss, as well, the interplay of place in the experience and expected outcomes of litigation. Our central argument is that capital defense is both a specialized community and distinct culture within law, even

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among criminal defense as a whole. We also address the fundamental challenge in capital representation—the defenders’ belief that their clients are often guilty of the crime charged and the ensuing struggle to convince the client to plead guilty to avoid a death sentence. Chapter 2 explains why capital defenders enter the field and what keeps them engaged despite the many challenges and multiple setbacks. Here, the reasons are varied but tend to fall among six categories: not surprisingly, many capital defenders strongly oppose the death penalty, but lawyers were just as likely to be attracted by the intellectual challenge and prestige of the work, their admiration for luminaries in the field, their own experiences with trauma, their desire to serve the less fortunate, or their longing for an “adrenalin rush.” Of these motives, two—prestige and service—stand out for special attention. Even though criminal defense is typically considered public-interest work, the backgrounds and “pedigrees” of many of the capital defenders look similar to the top attorneys in America’s largest and most prestigious corporate law firms. In fact, the lawyers in both settings were sometimes law school classmates years back. For all the talk of selflessness in criminal defense, there is a fair amount of ego in the desire of young lawyers to move into the field—a desire not only to do the most interesting intellectual work and be surrounded by smart, capable litigators, but also to be recognized by others as working in a prestigious area of law. Capital defense pays much less than does corporate law, but for an attorney interested in criminal litigation there is little work more prominent than capital matters. Of course, what draws one to criminal defense in the first place is often a desire to serve the less fortunate, as so many criminal defendants— including those prosecuted for capital crimes—are indigent. Despite reports that many capital defenders are agnostic or atheists, a large number described being raised in in families that emphasized social service, much of it religiously mandated. Even where lawyers broke away from a conservative upbringing, they took with them the importance of serving others. That commitment, however, does not necessarily make them

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cause lawyers16—the kind of advocate who might see a case as a means to accomplish a larger social end—nor is the attorneys’ interest primarily ideological or even politically driven. Although a few respondents described themselves as “human rights activists” or otherwise engaged in the elimination of the death penalty, the clear majority of capital defense lawyers we interviewed were, first and foremost, legal advocates, there to serve the needs of the client in the instant case. “The client is the thing” could be the mantra for many capital defenders. Chapter 3 expands on these reports by addressing the lawyers’ identities and their efforts to manage that identity. Several attorneys described “feeling like outsiders” growing up, whether as the progressive oddity within their families or as simply different from the prevailing culture in which they were raised. For others, their families’ experience with discrimination or worse was a motivation. In particular, we found a sizeable number of Jews (or those raised Jewish) among the capital defense bar, for whom the Holocaust was not a distant memory and who described a cultural aversion to “the state kill[ing] systematically.” Racial identity is a hot button issue in capital defense considering that many of the defendants are nonwhite and most of the defense bar is white. Some lawyers were defensive about the subject, either briefly noting the phenomenon or acknowledging that “there is nothing [they] can do about it” other than “trying to be the client’s best representative regardless of race.” Where lawyers were expansive, they spoke eloquently about the dilemma of trying to understand and convey the nature of a client’s background when their own experience was so different. Indeed, some attorneys warned against assumptions that race—or any other aspect of identity for that matter—is a key determinant when connecting with clients and others. Instead, these attorneys stress the intersectional nature of identity, saying they strive to create space for each team member to connect with the client in his or her own way despite assumed gendered, racial, or socioeconomic differences, among others. Chapter 4 investigates the attorney–client relationship, starting with the fundamental challenge facing advocates: how do you form a rela-

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tionship with a stranger so that he trusts your advice to plead guilty and spend the rest of his life in prison? This tension draws on prior literature in legal ethics but is made all the more complex considering that many capital defendants suffer from mental illness, addiction, past abuse, and low intelligence and have multiple reasons to doubt an outsider who purports to help them. Still, for all these difficulties, many lawyers talk of liking their clients, whom they see alternately as victims themselves and “more than the worst thing they’ve ever done.” Chapter 5 takes up the issue of gender in capital defense. At first glance, the field might appear to be hypermasculine, with brashness rewarded and little tolerance for emotions of doubt and loss in representations that, at best, will usually see a client spending the rest of his life in prison. Yet the rise of mitigation investigation and the need for attorneys to build trust with their clients has seen the field begin to prize, or at least accept, “emotional work.” But therein lies the contradiction. Although men purport to appreciate the need for mitigation investigation, the vast majority of mitigation specialists are women, and female lawyers are often pigeonholed into being the primary “hand-holder” for the client. Capital defense, then, is a kind of gender-bending subfield that both conforms to and defies traditional gender stereotypes. Even as the community learns to appreciate more female perspectives, it still seems to reproduce traditional notions of gendered work. Chapter 6 addresses the effects of capital representation on the lawyers themselves. Although the attorneys may seek to normalize the work, analogizing the stress to other difficult jobs, the pressure is intense and the worrying compulsive. Lawyers find themselves repeatedly fretting about whether they are “doing enough” on cases, with the consequences of failure leading to a client’s death sentence. Lawyers whose clients have been executed talk of “specialized survivor guilt” while at the same time seeking to compartmentalize the loss so that they can go back to work on the next case. Even when lawyers achieve a positive result, the effects on their family members, not to mention the lawyers themselves, can be destructive. It is no wonder that some advocates acknowledge having

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“PTSD symptoms,” but surprisingly the community seems neither to acknowledge nor provide a mechanism to address the feelings of doubt, shame, defeat, and sorrow. People tend to “process [their] feelings in silence” and “move on.” For all the field’s focus on the inner workings of their clients’ minds, the lawyers themselves seem minimally introspective about their own reaction to the work. “You keep your eyes on the job and you just do it,” they explained. “You don’t spend any time thinking about ‘Is there some way I can avoid doing this?’ You just do it.” A concluding section ties the effects of capital representation back to the nature of the field. Best understood as a specialized community of practice, capital defenders are a relatively self-limiting group. It’s an ironic field, its members paranoid of accepting newcomers into work that is potentially damaging to the psyche but from which few choose to escape. In the end, capital defense highlights much that is good about the professionalism of lawyers while also exposing the many weaknesses of the American criminal justice system.

Research Methods The findings and arguments we present here are based on interviews we conducted with more than sixty capital defense lawyers across the country. Interviews lasted at least an hour and sometimes up to three or four hours at a time. In several circumstances we returned to attorneys a second or third time to follow up on a key finding or to continue a professional relationship that was generating helpful information. Recruitment was done by “snowball sampling,” which is to say that we asked attorneys for recommendations of capital defenders they considered to be “high quality.” We intentionally left the term vague to encourage respondents to be expansive in thinking through their recommendations. For that matter, one of our ulterior motives was to help give greater contours to the notion of quality representation. Certainly, the American Bar Association has issued “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,”17

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but even experienced practitioners acknowledge that these terms may be vague and far from exclusive qualities. We were hoping that practitioners would help define the concept with the individuals they recommended we interview. That said, we were not looking for simply “superstar” litigators, the kind of luminaries like Judy Clarke, Mark Olive, and John Blume mentioned above, who truly set the bar for exceptional advocacy. Rather, our goal was to depict capital defense practice, as is it performed, as best as possible given the typical constraints on lawyers’ time and resources. Therefore the collection of sixty-plus lawyers interviewed includes a mix of veteran and relatively new capital defenders, lawyers who practice in a public defender’s office and on their own, lawyers who handle primarily capital cases and those whose work is more varied; there was also a great geographic mix of lawyers, as well as variety in terms of whether they work primarily in state or federal court. In some circumstances we also spoke with mitigation specialists and other members of the defense team to confirm stories. Our “unit of analysis” is the lawyer him- or herself, meaning that a single interview often provided stories from multiple cases. We also attempted to include a subset of lawyers in the interviews who were rated by their colleagues as being poor or substandard. Of course, we did not tell these lawyers during recruitment that others thought badly of them, nor was it our goal to disparage their practice. Rather, in seeking to understand what high-quality representation looks like we also needed counterexamples, at least as defined by lawyers in the field. In this respect, we had a difficult time recruiting the “worse” lawyers. Perhaps, as in their practice, they were reluctant to return phone calls, were slow to answer emails, and would agree to an interview and then fail to schedule a time. In the end, we were only able to include a handful of the less-respected attorneys in the research, which is a limitation we acknowledge. It’s important to note that our interviews were conducted under a strict human subjects protection plan, which ensured that respondents could

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share freely and that no one we interviewed, their clients or colleagues, would be identifiable or subject to criticism or sanction for having agreed to speak with us. We never asked lawyers about topics that might expose a privileged conversation, and if a response began to venture near this category we warned the lawyer. (It happened just once.) We also promised the lawyers complete anonymity, meaning nothing included in this book is traceable to an identifiable respondent, whether a lawyer, mitigation specialist, staff member, defendant, judge, victim, or observer. We do not list the people we interviewed, and we never told the lawyers whether one of their colleagues or acquaintances had spoken with us. We stand by our reputations as researchers in confirming that the interviews took place as described and in noting that respondents were candid and forthcoming. But, from the reader’s perspective, there is no sense in trying to guess which defender said what in this book, as we present the quotations in a way that no single respondent should be traceable. Even where we use pseudonyms, we disguise the individuals’ identities. As a result, there may be questions about the generalizability of our findings. Although we cannot identify the specific lawyers we interviewed, we can offer a broad summary of the sample. Approximately 60 percent of attorneys carried a combined criminal and capital practice; 15 percent worked exclusively on capital cases; 20 percent had a general practice that included capital work; and 5 percent were classified as other. The clear majority had worked as a public defender or publicinterest attorney at some point, although more than half were in private practice at the time of interview. Lawyers came from all parts of the country, although the sample was naturally weighted most heavily to those parts of the country in which the death penalty is most often sought and litigated. Given that we were seeking to interview attorneys ranked highly by their peers, the sample tilted toward older, more experienced lawyers. The least-experienced attorney among our interviewees had practiced law for ten years, whereas the longest serving had been lawyers for more than forty years. Finally, approximately 70 percent of interviewees were male, and more than 80 percent were white.

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We do not claim that our sample is a match for the national capital defense bar, nor should the reader consider it as such, especially since we intentionally sought out the most highly regarded capital defenders. But it is worth comparing the demographics of our sample with data recently obtained by the federal courts when querying private lawyers who handle criminal cases.18 To be sure, the courts surveyed traditional and capital defense practitioners, but because members of the federal defense bar must also apply and be accepted for appointment, its attorneys are often among the better defense advocates. In this respect, it is instructive that 80 percent of the attorneys in the federal courts’ survey were male and 83 percent white, while more than 60 percent of the group was over the age of fifty. Against these data, our sample seems at least reasonably representative, although, again, we are careful not to overclaim. We do not contend that the stories collected here are entirely reflective of capital defense, but the interviewees themselves cover much of the field. While we cannot identify our interviewees, we can provide more detailed information on our research methods. We employed a strategy of open-ended interviews, starting from a script of seven thematic areas with multiple follow-up questions embedded in each section. Rather than track a script blindly, we allowed the conversation to flow where each participant took it, although we were careful to circle back to the protocol to ensure that we covered each subject. A copy of the interview instrument is included in an appendix. Interviews were conducted at a location of the subject’s comfort—sometimes in a lawyer’s office, sometimes in a private corner of a hotel lobby or coffee shop, and sometimes over the phone. Our goal was to put lawyers at ease and to encourage them to share freely. Most did not know us ahead of the interview, so it took them time to warm up, and in those circumstances we would schedule multiple sessions to keep pressing away at their experience. Some lawyers understandably held back from sharing their most vulnerable stories, but we were honored to be trusted by so many participants, who routinely took us through some of the most harrowing experiences of their practice—and their lives. Several lawyers told us afterward that

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| Introduction

the interviews were cathartic, the conversations having been one of the few times they shared their experience. As may be evident by now, we approached this project as researchers first, meaning that we don’t have an ulterior motive in how the capital defense lawyers are presented. In reading prior literature on defense lawyers, we recognize a tendency in some work to depict the advocates as righteous or provide an entirely sympathetic account of defense practice. Although we admire many of the people who do this work, we see the capital defenders first as people—with all the strengths, weaknesses, and idiosyncrasies that implies. Our research does not sugarcoat the defense function or hold up the lawyers as superhumans or saints, an approach, we believe, that presents a richer, more holistic account of capital defense. Nor is there any need to “put a thumb” on the scale in describing the practice of capital defenders. Their stories are so compelling, their self-reflection so torturous at times, that our job of reporting is made simpler. The true challenge is interpretation. Here, we offer our own informed analysis, but we leave the ultimate judgement to the reader. How different is capital defense from other areas of law, and what does its practice say about the people who voluntarily represent capital clients? What can the inquiry tell us about the workings of the U.S. criminal justice process, and do we come away from the examination feeling any differently about the legitimacy of our legal system and its underlying constitutional guarantees? Finally, does the depiction provide additional ammunition or greater reassurance in considering America’s use of the death penalty? These are but some of the questions raised by the research, issues we hope readers will consider as they pore through the narratives. Capital defenders may have labored in relative obscurity up to now, but their work and challenges go right to the heart of what it means to do justice in the United States. Unless others are prepared to take up those difficult duties, we owe it to the defenders to consider their accounts.

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An Introduction to the Capital Defense Process Although capital defense lawyers may be relatively unknown, most Americans understand that capital punishment is practiced in the United States. It is sometimes said that the death penalty is part of the American fabric. In fact, its history in the new world predates the nation’s founding. The first recorded execution in the new colonies was in Jamestown in 1608.19 Capital punishment was a recognized penalty at the time of the Constitution’s adoption, and the practice rose steadily from there. Numbering fewer than two thousand from 1800 to 1850, executions in the United States jumped to more than seven thousand between 1900 and 1972.20 The course was stayed in 1972 with the Supreme Court’s decision in Furman v. Georgia, in which the justices struck down capital sentencing statutes that gave jurors unbridled discretion in choosing which defendants would face the death penalty.21 The effect was to put executions on hold nationwide for three years while states rewrote their statutes and the high court considered these new attempts. In the 1976 case of Gregg v. Georgia,22 the justices approved a new sentencing scheme that bifurcated capital trials. To this day, capital prosecutions follow two paths: first, jurors decide whether the defendant is guilty of the capital charge; if so, they reconvene for a separate “penalty phase” to decide on the appropriate punishment. Multiple Supreme Court decisions have subsequently circumscribed the practice of the death penalty in the United States, and in fact, by mid-2015, only thirty-one states and the federal government maintained the death penalty.23 Even then, just three states—Florida, Missouri, and Texas—actually executed more than three defendants in 2014.24 According to recent Supreme Court precedent, capital sentencing is the province of jurors, not judges,25 who first consider “aggravators” of the crime that might make the death penalty justified and then weigh mitigating factors that would counsel a different punishment. Their sentencing decision must be unanimous. Jurors also must be “death qualified,” meaning that they must be willing to sentence a defendant to death

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if the law and circumstances dictate and not oppose capital punishment on principle. However, the death penalty may not be imposed on defendants who are mentally incompetent, are intellectually disabled, were younger than eighteen at the time of the crime, or are convicted of rape but not murder.26 The decision to seek the death penalty belongs to the prosecution. Prosecutors speak of a crime being “death eligible,” which suggests that “aggravating circumstances [are present in the crime] that the state legislature has determined . . . elevate a killing to a capital crime.”27 These circumstances may include the killing of a police officer or correctional officer, the murder of a young child or multiple victims, or upward of twenty other categories depending on the state. The prosecution must announce its intention to seek the death penalty within a certain period set by statute following indictment and before trial. In the federal system, the U.S. Department of Justice convenes the Attorney General’s Review Committee on Capital Cases to evaluate potential capital crimes submitted by federal prosecutors for “recommendation to the Attorney General concerning the appropriateness of seeking the death penalty.”28 Often the defense is invited to appear before the committee and explain why a capital prosecution is inappropriate in the case. Within most states, individual district attorneys make the decision to file capital charges on their own, with the defense consulted rarely if at all. In fact, as many capital defense lawyers complain, state prosecutors may file capital charges as leverage to convince a defendant to plead guilty and accept a sentence of life without the possibility of parole. We discuss that charge at greater length in chapters 1 and 4. In the landmark case of Gideon v. Wainwright, the U.S. Supreme Court established that the state must provide an attorney for a criminal defendant if he cannot afford one on his own.29 The reality is that most capital defendants are indigent, and if they are not already, the cost of a capital defense would bankrupt most of them. As a result, almost all the defendants charged with a capital crime are defended by attorneys provided by the state. These lawyers may be members of a public defender’s

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office or, more likely, private attorneys who agree to take on a capital case and are appointed and compensated by the court from a panel of willing practitioners.30 Defendants are not consulted in the appointment process and must rely on the acumen of a judge or magistrate in choosing a lawyer. Appointed lawyers may be solo practitioners, work in small firms, or come from large commercial law firms and occasionally take a capital case as a favor to the court. Rarely do defendants retain their own lawyers, and when they do it is not always clear that they choose lawyers with experience in capital defense, all too often picking an attorney they know from another matter who may not have litigated capital cases. As mentioned above, the American Bar Association has established “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.” First adopted in 1989 and updated in 2003, the ABA Guidelines “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing or convicted of death penalty offenses.”31 Among its standards, the Guidelines advise that the “defense team should consist of no fewer than two [qualified] attorneys . . . an investigator, and a mitigation specialist.” Further, the Guidelines recommend qualification standards for the lawyers, urging, among other credentials, that they have “skill in the use of expert witnesses and familiarity with common areas of forensic investigation,” not to mention experience in “the investigation, preparation, and presentation of mitigation evidence.”32 Capital defense lawyers are held to a minimum standard of performance on behalf of their clients. The U.S. Supreme Court in Strickland v. Washington33 established a two-part test for ineffective assistance of counsel in capital cases, ruling that a death sentence cannot stand if the trial attorneys’ performance fell below an objective standard of performance and that the deficiency was a likely cause of the client’s conviction or sentence. The Court has provided some clarification of the Strickland standard in Wiggins v. Smith and Rompilla v. Beard.34 In Wiggins, the justices urged defense lawyers to investigate and present any mitigating evidence during the sentencing phase of a capital trial, and in Rompilla

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the Court held that defense counsel must review any material they believe the prosecution will use to establish aggravating factors. Coupled with the ABA Guidelines, which “have been cited with approval by courts around the country,”35 the Supreme Court’s decisions in Strickland, Wiggins, and Rompilla might lead observers to believe that the overall quality of capital defense in the United States is high. Certainly, as this book suggests, the practice attracts many highly qualified advocates. But, as other federal courts have noted, “ineffective assistance of counsel in capital cases has been a persistent problem in the United States.”36 The late Welsh White, a law professor at the University of Pittsburgh and an expert on capital defense, detailed many of these failings in his book Litigating in the Shadow of Death, and the renowned researcher James Liebman and his team have investigated how often ineffective assistance of counsel occurs in capital cases. Analyzing death sentences imposed between 1973 and 1995, the team concluded that “68% of all death verdicts imposed . . . were reversed by courts due to serious errors.”37 Whether in state post-conviction proceedings or in a federal habeas corpus action, “ineffective assistance of counsel led to more death sentence reversals than any other error.”38 What should we make of these contradictory portrayals? Is capital defense a calling of the skilled and dedicated or a muddle of the uncommitted and untrained? In truth, it’s a compilation of the two. For that matter, even the best, most devoted attorneys can make mistakes, even the kind of errors that justify a new trial or resentencing. In the pages that follow, we take readers into the heart, nay guts, of capital representation, seeking to provide an open, honest depiction of the practice and a fuller understanding of the challenges of capital litigation. Support for capital punishment is on the decline, dropping in 2013 to 55 percent of Americans from a recent high of 78 percent in 1996.39 But so long as the death penalty is sought, there will be a need for defense attorneys who willingly—and zealously—represent capital defendants. Good, bad, and ugly, capital defense illustrates the highest aspirations of legal practice while also exposing the many weaknesses of the American criminal justice system.

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?1 23

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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.2 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.3 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

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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.4 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.5 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,”

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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.6 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.”7

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?

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“Death penalty cases are an entirely different kettle of fish, different from anything I thought I understood as a defense lawyer,” explained Karen,8 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

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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 ju-

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rors 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

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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,9 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 his clients, a relationship that he said motivates his best work:

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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.

It certainly doesn’t reflect the work that other capital defenders described. “To do [capital defense] well, you need to be an incredibly zealous advocate,” explained Jacob. “I would pretty much do everything I can without lying or breaking the law to make sure that my client is not sentenced to death. What it means practically is that we file about a bajillion motions in every case. We meet with [the clients] constantly. We are always trying to work deals with the prosecution.”

The Moral Simplicity of “Dirty Work” Sociology offers the concept of “dirty work,” referring “to occupations that are stigmatized because of associations with problematic physical (e.g., garbage, death, danger), social (e.g., tainted clients, servile relationships), and/or moral (e.g., sinful, confrontational, deceptive) issues.”10 Criminal defense is often placed under this definition—both because of the social stigmatization of the clients involved and questions about the morality of “defending the guilty”—and capital representation certainly qualifies for similar reasons.11 Yet, even as a “dirty” profession, capital defense has an astounding appeal, a draw, defenders said, that is “morally simple, simple, and obvious.” Whereas a traditional criminal practitioner may become blasé or even disillusioned over time as pleas are processed with little investigation or courtroom advocacy, the stakes for capital lawyers are so high that no dedicated attorney can take a case

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for granted. Karen, who has worked on capital cases for two decades, could have spoken for many others we interviewed when she solemnly described both the appeal and fear of the work: “The results of failure, of not taking [the case] seriously, is that someone dies. That’s what makes it unlike everything else.” Once they make the decision to take on a case, attorneys say that justifying the work isn’t that hard. In fact, many won’t go back to noncapital cases. “Give me a capital case client over a fraud client any day of the week,” said a capital defender who has been at it for nearly two decades. The “entire existence [of a fraud defendant] is based on the belief that they can get you to believe anything. Ask anybody in this office, ‘What clients do you hate most?’ Fraud clients! They always lie to you and they never accept responsibility. Killers don’t do that. They tell you and they accept responsibility.” This is not to say that capital defendants have a positive public image. After all, as the lawyers acknowledge, their clients often “have done terrible things.” In talking to us, one attorney began to meditate over what he called the “mantra of capital defense,” the saying that “you don’t judge a man by his worst day.” But that’s hard to do, he explained, “when your client is a mass murderer”: I guess I really do buy into that [saying], and I think this is part of it, to really dumb it down and turn it into [an easily understood expression, that] anyone can have a really bad day and we should not be judged by the worst thing in our life. [But, when you’re dealing with] the magnitude of [a serial killer,] what do you want to say, ‘Don’t judge a man on the worst eighteen years of his life?’ I mean it’s kind of hard to [do].

As a result, capital defense lawyers typically avoid the spotlight in their work. We already told the story in the introduction of Judy Clarke, arguably the field’s most known advocate, who assiduously shuns press attention. It is a common theme among the capital defense lawyers we

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interviewed. Howard, who has tried a few high-profile cases, spoke of his own reticence: I avoid publicity like crazy because it is rarely in your client’s interest. As soon as you get to the capital level, the offenses that you’re dealing with are like the worst cases that people can think of, and you’re not going to get good press on these things. I mean they’re going to start the article talking about how your client is supposed to have murdered such and such and such and such, and it’s not going to be put forth in a way that suggests that there’s some question about whether or not your client did it. It’s going to be put forth in a way that most people will assume he did it. And you’re just not likely to get any good publicity.

Lone Wolves Howard is a solo practitioner, as are many of the attorneys who take on these cases outside of public defender’s offices. PDs are often reluctant to accept capital cases and the inherent increased workload that can bring attorneys’ other cases to a crawl while the more pressing capital matters are handled. In turn, the private defense bar is largely left to defend capital cases. As in noncapital representation, many death penalty lawyers are solo practitioners or work out of small law firms, typically two or five attorneys in the practice. Some states have experimented with regional capital resource offices, in which teams of death penalty specialists have primary jurisdiction when prosecutors charge a case as capital. And, of course, some public defender’s offices have created distinct capital units in which lawyers can concentrate on death penalty cases without the lawyers having to balance capital representation against other cases. Yet the structure of criminal practice—lawyers accustomed to practicing on their own or in small teams—may conflict with the needs of a capital case, in which the lead lawyer must serve as the captain of a sizeable crew of attorneys, investigators, mitigation specialists, and fo-

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rensic and other experts. “Most criminal lawyers are used to being lone wolves,” explained Laura, a mitigation specialist we interviewed. “They handle the cases themselves as one lawyer, where they’re certainly in charge.” But “capital work at its best is team defense. . . . A good capital defender cannot afford to be a ‘lone wolf.’” Many states authorize two lawyers to represent a capital defendant, and they, in turn, may retain an investigator or mitigation specialist to join the team. It’s not just good strategy; the American Bar Association recommends it as well. The ABA’s “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” specifically states that “the defense team should consist of no fewer than two attorneys . . . an investigator, and a mitigation specialist.”12 Since the Supreme Court’s decision in Wiggins v. Smith in 2003, it has become de rigueur for the defense to conduct a social history of the defendant when crafting its argument for the mitigation phase of trial. That work is now typically conducted by an investigator or social worker called a mitigation specialist. Defense teams may also supplement this work with the help of psychologists or psychiatrists, not to mention assistance from other experts—including neurologists or toxicologists—who can shed light into the defendant’s past, including his IQ, psychological or physical abuse, or addictions. The result is a defense team that can include the two named lawyers, law clerks or associates, an investigator or mitigation specialist, a psychologist, and two or three other experts. A defender whose firm specializes in capital cases described the members of his team and the importance of their role: We almost have a full-time psychologist who works for us, and that is something else that is very different from the traditional criminal case, which is that our client’s social history is really important. Because if a case is going to go to the jury for a choice between life and death, there [are] a couple [of] things that we have to do. One is that the jury has to know about our client, and we do believe that just by knowing about them, the good and the bad, it’s going to be harder [to vote for death], that

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knowing leads to some amount of understanding. We have to explain, not excuse, why our client committed a terrible crime, but we have to explain how they got to the point where they chose to commit the crime. And so sometimes half our work is not legal at all, but it’s psychology. And it’s building social history through interviewing and, of course, in interviewing our clients’ family members we have to build a relationship, build a rapport, because, ultimately, we want them to disclose things that could be embarrassing, that are very intimate for the family. That type of work is very different than other types of [representation].

Building a capital team requires thoughtfulness. Team members’ skills and attitudes should complement one another so that each team member can fulfill a specific goal or set of goals involved in a team endeavor. What’s more, the team must function as a whole or representation becomes rather difficult. As Joshua, a “baby boomer” with experience in both public defense and in private practice, explained, “[Sometimes] teams get assembled sort of haphazardly and there is no real thought given to what the skills of individual team members may be. If you’ve got a team where the two main lawyers both see themselves as trial lawyers and nobody is really good at doing the research, then you really just have this built-in conflict.” The right collection of team members, along with the right division of labor, can make or break a team. Of course, capital teams are more than the sum of their parts, so to speak, and working together in a team setting inherently involves the management of one’s own and others’ emotions, or emotional labor. Teamwork involves cooperation and the suppression of ego. Consider the story of Sarah, who left the corporate world to start her own criminal defense practice more than two decades ago, eventually joining a nonprofit defense organization. “So much of capital defense work is collaborative,” she explained. “You have to have a team, you have to be willing to work with a team, and you have to be willing to listen to people without regard to hierarchy.” Indeed, several attorneys we interviewed compared the experience of being on a capital team to that of a sports

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team. One attorney remarked, “I played sports in high school and college. I understand the discipline and the teamwork and the planning. That it’s not personal. You try your best and, win or lose, you still feel good about what happened. I was never one of those players who cried after [a game].” Another attorney reflected more explicitly on ego, noting that “ego interferes with a lot of things and if you have a big ego, you oftentimes get into trouble in this work.” In short, attorneys must often suppress their ego for the sake of the team, which can be difficult for many. As attorneys told it, many criminal defenders have pretty big egos—it seems to come with the territory— and, in addition, lawyers are not always known for their management abilities. Between perfectionism, reluctance to delegate, and failure to praise, attorneys have come in for criticism as unskilled managers.13 On death penalty cases, the typical clash is between mitigation specialists and attorneys. As one capital defender expounded, many mitigation specialists “think we’re arrogant, don’t know what we’re doing, don’t relate well to clients, and don’t respect them.” Mitigation specialists used the same word in describing some of the attorneys with whom they work— “arrogant.” Lawyers were portrayed as disrespectful of the investigators (who typically do not have legal training), as impatient and unwilling to hear opposing views, or driven by impossible expectations, whether for themselves or others. As one investigator described the attorneys, “They’re so good at what they do and can’t praise anyone else.” The demands of the job breed irritability and edginess, too. “Everything is a fight,” lamented Robin, who has been a regional defender. “Everything is a battle. I battle, everybody [battles]. I think people perceive that, ‘Okay, well, you fight with the prosecution.’ But I don’t just fight with the prosecution. I fight with the judge. Sometimes it’s a battle with my client. It’s a battle with my client’s family. It’s a battle with my cocounsel. Nothing ever seems to come easy in this work.” However, as much as we heard stories of arrogant, impatient lawyers who failed to praise or motivate the other members of their defense teams, we were also told that many of the lawyers who come to

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the work have a “softer and kinder side” that not only draws them to capital defense but makes them better advocates. Discussing the “aggressive personality” that is commonly associated with effective advocacy, a defender challenged the assumption: I don’t think [that is] as common in capital defense as I think it is in regular criminal defense work. A lot of this work takes a softer touch than criminal defense work—both because of mitigation and just dealing with the clients, which are kind of a bit different type of client. A lot of our clients require massive amounts of time. So, the amount of time that you’re spending with them and the amount of trust that you’re trying to develop is very different than what I would call regular public defense practice, which I think [is] more of like triage.

Many lawyers and mitigation specialists could point to attorneys throughout the field who are known for their compassion and gentleness. As an investigator explained to us, “I feel like a lot of capital defense lawyers, maybe they’re different in the courtroom, but in life are very—I don’t know—I guess ‘kind’ is the best word I can think of [laughs].” But that laugh was the giveaway, because much of the division between aggression and kindness has both a gendered and occupational undertone. Typically, lawyers were described as aggressive, with mitigation specialists seen as empathetic, open, or considerate. So, too, when a lawyer was described as caring or gentle, she was much more likely to be a woman. We take up the gendered nature of capital defense in chapter 5, distinguishing between client work and legal work and addressing the presumption that women and mitigation specialists (who are disproportionately female) are best suited for client work. For present purposes, we note that the typical portrait of the aggressive courtroom lawyer is but a partial depiction of capital defense, but we also suggest that an attorney’s kind disposition does not necessarily equate to effective team management. To be sure, gentler lawyers do not usually yell at their colleagues or subordinates, but we heard multiple stories from both law-

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yers and mitigation specialists of attorneys who had difficulty managing the personnel, personalities, and priorities of capital defense teams. Law schools do not train lawyers to be managers, and the work does not socialize them that way, either. So, as a defense team grows in a capital case, the prospects for conflict and chafing increase, too—in part because case demands turn up the pressure on all involved, in part because some lawyers have outsized expectations for themselves and others, and in part because, as one investigator put it, “the law is just full of assholes.”

The Goal Is the Plea Anyone who has studied criminal law in the United States undoubtedly knows that most criminal cases are resolved by a plea bargain. As the Bureau of Justice Statistics has reported, in 2009, 95 percent of criminal cases in large urban counties ended in a guilty plea.14 In fact, as both scholars and practitioners have argued, the criminal courts would come to a crashing halt if defendants were to reject plea deals and demand trials, as there are not enough prosecutors, defense lawyers or even judges and court staff to handle what would be the resulting explosion in court time.15 When we first became acquainted with capital representation years ago, we imagined—apparently naïvely—that death penalty cases would be different. With two stages of a trial—guilt and penalty—we figured that defendants would be more willing to go to trial under the calculus that they could argue for acquittal in the first stage but then get “another bite at the apple” to show why they should not be sentenced to death. We were wrong. As capital defenders said repeatedly, “the goal is a plea.” The objective of capable defense lawyers is to “get death off the table,” either “by convincing the prosecution that something is wrong with the client or there is a weakness in the case” so that the prosecutor will drop the capital charge, or “by persuading the client that he needs to plead guilty” and accept life in prison. Why is this so? An answer starts with defenders’ acknowledgment that “prosecutors tend to bring stronger cases as capital. . . . These are

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not the one eyewitness cases. . . . Evidence in these cases is generally strong enough to convict.” On the one hand, this observation may be potentially reassuring to the lay observer, suggesting that prosecutors are not charging all homicides as capital and rolling the proverbial dice to see how many defendants will be sentenced to death. But that view conflates strength of evidence with heinousness and mitigation. That the prosecution can establish beyond a reasonable doubt that the defendant committed a homicide is not the same as saying that the defendant will, or should, be sentenced to death. This point is borne out in a study of federal capital trials co-authored by one of us. Examining federal capital cases between 1998 and 2004 (which was at the height of the federal death penalty), the study found that the U.S. Department of Justice authorized 463 defendants for a capital prosecution during that time. Of these, 262 defendants took their case to trial, whereupon the clear majority were convicted of the underlying homicide but only sixty-eight were sentenced to death. Put another way, although most of the defendants tried for a federal capital crime were convicted of that charge, only a quarter were sentenced to death. For the defendant willing to gamble, these results may support the decision to reject a plea offer and go to trial. But even when defendants escape a death sentence, they are more often looking at a life sentence rather than a term of years. Acquittal is rare, the imposed sentence is for decades (perhaps even life), and the chance of a death verdict is one in four. Plus, this is in the federal system, in which defense teams are better resourced than at the state level and where jury pools are typically more civically engaged.16 To go to trial in many state systems is to risk a death sentence without a sufficient chance of either acquittal or a term of years. For that matter, states that practice capital punishment tend to be more conservative than others, meaning that potential jurors are more retributive than in other jurisdictions and more likely to champion the death penalty. “They’re also likely to be white and trust law enforcement,” says one defense lawyer, and, of course, the very process of qualifying jurors for

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a capital trial screens out those who are categorically opposed to capital punishment. In essence, says a lawyer laboring in a jurisdiction known as a hotbed of capital prosecutions, “the jury is going to suck. We’re not going to win on reasonable doubt. . . . Acquittals are not realistic.” The nature of capital practice also makes it difficult to secure a noncapital sentence if the defendant is convicted at trial. During the first phase of trial, the defense must walk the fine line of challenging the defendant’s guilt without making him appear so insensitive or unsympathetic that jurors will want to punish him with death at the penalty phase. “There’s only so much you can have your client deny responsibility during the guilt phase,” explains an advocate, “before jurors see him as cold-hearted and unrepentant. You don’t want them to take that out on him in sentencing.” What’s more, the very arguments that the defense often makes at sentencing—a portrayal of the client’s tragic upbringing and the abuse and addictions he may have faced—can also be used by the prosecution to establish the defendant’s future dangerousness and, thus, justify in jurors’ minds the imposition of a death sentence. It’s no wonder that capital defenders advise their clients against going to trial. Defense lawyers seem to accept this reality even as they wish it weren’t so. Their adjustment calls to mind the mental transformation that lawyers undergo in a different legal field—family law—where researchers note that veteran practitioners have had to redefine their measures of “success.” As noted scholars Lynn Mather, Craig McEwen, and Richard Maiman explain, “Attorneys generally discover that the most obvious measures of achievement in legal practice—winning a case or securing high dollar outcomes—simply do not apply in family law. The lawyers interviewed usually disavowed ‘victory’ as a goal and embraced instead ‘fair’ or ‘reasonable’ results as a sign of success in particular cases.”17 The same is true for capital defense lawyers, who may have entered law school intending to battle and “win” in court and who may be accustomed to considerable courtroom time in their other criminal cases. But in representing capital defendants they come to recognize that “every trial is a failure,” that “much of the representation is geared to get[ting]

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the client eventually to plead guilty to life without parole.” It’s not an easy transition, explains a lawyer now in her fifth year of capital practice: “There’s nothing in the world I like more than trying cases. I was good at it [when I was a public defender]. I won a lot. So yeah, I feel good about my ability to try the case. But the consequences [of a capital case] are different. The stakes are just too high.” It can be difficult to explain to other lawyers this aversion to trial, the almost singular focus to avoid litigation. Daniel, one of the legends in the field, recounted a time that he took on a co-counsel who had little experience in capital representation: “[Mary,] she’s a kick-ass criminal defense attorney, but capital cases are not her focus. [We] go out for a government continuance. She wants to try this case and I’m sitting there going ‘No, no, no. We’ve got to take this continuance.’ She chewed my ass out on the way back! So, my instinct as a capital lawyer was, don’t go to trial when you don’t have to take the risk. And her intuition was go to trial when you’ve got them and kick their ass.” Only later did the pair end up settling the case with a plea, with Mary agreeing that this was the better course for the client. Yet it’s not just other lawyers who find the nature of capital defense perplexing. Sometimes the capital defenders themselves are dumbfounded by what they have come to accept as “normal.” Jacob reflected on what constitutes success to him now: “The goal is never to go to trial ever, to never have the possibility that my client could be sentenced to death. I guess my first goal is to talk the prosecution out of seeking the death penalty. That rarely ever happens, but we have done it on one of my cases. And we did that in exchange for giving up our client’s right to have a jury trial. So that is a victory to me at this point, which is crazy.” Not only crazy but disappointing, too, several lawyers said when describing what they term “a low bar for success.” As Rachel explained, “there is no joy in settling a capital case,” no happiness in a “good” outcome: “The most positive feeling is one of relief, right, that your client isn’t going to be sentenced to death. Similarly, if you try a case and the jury brings in a life verdict, there’s an enormous relief, right? But you

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never feel good about the fact that that’s the best you could ever do for the client. If you’re fortunate enough to settle a case for less than life and your client has the possibility of parole that might be joyful [laughs].” Rachel may have chuckled, but that possibility keeps many of her counterparts going. As a colleague explained, “Something less than a sentence of life without possibility of parole is a victory. Just knowing that a client, someday, may be able to get out of prison to me is important. He may never get out. And I would even acknowledge that maybe he shouldn’t for whatever reason. But just it’s hard for me to imagine that [he ends up being] this infirm seventy- or eighty-year-old—the notion of keeping him locked up in a prison is just anathema to me.” For all the unease over settling cases and the disappointment of employing years of advanced education and trial experience to the process of securing pleas, a few lawyers acknowledged that the lower bar for success in pleading can be a comfort, not only in assessing their own talents as a lawyer but also in justifying what their job is. Voiced by just a few of the capital defenders we interviewed, the admission speaks volumes about the angst and professional doubt that go into capital defense. Joan, a successful defense practitioner for more than thirty years, described the relief she feels from pleading capital cases: “I’m not usually trying to get guilty people off; I’m trying to get them life. Yes, that’s a luxury for capital defense lawyers. [There is a] low bar for success, but maybe I like that. The bar is lower for guilty people. If they’re innocent, you have to get them acquitted. And yet these cases are really difficult. No one is good enough to take on these cases. No one should have to be the person to stand between a client’s life and death.” The fear of convicting an innocent client is true throughout criminal defense. When publishing her book Angel of Death Row, Andrea Lyon repeatedly asserted that she prefers guilty clients. With guilty clients, Lyon wrote, one knows what she is working with, and one does not have to worry about being responsible for the conviction of an innocent client.18 But the fear is ratcheted up manyfold when the stakes of a wrongful conviction are death. How does it feel if you believe your cli-

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ent is innocent? The answers we received were remarkably similar: “It’s scary. It’s very, very scary.” For some it’s even unfathomable. As Jacob explained, “To even imagine, sitting across the table [from] a defendant who is innocent, that the state is trying to kill, I just find that terrifying. I can never know what a jury is going to do. I have had clients who[m] I believed were innocent in minor cases be convicted by juries, and it’s devastating. To think that there’s the possibility that an innocent client could go to death row on my watch is the most terrifying thing I could think of about this job.” Indeed, when the Supreme Court in 1972 acknowledged that “death is different” in Furman v. Georgia, it likely had in mind the fears of Jacob and his colleagues.

Communities of Practice In virtually every profession there are degrees of specialization and distinct cultures reflective of those tighter connections. In medicine, surgeons are often depicted as more aggressive and unforgiving than, say, pediatricians, and in law corporate attorneys are described as more competitive than small-firm general practitioners.19 Even within legal specialties, researchers have diagramed networks of affiliation and distinguished between styles of practice. The classic books Chicago Lawyers and Urban Lawyers, for example, describe the bands of connection that link attorneys between and within their practice areas.20 Within capital defense, these connections create “communities of practice,” a term first advanced by Mather, McEwen, and Maiman to describe the norms created and reinforced in legal networks.21 However, where Mather and colleagues ascribed a common set of norms to the divorce lawyers they studied, capital defense lawyers are distinguished between those seen as “insiders” and others considered “outsiders,” a distinction between “elite” and “garden variety” attorneys. Some of these divisions turn on how much of a lawyer’s practice is devoted to capital work. “There are capital lawyers, and there [are] lawyers who do capital work,” explained Aaron, who has been a panel lawyer

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for nearly four decades. “I’m sort of in the second category. I haven’t developed all the incredible and unique expertise you need to really be successful as a capital lawyer. There are people out there who’ve done nothing but capital work. That’s been their whole career. That’s not me.” The presumption—one that may, in fact, be true—is that regular exposure to the work creates expertise and better representation. Few occasional practitioners “ever really [understand] how to handle a capital case,” cautioned a lawyer who dedicates most of his practice to capital defense. “They haven’t been to national conferences. . . . They’re not generally people who understand mitigation completely. . . . They’re not as often trusted by the clients, because their focus is different. Their way of handling the clients can be not as thoughtful as I think they need to be in capital cases. If you handle a capital client like you would your robbery client it’s just not necessarily going to go as well.” Regularity also equates to commitment. The inner circle of capital defenders includes those who do the work almost exclusively and have done so for years. Attorneys often hold up the same names as examples of core defenders: Judy Clarke, David Bruck, Mark Olive, John Blume, Bryan Stevenson, Stephen Bright, and Denny LeBoeuf. These are the lawyers most often described as being at the center of the community, those who set the tone, expectations, and standards for representation. With few exceptions, each is primarily dedicated to capital litigation, handling the most difficult cases with a zeal that others say they could only hope to replicate. They litigate, advocate, and educate on the subject, and, not coincidentally, each is either based in the South or once practiced there. Within the capital defense community, the South is seen as “a different beast,” where “real” capital representation is practiced. A greater number of southern states enforce the death penalty, and multiple challenges stymie defenders there. Prosecutors and prospective jurors are described as more conservative and penal, and the defense gets fewer resources to investigate or mount its case. The difference is “surreal,” explains a lawyer who moved to the South to take on capital cases. There she found a “good

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ol’ boys system” where even the local defense lawyers “don’t fight about anything. In a case that’s going on right now, we challenged the search warrant and the judge had never had a lawyer challenge a search warrant in front of him before. I just couldn’t even believe that.” To have worked in the South is considered a badge of honor among capital defenders—so long as lawyers were apprenticed to one of the “insiders” or “elite” lawyers, or resisted the urge to “phone it in.” It’s described as military veterans might recall boot camp, with young lawyers encouraged to “go South” and “learn the ropes” where the need is greatest and the conditions most difficult. “It’s incredibly rewarding,” say advocates, and provides new practitioners with “experience in the trenches” as well as credibility to rise within the community and eventually become “a national player.” Some even go so far as to call southern practice “real” capital defense—at least insofar as the lawyers must overcome challenges there not confronted elsewhere. Rachel, who occasionally takes cases in the South but whose primary practice is based thousands of miles away, put it this way: Relative to what people in the South historically and currently experience—and which I now know much better because I do cases in the South—I would never compare myself to somebody full-time practicing in Alabama or Texas or Mississippi or any of those other states. Practicing [on the West Coast] is very different. If you’re willing to be aggressive and demand what your client is entitled to, you have a chance of getting it as opposed to being aggressive and not getting it at all in some other states. So [my state] is a very privileged place to practice.

These distinctions—between regular and occasional capital practitioners, between zealously committed and dispassionate defenders, between lawyers who have worked in the South and those who have not—do more than define different roles within capital defense. They also set implicit boundaries, for the more occasional practitioners do not always feel comfortable accessing the “inner circle.” The “regulars” extol

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the “close-knit . . . supportive community,” where, “when you need help, you reach out and [others] will help you.” But occasional practitioners say they feel separated from this group. Even though the inner group maintains a Listserv and regularly offers trainings around the country for any lawyer interested in capital defense, attorneys in the outer circle still seemed removed. In some cases they said they had never met the regular practitioners and did not want to “bother” them with their questions; in other instances, they were too prideful to ask for help; and in a few other cases, they were simply unaware that assistance is available. These differences help set normative standards for what is considered good lawyering. This is not to say that the traditional criminal defense lawyer who occasionally takes a capital case cannot do an adequate or even thorough job, but there is an assumption within the field that the best capital defense is done by those lawyers who specialize in it, who have a tremendous passion to handle such cases, and who have “done their time” by practicing at some point in some of the “worst” jurisdictions. Those elite, national lawyers worry often that some of the others who handle capital cases “are not good lawyers” or that capital defense as a subfield does not get the resources or respect it deserves. The “inner circle feels like it’s ‘us against them,’” acknowledged Paul, one of the elite lawyers, who described “this bunker mentality of where we’re the few fighting the good fight against everybody. . . . People in our community feel like, ‘We’re doing the best work.’ Because it’s the highest stakes. The most outrageous injustice. So we’re doing the best work with fewest resources and everybody hates us. I think when you have that mentality it’s easy to sort of, what’s the word? Turn into caricatures.” Perhaps not caricatures, but there is no mistaking that the national, elite network of lawyers sets the standard for capital practice.

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Good and Bad Lawyering We regularly asked capital defenders what makes for effective or “good” representation. Certainly, analytical skills and written and oral advocacy were cited, not to mention the willingness to push back against judges and prosecutors who otherwise might be accustomed to defense lawyers who “roll over” or “make it easy” for the court to “churn cases.” “We file motions, lots and lots of motions” was a regular refrain among respondents. But lawyers often pointed to two skills that differentiated capital defense from regular defense and that distinguished capable lawyering from the ineffectual. “First, you have to understand that our clients are severely impaired,” the lawyers told us. “The clients are incredibly frustrating, but it’s important to recognize that they have severe mental health problems, which make them so difficult. Otherwise, the bad lawyers just see the behavior and conclude that the clients are jerks.” Second, attorneys must be committed. We heard many times that “you have to put in the time.” It’s not enough to show up in court, lawyers said; an effective advocate should spend a minimum of fifty to one hundred hours with his client outside of court establishing the kind of rapport that generates trust and cooperation. In chapter 4 we describe the nature of attorney–client relations, although it’s worth noting here how many of the attorneys’ examples of effective representation focused on the client. Seeking to understand the client’s background, rather than dismissing him, seeing his behavior as supportive of mitigation rather than aggravation—these were the lessons respondents said they had picked up as capital defenders. Some lawyers expressed humility in distinguishing “good” from “bad” representation, as evidenced by one exchange with Tom, who has “never had a client sentenced to death . . . never had somebody have a habeas petition.” “To what do you ascribe that?” we asked him. “Um, I’ve been very lucky,” he responded with a hearty chuckle. “You’re not going to take credit?” we pushed.

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“Oh, I’ll take some credit, sure,” he answered. “But, I mean, this business, you know, really good lawyers can get bad results.” Still, it seemed at times that capital defenders were eager not only to discuss what constituted poor representation but to disparage those who take cases “for the wrong reasons” or “do a sloppy job” for the clients. Mitchell, who came to capital defense after an earlier run in civil litigation, responded with a mix of umbrage and pity in bemoaning the level of some representation: “It’s just horrible how much [some of the field is] negligent. We fail. It’s ugly to see, you know? You really see human failure across the system. [The bad lawyers,] they lack motivation and skill, don’t recognize the difference between capital and regular cases, and don’t have the time to devote to these cases because of finances.” Some responses barely contained the attorneys’ underlying hostility, a point we originally intended to probe on follow-up questions but which came shining through in initial answers. It was a combination of capital defenders feeling like they are already fighting a losing game and incensed that any among their brethren would seem to be “playing for the other side.” Many capital defenders believe fervently that “the [criminal justice] system is stacked against [their clients].” They feel maxed out representing such challenging clients. As such, they cannot countenance someone sworn to defend a client’s life giving less than the very best effort. We saw sympathy for lawyers trying hard and failing, but the criticism of indifferent or apathetic defenders bordered on the charge of moral bankruptcy. In one interview a luminary, who writes and lectures on capital defense, began to make us a list of the failures of capital defenders in his state. Numbering five items, he called out “bad lawyers” for failing to: 1. Establish a working relationship with the client. Instead of recognizing that capital clients often have “severe impairments” that make them difficult to handle, the lawyers end up “demonizing” the defendants. 2. Conduct pretrial investigations. Whether for lack of interest or funding, they rely too heavily on the prosecution’s case.

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3. Work well with team members, including mitigation specialists, whom they inaccurately may see as not being “on their level.” 4. Appreciate which kinds of experts to employ for particular cases. Many still don’t use mitigation specialists. 5. Recognize and follow Supreme Court precedent, including such seminal cases as Wiggins v. Smith and Rompilla v. Beard. One might sum up these collective critiques as saying that bad capital defenders don’t seem to “give a damn.” They seek capital appointments because the work pays better, allowing them to make the same salary while taking fewer criminal cases, or because they are reluctant to tell a judge no when asked to step outside their specialty. According to this point of view, they are lazy and sloppy, they trust the government’s case, or they believe there is nothing to be offered in defense of the crime charged. We heard many of these criticisms, but we also received many subtle or even sympathetic explanations of substandard lawyering. Rather than being employed at a public defender’s office or attached to a recognized nonprofit, many of the attorneys being criticized are solo practitioners or lawyers in small firms who are dependent on local judges for appointments and who may rely on those cases for their regular compensation. Certainly, these pressures do not justify less than zealous advocacy, but “in small jurisdictions [where] the lawyers are dependent on these judges’ good graces,” it’s easier to understand why the lawyers “just don’t buck them very much even if their heart [is] in the right place.” Yet many of these same criticized lawyers keep getting appointed in future cases, even as some of their colleagues decry their skills and advocacy. To some capital defenders, the system has the feel of a conspiracy, with judges appointing lawyers they know won’t challenge their rulings on resources, scheduling, or admissibility, and the attorneys taking the cases to earn a decent living and satisfy the judge by “keeping the docket moving.” But there is also the force of inertia, with appointments continuing simply because the lawyers are known to the judges. Tom described what he calls “the IBM syndrome”:

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I had a friend who worked for the Bank of America when they were beginning to develop their computer structure and their mainframes. And I was talking to her about her work and she said, “Well, it’s pretty easy. What you do is you go out and you look at everybody’s product, and then you buy IBM.” And I said, “Why?” [She answered,] “Because nobody’s going to blame you for buying IBM, because they’re the leaders in the industry and they’ve done it before.” And so what happens in the death penalty community, I think, is that people who begin handling death penalty cases and have been appointed before sort of become safe subsequent appointees, and it becomes sort of a perpetuating system, even when the person is not doing the job that effectively. So you have people that sort of get on the death penalty panel, and they tend to get the appointments time after time after time. And, I have to say, I’m sort of one of those people right now, but I don’t think it’s because I’ve done badly. So it becomes sort of a perpetuating system, and you do end up with people in that population who basically are doing it for the money and really haven’t taken the time to learn what it actually requires.

They’re also handling multiple cases at a time. Although there are no national standards for capital caseloads, the National Advisory Commission on Criminal Justice Standards and Goals of the U.S. Department of Justice (NAC) several decades ago recommended that a lawyer not defend more than twelve noncapital homicides per year.22 The NAC standards were created before the mitigation requirements of Wiggins were established and, again, apply only to noncapital cases. So imagine the problem of defense lawyers handling multiple capital cases at once, often more than a dozen in a year, at a time in which public defenders can spend over two thousand hours per case defending against the death penalty and when capital cases can go on for years.23 “You know [cases] last for so long, so it could be like five or six [years to resolution,] and I’ve just had them for so long,” Russell explained. “Now, it’s more than that, it’s like thirty [years]. But for the last fifteen years, I have had at least five or six capital cases at one time, [and] that’s a lot.”

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Those five to six cases also may compete with a lawyer’s other, noncapital practice. Together it’s a difficult balance, even for an experienced lawyer, Russell explained: Capital cases take about 75 percent of my time, but I earn a lot more money from my noncapital cases. So I just take on paying cases, usually post-conviction cases. Every capital case that I have is under control. That’s one way that I sort of rank them. You have cases that are train wrecks, are tumbling out of control, or headed toward a jury trial, or headed toward an execution. They take a lot of time, they’re trouble. I have no cases in that category. Every [capital] case is under control. My pretrial cases, there will never be a death penalty trial in them. I know that. That’s not public in some of them, but I know from my discussions with the prosecutor and what we’re working on that every case that I have right now is a safe case. They’re not in control when you get in, right? And you get them under control, or not.

It’s virtually impossible to “get cases under control” when a defense lawyer is handling multiple death penalty matters at once. Yet, as we were reminded, the difference between exceptional and second-rate representation does not turn so simply on caseloads. Sometimes the risk is in the lawyer who takes on a single capital case when he has little experience in the field, as was the situation for Jack Carlton House, who was infamously represented by Ben and Dorothy Atkins, real estate lawyers, who had little knowledge of capital case processing. Called to perform his closing argument, Ben Atkins’s entire bid to save his client was this meager statement: “May it please the Court, ladies and gentlemen of the jury, any lawyer who finds himself in this position cannot help but feel somewhere along the way there must be something that he could have done to have brought about a different decision; he always does. I must admit I have never been in this position before. I think there has been enough dramatics already, and all I would like to leave with you for your own sake is, ‘Vengence is mine, saith the Lord.’ Thank you.”24 Not

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surprisingly, House was sentenced to death, only to see his conviction later set aside by the Eleventh Circuit Court of Appeals. In his new trial, House pled guilty and accepted a life sentence. Perhaps the most infamous case of ineffective lawyering was that of Calvin Burdine, whose attorney, Joe Frank Cannon, fell asleep in the middle of Burdine’s capital trial in Texas. Upon habeas appeal, a panel of the Fifth Circuit Court of Appeals initially concluded that Burdine’s rights had not been violated, with two of the judges entertaining the preposterous notion that Cannon may have been signaling to jurors that the case was a “snoozer.” Only upon review by the court en banc did the Fifth Circuit conclude that a defendant facing the death penalty has a constitutional right to an attorney who is awake at trial.25 Burdine, too, eventually pled guilty and received a sentence of life in prison. We highlight the cases of House and Burdine not to suggest that many capital defense lawyers are this ineffective or that we heard stories like these in the interviews. However, while they may be the outliers, they are a good reminder that there are many factors that distinguish good from poor capital representation. Caseloads are certainly part of the mix, but even more, the question is whether lawyers have the time, resources, and ability to dedicate themselves appropriately to the case.

Views of Prosecutors and Judges Defense lawyers, of course, are only one-third of the “courtroom workgroup,” the triad of prosecutors, judges, and defense lawyers who collectively process the multitude of cases that pass through the nation’s criminal courts.26 Not surprisingly, “defense attorneys have been shown to hold views substantially different from those of judges and prosecutors concerning the most important aspects of case disposition. . . . Prosecutors opt for harsher sentences and fewer negotiated concessions than do defense attorneys, with judges occupying a middle ground.”27 The same research suggests that through regular interactions in the courtroom and informal bargaining the three parties end up establishing

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common practices for case disposition and even a “going rate” for sentencing.28 Considering that more than 95 percent of criminal cases are resolved by plea bargaining, it is essential that the local prosecutor’s office and the defense community arrive at an understanding of what each will offer and expect from the other and that the court will approve. Call it informal norms or even localized markets for pleas and sentences, the literature is rife with examples of defense lawyers and prosecutors cooperating, even collaborating, to process the multitude of criminal cases before them.29 The same is not necessarily true for capital cases. First, in many jurisdictions death penalty cases are an anomaly, the result of either an unusual, horrific crime or a prosecutor seeking to make a point in charging a case as capital. Second, because capital representation is specialized work, sometimes handled by an elite corps of defenders from outside the district, the prosecutors and defense lawyers may have had little contact with each other prior to the case and may not come across each other again once the case is completed. In the language of negotiation, they need not worry about their bargaining reputations, nor are there any incentives to offer concessions to the other side.30 Third, the stakes are much higher when a client’s life is on the line, and defenders—or at least those who are held out as among the best—are more inclined to file any reasonable motion even if the litigation puts greater burdens on the court or clogs up a judge’s docket. Finally, and not inconsequentially, many capital defense lawyers do not like prosecutors. It’s hard to say whether defenders necessarily recoil at the prosecutorial function or if it’s the nature of capital litigation that guides defense lawyers’ views. However, there is no mistaking the disdain that many interviewees hold for those attorneys who actively seek to execute the defenders’ clients. For some defense lawyers the contempt reaches the level of hate, although it took some prodding to get below surface niceties. A criminal defense lawyer from the South tried to soft-pedal his feelings at first but then acknowledged that he “hates,” simply cannot stand, prosecutors. We asked why. “[Because] they’re so self-righteous!” he thundered. “We

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used to have a [prosecutor] who wore a little tie with nooses on it, you know, very tacky. They [would deny it,] but I know they had parties when they got a death verdict, and it’s just creepy.” Another defender, Paul, who used to practice in the deepest of southern jurisdictions, explained that his “approach . . . [was] to kind of just be friendly with opposing counsel. But that doesn’t mean that we didn’t hate them.” Again, we wondered, why “hate”? He explained: “The [criminal justice] system was so terrible in [the state], and the quality of lawyering at the trial level is so abysmal. And they were relatively smart. So, I think that part of what really galled us was that they knew the reality of what the trials were like. They knew the totally inadequate representation that so many people had gotten, and they were just exploiting it and taking advantage of it. I think a lot of them had political aspirations. They had political aspirations of running for judge or running for [attorney general].” Some capital defense lawyers surprised themselves and were even a little chagrined by the intensity of their feelings toward prosecutors. Consider this exchange we had with Rachel, who has practiced for years in multiple jurisdictions: I want to go back to one more thing—the prosecutors and the judges. Rachel: Oh yeah. It seemed to hit such a visceral nerve. Rachel: I know. Isn’t it terrible? I would say that you were expressing hatred. Rachel: Well, hatred is too strong a word, but I’m enormously cynical. I have encountered in my career a handful of prosecutors who had an ability to be evenhanded and fair and even compassionate. And I have enormous respect for those that I encountered who were that way. So I’m not saying none, ever. They were very few. And similarly, I had probably more judges than prosecutors I would put into this category— that had the capacity to really be evenhanded and genuinely impartial and even compassionate. But overwhelmingly that’s not my experience.

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What do you think brings them to that point? Rachel: Well, with prosecutors I think it’s the culture, most office cultures being very adversarial and losing sight of the fact your job is doing justice, not winning. And I think it’s pretty much empty words and that winning is really paramount and it’s really inculcated. Lawyers who go into prosecutors’ offices with really lofty “I’m going to be the different kind of prosecutor” [goals], they either become acculturated [to just winning] or they leave. With judges, I think they become very jaded. They look at defense lawyers and think that we’re all giving them the same the same spiel, the same load of crap, the same story.

It’s not just “the rush to execution” that turns capital defenders off from prosecutors, nor merely the natural tensions that exist in an adversarial process. After all, there are plenty of stories of prosecutors and defense lawyers who can battle it out in court all day but still socialize in the same circles after hours. And, indeed, there are some jurisdictions in which prosecutors and capital defense lawyers are not only cordial but friendly. Still, when the stakes at trial are so stark, defenders judge the motives and actions of the opposition very closely. Whether it’s prosecutors’ failure to express “empathy,” to see defendants “in a holistic way,” or “the bullshit” of claiming to speak “for the victims,” many capital defense lawyers doubt prosecutors’ actions. Nowhere is this truer than in the defenders’ charge that prosecutors use the death penalty as a “bargaining chip” to entice defendants to plead guilty and accept a life sentence. Certainly, at the federal level, “the U.S. Attorney’s Manual says [prosecutors] are not supposed to use the death penalty as a bargaining chip,” and yet many defense lawyers responded, “Oh, I know they do,” regardless of whether it is federal or state cases. We asked one attorney how he could know that. “I just saw it in a recent plea agreement in a case that I had,” he countered. “As a part of the plea agreement it says that the defendant pled to basically six life sentences in part to remove the potential of the death penalty.” Other lawyers told stories of the prosecution using a death notice as leverage for the defen-

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dant’s plea. Speaking of prosecutors in his jurisdiction, Jacob reasoned, “I think a lot of them pursue the death penalty knowing that it will put us in a box and that they’ll be able to get a life plea. I’ve seen that most of the time. That’s what’s happening. We have several cases right now [where it’s] very clear that [the death notice] was just filed so they could get the life plea and they were really working the client.” Indeed, some defenders go so far as to call capital prosecutions “a fraud,” a game of sorts in which prosecutors file charges for cases that are too expensive or time-intensive to try. “Prosecutors [in my home town] are hypocritical,” sums up one lawyer. “They charge death routinely, but they don’t want to try death cases.” Instead, they use capital charges as “leverage” to convince a defendant to plead guilty to life without the possibility of parole. For all the complaints about prosecutors, some defense lawyers took an understanding, almost sympathetic approach to their opponents. Acknowledging that the capital defense community feels “a lot of hatred” for prosecutors, one respondent worried about the intensity, saying “I don’t think this is particularly healthy.” Others spoke of there being “good and bad prosecutors,” making it impossible, or at least unwise, to generalize. One of the most interesting responses came from a mid-career defense lawyer who felt that his experience with capital defendants— certainly challenging personalities themselves—had “weirdly made [him] more understanding of prosecutors.” Explaining the situation, he said, “I have developed this idea that I just don’t think [prosecutors] understand [what they’re doing.] They all grew up in probably conservative households. This is what they knew. This is what they were taught. So I understand it just like I understand how our clients grow up in certain environments that explain the actions that they take.” This lawyer was far from the only respondent to liken the development of prosecutors to the disintegration of their clients, and as they often did when explaining the behavior of their clients, some lawyers described such behavior as reflective of a “dysfunctional” culture or even

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upbringing among prosecutors. As one defender explained, earnestly, “They have strengths and weaknesses and they have terrible dysfunctions. Like us defense attorneys and like our clients. Terrible dysfunctions. Stuff that they’ve just become experts at cloaking. And, boy, they come in all different stripes and colors.” Many capital defenders were willing to consider dysfunctions within their own community, and for some this led to a compassionate, even sympathetic view of prosecutors. The most expansive explanation came from Russell, who previously handled capital trials but lately has moved into post-conviction litigation: One thing that has always confused me, and I’m sure I’m in a minority, is that defense attorneys demonize the prosecutors constantly. And, like, come on, man! Our client has done this terrible, terrible . . . murder, and the prosecutor who’s trying to protect the public and do the job they said they’d do, we think they’re the worst person in the world; we think they’re far worse than our client is. What are they doing that’s wrong? Now, I can understand it’s an adversarial situation, but I think it’s mostly our criminal defense attorneys’ sort of emotional dysfunction that somebody that’s opposing them, they put all this shit on them. They’re not demons. They’re perfectly good people. They end up being defense attorneys, defense attorneys end up being prosecutors. [It’s] an adversarial situation where when we lose they kill our client. It’s really medieval, right? So it’s easy to put shit on the prosecutors. But, even in the worst case where the prosecutors hate me and they’re petty and mean, I’m like, “Oh, they’re just people.” They have a story, too. Just like our clients have a story.

Whether they hate, tolerate, or even understand prosecutors, each of the capital defense lawyers we interviewed had a clear and strongly held position about prosecutors—so much so that some began to wonder whether, as a community, they’re preoccupied or even obsessed with the prosecution. As Paul opined:

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I’ve thought about this recently. I don’t think they think about [us] nearly as much as we think about them. They win all the time no matter what they do. They can kind of say whatever they want because they’re probably going to win. They know that they have the judge on their side before they walk in the courtroom. And so I don’t think they look at us. I think we’re just kind of in there. And they know what we’re going to say, and we sort of play our role. But they don’t go home and agonize about what we said in court the way [we do. We] go home and tell our colleagues and our friends, “Can you believe? And the AG said this. And then he said this,” and, “Can you believe he made this argument?” I think they go home and they’re like, “Okay, dear, what’s for dinner?” And I don’t think they think about it at all.

Judges There is considerable debate in scholarly circles about the nature of judicial decision making. Do judges follow the law or make the law? Do they base their decisions in precedent and feel constrained by stare decisis, or are their rulings influenced by their personal experiences or even their ideology?31 For death penalty lawyers, there is no confusion about how judges approach capital cases, nor about the larger context in which death penalty cases are tried. Cases are brought to sentence defendants to death, and it would be unusual if a judge stood in this path, defenders say: “To most people in these states, sentencing someone to death is not an outrageous or unusual act. Not sentencing someone to death is what they’re all afraid of doing, because that would be a blow to their political careers. That would be something they’d have to explain.” Certainly, judges are politicians in those jurisdictions that elect jurists, but defenders ascribe ideological motives to judges no matter the method of appointment. Most pointedly, they believe that judges bring their own preferences about the death penalty to cases. One of the field’s luminaries, a national trainer for capital defenders and judges alike, pulled no punches in describing the judiciary: “Oh, absolutely, [they act on their personal views]. And they try and hide it. And it’s much easier

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for them to try and hide it because they’re just sitting up there making these little rulings. We talk to a lot of judges about capital cases because we put on conferences. . . . So we talk to a lot of judges. They’re no different from anybody [when it comes to the death penalty].” Another veteran defender, Joan, had even fewer compliments for the bench. As she said, “I haven’t met many judges I respect. I respect the office. On the whole, I would rather have a smart mean judge than a stupid mean judge. But most have been stupid and mean.” We did come across some outliers, who not only respect but trust in the decision making of the judges before whom they appear. This is not to say that lawyers expect favorable rulings from the bench, but at least they have “confidence that [when judges] choose an attorney to represent the defendant, they choose attorneys who are going to give them the hardest time and make them work the hardest.” “When they choose us,” Russell said with pride, “they know they’re going to do about ten times more work. They’re not going to get home at five o’clock again and again. . . . They yell at us. They argue with us. But they . . . appoint us again and again to cases.” Russell’s assessment of the bench mirrors what more formal judicial evaluation systems have found. Created in several states to consider the performance of judges, these assessment tools rely heavily on attorney input and may evaluate judges on such criteria as legal knowledge, impartiality, temperament, and integrity, among several others. Typically the results from lawyers are quite positive. In Chicago, for example, a jurisdiction that has seen judicial corruption scandals and scathing academic accounts of its criminal courts, a 2016 evaluation report from the Chicago Council of Lawyers nonetheless found just four of fifty-seven trial judges unqualified for retention.32 Why would capital defenders have such a worse view of the bench than do other lawyers? Certainly, death penalty lawyers are closer to the day-to-day functioning of the courts than, say, health care attorneys who rarely visit a courthouse. And, unlike prosecutors or traditional public defenders, they do not engage in the daily dance of plea negotiations

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with judges and their adversaries, which requires greater accommodation of the other courtroom actors. But the most likely explanation hangs on the enormous stakes of the litigation. With their clients’ lives hanging in the balance, capital defense lawyers seem loath to tolerate judicial attitudes or behavior that put defendants at greater risk of execution.

A “Stacked System” We had difficulty determining how much capital defenders truly dislike the prosecutors and judges with whom they work or whether their antipathy is rooted in a greater sense that the criminal justice system as a whole, and capital case processing in particular, is unfair and stacked against their clients. The lawyers’ reactions were passionate, treading a line between anguish and indignation. Joan, who has been a defender for more than twenty years, spoke of the accommodations she has had to make to defend cases in a system in which “race prejudice is so intense . . . resources are so limited . . . prosecutors have too much power, [and] jurors aren’t a representative group of the community.” As she explained somewhat forlornly, “I realized fairly early when I was doing 100 percent capital work that I couldn’t just be a litigator because I would be in despair. These courts are so unfair, so loaded against poor people. If I weren’t also part of the advocacy part to end the death penalty I would be in despair having the crap beat out of me and losing cases.” Other defense lawyers described “a system [that is] totally stacked to” the prosecution’s advantage. Even in a northern state “the law is horrible. The state supreme court is a backstop to the prosecutor . . . There is a culture of [exaggerated] importance and respect to prosecutors.” The judges are “intellectually inferior” and “defer to prosecutors,” in part because they are political appointees. The state criminal defense bar is also “weak,” so defendants don’t receive effective representation. As a result, many “prosecutors develop a sense of tunnel vision about the strength of their case and a sense of invulnerability.”

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Defenders also complained about working in a system that dismisses the traumatic backgrounds of their clients and the failure of parents, teachers, social workers, police, and even the courts to have intervened earlier in their clients’ lives when a better outcome might have been possible. “I am so tired of dealing with the back-end results of a system that ignores the problems of the powerless,” said Karen. “I have a client whose mother was an addict, whose father beat him, who grew up in a ghetto and was never pushed to go to school, and now prosecutors want to argue that he has ‘bad character.’ That’s ridiculous!” Or consider our conversation with Joan, who claimed that “100 percent of the clients” she has represented in capital cases have been mentally ill or sexually abused as children. “What does this say about the death penalty?” we asked. “Oh, please!” she responded. “What most capital prosecutors do now is argue at Atkins33 hearings that the defendant may be impaired but he’s just barely mentally competent to be executed. I’m sorry, but for capital prosecutors it’s a lousy use of a law degree.” Even in states that do not put many defendants to death, that may not be attributable to want of capital prosecutions. Rather, appellate courts—whether at the state or federal level and in direct or habeas appeal—may overturn capital convictions for constitutional violations committed at the trial stage.34 So, neither judges nor prosecutors nor legislators must “deal with the reality of the death penalty” or problems in capital prosecutions because the courts of appeal “bail everyone out.” In an expression we heard more than once, the capital system in such states “is a fraud,” defenders said. Prosecutors and politicians can “play to the gallery,” appearing tough on crime all the while unconcerned about whether a defendant actually will be executed. “They wrap themselves in that shit,” defenders derided. It’s “bullshit.”

A Changing Practice? To hear some veteran defenders explain it, there were “good old days” in capital defense, but even then, folks disagree on what period that covers.

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For the oldest in the group, the best times cover the 1970s, in between the Supreme Court’s Furman v. Georgia (1972) and Gregg v. Georgia (1976) decisions, when death warrants were stayed and folks were working in tandem to push back on the death penalty. For others, the heady days were in the 1980s, shortly after the death penalty was reinstated in the United States and capital defenders felt like MASH surgeons moving from case to case to case. “There was a period” then, they say, for the “true believers, who had to dedicate everything to the work.” Yet even some of the self-described “old folks” who came of age as lawyers in the 1970s and 1980s caution against an overly rosy recollection. Yes, “there was great camaraderie among the lawyers,” but the defense community was going “from one [death] warrant to the next, and everyone was being killed.” For that matter, capital defense was still in its infancy. “We were really clueless,” said Daniel. “We had no fucking clue what we were doing.” Fast-forward three or four decades, and the practice has changed considerably. Supreme Court decisions have narrowed the category of defendants eligible for the death penalty, standardized courtroom procedures, and raised the bar for defense efforts, including the requirement of a mitigation case.35 Veteran defenders appreciate these changes but resist calling present times—even before Donald Trump’s election and the ensuing retreat on criminal justice reform—the good old days. There is plenty that concerns them, from the politicization of the death penalty by some prosecutors to the indifference of some judges to the ineptitude of certain defense lawyers. “You know that expression ‘Hey, stop worrying, no one is going to die as a result?’” Karen puts to us. “It doesn’t apply in this world. If people mess up, my client may die.” That, in a nutshell, encapsulates what is different about capital defense—not just the stakes for the client but also the commitment, worry, and potential toll on the attorneys, too. The Supreme Court was right—death is different.

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A Cruel and Unusual Job “You’ve Got Someone’s Life in Your Hands”

“There are a lot of reasons why lawyers choose to take capital cases.” We are sitting in Daniel’s office discussing these questions. Daniel is nearing the end of a distinguished career as a lawyer, first serving as an assistant public defender and only years later gravitating to capital cases. He has seen a lot and knows a lot of lawyers, and he is at a point in his career when he is long past having to try to impress anyone. His record, experience, and doggedness speak for themselves. Daniel is worried about some of his colleagues, both in his office and nationwide. The lawyers are pushing themselves too hard, and the stress is affecting their health. We follow up: “What pushes capital defenders to the brink like this?” “Ego,” Daniel quickly responds. “Part of it is about the client and helping the client, and part of it is about beating the government because you hate them so much,” Daniel says. He continues: “It’s about resisting government power, and abuse of government power is the worst in death penalty cases. . . . Some of it is the morality of it, the morality of the government doing this to your client.” When asked if he has always had such animosity toward the government and where it might come from, Daniel explains that he is “a product of the sixties.” “That’s all? A lot of people are products of the sixties but they didn’t go into capital defense,” we say. “That’s true. I got into it by accident, and my guess is a lot of people get into it by accident,” Daniel responds. “If you come in contact with people who do this work who are so smart, so committed, and practic63

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ing at such a high level, it’s hard not to be excited. This is [legal work] at its highest!” He laughs. “These are the cool people. Who doesn’t want to hang out with them?” In a single five-minute exchange, Daniel illustrated the great range of motives that bring lawyers to capital defense and keeps them in the field against long hours and odds. For many lawyers, capital defense is a moral, maybe even a religious, command. Yet, at the same time, many of these attorneys seek professional recognition and greatly enjoy the thrill and challenge of handling the most complicated, most difficult criminal cases. Much has been published about the reasons that lawyers go into criminal defense. Andrea Lyon, one of the first women to serve as lead counsel in a capital trial, has written about her own interest in indigent defense, citing the civil rights movement and the general political culture of the 1960s and 1970s.1 Abbe Smith, too, along with William Montross and Monroe Freedman, have discussed the dueling influences of ego and morality.2 Nor is the subject limited to criminal defense, as many other scholars have sought to identify why lawyers as a whole behave as they do.3 What motivates and constrains attorneys, and what draws them to the law? Some of the best work, conducted by Mather, McEwen, and Maiman, points to multiple influences, including formal legal codes of responsibility and law school socialization; economic incentives and working conditions; and the social backgrounds, personal values, and identities of lawyers.4 In this chapter we’re less interested in formal legal codes of responsibility dictating how capital defense lawyers should behave, and more concerned with the professional socialization, economic pressures, and workplace norms that influence attorneys’ decisions to pursue capital work. Most important, we’re interested in the ways advocates’ backgrounds, values, and identities merge to entice them to take up death penalty cases. It’s important to recognize, too, that most of the attorneys who handle capital cases (at least those who do so on more than an occa-

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sional basis) came to the subfield after first serving as a public defender or otherwise representing indigent defendants in misdemeanor or lesser felony cases. So their interest in capital defense may be an extension of what brought them to criminal defense in the first place, making the task of distinguishing between the two subfields more challenging. In our research, lawyers voiced at least six central motives for their decision to “go capital,” some of them with important dichotomies. These encompass (1) moral conviction, including attorneys’ religious devotion; (2) a natural, although sometimes unintentional, professional progression from traditional criminal defense to the greater complexity of capital matters; (3) the desire for excitement or an “adrenaline rush”; (4) prestige and ambition; (5) oppositional personalities and past psychological trauma; and (6) financial gain. Of course, personal motivation is more a mosaic, but it helps to see these influences as distinct to understand how capital defense looks like other areas of law in some ways and is its own animal in others. In fact, for all the differences in clients and practice, capital defenders—and certainly the best among them—share a good deal in common with top law graduates who follow a path into commercial law firms. Both seek the intellectual challenge of tough cases and are drawn to the prestige of working on the most high-profile controversies with some of the bestknown and most-respected attorneys in their fields. We heard each of the six motives from many capital defenders we interviewed, so often in fact that we’re not prepared to say which are most common. Again, most attorneys evidenced multiple motives for their work. We present these categories, then, in the order that might be most expected by those outside the field. For example, if a layperson had to guess at an attorney’s motivation for accepting a capital case, she might well cite the lawyer’s opposition to the death penalty long before predicting that the lawyer was trying to process personal trauma through the work. Both motives, though, are found among multiple capital defense attorneys.

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Morality Where else in life can you do something as valuable as defending someone in our constitutional system [who is] hated, who everybody wants to kill? Just morally, [it’s] the right thing [to do].

It would hardly be surprising to hear that capital defense attorneys are opposed to the death penalty, and for many this opposition is what brings them to the field. “The state should not kill,” they say, a mantra that inspires their work. But while this motive was voiced by most of the attorneys we interviewed, it was more an underlying aim than an obvious, open, and deliberate factor. In fact, many explained that their opposition to the death penalty was only tangentially related to their decisions to do capital work. Instead, when attorneys spoke of morality, they mentioned it in a systemic context, seeing capital prosecutions as “the epitome of so many injustices” in which poor, uneducated individuals, often those of color, are provided few opportunities and resources early in life and are later targeted by the criminal justice system in adolescence and adulthood. Typical was this exchange with Jeffrey, who described the challenges of capital defense. “If it means complete anguish for the defense lawyer to handle capital cases,” we asked, “why do you take them?” After a significant pause, he responded: “Simplistic answer: you have to. This is what you said you wanted to do. This is what your oath requires. This is what the Constitution requires. This is what ethical principles require, and aside from all that shit, it’s morally responsible. You assume some obligation to this person and you have a duty that is not easily fulfilled, but it doesn’t become less because it’s impossible or difficult or personally painful.” “I’m a sixties reformer,” another attorney told us. “I don’t think this is anything that’s learned; I think it’s just who I am.” Lawyers described their prior involvement in the civil rights, environmental, and sanctuary

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movements, explaining how capital defense was a natural extension of their interest in social reform. As one attorney explained, “I wouldn’t say that it was a career goal of mine to work on death penalty cases or anything like that. However, I will say that I’ve found that my work on death penalty cases hearkens back to those idealistic and core foundational kind of values that took me to [Central America] and kept me there for five years in the midst of a civil war.” Whereas such prior activism had lawyers working in local communities and for larger, amorphous goals, defense representation allows for more focused advocacy, efforts that not only offer a professional track but also have clear aims and measures for success. On capital cases, “you work with experts, you work with witnesses, and you work with your client,” all the while bringing a “moral, sensibility” to the case, a lawyer exclaimed: “You’re on the side of life, that’s the moral high ground. . . . Don’t be in front of a jury or judge apologizing for having to do this.” For some, capital defense allows lawyers to tend to the needs of the most dispossessed, clients whom “the system has ignored since they were little and now wants to kill.” For others, it’s a socially acceptable approach to attack that same “system.” That may sound like an oxymoron—balancing insurgency with mainstream credibility—but as much as some lawyers may oppose society’s political, economic, or even social values, they have chosen a conventional profession in which they participate in a central societal institution (i.e., the courts). The lawyers evidence these tensions in their personal stories, although it’s not clear they recognize how curious the contradictions sound. Consider Scott, an athletic attorney in his early forties who calls himself “a political radical” while dressed as if he were a software engineer. “I wanted to be a revolutionary,” he says, “but the pay was very low. So I became a lawyer trying to keep the government honest.” It’s hard not to smile listening to someone explain that he gave up on political revolution because it didn’t pay enough. But his situation is not entirely anomalous. Sydney, who has toiled at capital defense for nearly fifteen years, addressed the contradiction of simultaneously seek-

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ing societal change without a clear vision of how to operationalize the goal head-on: “We called it revolution [when I was in college], that you were going to make vast social change. [But] who are you going to go out and talk to?” Then he learned about criminal defense. His immediate thought was “Oh yeah! It’s the state versus my client, I know which side that I’m on! It’s easy!” It would be tempting to see Scott, Sydney, and related colleagues as cause lawyers—attorneys who “engage in action for social change, social justice, and equal justice.”5 Volumes have been written about such lawyers, who are depicted as seeking to “alter some aspect of the social, economic, and political status quo” in their representation besides simply meeting clients’ immediate needs.6 As sociologist Lisa Hajjar explains, “What distinguishes cause lawyers from ‘conventional lawyers’ is that the former apply their professional skills in the service of a cause other than—or greater than—the interests of the client in order to transform some aspect of the status quo, whereas the latter tailor their practices to accommodate or benefit the client within the prevailing arrangements of power.”7 “Cause lawyering is a contested concept,” wrote Austin Sarat and Stuart Scheingold, the two scholars most credited with opening this area of inquiry. There is a “fluid and permeable boundary” between cause lawyers and “mainstream lawyers who take seriously the profession’s responsibility to serve the public interest as well as the interests of their clients.”8 At one end of the continuum cause lawyers tend to be distinguished primarily by a willingness to undertake controversial and politically charged activities and/or by a sense of commitment to particular ideals. . . . At the other end of the continuum are more radically disposed cause lawyers who challenge established conceptions of professionalism with efforts to decommodify, politicize, and socialize legal practice. While they may be forced by necessity to defend established rights, their . . . primary loyalty is not to clients, to constitutional rights, nor to legal process, but to a vision of the good society and to political allies who share that vision.9

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Certainly, there are capital defenders who fit the definition of politically charged cause lawyers. In fact, for several of these advocates, their political interests are what brought them to law school and criminal defense in the first place. Consider one lawyer who “took a lot of revolutionary history” in college: “This [was] a time when literally I was marching [with other] students in support of civil rights for blacks, civil rights for Hispanics. I don’t think the women’s [movement] had surfaced yet as an instrument for social change, but I certainly support all women’s causes as well. It seemed the way I could make the best impact on society and do something that felt right for me was criminal defense.” Like cause lawyers, these attorneys envision their role as greater than defending their clients. As one advocate explained, “I don’t identify as a criminal defense lawyer. I identify as a capital defense lawyer and a human rights lawyer.” Or, as another said, “I’ve always been passionately against the death penalty. I usually [introduce myself by saying I’m] a lawyer and I defend against the death penalty and trying to end the death penalty. I’m a true believer and see these opportunities as a chance to persuade.” When Austin Sarat conducted his own study in the 1990s of “lawyers who specialize in representing persons on death row,” he labeled the attorneys cause lawyers, analogizing those “who oppose the death penalty through the legal process in the United States” to others “fighting against apartheid in South African courts or litigating on behalf of Palestinians in the Occupied Territories.”10 By contrast, most of the capital defense attorneys we interviewed would qualify as “conventional” lawyers, albeit with a progressive or activist inclination. Certainly, they “represent the underrepresented, the subordinated, and the public interest,” and they are interested in “social change, social justice, and equal justice.”11 But they are more akin to the poverty lawyers that John Kilwein has chronicled, “who focus solely on individual client lawyering,” as opposed to those who “combine that approach with class actions or community organization and empowerment.”12 Thomas Hilbink also

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addressed this division when he distinguished between “proceduralist,” “elite/vanguard,” and “grassroots” lawyers who are involved in litigation and/or activism for social change. The proceduralist sees the “client as [an] individual” and believes the “client comes first,” whereas elite/vanguard lawyers view clients as a group and believe the “cause comes first.” Grassroots lawyers see the “lawyer as a participant” in the cause, which is led by a movement.13 In this respect, the lawyers we encountered would largely be proceduralists, very much at the border between conventional and cause lawyering, although leaning to the conventional side. By and large they are focused on the needs of their clients, whose lives they are seeking to save in the case before them. Abolition of the death penalty is certainly on their minds, but for many the primary “cause” is good lawyering and a life sentence for their clients, not necessarily a broader goal of social change. Indeed, some of the lawyers, albeit a minority, are not even certain of their views on the death penalty. Christine, for example, noted that she “hadn’t even really thought about [the death penalty] much” when hired to defend capital cases. “Really,” she said, “the only way I would support it would be [if] my child [were murdered,] but I would think twice.” How is it that Sarat—one of the best socio-legal scholars of our time— would conclude that death penalty attorneys are cause lawyers whereas our research suggests otherwise? Again, it’s important to remember that the dividing line between conventional and cause lawyering can be quite thin, especially since some of the terms used to describe cause lawyers— such as “socially conscious” or “progressive”14—are themselves nebulous and could just as easily define conventional, albeit liberal, attorneys. For that matter, Sarat’s research took place in the 1990s, when capital convictions were at a modern high and abolitionist lawyers were limited to “throw[ing] sand in the machine” of capital punishment by slowing down the process.15

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However, we think the better explanation is that we interviewed a different category of capital lawyer than did Sarat. He focused on lawyers in the post-conviction process (i.e., once a death sentence has been imposed and a defendant seeks representation in direct or habeas corpus appeals). There, the clock is ticking as the execution date gets closer, and given some of the substandard lawyering done at the trial and early appellate stages, procedural options may be foreclosed because of missed filing dates or statutes of limitation. It would not be surprising then, to imagine that these lawyers see their work as “tied to moral saving behavior [and] rescuing.”16 Nor would it be difficult to imagine that their commitment to slowing the capital process and “mak[ing] a record”17 to petition a future generation of enlightened policymakers has such lawyers dedicated to the larger goal of abolition more so than to the desires of a particular defendant in an immediate case. By contrast, we focused on lawyers who primarily work at the beginning of the capital process—the trial phase—and we cast a wide net to reach the best and some of the worst (as perceived by their peers) attorneys who represent capital defendants. Although most of our interviewees are highly dedicated, they are not universally the twenty “courageous men and women” depicted in Susannah Sheffer’s work on post-conviction attorneys,18 nor do they likely include many of the same people Sarat interviewed. The advocates depicted in this book largely see their litigation through the eyes of progressively minded conventional lawyering; the client and the immediate case are the focus. Although most—but not all—of our interviewees categorically oppose the death penalty, they are not engaged in litigation or activism that itself will accomplish some larger social or policy goal, like establishing same-sex marriage, a living wage, or securing legal rights for Central American refugees depicted in Sarat and Scheingold’s other works on cause lawyering;19 nor do they necessarily expect that any one of their cases will be the key matter that convinces the courts to declare the death penalty

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unconstitutional. Rather, their work is focused on a singular and immediate goal: to prevent their client’s death sentence in the first place.

Influence of Religion Desiring to prevent a death sentence, though, has multiple influences, including a moral impulse fostered by the attorneys’ religious upbringing. Of course, it would be unsurprising in everyday life to hear folks connect their sense of morality to their religious background or tradition. But popular culture has a way of portraying capital defense as godless work, with the lawyers sometimes accused of defending the Devil’s influence in their clients who, admittedly, have often carried out horrific acts. To hear the attorneys describe their motives or interest in capital defense, however, was to recognize the kind of religious calling sometimes ascribed to priests, nuns, or rabbis. “[I have a] deep-seated belief in faith, that’s closely held and personally held,” Robin explained. “And part of that belief is that God has a path for us, has a plan for us. I think that God’s plan for me is to do capital work, because, in some ways, I wouldn’t be doing it if that wasn’t the plan, because there [are] so many challenges sometimes.” Or consider our exchange with Jeffrey, who declared, “I think it’s what I’m supposed to do. If you want to put a sort of semireligious gloss on it, I think it’s a calling, a vocation. I think it’s something I’m relatively good at. I do enjoy writing, planning. I’m good at [contacts] with people, although I’m not particularly socially well adept otherwise.” “Where does that calling come from?” we asked. Jeffrey replied, “I do have somewhat of a religious background, although I have some great period of twenty-year inactivity in the church until recently. My family lineage is ministry—[my father and grandfathers], all the first sons [were in] ministry.” Jeffrey was hardly the only capital defender to recount religious ministry in his ancestry. Jacob, who “wanted to be a Peace Corps volunteer . . . ever since [he] was little,” mentioned that his “grandfather

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was big into the Salvation Army. [My grandparents] were very religious people who were missionaries to South America. I did some mission trips with their church, and so I was always encouraged to go to the food bank and stuff like that.” Another lawyer spoke of his family members, who “were very religious people [and] were missionaries” abroad. He joined them on “some mission trips with the church” and came away from the experience convinced that he was supposed “to give back and help the least among us.” To many defense lawyers, their sense of calling extends to the guilty and not simply “innocent lives.” Indeed, several defenders bristled at the conception of a religious calling that served only the victimized, for they defined victimization as a larger process and scolded society for the failure to intervene earlier in their clients’ lives. One attorney, Sydney, told the story of a dinner at his synagogue in which he was sitting next to the new cantor whom he had just met: He was asking me what I did. And I said, “Well, a capital lawyer.” He was like, “Oh my God. What’s that like?” I don’t know whether he was pro– death penalty, but he was like, “How can you defend these murderers?” I found myself telling him the following thing, and this is true. When [a close family member] died, I got letters from people all over, and I got three letters from men whose capital murder cases I’d worked on. Three men. Didn’t know each other. . . . And these letters were so moving to me. These men had nothing to gain by writing me. . . . And, I told this to the cantor, I could see I sort of knocked him back on his heels, because these three men cared about me enough to do something that they don’t do much. I can tell you that [one of the three], Mr. Cop Killer, is not Mr. Emotionally Communicative. And his [note] was written on the back of a new piece of magazine that he’d torn out. I mean, these people are not animals. And, if they’re animals, they’re animals because we made them that way. We’re responsible. We let them grow up in families where they were abused or [their] mother drank alcohol. We let this happen! We are all responsible.

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Sydney was one of several Jews we interviewed throughout the course of our research, including two attorneys who had converted to Judaism as adults. It was not until near the end of our study that we began to recognize that Jews were disproportionately represented among the capital defenders we interviewed. According to the Census Bureau, Jews constituted 3 percent of the U.S. population in 2016, ranging from a high of almost 9 percent in New York State to less than 0.1% in North and South Dakota.20 By these statistics, we would have expected to meet and interview one or two Jews among the capital defense lawyers we engaged, and yet the numbers were five or six times as high. To be sure, Jews are more heavily represented among educated professionals, and it’s possible that our recruitment strategy for this project could have been biased, but we think there is something substantive and significant afoot here. “It’s the legacy of the Holocaust,” one lawyer told us, as we began to probe Jewish lawyers more specifically about their interest in death penalty work. “To be a baby boomer who grew up in the U.S. is to have had the seriousness of the Holocaust drummed into your head. My God, the Nazis used capital punishment to try to achieve a master race. How can you grow up with that fact and not worry about the state using the death penalty?” One of our most interesting conversations was with Howard, a capital defense lawyer in his late fifties or early sixties and a self-described “secular Jew,” who agreed that “in [his] generation” there are “a disproportionate number of Jews among the capital defense bar.” He explained, “I think it’s a sense of understanding oppression, understanding the outsider, understanding what it means for the state to take people’s lives when [it] ought not do that. I think those themes, if you grew up in a Jewish family where you at least identified as Jews, ran pretty deep. They did in my family, and I think that’s been my experience with other capital defense lawyers. It’s definitely a conscious motivator.” “What about successive generations?” we asked. He continued:

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I think [there has been] a change in American Judaism. I think there’s more assimilation. I mean, I hope I’m wrong. Nothing would make me happier than to be wrong—that my generation who’s raising these kids is raising them with that same sense of outrage at injustice. That same sense that the people with whom we should identify most wherever they are, whoever they are, [should be the] marginalized, the mistreated, et cetera. I hope that’s what’s happening, and I hope it will mean future generations, whether they’re criminal defense lawyers or just civil rights lawyers or disability lawyers, whatever it is, that there’s a disproportionate number [of Jews] because there’s a sense of identification. [Because] that’s appropriate. But I don’t know.

We heard similar remarks from other Jewish lawyers regardless of their reported belief in God, almost as if their ethnic identification as Jews compelled involvement with capital cases. Interestingly, the same was true for lawyers whose families had suffered atrocities in other countries and contexts, including one person who, shockingly, reported that “both sides of my family have faced genocide,” yet in different wars and conflicts. Whether involving Turkey and Armenia, Serbia and Bosnia– Herzegovina, or the Khmer Rouge and Cambodia, lawyers pointed to their religious and ethnic backgrounds and the experience of “their people” in shaping the sense of morality that drew them to capital cases. We also heard a lot of guilt from the lawyers. Not regret about their advocacy or about how long it took them to come to capital defense, but rather that the attorneys were doing penance for the religiously infused intolerance of their relatives—or even their younger selves. One notable lawyer described attending “an Evangelical Christian church” with his aunt and uncle in the 1970s and 1980s: My church grew very big, and they used to—it sounds crazy now—want us to bring records to burn. Yeah, it was crazy. I did not. I could not part with my Carpenters [laughs]. And I was pretty hardcore on the West Side

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Story soundtrack [still laughing]. It also was very antigay, which at the time I didn’t really think very much about. It was just getting more and more conservative, which is kind of weird because I grew up in [a liberal metropolitan area]. So that was kind of a changing social mores during that period of time.

Only as the lawyer reached the end of high school did he “start questioning” the church’s dogma and practices, especially as he came to acknowledge that he was gay during his sophomore year of college: “By then it was like, ‘Yeah, I’m not quite liking that, not liking the take on religion in my life.’” Today, the lawyer calls himself “a reformed Christian” with “an anti-government or anti-authoritarian thing, too.” He sees a role for religion in his life, but he resists the authoritarianism of any social dogma and sees his work as a capital defense lawyer as consistent with those beliefs. Another advocate, a mitigation specialist, Laura, grew up in a conservative Catholic family. Although she didn’t share her family’s politics, she took on the self-righteousness of her upbringing and as a high schooler and young college student would speak out strongly and loudly in favor of the death penalty. Laura described a change of heart motivated by a professor she had in college who helped her “see things differently.” She recalled the night that Texas executed Carla Faye Tucker, the first woman to be put to death in the state, whose final pleas George W. Bush was said to have mocked when he was governor.21 Laura had planned to “hang out with” her professor that night to discuss the execution, but the teacher demurred, saying “that she just couldn’t be around [Laura] that night.” As Laura tells it, “I didn’t understand the sense of sadness and grief she felt for a case that she hadn’t even been involved with.” Over time, Laura became more attuned to the life histories of capital defendants, including the horrible things that had happened to them. She described a case in which the investigation took her into a bleak urban neighborhood: “I’m sitting there with the woman, and there is a baby playing on a floor all covered in cockroaches. And I’m thinking, ‘What’s going on here?’”

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Laura became increasingly agitated that no one from the state had intervened in her client’s life at an early age when something could have come of it. “You sound angry,” we said to her in the interview. “I am,” she responded immediately. “I read the case file and just know that if someone had intervened at that moment—a parent, a teacher, a social worker, even a cop—two people’s lives [i.e., those of the defendant and the victim] might have been saved.” As Laura spoke, she sounded judgmental and highly controlling— about herself, not necessarily others. It would not be surprising if her involvement in capital work is based, in part, on a profound sense of guilt—that she spent so many years in high school and college advocating for capital punishment, and now that her views have changed she has an obligation to try to “make things right” for what she had done before. As she said, her involvement in capital defense was a combination of “being introduced to the lives” of individual defendants and a “profound desire [to achieve] fairness” in the world. However, for any stories of defenders seeking to make amends for family members or themselves, most of the lawyers who cited religion as a motive for their work had a long and deep-seated commitment to service and justice, a kind of religiously infused morality that called them to the practice. Their views are well illustrated by the experience of a Polish Catholic attorney whose family had risen from immigrant stock to “legitimately upper middle class.” As he described the influence of his family’s values and their attachment to their Catholic heritage, he recalled that, as a child, “they always kind of emphasized that we had it good and you should appreciate what you have and you should think about others who aren’t as lucky, and you should be very humble and modest and helpful.” Those qualities—courteousness, modesty, and service—could make up the lessons of most weekly sermons in churches, temples, and mosques across the county, and it is not surprising that some of those who strive to represent the neediest and reviled in society trace their motivation back to their religious upbringing. As a self-described “pro-

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life, social justice Catholic” explained, “In the New Testament Jesus said, ‘Follow me,’ which meant that sometimes your life is going be uncomfortable. But to do the right thing, you know, to be a Christian you have to do that. As a Christian, I believe that [you show you] value life by [refusing] to take it.” Even when your client has done horrific things. This commitment is so deep, in fact, that for some defenders “doing death penalty work is the closest thing . . . to a religion.”

Falling into It Robert Stover and Howard Erlanger’s classic study Making It and Breaking It: The Rate of Public Interest Commitment during Law School reminds us that only a small percentage of new lawyers takes the path into public interest work, and of them, even smaller numbers choose criminal defense.22 If we think of this process like a funnel, each step siphoning off more lawyers, capital defenders are a slight percentage of the American bar, although the attorneys who defend capital cases have often first passed through traditional criminal defense. Rachel’s career trajectory reflects this path. She attended law school shortly after completing college, drawn to the law because of her progressive values and the desire to help “people [who] got screwed, especially poor people.” After her first criminal class in law school she knew she wanted to be a public defender, and upon graduation she joined a public defender’s office. She stayed there for more than a decade, handling traditional misdemeanor and felony cases: “I basically [spent] ten years [doing] the usual—starting in misdemeanors, working to lowgrade felonies, [and then] working to homicide cases.” “Why move to capital cases?” we asked. “I really look back and wonder sometimes,” she responded. “I think there was part of ‘that’s what you’re expected to do.’ That’s the wrong phrase. This is a demonstration that you’ve reached the skill level that you’re capable of doing it. You ought to be able to do it, number one. Number two, there are clients who need you to do it. You

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ought to be able to do it. Number three is kind of the ultimate test of your competency. You ought to do it.” If it feels like Rachel almost “fell into” capital defense, she is far from alone in the death penalty community. “I do the case in front of me,” responded Roger, one of the nation’s most accomplished defense lawyers and an experienced capital defender. He, too, began in a public defender’s office and moved to death penalty cases only because his supervisor assigned him a case when no one else in the office was available. For Mitchell, the move from a large corporate law firm to capital practice was really a matter of serendipity: “A friend of mine [who] was an associate at [the same firm] left a couple years earlier to go to the federal public defender’s office to work on death penalty cases, and he told me what a cool job it was. They had an opening, and I applied and I got in, so it was [dumb luck]. I’m not someone who grew up always wanting to be a criminal defense lawyer and wanting to fight the death penalty.” Then there is the story of Tom, whose brazen explanation bordered on the tongue in cheek: “I was going to law school at the time,” he said. “I was going out with a girl who had a friend who was the public defender. We were at a party. We got drunk. He started [talking] about being a public defender. Seemed like a good idea to me at the time. So I went down to the public defender’s office in [the neighboring county] and volunteered as an intern or a law clerk.” Tom neglected, at first, to mention that his father was an attorney and had defended several death penalty cases, so, as Tom eventually acknowledged, he was probably headed to public defense at some point. “Oh yeah, the public defender’s office offered me a place to practice where [I could] do a whole lot of trial work, which I was interested in, and it was a place that would stand up for the underdog, and that appealed to me.” After that, capital work just sort of, fortunately or unfortunately, it just came as a matter of course. . . . I wasn’t very senior in my office, but my boss liked

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me a lot, and what was sort of funny was he came to me with the very first death penalty case that came into the office, which was just an awful, awful case, just a terrible case. And everybody who was sort of eligible for capital work had gotten quiet, was sort of walking around with their heads low. And I knew I wouldn’t get assigned it, so I didn’t care. [Then] my boss walked into my little cubicle one day and said, “You know, you’re not senior enough for me to assign that case to you.” I said, “Oh? That’s not a problem.” He says, “But if you volunteer for it, I’ll give it to you.” [Deep chuckle] And [still laughing] I started giggling, basically as I am now. I really hurt the guy’s feelings, unfortunately. So the next capital case that came to the office was in my box [laughing] no questions. Just in my box assigned to me.

Tom would go on to represent multiple capital defendants, just like his dad, but in his telling it was not his original intent. Nor was it for several other luminaries in the field, who got drafted to take capital cases because “someone had to do it.” Jordan’s first death penalty defense began as a robbery case, which was really a placeholder until the prosecutor filed capital charges. When the case “went capital” Jordan decided to hold onto the representation and dropped his other cases. He worked on the capital case for six months. “It went great!” Jordan recalled, raising his voice and widening his eyes, a big smile on his face. “And then I was just offered another and another and another.” Today Jordan refers to himself as a member of the “Capital Mafia,” a group of six to eight private defense attorneys who get most of the capital referrals in his state. So, too, another well-known and respected lawyer—Joan—was “drafted” into taking a capital case. To be sure, capital representation was consistent with her values, Joan having attended law school “to do something for social justice, for poor people.” While in law school she participated in the legal clinic, which “spoke to” her directly. “When you meet something that you know was [meant] for” you, you jump, she explained. After law school, Joan “begged” a local criminal defense attorney to take her on:

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I was one year out of law school, and someone approached me with a capital post-conviction case. At that time defendants weren’t entitled to a lawyer post-conviction in [our state]. A woman with a capital representation organization said, “I have a civil firm, which is very good, but they don’t know anything about criminal law. You know criminal law from your law school clinic.” I said, “I don’t know this.” She said, “It’s you or nothing, and you’re better than nothing.”

Of course Joan was “better than nothing,” especially in a state lacking an established capital defense bar. The case was her entry into capital work. Subsequently, she had her first capital trial, assisting “a very experienced criminal defense lawyer who needed [help] to read the Eighth Amendment law and do the mitigation work. Thank God,” she says, “we didn’t have to put on mitigation to save this guy’s live, [since] I didn’t know what I was doing. I would have been on a variety of witness stands to explain why I was ineffective.” Nevertheless, that case would lead to more. Joan soon left the small firm and moved to the local public defender’s office, where she “got a big and scary death penalty case. I had just started,” she explains. “No one had any experience, but I had a tiny bit because I had been co-counsel on one trial before.” Today, lawyers from around the country call Joan for advice on how to approach their own death penalty cases, inquiries she gladly accepts, remembering how lost and inexperienced she felt when she first tackled a capital case. But even for someone as talented and dedicated as Joan, capital representation was never a goal when she began law school or transitioned to legal practice. She knew she wanted to help the poor and to work for social justice, which brought her to criminal defense. But the move to capital cases occurred almost by happenstance as she was “the last person standing” when the local bar needed an attorney to step in and handle a matter. Joan’s situation may be a bit unusual, with her path to law coming later than several defenders, but many other attorneys reported that they “fell into” capital cases after several years defending typical crimi-

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nal matters. This is not to say that they were rudderless; however, unlike some of their colleagues who navigated to capital cases on a straight and charted path, these lawyers floated along in the defense world until someone threw them into the whirlpool of capital litigation.

Intensity of the Work There is no doubting the sensation of a death penalty case, one that grabs public attention, demands concentrated work, and carries a harrowing outcome. It is not surprising, then, that capital defense also draws its fair share of “adrenaline junkies,” attorneys who “bore easily” and are looking for a practice that provides “the rush” of regular ups, downs, and emergency petitions. For many of these lawyers, the very concept of capital work is exciting, with the prospect of standing between their clients and the state’s desire to execute them serving as an enticing challenge. “It’s fascinating, it’s thrilling,” exclaimed Sydney, a defense attorney who came to the practice from a private law firm. “You get to try to save a life! I mean, I’ve got men whose lives I’ve helped save.” Capital trials are often exciting, when a lawyer’s personal life seems to be placed on hold to join a team of advocates who often work almost around the clock to convince a jury to spare a client’s life. Daniel, whose story opened this chapter, described the first time that he became involved in a capital case, when he agreed to serve as local counsel during a habeas proceeding: [They] recruited two guys, and [another lawyer was] involved, too. And they all come down and . . . take over my office. It’s like nothing I’ve ever seen before. I was sharing my office with another guy at the time, and they basically kicked him out. He wasn’t very happy about that. . . . So they come in like the cavalry. It’s nothing I’ve ever seen before. They came in and took over. They lived here for three weeks. I probably had a couple of them staying at my house. So I live with these folks almost 24/7. I learned a shitload and I thought, “How could I do anything else?” It’s so

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intense, so morally right, and so legally right. The war is on! And you’re up against these people who live for this stuff.

There is no hiding the fact that much of the procedural excitement of death penalty cases comes from the emergencies and the stakes inherent in the attorneys’ responses to them. When the state drops a new piece of evidence on the defense, when a witness does not testify consistently with a previous interview, or when a mitigation specialist uncovers proof of childhood abuse of the defendant, the lawyer is suddenly on the spot. It’s the kind of work that speaks to people who “bore very easily [and] need more stimulation than most.” Just as firefighters thrill at the sound of the alarm going off in the firehouse, capital defense lawyers are driven, in part, by the “adrenaline rush” of the unexpected and are motivated by “not screwing up” when the consequences are potentially so dire. The analogy between firefighters and capital defense lawyers is also apt because both professions put a public servant at the center of the show as a potential hero. For attorneys, there is “an awesome responsibility” of having “a client’s life in your hands,” which makes capital representation some of the most “stressful,” “important,” and “thrilling” work a lawyer can do. “The stakes are so enormous,” one lawyer emphasized. “You really are saving a life. It’s not just a phrase. It’s real. You can actually save a life . . . and it does give you a good feeling.” But just as firefighters spend much of their shift at the firehouse waiting for an emergency call to come in, the day-to-day work of capital defense often finds attorneys outside the courtroom rather than handling the daily barrage of hearings that confront many defense lawyers responsible for misdemeanors or noncapital felonies. Capital defenders describe a lot of “desk work,” in which they are poring over the record and investigative reports, reading case law and filing motions, rather than “standing up in court” sparring with the prosecution or arguing to the judge or jury. In this respect, their efforts may not be all that different from their adversaries on the other side of the courtroom—police

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officers and security personnel—whose work is sometimes described as “hours of boredom punctuated by ‘moments of terror.’”23 Although many of the lawyers consider it “a luxury” to have the time to research their cases thoroughly, only those who came from large commercial law voiced delight at the document review and case research involved, because, at least with capital cases, the subject matter is more thrilling than the largely amorphous commercial disputes they were previously handling. “You have to remember that I was sitting in a storage room with floor-to-ceiling bankers’ boxes filled with accountants’ reports,” says Roger, recounting his earlier life as an associate with a wellknown national law firm. “Sure, there’s a lot of discovery in capital cases, and, yeah, I spend a lot of time hunched over a computer, but I can’t tell you what a difference it is to handle these cases. Let me ask you this: would you rather read a crime drama or a dry, old Russian novel? It’s the same thing here. You literally cannot pay me enough to go back.” Even if capital practice belies the image of the courtroom lawyer, many of its practitioners value the “variety of activities [you] do in death penalty cases that you don’t do in traditional criminal cases.” In fact, it’s that variety, almost regardless of the explicit nature of the activities, that makes the job—any job—“much more interesting and satisfying.” As Russell, a longtime assistant federal public defender, explained, “When you work on death penalty cases, you go to the prison. . . . That’s unique, different; it’s interesting. Sometimes it’s depressing, sometimes you don’t want to do it, but it’s different and it’s interesting. You do a lot of legal research and writing; you go to court; and court is always interesting, [because] when you have a capital case it’s usually the most important case they’ve got, and the judge treats you nice and, you know, you get room on your docket and get special times in court.” There is also a cerebral excitement to the work, as attorneys are given the chance to be on the “cutting edge” of psychological research, forensic methodology, and courtroom tactics. “[We’re] constantly learning new things” in this work, Pat told us, adding that “there’s just so much to

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learn.” He is a regular attendee at national conferences of capital defenders. “A lot of [the speakers] are presenting information that’s totally new,” he said, “a lot of the cutting edge of academic research. It’s just really interesting.” A quick look at the agendas from these programs, such as the annual capital case seminars sponsored by California Attorneys for Criminal Justice, confirms his point. Participants have heard from such specialists as neuropsychologists about brain imaging, emergency room physicians about shaken baby syndrome, and forensic technicians about burn patterns. Not only must attorneys become familiar with these specialties, but the number of fields relevant to casework also continues to grow as fact patterns and mitigation work expand. Prior to the 1990s, lawyers would never have imagined needing to become schooled in the techniques of international terrorism, which the embassy bombing and other notorious cases of that decade required. International investigations, complex network study, and blast analysis are now part of capital defense work. Further, with the advent of cases like Wiggins v. Smith (2003), courts now hold death penalty lawyers to higher standards of mitigation investigation in their representations. In addition to employing mitigation specialists in cases, defense lawyers are encouraged to become acquainted with research on childhood development, toxicology, and related subjects that bear on the tragic upbringing of their clients. Beyond the life-and-death stakes and the cutting-edge research, there is a macabre anticipation in the fact patterns of capital cases. Just as motorists slow down to gawk at accidents on the shoulder of a highway, defense attorneys admit to a kind of ghoulish interest in their work. “If somebody who’s involved in criminal defense, and even this [death penalty] stuff, doesn’t tell you there’s not a voyeur aspect to what we do, they’re not being truthful to you,” said Sydney, an older attorney who has litigated capital cases for almost fifteen years. “We get to be on the inside of things that everybody else watches from the outside,” he said, “and it’s exciting. It sounds sick, but it’s exciting where [you find that your cli-

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ent’s] mom drank while pregnant. Yes! That’s not normally a good thing, but you find these things that really are like golden nuggets. It’s exciting when you find something that really may save your client’s life.” For some lawyers, especially those who may have had sheltered backgrounds up until law school, the voyeurism serves the need of “seeing how the other half really lives.” Consider this exchange with Mitchell, the defender who gave up a career in corporate law to litigate capital cases: Most people go through life and shut out the ugliness. You sit out in the suburbs and say, “Everything’s nice.” You see homeless people on the street and turn the other way and say, “That’s not my problem.” Send your kids to private school to get out of the horror that’s going on with most people. But we dive right into that. We have our faces pushed into violence and racism and all the ugly things in society: poverty, what happens when people don’t have enough resources. That is our daily thing, where you see the underbelly of the dark side of society, the problems.

“What is the pleasure or interest in that?” we asked. He paused, then responded: Just the reality of it. The feeling that you are living life. That you’re seeing life for what it is. As a lawyer, I’m being challenged to see the world as it is, which I appreciate. Because I feel like you get one life and you can blow it, and I’m not blowing it as much because I . . . see the world as it is. I’ve been really challenged as a lawyer. I’ve been a real lawyer. I’ve been engaged in life. I’m not on the sidelines. I haven’t been cheated.

Mitchell’s excitement reminded us of the thrill we have heard from legal anthropologists when they return from case studies in remote, foreign locations. Capital defense takes some lawyers to a world they would not otherwise inhabit or understand, with the added benefit that it allows them to return to their own world at night with a better apprecia-

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tion for their station in life. Gabriella, one of the lawyers who traced her interest in capital defense to the missionary work of her grandparents, spoke of her appreciation for the window her practice gave her: What was attractive was seeing just the profound differences between how my life was, my idea of how lives were, and seeing what actually happens [out in the world]. . . . I had worked in my job for a year, and I [went] home at one point and [said] to my parents, “Thank you. Sincerely, thank you.” Me, knowing what love is, and knowing that you’re loved, and seeing these families where kids [aren’t]. I think that witnessing that [is] kind of what attracted me to this work. I don’t know. It sounds crazy.

Crazy? Not from what we heard, or at least no crazier than others who seek an adventurous career. And, unlike other thrill seekers, capital defenders have the luxury of participating in the rush of death penalty cases without having to give up the relative comfort of their own daily lives.

Prestige and Ambition In a 2016 ranking of the “top ten most hated professions,” MSN listed lawyers as number four.24 Among attorneys, criminal defense lawyers would assuredly rank even lower. Yet, many of the attorneys who have come to capital defense did so because of their ambition and the perceived prestige of the field. Why would this be? In their book Chicago Lawyers: The Social Structure of the Bar, sociologists John Heinz and Edward Laumann asked a range of attorneys to rank the prestige of various fields of law.25 Securities and tax ranked first and second, followed by such commercial fields as antitrust and patents. Out of thirty different fields, criminal defense came in twenty-third, only besting such areas as personal injury, landlord–tenant, divorce, and poverty law, which came in last. Even civil rights and civil liberties law, which are sometimes associated with capital defense in the latter’s inter-

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est in upending the death penalty, were ranked twentieth, well below the median of legal fields. Heinz and Laumann delved deeper into these results, asking lawyers to evaluate each of the thirty fields across five characteristics, including intellectual challenge, rapidity of change, public service, ethical conduct, and freedom of action. Here, civil rights and liberties scored near the top, ranking first in public service, ethical conduct, and freedom of action and tied for fourth on intellectual challenge and for second on rapidity of change. Even criminal defense did better than its overall twenty-third ranking. It scored fifth for public service and tied for fourth in freedom of action, eighth for rapidity of change, and sixteenth for intellectual challenge. Only on ethical conduct did it come in at the bottom, ranked ahead of only personal injury. These disparities suggest that something is going through attorneys’ minds when ranking legal fields other than the five categories offered to them by Heinz and Laumann. The sociologists demonstrated as much when they aggregated the lawyers’ responses based on the perceived social status of the clients involved. In a series of results that well exceeded the possibility of chance, the most highly ranked specialties—securities, tax, and the like—were related to higher-status, corporate, and wealthy clients. By extension, the lower-ranked fields—like personal injury and divorce—were associated with the “lower-status / personal client sector.” This disconnect—between the perceived prestige of legal fields and the qualities valued in legal practice—is normal, or at least longstanding, sociologist Rebecca Sandefur explains. A colleague of Heniz at the American Bar Foundation, Sandefur has written about two competing theories—the “client-type thesis” and the “professional purity thesis”—that help “explain the distribution of professional prestige among lawyers.”26 As she describes it: Each theory arises out of a general theory of the social organization of the legal profession. Their disagreement centers on the source of the values that underlie lawyers’ prestige order and on the aspects of the divi-

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sion of labor that are consequently salient in determining prestige. The client-type thesis holds that the profession is organized largely by its relationships with its clients, and so lawyers esteem service to socially powerful clients. The professional purity thesis holds that the profession is organized around a core of abstract knowledge, and so lawyers esteem work that is “professionally pure,” in the sense of being free of non-legal considerations.27

Applying this dichotomy to capital defense, we see how Heinz and Laumann would have uncovered such seemingly contradictory results. If one evaluates death penalty practice by the social power or esteem of the clients involved, then capital defense must surely rank near the bottom of legal specialties. Not only are the clients usually indigent, but their social backgrounds and the perceived heinousness of their alleged crimes would reduce the field’s perceived prestige. Yet capital defense is also seen by fellow attorneys as “professionally pure,” in that lawyers need not usually compete for clients or fight over nonlegal considerations to pursue the work. In fact, the difficult facts and uncomfortable clients of this work only move capital defense higher up the scale of professional purity, for other attorneys might find it difficult to imagine a fellow attorney taking such a case unless he were allowed the freedom to pursue litigation without political, business, or social interference. Within the criminal defense bar, capital representation is considered the most difficult, and hence prestigious, subfield, and its status and acclaim are not lost on the attorneys who take on these cases. For Marty, for example, the attraction to capital work was the chance “to try a murder case” because it has the greatest “social impact . . . and importance.” Many capital defense attorneys came to the practice from elite law schools, drawn by a respected professor who encouraged them on this career path, introduced them to key figures in the field, and gave them license and support to consider a path other than the gold-plated route that their fellow classmates were taking from law school to large corporate law firms. Others took longer to get there but still spoke admiringly

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of luminaries in the field, such as Stephen Bright, Bryan Stevenson, Judy Clarke, John Blume, Denny LeBoeuf, and Marc Olive, and how they valued the opportunity to work with and learn from such legends. Of course hero worship, if we can even call it that, is not the same as prestige, for attorneys motivated by a sense of calling would understandably be drawn to the notoriety of their profession. However, for some of those attorneys, the bright lights are attractive precisely because they sit on a marquee. Raised with a commitment to public service and educated at well-regarded universities, these attorneys are attracted to capital representation in part because it “is the World Series of criminal defense.” It’s the “most intellectual” of defense specialties, lawyers say. “In the world of criminal defense, being a capital defender is a celebrated position.” “People like me are naturally ambitious,” Peter related. A manic and slightly disheveled attorney, he has made a career out of frustrating his local prosecutor’s office. In most press clippings he is described as deeply committed to the cause of abolition—which he is—but he also spoke candidly about the “ego boost” he gets from working on the kinds of cases that regularly make the news: “We all have egos, and we want to be seen doing great stuff. And so, sure, that feeds people’s egos a great deal. It’s not everyone’s motivation to do it because they think it’s going to make them seem important, but I think it’s some people’s motivation. And I can’t say that I was totally another way. When I first wanted to do capital cases, part of that was because, like, wow, those are big important cases, and I want people to think I do big important cases.” Twenty-five years into his practice, Peter acknowledged that “the truth of it [is] there isn’t any glamour” in much of the day-to-day work of capital defense. “What I do is not as great as what you might think it is from the outside,” he says, but “I still relish [having] some people see what I do and go, ‘Wow, he must be really special.’” Nor is Peter alone in acknowledging the role of ego and prestige in attracting lawyers to capital defense. It’s not simply that they have chosen to represent indigent defendants; they’re working on the most difficult, most recognized

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cases, and with some of the most well-known attorneys. And their answers are laden with the longings of prestige, a satisfaction in working among “the best” in their field. Qualitative researchers are cautioned to separate their own experience from their interpretation of their subjects’ answers, but in this case, that experience makes the lawyers’ stories even more understandable. Like several of our subjects, one of us attended an elite law school and still remembers the tangible feel of ambition that permeated the classrooms. As law students, these attorneys were drawn to excellence, prestige, and acclaim, and it is not surprising that some of their ultimate career choices would reflect those norms. It’s not unlike a scene in the acclaimed 1997 film Good Will Hunting, when the title character, a twenty-year-old genius, is accused by his therapist of wasting his intellectual gift by working as a janitor at the Massachusetts Institute of Technology. Defending himself, the young man responds that being a janitor is honest and honorable work and sufficient for his needs. This may be true, responds the therapist, but why then does he work at one of the world’s most prestigious engineering schools and anonymously solve complex math problems on a whiteboard in the hallway? It’s a similar question for capital defense lawyers. Sure, the attorneys have taken on public service, attending to the legal needs of the indigent. But they’re not handling misdemeanor drug cases. Rather, they have chosen a subfield that is considered one of the most challenging and acclaimed areas of criminal law. Ironically, their motivations are related to those of their law school classmates who chose careers at larger corporate law firms. Both groups are undoubtedly talented lawyers, and both sets of attorneys have ego needs. The difference, one capital defender succinctly explained, is that he “cared about people, not money,” whereas his classmates felt the opposite. We are not prepared to parse the priorities of corporate lawyers, but we are encouraged to revisit the findings of Heinz and Laumann as they pertain to capital defenders. Perhaps the researchers’ results would have been different had they distinguished capital defense from

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criminal defense, but many of the subcategories of professional prestige they employed surely would score capital representation highly: intellectual challenge, rapidity of change, public service, freedom of action, and ethical conduct. All are readily found in capital defense, and all but perhaps the last one would be recognized as such by fellow lawyers who were ranking the prestige of legal fields. Is it any wonder, then, that younger lawyers considering a specialization, and motivated in part by ego, would gravitate to capital defense if they were interested in criminal law or serving others?

Oppositional Personalities and Psychological Trauma “I like to fuck with the government.” We almost do a spit take when Paul lets loose with this epithet. We’re sitting in a hotel lobby, tucked away from fellow capital defenders in town for a training conference. Paul has a slightly aggressive demeanor, the kind of advocate that would have spawned the analogy of lawyers swimming with sharks. He is describing the pull of his work, what has motivated him for eight years to handle capital cases: “I think it’s this bunker mentality of where we’re the few fighting the good fight against everybody else.” From “keeping the government honest” to “go[ing] to bat for somebody [as] the underdog,” lawyers spoke of the “enjoyment that you get out of taking on the resources of the state and beating them up.” For Paul, the oppositional nature of the practice is what drives him: “Certainly, [we’re fighting] the government, but the judges, [too, since] most of them are elected. Most of them tend to be against us. We’re up against them. The law’s terrible, so we’re up against the law. The facts are usually bad in our cases, so we’re up against the facts. The other public interest organizations that represent poor people, they’ve kind of like sucked up all the funding. So we’re kind of like competing with them; we’re up against them.” If we didn’t already know Paul, we might have said he was paranoid, seeing conspiracies around every corner. But as we listened more we realized it wasn’t paranoia that motivated him or determined his worldview. He

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seemed drawn to the oppositional nature of capital defense. “I think it personally suits me better to stand in opposition to the broader society around me,” he explained. Taken to an extreme, opposition becomes a syndrome known to psychologists as oppositional-defiance disorder. We’re hardly qualified to diagnose defense lawyers, but many of our interviewees were willing to do so. This field “is like a freshman-year psych class,” an attorney told us. “People are drawn to this work because of their personal craziness. . . . They’ll say it’s the client” that attracts them, but they’re actually “working through their own issues” or psychological trauma. “Capital defense practitioners are as weird as our clients are,” explained another lawyer, which “can be entertaining in and of itself as well.” Several of the attorneys described themselves as “outsiders,” a feeling that has been part of their self-identify for years. Consider Mitchell who, based on appearances alone, could pass for a suburban soccer dad. He explained otherwise: There are very few of society’s conventions that I have felt are anything other than a trap. I just feel like I oppose majority norms. For example, I spend my time at work with people who are married, have kids and a house. It’s not a huge thing, but I didn’t get married until I was [over forty]. I was kicking and screaming, because the woman I was dating said, “We have to get married or that’s it.” I still don’t own a house. I never will. To the extent that this is my opposition[al] stuff, I remember filling out tax returns during the Reagan administration and I would write on the check, “None to DOD [Department of Defense],” which is such a pathetic [gesture].

Mitchell is far from the only capital defender who seems to take pride in his “outsider” status. For a different lawyer, the “anti-government or anti-authoritarian tinge to [his] personality” comes from being “an outsider personally from the mainstream in our society,” a sense he has had “since [he] was a child.” Another lawyer also acknowledged feeling like

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a stranger in mainstream society, which, he says, ultimately drew him to capital defense: [There is this] Groucho Marx line, “Whatever you got, I’m against it” [laughs]. Whatever it is, I’m against it. Or Brando from The Wild One: “What are you against? “What do you got?” So I’ve always felt kind of reactive that way, although I’m sure my life’s conventional in a million ways. So, feeling yourself as not fitting in and being an outsider could draw you to represent criminal defendants. You know, the people on death row are kind of the ultimate outsiders because not many people in our society have [an entire electorate that has] voted to kill them. But I’m not sure I thought that all through at the time [I started practicing law].

However, for some of the defenders, their outsider status is hardly cause for joking. Carmen, for example, grew up multiracial in a community that was far from welcoming of diversity. As she explained, “My sister and I were . . . outside all of the time and were really brown. So it was really obvious that we were really brown and everyone else was white. And I had a lot of harassment by kids, being called the N-word, things like that, and that probably has something to do with my . . . view of the world”—more than “something,” indeed. Like several of her colleagues in the capital defense community, Carmen believes her background has made her “more sympathetic” to people considered the ultimate outsiders or even outcasts from society. Whether outsiders or merely outliers, several capital defenders with whom we spoke were also unusual in having experienced significant personal tragedy. “There is a lot of mirroring that goes on” among the lawyers, said a mitigation specialist who intimated that several attorneys were previously victims of abuse or abusers themselves and now dish it out as lawyers. “Some of the best lawyers are the worst people,” she claimed. They had “too much trauma” as children and as a result are “abusers as lawyers.”

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We did not experience any abusive treatment during the interviews, nor would we have expected it given that many of interviews were conducted in public coffeeshops, hotel lobbies, and the like. But we did hear multiple stories of personal trauma from the attorneys, so much so that one of the “old guard” in the field warned us about its effects. Many capital defense lawyers “have had some trauma in their past and keep replaying it,” she claimed. “We all bring a story to the work. But we need to make sure the case isn’t about the lawyer’s story but about the client’s. [We need to ensure that lawyers aren’t taking on these cases] trying to remaster their own trauma again and again and again.” When lawyers spoke of personal trauma, they were most likely to describe their own drug or alcohol addiction or that of their close family members. One attorney told us of his past life as a bartender, a job he took to “help support [his] alcoholism.” It “gives new meaning to the expression ‘member of the bar,’” he said half jokingly, as he explained his transition to sobriety, law school, and eventually capital defense work. “Being in a bar is a lot less interesting if you’re not drinking,” but the “prejudice against alcoholics” still follows him into defense practice. Although he thinks he is “better able to understand” the background of some of his clients given his own experience with addition, he “got advice” from others in the field “that it’s not helpful for clients to know that their lawyer had a problem with alcohol.” He doesn’t “need [his past] reputation to become a problem for the client.” Now sober for more than two decades, this lawyer didn’t want to “get into the weeds” of his alcoholism or sobriety, but other lawyers were quite willing to provide their own details, especially when the stories concerned family members. “My mom is a recovered alcoholic; she stopped drinking when I was say about twenty-three,” said a lawyer now in his forties. “So, up until then, I saw it and noticed it a lot as a kid. My dad was an alcoholic, but he never would acknowledge it or seek treatment. He was someone who would come home every day and have two . . . double Manhattans.”

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His father’s alcoholism would continue for years; the lawyer remembered a time from law school when his father was visiting and stormed out of a restaurant because it didn’t serve beer. He worries about the effect on him and his family as well as his own battles with the disease. “I’ve had that in my family. I feel like I’ve certainly had a lot of experience myself with drugs and alcohol. I feel like I’m prone to addiction, and it’s something I must really watch to make sure I’m not going off the deep end.” But, if there is a silver lining, he believes his experience makes him a better lawyer, more understanding, empathic, and approachable for clients. “So, the drug and alcohol part, if I have clients who’ve gone through that I can sympathize with that, empathize with that. Parents who maybe aren’t paying enough attention because they’re loaded, I can sympathize with that.” Sympathize, yes, although some within the capital defense community would ask whether this lawyer and those like him are drawn to these clients precisely because their experiences mirror those of the attorneys—in other words, whether the injured are tending to the damaged. The supposition came out less like a sympathetic hypothesis and more like an accusation from the lawyers who voiced it, who seemed to suggest that some of their brethren are using the clients, even if unintentionally. They don’t mean to blame their colleagues for past trauma, but they feel these lawyers haven’t fully processed the psychological effects of their past with a mental health professional and instead “relive the misery over and over again” in the facts of capital cases. We will suggest many times that the capital defense bar is not a particularly introspective community, that emotional vulnerability is avoided even when members are confronting some of the most difficult professional duties imaginable. So it’s not surprising that the charge of “remastering personal trauma” was mentioned to us in one-on-one settings, but attorneys say they don’t typically raise it—or other emotional issues connected to the work—in groups or at professional meetings. Nor is it a surprise that we only heard stories of personal trauma hours into

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individual interviews and sometimes even blurted out as a surprise even to the attorneys who were speaking. Once again, Mitchell provides an excellent example. He sat for four hours of interviews over two days, but it was not until ninety minutes into the second session that we learned of his experience with murder. As he exclaimed: Talk about burying the lead. I’ve had two friends in my life killed before I came into this job. One was when I was twelve or thirteen. . . . He was the only nice kid in the family. . . . His older brother killed him. They were playing [and the brother accidentally shot him.] And so my friend was taken to the hospital and . . . I was told he was in a coma and it wasn’t looking good, and then he died, and I didn’t go to the funeral. I was twelve or thirteen. I just couldn’t handle it. I didn’t go to the funeral. And then, three years before I came to this job, a good friend of mine from high school was murdered. He was at a bar, had met a woman, [and a loner shot him during a robbery.] Before I had this job it was a personal thing. I mean, the personal experience runs into your intellectual ideal [about the death penalty,] and I guess talking about these victims, I think about it now. And so, for me, the personal feelings still prevailed when I was confronted with that.

Mitchell would continue to claim that the murders had not affected him, that he came to capital defense because he was bored with a traditional civil practice and was not reliving his past through the cases. But the details he remembered from the cases, the level of animation in his voice as he described the facts, suggest otherwise. If so, he has company. Another lawyer, Howard, spoke of the murder of his sister, who was killed when Howard was still in college: “I mean, [her] death is unquestionably huge. It’s probably the most important event in my life. And I don’t know that you couldn’t say that of most people who lost their only sibling when they were [a teenager]. I mean, how could it not affect the surviving siblings?” Still another lawyer told us about being “attacked

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in my home, quite severely,” by “a man [who] tried to kill and rape me,” after initially declaring that “I can’t say I’ve had any remarkable thing in my background” that would have brought her to capital defense. But what is that effect? For Howard and the “many [defenders who] have either seen or come close to [tragedy, it] either [makes] you feel so fortunate, that there’s a sense of, how do I leverage what I’ve been [given to give back?] Or you’ve experienced some major losses and, therefore, you can identify with how people handle violence.” The experience may also breed a fear of death. Consider Laura, an advocate described earlier. “I am an anxious person and fear death,” she told us. “I suppose I’m attracted to capital work because it involves death and I want to prevent death.” Or, as one attorney described his experience in a rare moment of introspection: I don’t know, maybe it’s that I’m scared of death. I don’t know what it is. Growing up, I remember being really scared of death and liking the Woody Allen movies where he’s always playing [a character who is] afraid. That resonates with me 110 percent. And maybe I’m in this because I just don’t want to see anybody die, including me. If I thought there was an afterlife or something or if I wasn’t such a scaredy-cat, maybe this wouldn’t bother me so much, but I feel like you got one life and it’s precious and you should extend it even for those who’ve done the worst thing you can. So I don’t know. There’s no one answer. It’s hard to think of a motivation, but I do think part of [it is] a fear of death.

We do not mean to suggest that there is something “wrong” with capital defense lawyers that attracts them to the work, nor are we saying that many or most attorneys have experienced unresolved trauma in their past. For that matter, it is hardly surprising to hear that some attorneys had difficult or stressful childhoods. Mental health professionals, for example, are more likely than the general population to have been raised in dysfunctional households, and they, too, serve clients in distress.28 But in a profession that prides itself on the talents of its members’ con-

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scious thought, there are subconscious motivations lurking—sometimes just barely beneath the surface—that attract lawyers to the work or at least allow them to better understand and relate to their clients. Whether unresolved trauma makes the work more difficult we’re not able to say, but certainly the trauma itself means the attorneys are fighting much more than just the state in court.

The Money I grew up poor, one of ten children. My father became disabled when I was in the second grade. He supported us on Social Security disability. My mother stayed home with us because it didn’t make financial sense for her to go to work. So, when I graduated high school, I wanted to make money. I worked until [my mid-twenties]. Then I realized I could make more money if I went to college instead of as a secretary or a paralegal. Now, there’s nothing wrong with being a secretary or a paralegal, but I realized I needed to go to college. So, I went to college and law school and finished up in seven years. I wanted to get out and make money, and I could make more money if I went to school.

We’re looking around at our surroundings, wondering if somehow we have been transported to a Wall Street law firm where the billing partner on a large corporate deal is discussing her motivation for moving into commercial law. But, no, we’re talking with a public defender, a lawyer with a set, civil service salary who represents clients facing capital charges. How is it that someone initially motivated by money ended up in criminal defense, let alone defending death penalty cases? “I quickly learned that the money was enough,” the attorney told us, that almost any area of law would pay her more than her parents had received when she was growing up and that, as a result, she could “follow [her] heart.” It would be rare for most public defenders to cite high salaries as the basis for choosing criminal defense. Although lawyers earn, on average, more than most Americans, criminal defense is among the lowest-

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paying fields in law. Whereas a partner at a New York law firm could earn more than $2 million per year, public defenders in states like Mississippi and Georgia may start at $30,000 annually.29 Taking a job in criminal defense is often a labor of love, or a professional investment to gain considerable courtroom experience. “It’s about people, not about money,” explained a defense lawyer, in a refrain that could have come from many others. “I’ve never been motivated by money. I’ve been motivated by people,” he claimed. Still, there are considerable funding differences in criminal defense— between capital and “garden variety” defense and between public defenders and panel attorneys. Under the Supreme Court case of Gideon v. Wainwright (1963), a defendant is entitled to the appointment of an attorney if he cannot otherwise afford his defense. Most of us know that fact from the Miranda warnings, guaranteed by Miranda v. Arizona (1966) and regularly repeated on televised police dramas.30 Many states and localities, and all but one of the federal district courts, deploy a public defense system, in which public monies support an office of salaried attorneys who defend most of the indigent criminal cases in the jurisdiction. But courts also rely on members of the private bar, who serve on local attorney panels and are selected on occasion to handle cases when the public defender’s office has a conflict in the case or is otherwise overloaded. In some jurisdictions, panel attorneys defend most of the indigent cases, and certainly the capital cases, because the latter are so time- and resource-intensive that they could overwhelm the operation of the public defender’s work. Panel attorneys are not salaried and receive hourly compensation from the courts for their work. In some jurisdictions, that hourly rate is higher than what they would otherwise be able to earn on their own, and in most locations the hourly rate for capital cases is considerably higher than for other cases. The federal system provides a good example, where panel attorneys are authorized to receive upward of $185 per hour to defend a capital case versus $132 for lower-level felonies.31 Nor are capital cases subject to an upper limit on compensation, where the mantra that

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“death is different” usually persuades judges to grant attorneys considerably more resources for their time and that of their investigators, staff, and expert witnesses. Whereas the federal courts between 1998 and 2004 provided a median of $45,000 in resources to panel attorneys to defend noncapital murders, they authorized $353,000 for capital cases.32 So, as capital defense lawyers note, there is additional money to be made in accepting a death penalty case over a misdemeanor or other felony. “The pay is so much better than regular public defending,” said a private lawyer, who moved to capital defense and joined his local panel a decade ago. “I don’t know if right now I’m willing to take that kind of pay cut, because, if I left, that’s the only other thing I would want to do— be a regular public defender.” This lawyer was one of the few death penalty attorneys to openly acknowledge compensation as a motive, but several attorneys spoke disparagingly about others in the field who “are motivated by money.” Christine, a public defender, distinguished between what she called “the indigent bar”—public defenders like herself—and “the private bar,” where panel attorneys face fewer caps on their compensation for similar work. To public defenders, capital defense “can’t be about the money because you could make so much more in private practice,” she said, carefully measuring her words. By way of example, she told the story of a panel attorney who served as local co-counsel in a large capital case she had handled. As they were discussing the possibility of filing a particular motion, “he said it would be nice to argue it because we could rack up some billable hours.” Christine was incensed. “I don’t rack up billable hours!” she exclaimed. “It was offensive! And if he was joking, that’s a crappy joke. The same attorney was in the middle of a capital case, and I said I wouldn’t bother him with something for our case, and he said, ‘It’s no bother.’ He was in the middle of a trial! He didn’t need to be worrying about our case that wasn’t going to go to trial for six or seven months! While he may be a good attorney, his motive is the money.” Christine’s story illustrates an irony for those capital defense lawyers motivated by the possibility of greater compensation. Given that the

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hourly rates are higher for death penalty cases and that courts are willing to give lawyers greater rein to spend time on these cases, an observer might expect that even the most mercenary defense attorney would devote considerable time to capital cases, if only because the meter is running. “These cases pay a premium,” a defense legend said. They can be “lucrative,” especially if a lawyer has a “steady diet” of capital cases. But to a person, those attorneys who complained about the mercenary motives of their brethren also said that the money hungry were among the worst capital defense lawyers. “You’ve got someone’s life in your hands,” a veteran defender said. The question is “how the hell are you going to save his or her life,” not how are you going to get paid. So, while the higher fees of capital defense may attract some defense lawyers, they don’t fully commit to the client or to looking under all the potential rocks in a case. They bill time—to a point—and they fail to make the kind of connections with clients and their families that provide assurance and elicit important information for the defense. This phenomenon is true across state and federal systems of capital defense. In 2015, U.S. Chief Justice John Roberts appointed an ad hoc committee to review the provision of counsel in the federal courts. Delivering its report in 2017, the committee found considerable pockets of defense practice in which attorneys did not make use of investigators or experts. Even in capital cases, the committee found, some attorneys eschewed investigators and conducted the work themselves, thereby padding their bills.33 Capital defenders were merciless in criticizing substandard lawyering in others, even as they worried about the adequacy of their own efforts. “If you don’t get nervous, and if that doesn’t keep you up at night, then you have no place doing this work,” Christine declared, distinguishing what she labeled “good” and “bad” capital defense lawyers. Returning to the local panel lawyer she mentioned earlier, she recalled another case that he had been handling for eight months by the time she joined the defense team. During that time he had only visited the client three times.

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“Well, the client has no respect for that lawyer. He was happy [when] he got us,” Christine said, adding that although he was imprisoned three hours away, they began visiting him once a week. “The private bar will say, ‘You’re too much of a hand-holder.’ Oh, screw you! These guys are people too! They just want to hear from their lawyer,” she exclaimed passionately. “You have to see your clients, visit them, return their calls, return their family’s calls.” What makes an inadequate or “bad” capital defense lawyer—one who is “in it for the money,” as some advocates claimed? We put this question to many of the best defense lawyers, and their responses sounded a lot like those of Christine. The lackluster don’t ask the court for funds to investigate or hire experts, don’t file motions or advocate zealously, and sometimes don’t even seem to care about the fate of the defendant. They try not to “make waves” so that judges will keep reappointing them to cases and they can keep getting paid. Many of them also approach capital cases with a “cowboy mentality,” the lawyers thinking that defending a capital case will be like other felonies they have handled in which they went to trial without much preparation. But capital cases are truly different. Although prosecutors may file capital charges to encourage defendants to plead guilty to murder, they don’t generally take weak capital cases to trial. And the “cowboy approach” does not work at the penalty phase of a death penalty trial, where the defense goes from “playing defense” to “playing offense.” You can’t “prepare on the fly, cash the checks, and expect to win,” said one defender. For that matter, as we noted in chapter 1, a “win” in capital defense is more often a guilty plea. But some attorneys have so much ego wrapped up in the thought that they can just “handle the matter” that they don’t seek a negotiated plea even when it would be in their client’s best interests. Instead, the case goes to trial and the lawyer loses. “If you make it easy to kill your client, it will be,” warns a veteran defender. Capital defense is no place for the inexperienced or uncommitted—at least so far as the client is concerned.

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Conclusion Why spend so much time unpacking the motives and pathways that bring attorneys to capital defense? Certainly, many of the lawyers’ stories are fascinating and open a window into an area of law that is often hidden. But this book is not simply a descriptive account of capital defense work, an investigative report into a subfield of law unknown to most. As we have argued, if the United States is committed to employing the death penalty, then both elected leaders and the public at large have an obligation to understand what truly happens in the capital process, from the initial filing of charges to the pulling of a switch and the lingering effects on family members, criminal justice professionals, and political and legal culture. We should not be allowed the luxury of sweeping capital cases into a corner, out of public view, believing that the process is antiseptic or that the effects on lawyers, judges, or law enforcement officers are negligible or irrelevant because these individuals “chose” to take these cases. Of the capital defense lawyers we interviewed, most affirmatively choose to enter the field, but there is reason to pause and consider whether all, or even most, of their motives are admirable, sufficient, or worthy. Any capital defendant should want an advocate motivated by the perceived injustice of the government’s demand, but are the clients— are the lawyers—well served when attorneys are seeking to “remaster” their own personal trauma? How effective will representation be, how efficiently will public funds be spent, when some lawyers turn to capital defense to improve their bottom line? We emphasize that these “bottomfeeders,” as one judge calls them, are a minority of the capital defense lawyers we encountered, but we also know that some of the attorneys with the worst records at trial are also those who seem to “churn” capital cases. These are issues that the bench and bar ought to address more forthrightly, not only examining the qualifications of attorneys who are appointed to capital cases but also reviewing the training, resources, and

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support provided to defense teams. Virtually every study of indigent defense in the United States has found the practice lacking, and although most of the attorneys interviewed for this book would be considered the “cream of the crop,” even they voice concerns about the background and motivation of their brethren and worry openly about the lack of training and support for capital defense by the courts. Apart from these normative questions of legal policy, our research also adds to the burgeoning literature on the sociology of lawyering and the legal profession. We reveal impassioned advocates who may seem like cause lawyers but are more accurately classified as conventional lawyers, albeit with a progressive zeal. For that matter, several of the lawyers seem to have more in common with the backgrounds and motives of commercial attorneys practicing in prestigious corporate law firms than they do with the stereotypical criminal practitioner operating out of a solo practice or wedged into an overcrowded and overworked public defender’s office. We realize, of course, that our interviewees were a convenience sample and cannot be said to proportionately represent the whole of capital defense lawyers nationwide. But the fact that so many of our subjects came from prestigious backgrounds, that they theoretically had access to the same career paths as their law school classmates, makes their decision to handle some of the hardest, most reviled cases even more interesting, thereby painting a better, more refined picture of the social structure of the American bar. As Mather, McEwen, and Maiman noted in the context of divorce lawyers, attorneys are motivated by law school socialization, economic incentives and working conditions, as well as their own social backgrounds, personal values, and identities.34 As we show here, the same is true for capital defense lawyers.

3

Race and Identity “It’s Not Always What We Think”

“It was my first court hearing. I was brand-new,” Kevin, a white middleaged public defender, told us, recalling his first capital case. He explained: I was just sitting there in the courtroom and everyone in the room is white. Everybody—the judge, the legal team, except for the investigator, who was from Haiti and had really dark skin. I’m sitting with her. . . . When they bring in the client, he’s wearing an orange jumpsuit, and he is handcuffed, shackled. So it’s really loud when he walks, you know, like heavy chains, and it looks like something out of some weird slavery thing. It just looked insane to me. . . . Like, what the hell is going on? And I’m looking around—does anyone else feel really dirty because, here we are, we have one black man who’s chained and [the whole scene] looks crazy? It was just a wild, wild, wild experience. I’ve never had such a visceral [feeling]. I felt like I was wrong for participating in this. . . . You have this person in chains, and he’s the only black man in the room.

Kevin’s experience captures the uncomfortable connection between race and capital practice and punishment that defenders confront daily. Not only does that relationship encompass the racial disparities of the criminal justice system, but it also includes the interplay of identity—and, more specifically, attorney identity—and capital representation. It is no secret that the death penalty has a troubling history on issues of race. From claims that capital punishment is rooted in a legacy of racially motivated southern lynchings to the Supreme Court’s infamous McCleskey v. Kemp (1987) decision that refused to accept statistical 106

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evidence of racially disparate sentencing, capital punishment shines a spotlight on the many racial tensions present in the American criminal justice system and, quite likely, American society as a whole.1 A quick browse through capital punishment scholarship reveals substantial attention to questions of racial bias on the part of prosecutors, judges, and juries, as well as strong evidence of the presence of explicit and implicit bias in capital cases.2 Specifically, contemporary social science research demonstrates that “capital defendants are more likely to receive the death penalty if, among other factors, a) the defendant is black, b) the victim is white, c) the victim is a white female, or d) the defendant is poor.”3 Yet questions of race and identity in capital defense have been largely overlooked. One notable exception comes from the work of legal scholars Theodore Eisenberg and Sheri Lynn Johnson on the implicit racial attitudes of death penalty lawyers.4 Using the Implicit Association Test (IAT), a standard psychological instrument developed “to measure the relative strength with which groups (or individuals) are associated with positive or negative evaluations,” their work demonstrates that capital defense attorneys are little different from the general population in exhibiting implicit racial biases.5 Specifically, white male and, to a lesser extent, white female defenders express an implicit preference for white individuals. Conversely, black male and female defenders exhibit an implicit preference for black individuals, although the magnitude of this preference is significantly smaller than that of white attorneys. The authors claim, however, that the lawyers’ subconscious racial preferences are not indicative of differential or discriminatory treatment toward clients, witnesses, jurors, attorneys, or judges. As they stress, even the relationship between explicit prejudice and discrimination is complex, and thus the connection between implicit bias and discriminatory behavior is also complex. People who hold discriminatory attitudes toward vulnerable groups do not necessarily discriminate against group members in practice because of social disapproval or lack of opportunity. Similarly, those who repudiate negative attitudes toward vulner-

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able groups may still discriminate against group members for several reasons, including the social pressure to do so. Thus, like the general public, death penalty lawyers may implicitly prefer people of their own race, but these biases do not necessarily affect the quality of or effort put into their work.6 Eisenberg and Johnson’s study was provocative at the time, and the subject remains a hot-button issue given the limited empirical work on the racial identity of the American bar. As in the past, today the vast majority of U.S. attorneys are white—85 percent according to the American Bar Association.7 Although minorities are generally underrepresented in the legal profession—in part due to a legacy of formal and systematic exclusion—their absence is most visible in elite private firms, as they constitute 12 percent of major-firm lawyers and just 6 percent of partners.8 Together, black and Hispanic attorneys only account for 5 percent of entering firm associates and make up just 2 percent of partners.9 However, minority attorneys do have a long-standing presence in the field of criminal law. Indeed, throughout the nineteenth and much of the twentieth centuries, criminal law “was the only area in which black lawyers could be said to enjoy a monopoly,” employed by black clients who were often the routine targets of the police.10 During this time, black lawyers made “the most significant [contribution] in the area of criminal law, because [their] expertise . . . won [over] white clients, mostly immigrants . . . in both the North and the South.”11 Of the more than one million practicing lawyers in the United States, it is estimated that fewer than half engage in criminal defense work.12 Private criminal defense work is concentrated in small local firms, which employ around half of all attorneys in the United States, but, of course, not all those employed in small firms are criminal defenders.13 Just 1 percent of attorneys self-identify as working in legal aid or public defense, and it is unlikely that all these attorneys take on criminal cases.14 As capital cases constitute just a small fraction of criminal cases annually, it can be assumed that the number of attorneys who take on capital

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cases—or even just one case over the course of their careers—make up a small fraction of criminal defense attorneys in the United States.15 Yet, although minority attorneys have, historically, had a stronger presence among the criminal defense bar, we were told repeatedly that there just aren’t that many nonwhite lawyers among the capital defense bar. As one attorney pointed out, “I mean, if you look at [our office] there aren’t a lot of people of color here and there aren’t a lot of people of color who are lawyers [in general].” Given this reality, locating nonwhite capital defenders amounts to finding the minority among a minority. Ultimately, 8 percent of our interview sample was nonwhite. Unlike their attorneys, many capital defendants are not white. Of course, it is well established that criminal defendants in the United States are disproportionately nonwhite. In fact, minorities are overrepresented at nearly every decision making point in the criminal justice system, from policing to courts to corrections.16 Today, black inmates compose nearly 42 percent of the U.S. death row population, while only encompassing 13 percent of the total U.S. population; white inmates make up just over 42 percent of the total death row population and Latino inmates constitute approximately 13 percent.17 Given the contrasting demographics of the defense bar and their clients, as well as the racialized history of capital punishment in the United States, it was not surprising that attorneys had a lot to say on the topic of race and capital defense. They were quick to note the racial biases present in capital punishment—biases that are often stacked against their clients and can make their work more challenging. What’s more, they were generally upset with a system that they believe disproportionately targets and kills black and Hispanic men. However, when asked to comment on the impact of their own racial identity on their capital work, lawyers were often defensive. Some briefly acknowledged the ways racial differences could create a divide between themselves and their clients but stressed that “there is nothing [they] can do about it” other than “trying to be the client’s best representative regardless of race.” A handful

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of defenders even claimed that their race had no impact on their work whatsoever. Perhaps these attorneys, so acutely aware of the many racial injustices of the justice system and the powerful impacts of race on capital cases, were simply unwilling to acknowledge—even fearful of—the possibility that their own racial identity may negatively affect their work as capital defenders. Or, as we will suggest, perhaps these attorneys fail to recognize whiteness as a racial category with any meaningful impacts on law and society. But lawyers were expansive and eloquent when speaking about the dilemma of trying to understand and convey the nature of a client’s background when their own experience was so different. They stressed that race was just one factor making such tasks difficult—age, class, culture, gender, language, and even geography were cited as aspects of identity affecting their work. Tensions surrounding lawyer and client identities are at the center of indigent defense generally speaking, but the stakes are that much greater when death is on the table in capital representation. In this chapter we are less interested in the role of race in capital punishment writ large than we are in addressing the question of race and attorney identity in capital work. As such, we begin by discussing two common takes on the role of attorney identity in capital practice: colorblindness and race as all-important. We also call attention to the race-management strategies employed by lawyers in both camps, with avoidance, denial, and defensiveness on the one hand and what resembles “cross-cultural lawyering” on the other. Finally, we present a third stance commonly argued by attorneys that offers an interesting challenge to notions of colorblindness and race as all-important. From this perspective, identity is treated as intersectional, wherein race combines with numerous other personal identities to affect defense work— sometimes in unexpected ways. Ultimately, in taking this approach to race and capital punishment, we not only highlight the complexities of racial identity but also address attorneys’ discomfort in abandoning

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prevailing professional norms of lawyer neutrality to confront the ways their own identity affects their work.

The Legal Profession as Colorblind: Avoidance, Denial, and Defensiveness Might an attorney’s racial identity affect his or her ability to relate to and defend capital clients? Several attorneys seemed rather indifferent when asked to reflect on this question, either believing that race was irrelevant in assessing capital practice or otherwise uninterested in exploring the notion that their racial identity might affect their work. Kyle, a defender who has spent several decades practicing in military court, hadn’t given the question of racial identity much thought in the past and was reluctant to engage the topic during our conversation. When asked how aspects of his own identity, such as age, gender, or race, impact his capital work, Kyle’s response was abrupt: “Age, maybe, but that’s it.” For attorneys like Kyle, who one is as a person has little to do with how one operates as an attorney. Like several others, Moe, a middle-aged white attorney of Persian descent, stressed that while race is not entirely irrelevant in capital work, both his race and ethnicity are: “Race plays a [role] when I’m going to trial [here]—that’s just being realistic. . . . When the prospective jury walks into the courtroom, of the twenty of them [lined up], there could be just one or two of them who [are] African American.” As such, Moe must consider how a nearly all-white jury could affect his case when representing a black client.18 Yet even as Moe adjusts his strategy depending on the race of the jury pool, he insisted that his own identity had little to no effect on his work. “I’m originally from Iran,” he continued, “and I look like an Iranian—bald and big nose and lanky—but I never [fixate on that]. I mean, maybe once in a while I say [to myself], ‘Now how’s the jury going to appreciate me if I say this?’. . . . But, I’ve never worried that [I’m going to be] perceived a certain way because of who I am.” Thus,

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while perhaps slightly self-conscious about his ethnic identity, Moe felt that his race was inconsequential to his capital work. For attorneys like Kyle and Moe, being white may not even be considered a racial identity—race is about “others,” and being white is simply taken for granted as the norm.19 “As the dominant racial group, whites can view [themselves] as having no particular racial identity,” says Russell Pearce, a professor of law.20 What’s more, because white individuals often view themselves as lacking a particular racial identity, they tend to see “issues of race as that of people of color and not white people,” he continues.21 This sometimes translates to white people having difficulty or even feeling uncomfortable discussing race relations, which can lead them to avoid the issue when possible or even “deny the presence of racial dynamics” entirely. Robin DiAngelo, an expert in whiteness studies, refers to this as “white fragility,” defined as “a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves . . . includ[ing] the outward display of emotions such as anger, fear, and guilt, and behaviors such as argumentation, silence, and leaving the stress-inducing situation.”22 Indeed, for a minority of the attorneys we interviewed, avoidance seemed to give way to denial. These defenders steadfastly argued that their own race had no impact on their work. As Russell explained, “There’s nothing I can do about [being white representing black clients], so I don’t put a lot of time into it. That’s kind of a stupid simplistic answer, but there’s nothing I can do about it except being aware of it, right? There are times when we might discover that for maybe the most superficial reasons our client will tell [a female investigator] everything that the client won’t tell me. Fine. Make use of that. Pay attention to who’s getting the goods. So that’s [what] we pay attention to, but I’m not worried about [race].” Gabriella, another white defender, also felt that her racial identity did not affect her work. She held that one of her “strengths as a practitioner” was her ability to “sympathize” and build “trust” with clients even though she might be “very racially” different from them.

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To an even smaller, but vocal, subset of these defenders, however, the mere suggestion that their own race might affect their work struck a nerve. Russell, in fact, was among this group. While initially denying the impact of racial identity on his capital practice, he became increasingly agitated about the subject as the conversation continued. “In fact,” he admitted, he was “a little bit [sensitive],” and “probably more so than [he] should be” about the topic. As he elaborated: [At capital conferences they’ll say], “Oh, oh, you have a black client and you’re not black!” You know, fuck that! Yes, I’m not black. There’s nothing I can do about it. I’ve worked with a lot of black lawyers, a lot of really, really, really bad black lawyers. I’ve worked with some good black lawyers. We need a good lawyer—black or white. . . . There are reasons, [other than race], why the client’s not going to share. These are really reasons about how you relate to the client, how you listen, how you build trust. And this is more important than race. Eventually, if race or gender is more important [to a client than how the team members] actually behave—which it never is—hopefully we’ll figure that out and we’ll bring people in. I have no patience for this at conferences when they’re like, “Now we’re going split into groups and talk about, you know, the white lawyer who went in the black house and wouldn’t sit down [on the dirty sofa] because it was a black house.” It’s like, that is one thousand on my list of the top one thousand impediments that are in my case. It’s the last thing. That’s not the impediment to my case. . . . So this has touched a nerve. I have no patience for that crap. It’s crap. I’m sure [some] black lawyers [will say about race], “Oh this is so important.” Yeah—what a bunch of bullshit. I’m sorry. It’s the biggest pile of bullshit in our field. It really is.

For the few attorneys like Russell, merely exploring the role of racial identity in capital defense is akin to suggesting that white lawyers cannot effectively represent black clients.23 To question the attorney’s race threatens who defenders are as attorneys, as well as who they are as people—or at least it can be perceived as such. Defenders who held this per-

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spective yearned to demonstrate to us that they were more than capable of representing clients to the fullest regardless of race, either the client’s or their own; several even referenced their successful representation of various black defendants over the years, Russell included. Even those we interviewed, like Kyle and Moe, who were much less impassioned about the topic of racial identity than more defensive attorneys like Russell, seemed reluctant to discuss their own race. We couldn’t help but wonder, what were these attorneys—all of whom were white—afraid of? Did they worry that, at some level, drawing attention to their whiteness could lead to accusations of being racially insensitive or even racist? Did they somehow think that by questioning the role their racial identity played in capital work we were suggesting that they may, unknowingly, be perpetuating the racial disparities of the criminal justice system? The avoidance, denial, and defensiveness we encountered when inviting attorneys to discuss identity and race are not surprising when placed in the context of research on intergroup relations and whiteness. “White Americans have the option of minimizing the impact of racial awareness by dismissing the issue in various ways,” explain Wayne Rowe, Sandra K. Bennett, and Donald R. Atkinson in their psychological analysis of whiteness and questions of race.24 “For some adults, the personal and social concerns related to racial/ethnic differences are personally aversive and something to be avoided or ignored. Whether these individuals find these issues merely inconvenient or actually anxiety arousing, their preferred method of responding is to ignore, minimize, or deny.”25 Russell Pearce stresses that white lawyers are no different from white people in general, often viewing their racial identity as having no impact on their work and, thus, rejecting “the notion that they should examine the influence of their white identity on their lawyering.”26 In fact, Pearce points out that this is in line with prevailing professional norms among the legal community, which dictate that lawyers should “bleach out” their personal identities.27 Thus, in addition to having the “option” of minimizing race, as well as perhaps feeling uncomfortable discussing

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their own racial identities as white people, attorneys like Kyle, Moe, Gabriella, and Russell are simply adhering to the norms of their profession. Yet, as Amanda E. Lewis, a professor of African American Studies, explains, “just because many whites do not believe race to be a major part of their day-to-day lives does not mean it is not relevant. Though the nature of whiteness often enables whites to go through life without thinking about the racialized nature of their own experiences, it does not mean they are somehow outside of the system they have created and have projected onto others. . . . Whites’ racialized experiences may well mean, however, that directly asking them about race may not be the best way to tap into how whiteness and racial privilege work.”28 Fortunately for us, however, it was not just attorneys of color who seemed to believe the “crap” about the impact of attorney race on capital defense that Russell and others despised. The vast majority of white attorneys we spoke with were cognizant of their race and the role it can play in their capital work. Defenders who claimed that race was insignificant were, in the end, outliers.

Race as All-Important? Notwithstanding the claims of Kyle or Moe or Russell, it is shortsighted to argue that attorneys’ race has no impact on their capital practice. As law professor Eli Wald asserts, “Contrary to the rhetoric of the legal profession, there is no universal, race- and gender-free lawyer.”29 To insist that race has no impact on defense work also runs the risk of undermining the racial negotiation and management that takes place in capital work, especially when it comes to the representation of clients.30 Pearce, for instance, argues that open acknowledgment and management of racial identity “would far better promote excellent client representation and equal justice under the law than the currently dominant commitment to color blindness.”31 Handling racial differences and tensions in an open manner encourages lawyers to learn from and work through

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these differences as opposed to simply pretending they do not exist, which can inhibit relationship building with clients and be detrimental to case outcomes. Many of the defenders we interviewed agreed. As one attorney stressed, racial prejudice is “so intense” that it “infects” everything in the courts, including defenders’ work. From this perspective, how could attorney race be irrelevant to capital work? Generally, defenders said that their own race does, indeed, influence their capital practice; where they disagreed, however, it concerned the extent, importance, and specifics of this influence. For many, the issue was, literally, black and white: an attorney’s whiteness may be a hindrance when trying to build relationships— and trust—with black clients, but can lead to better results in court since most judges and prosecutors are white.32 In this regard, defenders largely disagreed with Russell, who denied the impact of attorney race, instead acknowledging that race is a central construction in the attorney–client relationship and in courtroom success. It also operates inversely for black and white attorneys. A black attorney may relate well to black clients, but his race may make it difficult to connect with white clients—not to mention white judges, juries, and prosecutors, who constitute much of the courtroom and ultimately decide the client’s fate. According to one defender, “it [probably] doesn’t hurt to have [clients, judges, jury members, or prosecutors] look at you and say, ‘Well, he’s like me’” when working a capital case.33 He was not alone. Reflecting on more than two decades of capital experience, Anthony, a white middle-aged attorney, noted that “it would be foolish” to ignore the effects of race on his capital work. As he explained, sharing a racial identity with his white clients may facilitate their relationships, making it easier for them to identify and feel comfortable with him. What’s more, “[my] race helps in negotiating the case with the prosecutors and judges. They’re overwhelmingly white, so the guy that’s across the table that I need to influence looks like me.” Like Anthony, Brandon, a black attorney with nearly twenty years’ experience in capital defense, explained that his race had helped him

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connect with black capital clients. Recalling his first two capital clients, he elaborated, “[they] were both African American males, both approximately my same age, and I think that helped us develop a rapport. Both of them commented to me that they thought we came from a similar social economic background, but obviously I made different choices than them, and as a consequence I was sitting on one side of the table and they were sitting on the other side of the table. We came from very similar backgrounds, so we could identity with one another.” Yet, being black doesn’t always help attorneys connect with black clients. One lawyer pointed out that some black clients actually “want a white attorney” because—like some of the white defenders we interviewed—they believe that white attorneys will “get the better deal, be more respected by the jurors, or have more connections” by virtue of their whiteness.34 Another defender stressed that some black clients view black attorneys as sellouts or traitors who are “working for the man,” which can breed conflict and mistrust in the attorney–client relationship. Such instrumental use of lawyer identity—racial or otherwise—is not unique to capital practice. Wald asserts that lawyers have always used “facets of personal identity to benefit their practice and professional career[s].”35 Not only do lawyers, at times, use their own identities as tools in the service of their practice, but identity is also commodified by clients, law firms, and the legal profession alike in order to obtain various benefits. From this perspective, lawyer identity is treated as something that can be bought and sold in service of various legal goals. For instance, one could view the employment of an African American attorney by a white defendant in a racial discrimination lawsuit as a strategic tactic intended to deliver a message about the client or the litigation visà-vis the lawyer’s race—specifically, that the defendant is not racist or was not discriminatory. More than mere strategy, Wald argues that the commodification of lawyers’ personal identity is somewhat inevitable as identity characteristics such as class, race, and gender are often intertwined with both legal matters and social interaction more generally.36

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To further exemplify this, Wald highlights the strategic employment of a white female lead counsel by the star basketball player Kobe Bryant in the face of sexual assault charges: [The case] sheds a revealing light on the impact of lawyers’ racial and gender identity on the representation of clients and outcomes of cases. . . . In light of prevailing racial stereotypes in American society and its justice system, the black defendant in the case, [Kobe Bryant,] may have been legitimately concerned with the possible impact of disturbing stereotypes such as “black men are dangerous and violent” on the outcome of the case. Retaining a white, physically slender female counsel may have allowed the defendant to combat disquieting stereotypes with opposing racial and gender stereotypes: “if a white female attorney agreed to represent the defendant and is not afraid of him, he must not be dangerous or violent,” and “if a female attorney agreed to represent a defendant suspected of raping a woman, he must not be guilty.” By virtue of retaining a white female defense counsel for the purpose of obtaining benefits from the lawyer’s personal identity, the defendant was commodifying the attorney’s racial and gender identity.37

Just as having a shared racial identity or strategically employing lawyer identity can, at times, facilitate defense work, in some capital cases lacking a shared identity may make defense work much more difficult. For example, Martin stressed that he considers his whiteness to be a “disadvantage” when working with minority clients and their family members. “I think that [minorities] probably feel somewhat threatened [working with me],” he said, “because white males tend to represent the system or the government. [They may wonder,] ‘Why would this [white lawyer] care about my son? Why would this person care about me? They’re just trying to bill time and bill hours and they don’t really care what the end result is.’ I think that’s natural, but [as the attorney], you need to talk to them about those things.”

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Eliza, a white defender with a decade of capital experience under her belt, explained that many of her “clients of color have had so few positive experiences with white people in their lives” that she didn’t blame them for being hesitant to trust a white lawyer. While her race hasn’t ever been “a real impediment” to any of her client relationships, she noted that “there [have] certainly been dialogues with clients, at times, about [their] general distrust of white people because they have had experiences in their lives and [with] the criminal justice system where it was pretty consistently white people—[white judges and white juries specifically]—who they didn’t identify with and who didn’t identify with them, judging them.” Joshua agreed, noting that after many years defending minority clients, he came to learn that “a lot of African American clients don’t trust white people. They don’t necessarily like white people; they sure as hell don’t trust them.” For instance, one of Joshua’s earliest capital cases involved a black client who “tolerated” him but “absolutely hated white people” and would frequently yell at Joshua and call him “a fucking white devil.” In such instances, he said, you can’t take the conflict personally. Deborah, a white lawyer who has taken on capital cases since the early 1980s, also noted that many African American clients are hesitant to trust white lawyers because they feel that white lawyers just see them as “broken people from broken homes” and are less likely to understand their experience as African Americans in the United States. She explained: I think there are a significant number of our African American clients who don’t automatically trust white lawyers. One of things that adds to that is that we tend to try and pin down all the abuse and poverty and mental illness in their backgrounds for purpose of mitigation. That’s something that none of our clients like, and I think that’s even more true of our African American clients—[the perception] that, as white lawyers coming in, all we see is them as broken people from broken homes, and

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we’re coming in and calling them mentally ill, and that we do that even to the exclusion of taking seriously their guilt and innocence claims. . . . That can’t be the opening gambit with them. . . . And I think people who do the type of work we do are generally much more sensitive to [such racial tensions] than others . . . but [some] white lawyers have to learn that, and often for black lawyers who haven’t grown up in a particular type of setting, they have to learn that, too.

Deborah was quick to stress, however, that she has also had some white clients who have “absolutely refused to have anything to do with [her],” so being the same race as your client “is not a guarantee of anything.” As will be discussed in chapter 4, building trust with clients is of the utmost importance to defenders and, as many argue, is crucial to good capital defense. What has been made apparent in this chapter so far, however, is the threat that racial difference poses to building trust—and a relationship more generally—with the client. So what do attorneys do when racial differences inhibit understanding and trust between lawyers and clients? First and foremost, most attorneys say, it’s important to acknowledge the racial elephant in the room and then “do the best” you can. “I’ll tell you,” Anna began, “I’m a five-foot-two, blonde-haired, blue-eyed white lady. . . . You go into the jail or the prison and see [your clients of color], and you can tell their first thought is, ‘Oh shit! I got a white girl! She can’t possibly know what she’s talking about!’” The key is to confront the clients’ assumptions head on and try to convince them that, as their attorney, you have “their best interest at heart regardless of that fact that you’re not black.” Another white lawyer, Eve, even lobbies her clients to give her a chance before they ask for a new lawyer: I’ve [had clients say,] “I want a black lawyer because I’m black.” I’ve [also] been asked for a Jewish lawyer to replace me [because there is a stereotype that Jews make good criminal defense attorneys.] . . . And I’d tell [them and their] family, “If you’re not happy after the prelim, or you’re not happy after this hearing, or you’re not happy with how things are

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going, then hire somebody. Or, if you have tons of money, do it now. I don’t take that personally. But don’t feel that you are not going to be represented because you have me.”

Eliza, who is white and who has “had many clients of color over the years,” summed up the advice well when she explained that race “is definitely an issue in [my clients’] lives, and it’s often an issue in their cases, and a lot of times it’s an issue, initially, in our relationship. We just have to sort of name it and move on. . . . The efforts that you make early and often with clients to establish trust and rapport can overcome the issues posed by race.” Acknowledging racial differences and attempting to demonstrate that one is a “good” defender, no matter his or her race, doesn’t always cut it. At times, attorneys must work more explicitly with clients to understand racial conflict and tension, as well as the ways that race has shaped clients’ life experiences. This generally means forgetting assumptions and preconceived notions about race and culture and trying to understand the client on his or her own terms. Such a strategy is not unlike the integration-and-learning approach proposed by Pearce, which requires lawyers of all races to engage with their clients and colleagues alike in open, frank reflection on and discussion of racial matters as they pertain to representation.38 Nor is such a strategy unlike those proposed under the umbrella of “cross-cultural lawyering,” which rejects colorblindness and encourages self-reflection.39 For white attorneys working with black clients, it is important not to “pretend to be black,” but instead to be “genuine” and “open,” lawyers say. “What I try to do [when working with black clients],” said Robin, a white attorney with nearly two decades of experience, “is just be honest. I don’t want to be fake and try to seem like I’m something I’m not. Right? I’m not a nineteen-year-old black man from the inner city. And if I tried to be that, it would be preposterous. Instead what I try to do is have [the client] help me learn about that [life experience]. [I say], ‘Can you explain that to me so I understand better?’ And I try to learn.” Sydney, a

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white mitigation specialist, echoed Robin’s remarks: “I’m never going to be anything but what I am—I’m white. . . . I don’t know what it would be like to be a mitigation specialist and be an African American. . . . I need to be aware of [racial] difference and be sensitive to it. I need to listen to other people who can tell me what that experience means.” Similarly, Joshua stressed that when working with black clients, “confronting the whole race thing” is crucial. “If you can understand their world, it’s easier. It’s not about me—it’s about [the client’s] issues and damage and understanding that.” Recalling one experience representing a black gang member from Los Angeles, Joshua elaborated on how he handles race in his capital work. “Pretty early [on] I said, ‘Look, here’s the deal. . . . I come from a pretty privileged background. My father is a doctor. I can’t begin to understand your world, so you’re going to have to teach me what it’s like to grow up in South Central LA and be in a gang and what that’s all about. . . . Would you rather have a black lawyer? I put myself in your shoes, I’m not sure I’d want a white guy representing me. Let’s talk about it.’” They did, and the client kept Joshua. Although well-intentioned, expecting one’s black client to want or, for that matter, even be able to explain “what it means to be black” to his or her white attorney, in the hopes of aiding the attorney–client relationship, is perhaps naïve at best and presumptuous at worst. To supplement this approach—or replace it altogether—attorneys may strategically deploy team members of different backgrounds to work with clients. As discussed in chapter 4, capital defense is a team activity, and many defense attorneys note the strategic compilation of diverse team members to increase the odds of connecting with clients, family members, and witnesses alike. In this context, specific members of the team can be thought of as something akin to cultural or racial interpreters, people who are perhaps more familiar with the clients’ life experiences because of shared identity characteristics and therefore can “speak the same language” as the clients. At times, bringing in “black or Hispanic team members to just help be a liaison [with minority clients], to bridge the gap a little bit,” can be

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extremely helpful, Martin explained. “[These liaisons can] talk about the cultural things [that I can’t], the experiences they’ve had [that I haven’t], and say, ‘Look, this [attorney may be white, but he] is here to help and the more that you help them, the more they can help your loved one,’ or whoever it may be.” Martin was not alone—many of the defenders we spoke with used similar strategies when working with clients of different racial and ethnic backgrounds. For instance, Nick, a white defender in capital practice for three decades, highlighted that, when representing black clients, he sometimes relies on black investigators for extra support. “I’m sure there’s a lot about the African American experience . . . I could never comprehend, but I try to make up for it. We have black investigators [on our team] and I feel comfortable [enough] with the investigators to say, ‘Look, explain to me what I’m missing here, or what part of the black experience don’t I understand. Help me with the clients.’” Learning to rely on such individuals, however, is not always easy. Like several other defenders, Sarah admitted that acknowledging the power of shared racial and ethnic identity when working with clients, their family members, and witnesses does bruise one’s ego. To say that shared identity is powerful implies that no matter how culturally competent, skillfully zealous, or well-intentioned the attorney, she may face insurmountable obstacles to defending her clients simply by virtue of her identity—something over which she has absolutely no control. In other words, it threatens defenders’ ability to be good at their job. Sarah stressed, however, that in order for her to provide the best defense possible for the client it is necessary that she recognize this potential power. For instance, although she is white and not of Hispanic origin, Sarah highlighted her Spanish fluency and the “great deal of cultural knowledge” she holds about Latin America, all of which generally tend to help her when representing clients of Latin American descent. However, she revealed that, over the years, she has learned that language and cultural understanding are not always a match for identity. Sarah recounted a case that forced her to confront this reality:

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I had a client who was a Guatemalan national [whose mother] had suffered some terrible abuse in her life—and when you do a mitigation . . . patterns emerge and you really understand your client’s life history [through the] experiences of other generations. . . . But [my client’s mother] would not talk about [the abuse] with me. . . . We would have these perfectly cordial conversations, to the extent that you would think we were ladies who lunched who were just, you know, shooting the breeze. It was frustrating to me. So one day I had an affidavit that I needed her to sign and I couldn’t meet with her because I was busy with something else. I sent a Spanishspeaking, [Guatemalan] intern to get the affidavit. [The intern] ends up spending the whole rest of the day [at the woman’s house]. She comes back and says, “You won’t believe what [his mother] told me. She told me all about the domestic abuse that she suffered at the hands of her husband. I really think we can get a great affidavit from her.” I stomped around my office for about five minutes. I was terrifically jealous—I mean, like, pissed! And then I realized that this intern had given me this fabulous gift. I mean, clearly, the mother felt comfortable with her. . . . I’m not sure I know all of the reasons why the mother chose to tell her story to [my intern] rather than to me, but she did. And the most important part was, we got the information and we were able to use it in the service of the client. So the way that I feel about [identity in capital work] is that we all bring different gifts to this. I don’t see myself as being able to be all things to all people. I’m just who I am—sometimes it’s helpful, other times it’s not. I think, at a certain point, you have to be able to get over yourself.

Ultimately, like many of the defenders we interviewed, Sarah learned to rely on other members of the capital team when her own racial or ethnic identity got in the way of a good defense. Although attorneys like Martin, Nick, and Sarah recognize that their own racial identity can affect their defense work and that, for this reason, they may not always be the best choices to connect with clients,

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clients’ family members, and witnesses, their approach to race and identity is rather reductionist. It reduces individuals to little more than their race, minimizing the ways that age, gender, sexual preference, and numerous other aspects of identity shape people’s life experiences and how they relate to one another. What’s more, just as expecting a black client to explain what it’s like to be black to his white attorney is problematic, there’s something slightly patronizing about bringing in a black team member, for instance, to connect with the black client and then report back to the white attorney. Of course, lawyers mean well bringing in racial liaisons to help build relationships with clients and others who are important to the defense’s case, but we couldn’t help thinking that such a strategy smacks of colonial governors who used to hire locals to “better relate to” and, frankly, control native peoples.

Recognizing Intersectional Identity Of course, no strategy is perfect. Just as a handful of attorneys declared shared racial identity irrelevant to capital work, other defenders were quick to caution against assuming that race—or any other aspect of identity for that matter—is some sort of “magic bullet” that allows members of the capital team to connect with clients and others. Instead, these attorneys stressed that identity is intersectional, comprising multiple categories of social group membership that overlap and intertwine.40 The concept of intersectional identity traces its roots to the feminist and civil rights movements, as well as feminist and critical race studies. Elizabeth R. Cole, a scholar of women’s studies, psychology, and AfroAmerican and African studies, notes that understandings of intersectionality date back to political movements of the late nineteenth century, such as “Anna Julia Cooper exhort[ing] Black male leaders to include sexist discrimination faced by Black women in their race-based agenda” and “W. E. B. Du Bois challeng[ing] the U.S. Communist Party to incorporate an analysis of race into their class-based organizing.”41 Legal scholar and critical race theorist Kimberlé Crenshaw is credited with coining the term

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“intersectionality” in her groundbreaking exploration of antidiscrimination laws and her subsequent analyses of identity politics and violence against women of color.42 Ultimately, Crenshaw argues against the “problematic . . . tendency to treat race and gender as mutually exclusive categories of experience and analysis,” resulting in the erasure of the black female experience and negatively affecting women of color’s ability to assert their rights and mobilize around identity-based legal claims.43 What is especially important to our analysis, however, is not the impact of intersectional identity on legal claims and rights mobilization. Instead, we are focused on the idea that race does not exist in a vacuum but affects people’s lives differently in relation to a whole host of other social categories, as well as in matters of the law.44 Identity is, thus, not simply about race or ethnicity, class, gender, age, or sexual orientation, but the intersections of these characteristics; it is at these intersections that we come to know ourselves, as well as relate to others and they to us. For instance, while black Americans may share some sort of common “black experience” by virtue of being black, the life experiences of a Harvard-educated, cisgender, black male are likely to diverge quite drastically from those of a working-class, transgender, black female who never completed high school. In the same vein, while a middle-aged Latina woman and a middle-aged white woman may not relate to each other on all levels and may not even be comfortable speaking in the same language, the shared experience of being female can unite them despite their differences. Yet intersectional identity does not only impact our social experiences, but our legal experiences as well.45 In the context of capital defense, recognizing identity as intersectional is crucial to overcoming assumptions that race—or any other identity characteristic—is either irrelevant or all-important.46 This realization is even more salient when it comes to building attorney–client relationships as well as working with a client’s family members and witnesses. Pat, an Asian attorney with just a few years of capital experience, lamented the pigeonholing of team members into certain roles based on

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their race, ethnicity, gender, or other aspects of their identities. “I’m constantly concerned about not carving out niches for the team members in terms of their relationships with [the client]. If anything, we’re trying to avoid doing that. [We] want to be really careful not to have [someone] do something by default [because they are a certain race or gender],” she explained. Pat stressed that identity often operates in surprising ways. She continued, emphasizing the place of identity in a recent capital case to illustrate her point: There are a lot of interesting things going in the different [team members’] interactions [with the client, a Latin American man]. There are two attorneys on the case who don’t speak Spanish and one attorney who is fluent and Latina, [and] an investigator who is also fluent . . . and is also Latino. [The client] definitely relates differently to the [four of us]. . . . The [Latino] investigator can talk with [the client] in the same language. Even on a [phone] call when they hadn’t met yet, they just had this easy rapport around sports. They just related about sports and talked on and on and on without a break for longer than I could stand. You could see them relate [not only through language, but] on this kind of “bro” level. And then with our attorney who is Latina, she’s not from [the client’s home country] and she comes from a very, very different socioeconomic background than [the client]. They converse very easily, and I think they have a great relationship . . . but my perception is that there are limits to that relationship because he’s going to react differently to a woman who is of a significantly higher socioeconomic status [than he would a man of similar socioeconomic status.]

Pat also pointed out that despite not being Latina and speaking very little Spanish, she was able to bond with this particular client over practicing English and Spanish together—somehow, it seemed to be the shared lack of fluency in each other’s native languages that united the two. Thus, by rejecting essentialist notions of identity, Pat and the rest of the capital team created space for each member to connect with the

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client in his or her own way despite assumed racial, gender, or languagebased differences. The result was a net strengthening of the capital team’s connection with their client, presumably improving the quality of his representation. Pat’s anecdote, like those of numerous other defenders, highlights the value of treating identity as intersectional, as well as the potential dangers of ignoring the multifaceted aspects of identity. It is not just attorneys’ race and ethnicity that affect capital work. Class, age, sexual orientation, and gender—which we explore in depth in chapter 5—on their own and when combined, play a role in capital defense. In some cases, for instance, race may be intertwined with socioeconomic status and education. “I definitely think socioeconomic status [impacts capital work], but it’s much more subtle [than race],” Eliza stated. “Part of [the race–class connection] is overlapping with educational disparities, because, as a lawyer working on these cases, obviously, I have a law degree and a lot of years of education, and the majority of the time it far, far exceeds the education that my clients have ever reached.” Such economic and educational differences between attorney and client, client’s family members, or witnesses can make even basic communication difficult. “You’re trying to talk about legal issues with [someone] who has a sixth-grade education and tempering your words [without] talking down, but also [still making sure they] understand what you’re talking about,” Eliza said. “It’s definitely a skill set you just have to develop and work on over time.” Or race may intersect with geography, deeply affecting the meaning of identity in a capital case. “Race is always an issue,” Jordan began, but quickly noted that it manifests differently in different places. This, he explained, affects his work as a defender. “[The community in which I practice] is intensely neighborhood-based, so it’s not just that you’re a white [attorney, for example], it’s that you’re white and you’re not from [this neighborhood or that housing project].” Jordan stressed that having an understanding of place and community is, thus, key to understanding the relevance of identity in capital work.

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For Sharie, a white mitigation specialist with eleven years of capital experience, being from the community in which she works offers the advantage of a shared, place-based identity that can help overcome the negative impacts of race. She elaborated: Just growing up and living here, [being familiar with] the different sections of the city, you have a little bit of historical perspective of [what life was] like at different times, which is important. [Being a local] is really helpful because you’re really able to connect with people about the fact that you either know where they’re from or you’re [at least] familiar [with it]. . . . You’re comfortable. You can talk about events that may have happened [in the past]. [This] is part of rapport-building. . . . Most of the mitigation specialists here—including myself—[are] white, and most of our clients are African American. [Race] can sometimes be a barrier [with them], so the fact that I’m local is helpful.

Place-based identity is often related to cultural identity, which, like socioeconomic status or sexual orientation, intersect with race in different ways. As one attorney said, “Some of the ways in which you struggle with the race issue is when you’re representing someone who is different from you culturally. . . . Culture is an important aspect of understanding another human’s story.” Thus, for attorneys like Katie, cultural differences within and across different races and ethnicities can have just as much impact on capital defense as racial identity on its own. For instance, Kevin, a mitigation specialist, noted that lumping all Hispanics together because they are Hispanic would be a mistake. “Whether it’s [here or] in South Florida, [Hispanic identity] is different,” he explained. “There’s a big cultural divide between Latin communities that have Cuban roots and various [other] islanders, like . . . Dominicans. South Florida is a big mix of people, and so their death row ends up having a big mix of people [despite having a seemingly common ethnic or racial identity]. When you meet their family, it’s always this big thing of how to relate [to a specific culture as opposed to a certain racial or ethnic group].”

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At other times, race may be outweighed by different identity factors altogether. For example, sexual orientation may surface as a crucial component of attorney identity. The handful of gay and lesbian defenders we interviewed noted that, while they don’t typically share their sexual orientation with their clients, it sometimes helps them relate to clients or their family members. “[Being gay] totally bonded us,” Natasha remarked, commenting on a former capital client with a gay daughter, who had, himself, experienced a number of homosexual encounters: [My client] has had a lot of homosexual experiences that he’s never talked about—that he doesn’t want to talk about. I’m not usually [one to] selfdisclose [my sexual orientation]. I mean, I don’t hide [it], I just sort of am. But when I knew he wanted to make sure his attorney was someone who could be cool with him and his daughter, [I told him I was gay]. He was really, really happy when he found [this] out, and it totally bonded us. [To this day,] whenever he writes me he asks, “How is your partner?”

Thus, when engaging in capital defense work, attorney identity can be beneficial, detrimental, or fall somewhere in between—it all depends on context. Sydney, a white investigator with near three decades of capital experience, mused, “I always say the perfect [capital practitioner] would be a mind-reading chameleon, because [he] would read your mind and figure out what’s the right kind of person to transform into to get you to talk. Because it’s not always the persona that we think—it’s not necessarily a person of your own race, your own gender, your own age.” As Eliza eloquently summed up: I think [my identity] definitely plays a role [in my capital work], sometimes to a greater extent than others. It’s certainly not intentional . . . but we all sort of come to an experience with our own background, our own identity. It informs how we approach life and, as capital defense lawyers, it informs how we approach cases and clients. Likewise, our clients come to us with their own backgrounds and their own preconceived notions

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and maybe stereotypes, et cetera, about what somebody is going to be like. So, it goes back to . . . having to be really flexible and adaptable to do this work. And sometimes it can be an advantage to be who you are, and sometimes you have to sort of try to camouflage yourself in certain ways.

Conclusion Returning to the question that began this chapter—does the racial identity of attorneys affect their capital work—a clear answer emerges. Yes, attorneys’ race undeniably influences their capital practice despite prevailing professional norms that demand attorneys “erase” their personal identities and despite the challenge this may pose to attorneys’ egos. Again, our identities inform “how we approach life”—how we relate to others and how they see us. To assume that identity would operate any differently in capital practice would not only be naïve, but, as has been repeatedly stressed in this chapter, could jeopardize attorneys’ abilities to effectively represent their clients. The picture of just how racial identity affects attorneys’ work is somewhat less clear, and is dependent on both nuance and context. When attorneys and those with whom they work—be they clients, witnesses, prosecutors, juries, or judges—share the same racial identity, race may indeed make them more likable and relatable—or at least attorneys seem to believe this to be true. Lacking a shared racial identity, many attorneys explained, can lead to conflict and mistrust, especially when an attorney is white and a client is black. Yet, as many attorneys told us, this is not always the case. Again, some black clients prefer white lawyers because they believe that white lawyers get better case outcomes than do black one. But, in many cases, it is not race alone that affects attorneys’ work. Instead, it is the intersection of race with other aspects of personal identity, such as age, class, sexual orientation, or even geography that influences a capital defender’s practice. Regardless of the specifics of each individual case or encounter, the takeaway here is just how important it is for capital defenders to

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acknowledge and confront the potential effects of their own identities head-on. Defenders employ several strategies to do this. Arguably, the less-productive strategies include avoidance and outright denial, which gets them nowhere. The more productive strategies range from recognition and keeping an open mind to frank and compassionate conversations about identity and life experiences—sometimes with the help of those from other backgrounds. Perhaps most useful is the recognition that identity is complex, intersectional, and often operates in unexpected ways, a realization that helps attorneys avoid shunting team members into niches while, at the same time, facilitates authentic connections between defenders and their clients. Ultimately, just as Eli Wald notes that there is no “universal, race- and gender-free lawyer,”47 we assert that there is no identity-free capital practice.

4

The Client “Everyone Is More Than the Worst Thing They Ever Did”

“I used to play sports as a kid, and my coach used to preach that it was ‘the team, the team, the team,’” says Conrad, a panel lawyer who occasionally takes death penalty cases. “Now that I’m older and practicing law, it’s the client, the client, the client.” Indeed, the defendant is the centerpiece of a capital case. His alleged actions and motives establish the basis for a charge, and his background and disabling impairments are part of the sentencing calculus. Within the defense team, all work revolves around the client. Defenders must establish a position of trust with the client and his family and friends, investigate the case thoroughly, and, ultimately, either advise the client to plead guilty and accept life in prison or defend him in court against the possibility of execution. To read press accounts of some capital cases is to envision the defendant as a sort of savage, almost feral form. Richard Speck, who tortured, raped, and murdered eight student nurses; Timothy McVeigh, who blew up the Oklahoma City Federal Building, killing 168 people, including nineteen children; Susan Smith, who drowned her toddler and infant sons, falsely claiming than an African American man had carjacked her vehicle and kidnapped the boys—these are the most salient cases that reach a popular audience. What could possibly be sympathetic, let alone appealing, about these defendants? What would motivate an attorney to enthusiastically advocate for, and even become friendly with, such people? To hear capital defense lawyers describe it, many of their clients are “damaged,” whether by mental illness, addiction, or childhood trauma, including some harrowing cases of abuse. That the defendants likely 133

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committed the underlying crimes is generally an accepted assumption. The more pressing issues are whether the prosecution has equitably charged the case and whether the defendant deserves to die at the hands of the state. Capital defenders hold close the truth that “everyone is more than the worst thing they ever did,” and they take it as their mission to “see the humanity” in their clients. In turn, they frequently form close relationships with their clients, whom they must convince to disclose highly personal, often vulnerable, information, and whom they typically counsel to spend the rest of their lives in prison. This is not to say they find the clients easy, pleasant, or that they would take them all in if released. Clients vary, and there are lawyers who are unnerved by the prospect of shaking the very hand that killed another human being. Of the challenges that face capital defenders, perhaps the greatest is how and where to draw lines with clients—how to form a relationship of trust with the client but not one where the lawyer loses her professional objectivity; how to remain appropriately skeptical without becoming cynical; how to be caring without expecting too much; and how to experience the client’s pain and disappointment without internalizing it. We take up a few of these issues in chapter 6, but the discussion starts here in understanding the attorney’s initial relationship with his client. It is little wonder that capital defense is a narrow specialty in law, with its effective veterans possessing a rare combination of dedication and patience. No matter how challenging other clients may be, capital defenders face some of the greatest burdens and obligations in the legal profession.

Building a Relationship of Trust In 1989, the American Bar Association first published its “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” which it subsequently revised in 2003. Guideline 10.5, “Relationship with the Client,” notes that “establishing a relationship of trust with the client is essential both to overcome the client’s natural resistance to

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disclosing the often personal and painful facts necessary to present an effective penalty phase defense, and to ensure that the client will listen to counsel’s advice on important matters such as whether to testify and the advisability of a plea.”1 Clients have a hard time trusting their attorneys at first, in part because they have little reason to do so. “It’s kind of like an artificial marriage you both come into,” said David, a defender of many years. Clients may start with the stereotype of their attorney as a “public pretender,” worried that the lawyer is either loyal to the government or a weak advocate. So capital defense lawyers often must first prove themselves to their clients. It’s a situation many attorneys understand. “I don’t see how they can trust me with their lives if they don’t know me [and] don’t have the sense that I’m working for them,” explained David. Another attorney, Scott, reiterated, “It’s not easy. It’s just like suddenly you’ve been diagnosed with a life-threatening disease and you’re sitting in a room and some guy or gal walks in and says, ‘Hi. I’m your doctor. I’m here to save you.’ And they go, ‘Who are you? What do you know?’” It “is absolutely essential” to build trust, yet it is “the most difficult” part of the attorney–client relationship. Extensive sociological research supports the attorneys’ emphasis on trust, both its importance to successful representation and the difficulty of establishing faith and confidence at first. “Client trust is impersonal trust given on the basis of general notions [of particular] professions and allied institutions,” says sociologist Gaia Di Luzio. “The [nature] of the professional–client relationship . . . hold[s] uncertainties for the client that make it [difficult] to make a fully rational decision whether to consult and cooperate with a professional.”2 Yet the client’s trust in his lawyer—just as a patient’s trust in his doctor—not only “correlates positively with the length of the relationship” but also “affect[s] relationship outcomes positively.”3 Put in the language of the attorney–client relationship, capital defenders can do their jobs more efficiently and effectively when clients trust their lawyers’ intentions and judgment.

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The ABA Guidelines note that clients often have been let down by many others earlier in their lives, sometimes even by their prior lawyers.4 Describing his own clients, Russell estimated that each defendant had prior experience with the criminal justice system, meaning that “almost always our clients have had previous relationships with lawyers, and [yet] almost always the lawyers have let them down. [In fact,] it may be for most of our clients that nobody has ever paid attention to them in their life. It may be that their family never did. No teacher ever did. Nobody ever paid attention to them . . . and it’s highly unlikely that anybody in our client’s life ever followed through with what they said they’d do.” So the attorneys begin representation by listening, paying attention, and following through. As the lawyers described it, the process almost seems like a formula. “For the most part, the early relationship is the lawyer trying to prove something to the client,” Scott explained. “I’m on your side. I’m going work for you. The government is not my friend, they’re not your friend. I’m going to do everything I can to get the best possible results for you.” Part of that proof is the lawyer’s ability to meet the client’s most immediate needs, regardless of whether they relate directly to the case. “The first time I go to a client I will ask them questions that get them to tell me what their needs are so I can then fulfill those needs,” said Russell. “And I will always try [to] review [the list] with them [before I leave], like one, two, and three. ‘What you want, what I’m hearing is you need forty dollars in your commissary account, you need us to call Jennifer to let her know your concern about this, and you’re worried why you didn’t get that fingerprint in discovery. Is that right?’ Okay, at least I’ve heard those things.” Sometimes the needs are as simple as a sandwich. Mitchell relayed the routine of his initial meetings with clients: It’s a very strange thing when you meet most of your clients for the first time. The [holding facility has] all these vending machines, and most of the clients want food, so you become a waiter. You ask them what they

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want, even if it’s the first time you’ve visited, because [many are familiar with incarceration] and they know that part of the routine is you ask them, “Hi. How are you? Can I get you any food?” So you basically become a waiter, and then you get the order and then you go microwave a cheeseburger and get some chips, a couple of Cokes, whatever the order is, and you take it to your client.

Two decades into his career as a capital defender, Mitchell still remembers the first time he met with a client on his own. “I had three weeks’ experience on the job,” he explained. The client “asked me how long I’d been doing it, and I said, ‘Been there since June.’ You have to instill confidence in this guy, and I just remember [thinking] the whole time this is really screwed up. They’re sending me? There was one other lawyer on the case, but he didn’t go for some reason. I was the one who was going to go calm this man’s fears and say everything was okay.” Mitchell was understandably frightened at first: They lock you in this long walkway, about four feet wide, and on either side are Plexiglas cells about six to eight on each side. And it’s like little rooms. There will be a table there, and they’ll put in chairs, and you’re ensconced in Plexiglas. When they open the cell door to put you in, they handcuff the client until you’re in there and then the client puts his arms through a hole, they take the handcuffs off and they lock you in, too. So you’re now locked in with your murderer client, and he’s free to do [what he wants].

That first client did little to put Mitchell’s mind at ease: “The first guy I met, I kid you not, he’s my height, six two, but his shoulders are like this wide [gesturing with a gaping wingspan]. I mean, he’s just incredible. He works out all the time. He kind of looks like Robert De Niro in Cape Fear, and I’ve been on the job for two weeks, and now I’m meeting him. But I was very aware you couldn’t act like you were afraid. I knew that you wanted to make it seem like this was normal and okay.”

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In the end, it was okay for Mitchell. “It’s a great thing to” have done, Michell said, “because you get so much strength from it.” For others, their first meeting with a capital client was less stressful, either because they accompanied another more-seasoned attorney or because they followed the advice of other colleagues that “the first meeting is never talking about the case.” As Jacob explained, “When the clients like me, feel like I’m willing to just sit with them, that’s when they start opening up to me more about the case. I know it seems strange, but for some reason it feels to me like if I just kind of waste time with them for a while [that] comfort level develops.” So, rather than “start talking about discovery immediately or talking about pleas immediately, we can talk about whatever they want to talk about, and I’ll come back the next week and we’ll do the same thing. I try to change it up some and talk about the case and talk about the weather or what their favorite food is. [For example,] I have a client right now that loves to talk football and I love [my local team].” Listening is essential on the part of defense attorneys. “Most people in their lives don’t get really listened to,” related Sarah, a panel lawyer. So, “if you’re willing to show up and be patient and respectful and listen, it’s amazing what people will say to you.” The topic of listening, of giving clients full attention, came up regularly in interviews. Lawyers repeatedly said that their clients “have a story that nobody has ever really paid attention to,” and it’s up to the attorney to bring this story to light. “We’re listening to what they say. We’re visiting them. We’re following through with what we said we’d do.” As most of our interviewees could attest, connecting with capital clients involves sensitive interpersonal skills. “A lot of this work takes a ‘softer’ touch than criminal defense work both because of mitigation and just dealing with the clients,” Jacob noted. He continued, “Our clients require massive amounts of time. The amount of time that you’re spending with them and the amount of trust that you’re trying to develop is very different than what I would call regular [criminal] defense practice, which is more like triage.” As other defenders explained, this

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“softer touch” sometimes involves “stretching” the work of attorneys beyond what may traditionally be expected of them. For instance, as Gregory remarked, “You model kindness and love by the way you interact with your client, the way you treat witnesses, the way you engage with people.” The attorneys’ description of relationship building highlights the complexities of attorney–client communication. Given this reality, it is not surprising that talent for relationship building is highly revered among capital defense attorneys. When pressed about relationshipbuilding skills needed in capital work, many defenders were attentive to the importance of identity. Several attorneys stressed that, ideally, capital defense teams should comprise members with complementary identities spanning class, gender, race, and even language divisions. This is key because, in the words of one attorney, “diversity [on the team] maximizes the chances that someone will connect with the client in a meaningful way and either become the bridge or conduit for everyone else.” Several others we interviewed, however, were quick to challenge the idea that certain types of people will always get along better with clients. Russell elaborated: It’s much more likely there are other reasons why [clients] are not going to share, which are really reasons about how you relate to the client, how you listen, how you build trust. . . . We have people of all races that we work with and, of course, male and female. We have gay lawyers and straight lawyers. . . . The problem is there are some people who are never able to relate to clients—black, white, gay, straight, female, or male—and some that are. . . . It is so important to find somebody who is skillful at connecting with clients and they’ll be able to do it across all those [identity] boundaries.

In fact, we heard similar stories from several attorneys in which clients ended up connecting with members of the defense team with whom they had little in common. In one such case, a Spanish-speaking client of

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Mexican descent was uncomfortable opening up to the Mexican attorney on the defense team but eventually connected with a native English speaker on the team over a mutual interest in soccer. Yet, while some attorneys pointed out that identity cannot be boiled down to any one characteristic (e.g., being white or black, gay or straight, young or old) and others questioned the relevance of identity to relationship building in capital work altogether—something we elaborated on in chapter 3—time and again attorneys said that it was important to “look for any way” to build rapport with the client, and “diversity [on the team] helps.”

Impairments of the Client Regular client contact and listening offer many advantages: building trust,5 providing comfort, and, as we’ll cover shortly, helping to resolve the case. But the simple questions of introductory conversations also can provide a window into bigger problems facing the client. Russell offered one of the most detailed and profound examples of this. Describing his approach to clients, he explained: When I first meet the client I never ask them about the case. I always ask them, “How did you sleep last night? What’d you eat today?” It sounds to them like it’s just a casual conversation, but you get information really quickly about their mental health by finding, “I didn’t sleep,” or they didn’t eat, or they’re not exercising at all. And eventually, within the first three meetings, I’ll ask them detailed questions about their eating habits and their sleeping habits and their exercise. [As a result,] you may discover your client only falls asleep when they absolutely have to. When they’ve been completely exhausted. And they only sleep in ninety-minute increments. Well, that is just giving you a huge window into something that needs to be investigated. [For example, some of] our clients don’t understand what a bedtime is. Their parents never put them to bed. Bed wasn’t safe. They had too much PTSD or anxiety or bad dreams or whatnot to ever get to bed. [Or a client

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will tell us] they used to go to bed in the back of a pickup. “Oh yeah, all the time—we slept in Joe’s pickup almost every night,” [they’ll say.] Well, this is a really dangerous neighborhood. [So] you know that if a twelve-year-old child is sleeping in the back of a pickup in a really, really bad neighborhood, that means the house must have been worse. . . . And nobody knew, because nobody [before us] asked, “How did you sleep last night?”

Those kinds of childhood experiences have profound and debilitating effects on clients—some of them the cause of later impairments and others related to ongoing incapacities. Defendants may suffer from mental retardation, struggle with mental illness such as schizophrenia or insanity, abuse drugs or alcohol, or suffer the effects of physical or sexual abuse. “It comes up a lot,” said Russell. “It seems that at least half our clients have undiagnosed mental illness. And some of it is worse than others. Some, they’re full-on psychotic and any reasonable psychiatrist or psychologist can come in and say, ‘Yes, they’re mentally ill.’ [For most] it’s much more subtle. They clearly have [acute symptoms,] some form of bipolar [disease] or schizophrenia, but it’s subtle and it’s more like a schizoaffective disorder where it affects their logic, their analysis, they’re ability to connect with people.” According to defense lawyers, some of the clients’ trauma is intergenerational, a “history of trauma [that] bleeds into one generation after the other and impacts the families in those generations.” Or in some cases the trauma experienced as a child “seals in” an impairment further down the road. “Half of the people [our clients] knew as kids either have been murdered or are in prison,” said Tom, who has represented capital defendants for years. “You don’t grow up in that kind of community without suffering real trauma.” Even if defendants are not traumatized by their childhood, defenders say many are “boxed in” by the experience. As Jay explained: I’ve come to realize that when [my clients’] families [went] anywhere [during childhood, it was] generally to go to prison. As a child, I might

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have spent time on vacation; they spent it visiting prisons to [see family members]. When you talk about the cradle-to-prison pipeline, it’s sort of like [the kids were] already in a box. You’re going to visit family members that you love who are in a box. You’re confined by your neighborhood. You’re confined by your family, confined by the prisons and schools. Everything is a confining thing. You’re not allowed to imagine. You’re not allowed the materials, the resources to be able to imagine your way out of this. And so, you think it’s your destiny. You just be[come] passive, [thinking,] “Okay, this is the way it is. I’m going to go to prison. Everybody does. And I’m just going to learn what I need to do to survive on the street because the street is the only place that’s available to me.”

Nonetheless, clients “are not ready to admit” the limitations of their childhood, even if their lives were dysfunctional or traumatic. “Everybody views themselves as normal. Everybody views their own family as normal,” Sydney suggested. “So, when you say, ‘Did anything bad ever happen?’ they answer, ‘No, we had a great family. I love my mother and father!’ Doesn’t matter that Daddy tied them to the back fence and took out a bullwhip or that the older half brother sodomized him from the age of five to ten.” These are documented cases of abuse, the kind of protection cases that one lawyer, Gregory, used to handle when he represented “little children in a treatment facility who were abused.” But “it takes them killing someone until they get the concentration of resources they should have had as a child. The truth is they’ve been in incredible pain” for years; the lack of treatment only hardens and exacerbates the clients’ impairments. The lawyers were adamant that most capital defendants, especially those with impairments, cannot be approached like “a ‘normal’ civil client” or even a traditional criminal defendant. You have to remember that they “don’t understand [much of] anything” you tell them, said Gabriella, certainly not the first time and sometimes not in subsequent conversations. Not only do many clients have intellectual disabilities, but the inherent risk of death at trial also makes it hard for clients to

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concentrate on each task at hand. You can “miss the mental retardation” in your client, Gabriella explained. “You’ve been talking, and the [client] is agreeing with you. This has gone on for months. Then, all of a sudden, you’re like, ‘You know, they really haven’t understood me for like three months. They just agreed with everything I said or [were] the easiest clients in the world, and that’s because they didn’t understand anything.’ And you’re like, ‘Ugh! Who has [mental retardation] in this room—you or the client?!’” It’s natural to feel frustrated with clients who are impaired. They may have difficulty tracking conversations, hold unrealistic expectations about the prospects for their case, or yell at or even physically threaten their lawyers. But you cannot take it personally, advise seasoned defenders. “I think it’s really important to take yourself out of the picture,” said Sydney. “I see lawyers sometimes having trouble doing that.” An attorney will complain, “‘That [client] pissed me off! [He] did X!’ [And] I’m like, ‘What do you expect?! He’s frickin’ mentally ill! He murdered somebody! He strangled them to death! Whatever! And you’re expecting him to return your phone calls or whatever the unrealistic expectation [is]?’ So the one huge trick is to take away your unrealistic expectations.” The challenge “when you have [a client] who is mentally [ill] or delusional,” said Gregory, is to “walk this fine line between confronting them and validating them. If you validate them, you get drawn into their delusional system, you lose . . . your objectivity . . . your moral authority to speak for the person in court.” But if you’re confrontational, not only “yelling and telling them they’re wrong, but [also critically] questioning them, you may alienate the client.” So what is an effective defense lawyer to do? At a minimum, “you never tell them, ‘Your theory is fucking crazy,’ [when a client declares,] ‘I’m absolutely innocent and this is what happened.’” Instead, as Russell illustrates, you say to the client, “Okay, so tell me what happened,” and then “slowly” walk the client through his story of the case, explaining which parts will be most difficult to explain to a jury. You never try to embarrass the client. In one client meeting,

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for example, Russell proposed “to go through some facts that are in the public record” about the case as a mechanism to gently show the client the difficulties in his story. Russell related: So, a guy drives up in a car and a man dressed as a cowboy runs out and shoots him dead. And then runs around the corner of a building and runs away. Okay. Our client’s clothes are found nearby in the same direction the guy ran along with a cowboy hat and boots. And there’s DNA on the hat that fits our client. We don’t say, “Come on, guy! [laughing]. We found your clothes with your DNA.” We say, “Okay, so this is what we got in discovery. They found clothes, they found this hat. Does the hat look familiar? They found these boots, and here’s the DNA report.” [Maybe the client says,] “See what happened is I was walking, and there was a hole in my boots, so I didn’t want them anymore, so I took them off and kept walking in my socks.” I don’t respond with “[WTF?!] I’m supposed to tell the jury you just decided to throw your boots away and walk around in your socks on a twenty-degree night because you had a hole in your boots?” Instead of butting heads and saying we can’t do that, we say, “Okay, let’s take that and do the best with it. We’re going to have a story . . . and the more support we have [for it] the better chance our story will be believed.” Eventually, the story is so ridiculous [laughing], and we’re asking the client, “What will I tell the jury about walking around in your socks? Because they’re going to want to know about this. How am I going to explain that you walked in your socks for a half a mile on a twenty-degree night because that was better than walking with a hole in your boots?”

If done well, this kind of questioning—neither validating the client’s story nor directly challenging him—allows the attorney to build a relationship with the client that is perceived as supportive while ensuring that weaknesses in the case do not go unchecked or that the client builds false hope. In the process, the client becomes better prepared to decide

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how to resolve the case—that is, whether to run the risk of trial or to seek a negotiated plea. The process, though, is hardly easy. “Cross-examining somebody is very different from do[ing] an interview with a trauma survivor,” Sydney related. There are “some brilliant lawyers who just are not good with people. It’s a tough job to do if you’re not good with people.” And clients may expect different approaches from their lawyers. “Some clients want that kind of defense attorney who cries with them and holds their hands, saying ‘I believe in you,’ all this stuff,” explained Moe, who acknowledged that he is “not a hand-holder.” For him, a better match is a client who “appreciate[s] objective, less emotional attorneys.” For that matter, attorneys may not be able to relate to their clients. For Paul, litigating capital cases in the South exposed him to what he called “rural white crazy crimes—like meth-fueled rape and murder, horrible sexual things, killing kids.” Up until that point, much of his experience in criminal defense had been “urban poverty crime, lots of drugs and guns,” clients he “could relate to better.” As he explained, “They were people that I think it was much easier to say, ‘There but for the grace of God go I.’ I could imagine that if I grew up in their circumstances I probably also would have been selling drugs and dropped out of school. [But] some of my clients in the South, it’s like I have nothing really in common with them, the sort of rural poverty” that breeds such crime. Of course, the street goes both ways. We think of Daniel, who is Jewish, representing a Muslim accused of terrorism. Although the client claimed “that it didn’t matter” that his lawyer was Jewish, Daniel was convinced it “was BS” and that the client “was using” Daniel throughout the case, since the client also “was posting anti-Semitic stuff ” online throughout the proceedings. At the same time, a Jewish attorney may be able to harness the client’s prejudices to build greater confidence in the representation. Beatrice, for example, has had clients tell her that she is the first Jew they have ever met. If anything, she says, that “may have bolstered their confidence in me because of whatever stereotypic, antiSemitic beliefs people carry about [the legal abilities of] Jews.”

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Getting the Plea As described in chapter 1, capital cases are often resolved by a guilty plea to either life in prison or a term of years. Gregory, for example, who has “been counsel on maybe sixty, sixty-five trial cases,” estimates that “at least half of them have been resolved with life pleas.” Other lawyers put their ratios much higher. “The goal is a plea,” they said, a reminder that many of the capital cases brought by the prosecution have compelling facts and that there is an inherent, significant risk in “rolling the dice” by going to trial. According to Russell, “It’s very rare that a case doesn’t have an opportunity to be settled, and, virtually every time, the barrier to settlement is the client—[as much as] 80 percent of the time. If you ask other lawyers to explicitly think about that, I think they’ll probably admit that way over half the time the barrier to settlement is not the prosecutor, it’s the client, because they’re not willing to accept the plea deal to life in prison.” Robin concurred, adding, “Most of my clients are very bad decision makers. And they’ve been bad decision makers throughout their entire lives. My job is to help them make better decisions. I’m guiding them through that process and, hopefully, can get them to the point where they will make decisions that will save their lives.” It’s a delicate process, trying to convince the defendant to believe a lawyer he has only recently met when the attorney urges him to forego his right to a trial and accept a lifetime in prison. Understandably, some lawyers are better at this process than others. As Daniel admitted, “It’s hard to get guys to plead, and maybe I haven’t been the most successful because I haven’t gotten too many [to do so]. . . . I’ve had yelling matches with [some of my clients],” and in these cases you have to investigate their stories and demonstrate that they are false before a client will even tolerate a conversation about a plea. Many more lawyers were successful in counseling pleas. Jacob, for example, hasn’t “had a case so far where I was really fighting with a client to take a plea.” He spends “an inordinate amount of time” with cli-

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ents at the start of a representation so that “you feel that there is some trust between you and the client.” At that point, especially when the “evidence has been pretty overwhelming of guilt,” Jacob will sit down with the client: We talk about what does your mitigation case look like and what are we going to be able to present to the jury. We talk about this over many, many meetings, and then we talk about juries and how they work. And to be honest, in the cases that I’ve had so far, most of the clients—by the time case has been going on for a while, and they kind of see how court goes and are presented with some of the evidence—they are coming around in their minds to understanding that it’s in their best interest to take a plea agreement.

When Jacob says the process unfolds over many meetings, he is hardly exaggerating, especially if a lawyer intends to meet the ABA Guidelines. Practically, “you don’t get [the client’s story] upfront,” Tom explained. “It takes time.” A mitigation specialist who used to investigate human rights atrocities likens the process to “the UN protocol on interviewing torture survivors. They [both] have the same set of rules. Be respectful. Be patient. Be warm. Be pleasant. Start on the outside before you move to the traumatic event and then back away.” You have to understand what is behind your client’s story to appreciate his reluctance. Russell Stetler, a renowned mitigation specialist and coordinator for both the Federal Death Penalty Resource Counsel and the Habeas Assistance and Training Resource Counsel projects, has written about this process. As he advises, “Building a relationship of trust helps counsel to understand what matters to the client—his hopes and fears. Many clients want dignity for themselves and their loved ones. Many fear prison violence (especially sexual violence), and most fear isolation and abandonment.”6 They may also fear what the crime says about them. As Gregory explained:

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Most clients who commit horrible crimes are so ashamed and so overwhelmed by what they did that they can’t imagine living the rest of their lives [with that hanging over their heads]. There is so much shame. Murder really brings out the most shameful moments in a person’s life. And the idea of having to admit to your powerlessness, your smallness, your damage, it’s just overwhelming. So most clients come in with an attitude, “I didn’t do this and I’d rather die than spend the rest of my life in prison.” [It’s a] meta-communication. What they’re saying is, “This crime is so repulsive that anyone who did it deserves to die, and I don’t believe you, Mr. Lawyer, that if I tell you I did this you’re going to continue to believe in me.”

The client’s shame often extends to his family, with the defendant worried that his continued existence—locked away in prison, likely to outlive his parents—will be an embarrassment to family members, even if they do not visit him. Russell related a poignant story about a client who only agreed to plead guilty once he learned “math and English so that he could feel proud that he could show his mother that he was educated.” Russell tutored the client personally. As he explained: We got a good offer; he was going to get twenty years in prison for killing [several] people. But there was no way that he was going to take it. [He comes from an immigrant family], and there was no way he would ever do this to his family, admit to something like that. And, I’m thinking, this case is one of those train wreck cases. But we got into it and we did what we always do: we just sat with him and listened carefully to what’s important to him—that he had [made] nothing [of himself], and he was embarrassed about his [lack of] schooling. We wanted to get him a tutor, to teach him. We caught on to that. But we couldn’t find one. I had been [a volunteer teacher in my early twenties], so, ultimately, I just said, “I’m just going to have to do it myself.” So, I spent a lot of the government’s money going to the jail to teach him fifth-grade math and fifth-grade English with little workbooks. I still have

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the workbooks. Little fifth-grade workbooks. We filled those out with the answers. I would go in twice a week, teaching him, didn’t talk about his case for months and months. Just kept listening to him about what’s important. Just kept talking to his parents, built the relationship with his parents, listened carefully to their feelings, tried and pried a little bit, but not too much. Eventually, when he got confident that he was going to get his GED, that he was going to pass high school, because he was doing well in school, he quickly became very interested in pleading. [We told him,] “You can keep doing this, more education in prison, and you can do music in prison. And [the transformation] was complete. We were told by the previous lawyers that he was never going to take a plea. But by the time we first raised it with him, it was like, “Oh, of course, I’ll take a plea.” You’ve got to listen with a lot of different kinds of ears and a lot of different ways of listening. They’re not going to tell you, “I can’t plead because I have nothing to offer my mother except my broken life where I never learned English well, I didn’t graduate from high school, and I have to admit I killed somebody.” By listening, really paying attention to your client and what he is ashamed of and what he needs and what he wants, you can build that trust and help move him to a better result.

It is well understood within the capital defense bar that an attorney should never surrender to a client who wishes to give up and accept a death sentence. Indeed, ABA Guidelines 10.5 states that it “is ineffective assistance for counsel to simply acquiesce to such wishes, which usually reflect the distorting effects of overwhelming feelings of guilt and despair rather than a rational decision in favor of a state-assisted suicide.” But there is disagreement about how hard an attorney should push the client to accept a negotiated plea. Steven Zeidman has referred to this process as “client-centered counseling,” noting that there is a counseling continuum from neutrality at one end to vigorous urging at the other.7 The noted Georgetown law professor, criminal defense lawyer, and prolific author Abbe Smith favors using “coercion” to convince capital

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defendants to plead guilty and receive a term of years.8 Although she acknowledges that “the limits of allowable persuasion are fixed by the lawyer’s conscience,” she approves of lawyers using “a range of behaviors, both subtle and not so subtle,” to convince the client: “On the subtle side is the deliberate use of trust, fear, guilt, sadness, and grief. Not so subtle behaviors include ganging up, hounding, and outright bullying.”9 Manipulation serves as another tactic, added Gregory. “Manipulation is just one tool in the toolbox, and it’s not the one that you go to with [great] frequency. It’s sort of used in extreme situations. The better tools are being humane and kind and sincere,” but when a client is resistant, or when mental impairments get in the way of a clear-eyed assessment, defense attorneys will use any number of appeals to convince the client to plead guilty if they think it’s in his best interests. That is presuming, of course, that the defense team is on the same page. Gregory described a case in which he recommended pleading but co-counsel had “worked up” an alibi defense that he kept urging on the client. As a result, the two were sending “mixed messages” to the client— the co-counsel holding out hope for an acquittal and Gregory assessing it as “a long shot” that put the client in a precarious position. As Gregory explained, it’s “dangerous in a capital case to say he didn’t do it and then [when] the jury rejects that [to] get up and [say], ‘Okay, he did. But here’s why he shouldn’t die.’” For that matter, disagreements between co-counsel risk painting one attorney as “unethical or someone who is not to be believed” in urging a plea instead of going to trial, while also making it harder for the other lawyer “to think [carefully] about what do we do when [the weak alibi defense is] rejected.” One attorney is “saying [the defense is] not going to be rejected, [while the other is] saying, whether that’s true or not, we have to be prepared.” Defense lawyers differ over their comfort in approaching or involving prosecutors to secure a plea even in the face of initial obstinance by the defendant. Even Abbe Smith has stated that she “wouldn’t rule . . . out . . . enlisting the judge or prosecutor to persuade the client” to plead guilty if she felt that was in his best interests.10

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In our interviews, we heard occasional stories of lawyers collaborating with prosecutors to do just this. Even Russell, who spoke at length about the importance of building trust with his clients, acknowledged a game of sorts that he will play with prosecutors. Sometimes “the government wants to plead the case pretty early,” he said, but the client isn’t yet ready to accept a plea. So Russell will approach the prosecutor and say, “‘I know you’re going to be a little bit frustrated with me, that I’m going to litigate this case thoroughly even though you want to plead it. Just be patient with me, because neither you nor I will get what we want out of this case if I go tomorrow to [the client] and ask him to plead because nobody like that is going to agree to that.’ And most of the time the prosecutor understands that.” The result, then, is a form of Kabuki theater, in which the defense files “motions in court again and again”—not with the expectation that the court will grant them or that the case can be won at trial, but instead so that the client will “see [the attorneys] standing up in court . . . fighting for him” and his family will “start believing that [the defense team] cares for the client, which is true.” All the while the prosecution is responding to defense motions, “waiting out” the other side as they “slowly let the air out of [the client’s] balloon.” The defense team and the prosecution know what’s up: the defendant needs time to see that the case is not winnable and that a plea agreement makes sense. However, if anyone rushes the defendant, he may well dig in his heels and insist on a trial. This collaboration passes ethical scrutiny only if the defense lawyer truly believes a plea agreement is in the client’s best interests, having first fully investigated the case to assess the strength of the prosecution’s proof, any available defenses, and the likely mitigation evidence. Further, as ABA Guideline 10.9.2 makes clear, the decision to plead guilty is entirely up to the defendant. Perhaps the more curious question is why prosecutors would collaborate with defense counsel to take death off the table? Here the answers are varied. Perhaps prosecutors fear an acquittal or have doubts about some of the evidence in their possession; maybe they want to save costs or spare the victim’s family the pain of a

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trial; or, as suggested in chapter 1, prosecutors may have filed a capital charge with the specific intention of encouraging a plea and securing an uncontested life sentence. Regardless of their reasons, this is one area in capital litigation in which the interests of the defense and prosecution may align. Of course, “there are some clients that are simply not going to plead.” In such cases, Alexander counseled that there is really no sense in pushing it because they’re not going to do it, and they lose confidence in you if you do it. In fact, I have one such client right now. If I were to suggest to him that we push for a plea to life without parole he would have very little confidence in me even though that doesn’t make sense. [Clients like that] will tell you, “I don’t want to hear about a plea bargain in this case. So we’re going to trial in this case and you can fix yourself on that.” They know where you’re coming from. They know they may have a tough case, but they don’t want to hear about a plea.

The ABA’s Model Rules of Professional Conduct make clear that it is the client’s prerogative to plead guilty or go to trial: “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered.”11 Still, it grates on defense lawyers when the client wants to risk a trial in the face of overwhelming state’s evidence and an opportunity to settle the case for less than a death sentence. At times, they will push strenuously to convince the client that it is in his best interests to plead guilty and remove the possibility of execution. As ABA Guideline 10.9.2 urges, counsel must “work diligently over time to overcome the client’s natural resistance to the idea of standing in open court, admitting to guilt, and perhaps agreeing to permanent imprisonment.”

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The Family Part of those efforts requires the attorney to reach out to the client’s family and friends. Not only can they “provide information that assists” in preparing the defense, but family members’ and friends’ feelings about the lawyers “often determine whether the client will accept counsel’s advice regarding the advisability of a plea.”12 For that matter, the client may be looking to them for permission to accept a plea. “You have to understand who your client’s power brokers are,” Russell advised. “It may be his mom. It may be that he can’t plead because he would have to admit, to his mom, that he’s guilty. It may be his girlfriend, who he fears is going to leave him and won’t write to him anymore. It may be that he’s just waiting for one of them to tell him, ‘It’s okay. You can plead. I can take it.’” Even when a client does not plead guilty, family members are essential to effective representation. They often are repositories for the defendant’s history, able to share information about the client’s past diagnoses or treatment, and sources for needed information or documents essential to the mitigation case. They may testify to their love for the defendant or provide heartrending evidence of his past trauma, the combination of which may convince a jury to spare the client’s life. And, of course, they may support the client along the way, giving him the energy and reason to keep fighting. Just as attorneys must “put in the time” to build their client’s trust, they must do the same with family members. “You never crack the defendant’s family for at least a year, and it takes that long meeting people before they begin talking about what life was really like at home,” explained Tom. Building the social history requires “multiple interviews” with family members, many of whom understandably may be reluctant to share intimate details about their close relatives and family life. As a result, attorneys and mitigation specialists “don’t ask them to come [to an office] and meet at [a] conference table,” Russell described. “We go to their homes because we have to build a relationship, build a rapport, because ultimately we want them to disclose things that could be embar-

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rassing, things that are very intimate for the family. So that type of work is very different than other types of interviews.” However, for all the energy that attorneys devote to family members, they may become an impediment to effective capital representation in a way that would rarely be seen in a typical criminal case. In traditional criminal matters, family members often provide alibis or serve as character witnesses. There, the defendant’s sole goal is to establish reasonable doubt, to question the state’s supposition of guilt. Defense witnesses work to poke holes in the state’s case, suggesting that the defendant could not have committed the crime because he was elsewhere, doesn’t dabble in criminal activity, or sometimes, more generally, is “not that kind of person.” But in a capital trial, guilt is often a forgone conclusion. This means that much of the defense case is spent at the mitigation stage, explaining why the defendant’s difficult upbringing or impairments, among other factors, counsel against a death sentence. Here, family members may be reluctant to provide testimony or tell their stories because they fear that the arrow of responsibility points back to them. Tom explained their reluctance: Quite often, what is good for the mitigation phase of the case is actually bad in terms of people’s normal evaluation of it. If you have somebody who is doing really bad things, well, there is a reason for that and you need to find that reason. If the dad is a terrible parent, he doesn’t want to tell you that. He wants to talk about himself being a good parent, but you need to find out what he did that was bad so you can find the cause of that behavior. Initially, everybody wants to present this really rosy allAmerican picture of the family because they think that is what prosecution will respect as a reason for not killing this person. They don’t want to acknowledge that, yeah, the family has lots of problems. Yes, this kid has had problems since he was a young boy. They want to say, “Oh, no, this is very different, something that has never happened before.”

Tom’s explanation risks making the reluctance of family members sound sterile, when some of the stories depict shocking heartlessness

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on the part of clients’ parents. In one case, a double murder, the client “had a terrible drug problem” and his mother would call the lawyer “on a weekly basis to see if [he] could save her son.” The lawyer was “waking up every morning thinking, ‘How am I going to save this guy’s life?’” all the while cognizant of the mother’s interest in the case. Over time, the lawyer began to conclude that “the mother was a problem” to the investigation “because she lied to [the attorney] and was manipulative.” So he “fenced her out” of the case and managed to secure an advantageous plea deal for the client. The client then told his mother, who called the lawyer to thank him. But meanwhile the mother was telling her son that the lawyer had “sold him out. ‘I always believed in you, [son]. I knew you were innocent,’” she would say. But, as the attorney noted, the evidence against him was strong: “This is a guy who confessed to his girlfriend, his sister, the police, the doctor.” He confessed to the lawyer “eleven times,” so much so that the attorney said, “Stop telling me.” And yet, after the plea deal was offered, the client wanted to “take it back” because his “mom always believed in” him whereas the attorney did not and the client was “innocent of this crime.” After considerable discussion, the client eventually agreed to the plea deal, sparing himself a sure conviction at trial and a possible death sentence. But the process left the lawyer dumbfounded concerning the behavior of the client’s mother. “It was just [her] way of shirking her moral obligation to her son,” he declared. The client now is “not going to get the death penalty, but then [she is] trying to cast herself in a way that [she is] the only one who cared about [the client] when, in fact, she didn’t!” It’s despicable, the lawyer declared. “She prostituted her own children. He has an organic brain disorder because she used to beat him with frying pans.” She didn’t “care about him, but her desire to appear that way” took over. In another instance, a “pretty sympathetic” defendant, the son of a military officer, was charged with murder in a “relatively straightforward” case. In the lawyer’s estimation, the defendant would likely be spared the death penalty if the defense team “could just get the family

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to tell their story.” Yet the parents were “very resistant to do anything to help.” Even so, they kept trying to distinguish their son’s case from those in which family members “aren’t really interested,” which in their eyes meant defendants from “broken families in the inner city or where the parents are mentally retarded or actively using crack, not in these middle-class families.” The parents were fixated on appearances—the view that the defendant had come from a “nice, normal” family and that his family members were behind him. In the course of its investigation, the defense team uncovered evidence that the client had been sexually abused at a young age by a relative. The parents “knew about it” but never brought it up in early interviews with the attorneys. When asked directly, however, the father “looked right at” the lawyer and said, “I’m not going to help you. I don’t care what you say, okay?” Meanwhile, the parents were trying to maintain an outward image of appearing to be helpful. Eventually, the defense obtained records from the client’s stay at a child treatment facility, “and in there [was] a notation that he had told his father about” the sexual abuse as a boy. The lawyer describes the story from there: So we find that out and we think, “Aha! [claps]. Totally! This is going to break the dam.” We tell the dad, and his response is, “Hm. Hm. I’m not going to confirm nor deny that.” And he immediately tells the wife, who then is angry and punishes [our client], who isn’t even the one who told us! But she’s protecting the abuser, who is an alcoholic and [with whom] she has a strained relationship. So, the thing I’m saying is, it’s so frustrating. Just an ounce of moral courage would save their son’s life, and instead of doing that they’re sabotaging [the case], but then trying to get credit for caring and doing what’s right.

It seems shocking that a parent would not take the steps necessary to help spare a child’s life, but then, sometimes, it is the parent who sets the stage for the child’s later criminality. “The worse the [case] facts,

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the more you discover the terrible upbringings and social histories of your clients,” Russell declared. “You can guarantee it. When your client has killed children or tortured people, you can guarantee he had a terrible, terrible [upbringing. The problem] didn’t start with him. You’re somewhere in the middle of a long, long dysfunctional period between many people.” Yet again, “dysfunctional” doesn’t fully capture the horrible treatment some defendants experienced as children. Parents who prostituted their preschoolers; mothers who themselves were prostitutes and shot heroin with their preteens; fathers who “disciplined” their sons by beating them nearly to unconsciousness; children who had to eat dog food or even went days without meals—these are the settings in which some defendants were raised. The cases shriek tragedy from multiple angles, which makes defense work both crucial and challenging. But one of the greatest challenges for defense lawyers is navigating between their clients and some of the people who put the resulting tragedy into motion—the client’s family. They may ignore the attorney’s overtures, vie for the defendant’s loyalty, or simply lie about the client’s upbringing.

Humanizing the Client and Compartmentalizing the Crime Whether presenting the defendant’s story to a jury or simply trying to convince the prosecution to reduce charges, it’s essential, capital defenders say, to humanize the client. The ABA’s death penalty guidelines make this clear: “To communicate effectively on the client’s behalf in negotiating a plea, addressing a jury, arguing to a post-conviction court, or urging clemency, counsel must be able to humanize the defendant. That cannot be done unless the lawyer knows the inmate well enough to be able to convey a sense of truly caring what happens to him.”13 Gregory, who has been at capital defense for more than a decade, puts the advice more plainly: “One of the premises you have as a trial lawyer is you can’t sell what you wouldn’t buy. If you don’t believe in your client, if you don’t genuinely care about your client, you’re not going to convince juries to care about him.”

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As a first step, attorneys must sometimes teach clients how to interact with their own legal team. Having been “let down by so many people in their lives,” clients may expect little from their lawyers and lash out in the early meetings. Or they may have difficulty understanding appropriate boundaries. As Joan explained, when defendants were sexually abused as children, they may have internalized the message “that the only thing they have to offer is their body. So, when someone is helping them—the lawyer, for example—the client thinks I should be offering you something, and the only thing I have is [my] body.” In those cases, Joan said, “you can’t teach them the way you would talk to a friend who had crossed a boundary: ‘You’ve crossed a boundary and you should have known that.’” Instead, you must be more deliberate, saying, “‘Now, when I see you, I’m going to shake your hand and we’re not going to hug.’ Don’t imply that he should have known better.” Veteran defenders cautioned about “keeping expectations in check” when working with clients. Even as some lawyers spoke glowingly of their efforts to help clients develop, others worried about “an almost Pygmalion pride” that some defenders take in their clients. For Gregory, “sometimes half the work is not legal at all, but psychology,” as members of the defense team shower clients with attention, in turn acculturating them to deeper social interactions. As he explained, “By being treated well, treated with compassion, our clients over time grow and become better people.” But the risk is that capital defenders may lose perspective, both about their roles as legal advocates and how they portray their clients. A side conversation with a capital habeas lawyer brought a telling story from the brother of a defender. The man was chatting with his sister about one of her ongoing capital cases when he offered her this prophetic advice: “I get that you’re into your client, that you see his humanity and you want a better life for him,” he said. “But even as you portray him as the victim of circumstance, you need to remember that no one sees him as a martyr.” So how does an advocate walk this fine line—humanizing her client without denying the calamity of the crime? For Sydney, it means mov-

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ing beyond describing “what happened” in a case to explaining why the crime occurred: “[Crimes] don’t happen because somebody was born evil or because they’re haunted by the Devil or whatever. We can tell why bad things happen. I can look at our clients’ lives, and by the time I get done with the mitigation workup for most of my cases, the crime still looks tragic, but it looks inevitable. Somebody was going to get hurt. What was done to this young man, somebody someday was going to get hurt. He was going to hurt himself. He was going to hurt somebody else.” Whether the defense team traces the defendant’s tragic childhood as part of its mitigation case or seeks educational testing to assess a client’s intellectual disability, the lawyers are building compassion and understanding for the client’s circumstances. This is not the same as excusing or looking away from the charged crime, but instead seeking to put the crime in context and finding a narrative that will help them spare the defendant’s life. This practice—distinguishing the client from the crime—also serves an important psychological function that allows attorneys to perform their jobs more effectively. Yes, “you ought to have empathy for the victims,” Brian declared, but “to do this work successfully, you have to be able to see the client as separate from the crime. . . . You can’t dwell on the crime committed [or] be afraid of dealing with the crime.” He recalled prior work as a public defender, where he served in a “PD office with lawyers who . . . were just so judgmental, so horrified by the crime, so horrified by the client.” These were not prosecutors he was describing—they were assistant public defenders who handled misdemeanors and more minor felonies, but who were put off by the scale and type of capital crimes. “It’s like you don’t belong here,” Brian remembered thinking at the time. “Plenty of people are judging the client. You don’t want to minimize the severity of the crime . . . but it can’t get in the way of representing the client [either].” Many veteran defenders echoed Brian’s admonition, emphasizing that an effective advocate must be able to get past the details of the alleged crime. Yet, as they acknowledged, it’s not a skill that comes naturally to

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many people. “These crimes are horrific, and there’s the guy who allegedly did it sitting across from you and you’re responsible for him,” said one lawyer. “You really, truly have to put that crime out of your mind to do this work, and if you can’t you shouldn’t be handling the case.” Defenders were somewhat divided when asked if there were any types of cases they would not handle. Certainly, it would not be surprising if the attorneys found some fact patterns, or even some clients, too difficult to represent. Writing in GP Solo, the magazine of the Small Firm and General Practice Division of the American Bar Association, Scott Laufenberg argued that it “is not always possible” for defense lawyers “to put their personal views aside to represent clients with whom they may personally disagree.” Although “the glow of law school ethics or professionalism courses [offers] this noble sense of ” representation for all, “it is often unrealistic,” he said. “Attorneys who are personally repulsed by the beliefs and actions of white supremacists,” for example, “should not be forced to represent them.”14 By contrast, Elizabeth Wolford wrote, “Attorneys are the guardians of the legal system. When admitted to practice, lawyers take an oath to uphold the Constitution and to discharge their duties faithfully. That oath is not qualified by ‘only if I really want to’ or ‘unless the client or case is unpopular.’ . . . Attorneys are morally and ethically obligated to take on difficult cases and clients exactly because the willingness to do so is so fundamental to the integrity of our judicial system.”15 Although most of the capital defenders we interviewed responded like Ms. Wolford, saying they accept all kinds of capital cases, a few were selective, conceding there were types of crimes that hit them too personally to handle effectively. Tom mentioned a “lawyer who would not take a rape case.” The lawyer’s girlfriend had been raped, which “he just felt undermined his ability to represent well.” For his part, Tom said, “everyone has the right to an attorney, and everyone has the right to an attorney who’s going to represent them to the best of their abilities. As soon as you start drawing lines of ‘Okay, well this person is worthy of my representation, but this person is not,’ then things start to get very

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blurry. You need to accept that you’re going to represent people who are presumed to be innocent no matter what they’re charged with and without any qualifications.” Even lawyers who start off believing that there are certain kinds of cases they can’t handle may change their minds. Natasha, for example, began capital work thinking that she “wouldn’t be able to take child death and child sex crimes.” She started practicing law the year her son was born, and it was “nauseating” to sit and read the forensic report of a child that had been beaten to death.” Sneaking a peak at her own child, who lay sleeping in the next room. “I could only read a page or two at a time [before] I had to take a break,” Natasha related. “Reading the pages and descriptions of the injuries was just horrid.” But over time Natasha has not only become accustomed to these cases, she also has developed an expertise in them. They’re “fascinating,” she says, and it hardly hurts that Natasha has won several at trial. Moreover, the fact patterns alone make her “very appreciative of the life [her] son has” when she “reads about the lives of [her] clients.” Still, as Natasha’s story reminds, the ability to separate the client from the crime, to put aside the gruesomeness of the crime, is not necessarily a skill that comes right away. Although Paul “never tended to care much what our clients did,” he also has helped direct a law school’s capital clinic, in which he and other clinical professors are responsible for introducing law students to capital practice. “I know that when they meet the client for the first time [on] the forefront of their mind is what he did. It’s understandable to want to know this.” But Paul becomes “nervous about the ones who seem a little too fixated on the crimes that our clients committed. It’s totally understandable, but it makes me nervous about whether they’re going to be able to do this work. You have to understand that most people think this is a terrible, horrible, inexplicable crime, but you can’t feel that way at all.” For Paul, the trick is getting students to hit “the sweet spot,” where they are not put off by the crime, but they are also seasoned enough to keep “some distance.” Perspective, he believes, is essential for an effective

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capital defender: “A couple of our students meet our clients regularly. And [the clients] are very good with students. They’re very charming. I don’t blame our students, because it’s their first experience sometimes [with defendants. But sometimes] they’ll come out of these meetings believing everything the clients said—not understanding why they’ve ever been prosecuted, let alone [are facing a death sentence]. It’s healthy and strategically good to make sure you have some perspective and distance.” Perspective also runs in the other direction. Some of the more grizzled defenders may forget what it was like to first work on a capital case as a young lawyer or law student. Even Paul, who regularly supervises law students, acknowledged that he may have allowed himself to get a little jaundiced at times. As an example, he recalled a trip with a former student to meet a client held in a maximum-security prison. The meeting was long, maybe six hours or more. According to Paul, “The client was a very nice guy, really kind of charming.” It was an “emotional meeting,” with the client “breaking down several times.” Afterward, as he usually did, Paul left the prison, “got in the car, and immediately took out [his] phone” to check his messages. He called his wife and was “just chatting away” when he looked over at the student and realized “she was just balling right next to” him. That’s when he “realized—it’s not a knock on her at all—that [he] had just become kind of jaded by it all, and she had never had that experience at all and needed to debrief.”

The Appeal of Clients It is not simply that the student, a newcomer to capital defense, was naïve and Paul, a veteran practitioner, was more practical. The student genuinely liked the client, as do many lawyers who represent capital defendants. Even Paul, who styles himself as streetwise and dispassionate, allowed that clients are “no less likeable on average than the average person.” If anything, they’re “more likely” to be likeable “because they’re kind of remarkable people. . . . They’re persevering in this incredibly

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horrible environment. They [may] be kept in a cage twenty-three hours a day. Nobody calls them by their first name. Nobody calls them mister. They don’t see anybody except prison guards. . . . There’s something about their ability to persevere.” As Paul acknowledges, “I feel like I would be a much weaker person than that.” According to Beatrice, defense attorneys “see a different person than everybody else,” because they get to know the client “better than the client knows himself.” They “see the humanity” in their clients and often do not fear the defendants, many of whom they feel compassion for given the clients’ addictions and intellectual disabilities. Jacob offered perhaps the most comprehensive, idealistic view of capital clients: I have yet to meet a client that I didn’t [like in some way]. These guys are all for the most part nice human beings who have done terrible things, whether it be because of mental illness or because they never learned how to cope with life or whatever. I believe in my heart that we are all better than our worst days, and obviously their worst day [was the day of the charged crime]. But for the most part, I’ve found that these people are not monsters. They’re nice and pleasant to talk to. I have one client right now who I could sit and talk to all day long and I wouldn’t even look at the clock. I guess I just believe that people, with some exceptions, are generally good, and we all deserve to have somebody listen to our story. When I do that for these people, I feel like they reciprocate. I don’t know how else to explain it, I just love them.

Attorneys can form close relationships with their clients. Like Daniel, they may allow clients to “call the house,” where the clients even speak with the attorneys’ family, including in Daniel’s case his daughter, who “was six at the time.” Or they develop strong emotional ties to the clients. As Joan explained, “Relationships with my clients have been some of the most important relationships in my life, including two clients who were executed. [The connections] were emotional; we were invested in

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each other. Not love objects in the sense of friends or lovers,” but it is difficult to spend hundreds of hours trying to save another person’s life without becoming emotionally invested in his or her well-being. Some lawyers treat their clients like family members or close friends. Dana “sends [clients] birthday cards and spends quite a bit of money sending gift packages for some because most of them don’t have anybody once they go to prison. . . . They always send us birthday cards and they send us Christmas cards, and we become their family to these people and the only person that really keeps up with them for their whole life.” Russell, too, “tries to write a letter every once in a while” even after a case is over. “When they need something, [we’re there.] We’ve never said, ‘We’re not your lawyer anymore.’” At the same time, lawyers worry about where to draw lines with clients. When you’re serving as “the minister, the person they confess to, the best friend, the advocate, [and] the social worker,” it’s not surprising that clients might project intense feelings onto their lawyers or mitigation specialists. “They often fall in love with you,” said Dana. “No matter what you do, there’s a lot of transference, and emotionally you are having an affair. You are. You have a window into their intimate world that only a partner would have.” This kind of report would find a sympathetic ear and then a gentle rebuke if issued by an allied professional in the healing arts. Doctors, professors, and especially therapists may deal with patients and clients who form a strong emotional connection with them or for whom they grow to care personally. But there is a dividing line between appropriate professional concern and improper personal intimacy. “We have all gotten the message that sex between client and therapist is wrong,” notes a therapist writing in Psychology Today. “But there are countless subtler— and no less consequential—boundary dilemmas that confound clients and therapists. . . . Boundaries are a crucial element in patient–therapist interaction. First and foremost, they recognize the inherent power inequity of the relationship and set limits for the therapist’s expression of power. Second, they set a structure for the relationship, providing a con-

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sistent, reliable, predictable, knowable frame for a process that remains somewhat mysterious.”16 Capital defense lawyers do not worry about “the inherent power inequity” of their relationships with clients. After all, while clients have ultimate authority to resolve the case with a plea, they are entirely dependent on their lawyers to provide legal advice and advocate on their behalf. But, like therapists, defenders are concerned about providing a “consistent, reliable” structure for their relationship with their clients, and many would blanch at Dana’s earlier depiction of the attorney–client relationship resembling “an emotional affair.” These attorneys envision a bright line between their jobs as advocates and the roles served by other people in their clients’ lives. Chris, for example, “always” tells the client, “I’m your lawyer. I’m not father. I’m not your brother. I’m not a family member. I’m not your priest or rabbi. I’m not your psychologist. I’m none of those. I’m your lawyer. And I’ll do everything I can within those bounds. But you cannot expect me to be your best friend or your friend. We may grow friendly together, we may have some sort of a friendship, but you cannot rely upon me to be your friend.” As David, who recently retired after decades of defense work, explained, “[Bad defense attorneys] don’t care about the clients. [But] I’m no social worker, believe me. It’s not a question of going out and just hand-holding and swapping jokes with the client. . . . I mean, if they think of me as a friend, fine, but that’s not my job. My job is to be a lawyer.” As another attorney put it, “Zealous representation is not the same thing as being emotionally involved in your client’s case. Those are two different things.” Thus, capital defenders often find themselves caught in a balancing act between building the level of trust and intimacy necessary to do the job and setting appropriate boundaries to maintain professional distance.

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Difficult Clients Ironically, the nature of a capital case can build its own distance. As Heath shared with us, the attorney–client relationship “is tough, because you’re usually going to your capital clients with bad news. It’s [necessarily] a conflictive relationship.” Sometimes that “conflict” becomes more than metaphorical. Russell has had clients who “literally want to kill me and have told me they will kill me if they see me again.” “I recently had a client who said,” Russell’s voice lowering to a slow whisper, “‘If you ever come to visit me again, I’m going to kill you with my bare hands.’” Gregory was even attacked by a client in court. Amid a competency hearing in which Gregory was following the client’s wishes and arguing for competency, the client jumped up from the table and punched Gregory “like five times” before courtroom deputies tackled the client, breaking the defense table in the process. Both Russell and Gregory, like many of their brethren, said it was a point of professional pride to “stick” with a client even when he acts out. Gregory recalled instinctively shouting, “Don’t hurt him!” as deputies “ground [the client’s] face into the brick floor” of the courtroom after the attack. “The sheriff came over to [Gregory] and said, ‘We’re going to interview you because we’re going to charge him,’” to which Gregory responded, “‘No thank you. I’m fine.’ [The prosecutor] was sort of beyond words. He said something to the effect of ‘I’m really sorry that happened, but obviously you’re going to have to move to withdraw, right?’” Gregory looked up through the part of his face he had been icing and said, “A team of wild horses couldn’t pull me from this case.” For Russell, the client’s threat came at the start of a jailhouse meeting. Russell turned to the sheriff ’s deputy escorting the client and said, “Would you take his handcuffs off please and bring him in here?” According to Russell, the client “refused to come out, but that’s okay because I wanted to show him that I’m not going away. You can’t lose me. I’m going to be consistent, I’m going to be reliable. I told you I’m going to keep coming. I don’t care what happens, I’m going to keep coming.”

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Russell also related the story of another client from years past who had been successful in getting “rid of a number of lawyers by telling them he was going to kill them.” So Russell sat him down and said, “Why don’t we get it out of the way, early on. You can try and hit me, you can threaten to kill me. Just do it now because it’s not going to change. I’m going to keep coming, we’re going to keep working together, so let’s put that aside. Whenever you get real frustrated you can use that card then, but just know we’re going to stick.” Gregory and Russell’s dedication notwithstanding, each readily admitted that working with capital clients is extremely difficult. “Oftentimes our clients are highly dysfunctional. Otherwise, why would they be in this situation? And so their response to difficult relationships is to lash out,” explained Russell. Added Gregory, “The [client’s] mental illness [can come] out in really unsympathetic or unflattering ways. There are types of mental illness that your heart feels, but where the mental retardation manifests itself through violence, it’s much harder [to take]. And our clients, because they not only are mentally ill, but also were reared in a cauldron of violence and brutality, their mental illness sometimes manifests itself in really unsympathetic ways.” Such manifestations are not only unsympathetic but sometimes even frightening. Mitchell told us the story of visiting a client in a maximumsecurity prison who had been accused of multiple murders: Mitchell: We’re locked in one of these Plexiglas booths, and we’re at the last shift. It’s empty, and the guards that usually walk around are nowhere in sight. You can’t see anybody. It’s just me and him. And he looks at me, he looks around, and he says, “Hey. There’s nobody here.” And I said, “Yeah, I see that.” And he goes, “You know, a client could attack his lawyer.” And [without missing a beat] I said, “Yeah. Or vice versa” [laughs]. Because I was just so pissed off with that, you know? I don’t think he meant anything by it, really, but you can’t let people threaten you or make [you feel intimidated]. Bring it! How big was he?

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Mitchell: I don’t know. I’m not a fighter, but he wasn’t that big. Did you think you could take him? Mitchell: As long as I kept my caffeine regimen going, I thought I had a decent chance [laughs]. What was his reaction when you said that back to him? Mitchell: It was kind of a touché moment. He didn’t laugh at me or anything or say, “Oh yeah.” I think he may have appreciated it. He thought it was clever. [Either that] or I was just full of crap.

More than most of the other lawyers we interviewed, Mitchell willingly expressed frustrations with his clients. “I’ve had a number of clients,” he said, “who think they know the law better than you do. ‘Why aren’t you arguing this?’ they’ll ask. And then you have to explain, ‘The U.S. Supreme Court has held this is irrelevant in cases like yours. That’s why we’re not doing it. It cannot possibly win.’ Or clients will say, ‘You’re not fighting enough for me.’ It’s like, ‘No, I’m actually fighting for you really hard, because I’m focusing on areas where we have a chance, where I might be able to affect the outcome. What you’re recommending cannot possibly help.’” Mitchell prefers “a client who is engaged enough to talk about the case, but then doesn’t want to take the case over and be the lawyer.” Unfortunately, however, he has not often found clients like this. “There’s a lot of narcissism” among clients, he said. “You can’t reason with some of them, [which makes for] difficult clients.” They “want to be in charge of the case [even though they] never went to law school.” In a funny aside, Mitchell even equated some of them to prickly lawyers he used to encounter in commercial litigation. As he told it, “I was sitting in the [jail’s attorney] room with [the client]. I had been there with him a bunch of times” as the client tried to “take control of ” the case. “And it came to me that the person he most reminded me of was an in-house corporate counsel [laughs]. He just wants to be in charge, and he’s kind of demeaning and demanding, and nothing is ever good enough. And I just had this vision [from my past]. I’m glad he doesn’t have email or the phone

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or a fax machine, because in the early nineties he would have been the guy an hour ahead of you in New York who, by the time you showed up at work at eight in the morning, already had sent you a stack of crap.” Mitchell’s story brought a smile, but in a more serious moment he acknowledged that he rarely “gets fulfillment from . . . the clients.” As he admitted, “I get fulfillment from fighting hard, from engaging in the fight, from getting the experience in court,” but not from dealing with the clients, whom he mostly sees as difficult. Mitchell’s admission would undoubtedly earn a rebuke from lawyers such as Jacob and Joan, who “just love” their clients, or even from Russell and Gregory, who acknowledge having clients that are “hard to like” and “exhausting to visit.” But, as Russell pleaded, “the most ignorant thing” for a lawyer to “think is that the dysfunction that brought your client to commit a murder and face capital charges is not going to be present in your relationship. Of course it is. And that’s okay. . . . We are professionals and we just look for those things in them that are good qualities, [even when it’s] really hard.”

Drawing Lines Capital defense lawyers are hardly the only professionals who deal with difficult clients. Certainly, their colleagues in civil litigation face challenging clients, people who are overly demanding, controlling, never satisfied, even liars and cheats. Not only has the American Bar Association published advice for lawyers on “how to handle difficult clients—pointers that will help you stay sane and safe,”17 but there even exists a website titled LaywerMeltdown.com that offers practical tips for attorneys on “dealing with difficult clients.” Nor are these challenges limited to legal practice. Psychologists have written about the trials of difficult clients, with some even suggesting “that there are good clinical reasons for not treating people you don’t like.”18 A key response is to “draw boundaries” with clients. Whether a psychologist, civil litigator, or capital defense lawyer, “every good [professional] will have consistent boundaries with their clients.”19 Within

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capital defense, some of these boundaries are tangible and ironclad, such as refusing to carry contraband to clients in jail. Tom, for example, reported that “clients will often ask you to do things that are either against the law or against jail regulations,” such as “getting things out to this person or that person” from the jail. Tom, however, “won’t do that,” explaining to clients that if he “gets caught smuggling [things] out of jail, [he] can be excluded from the jail,” which serves no one. Other boundaries are more symbolic and internal. “To survive at this work,” Paul said, you have to separate “your own happiness” from that of your client. If you don’t, “you’re not going to be very happy, because our clients are very miserable.” Can you “sit in someone else’s pain?” Gregory asked. “That’s the whole crucible. If your crucible melts when your client starts to feel sad,” you’re no longer “doing your job.” We take up these issues in greater depth in chapter 6, assessing the effects of capital defense on the lawyers themselves. But even as they fix the proper bounds of the attorney–client relationship, capital defenders find themselves debating how broad and deep those boundaries should be. There are risks on either side. Lawyers like Joan, who cannot imagine defending a capital client without forming an emotional connection, may find it “hard to sustain [themselves] if [they’re] too wrapped up in [their] client’s happiness.” But attorneys like Mitchell, who take the clients’ dysfunctions personally, risk disassociating themselves from the client so much that the quality of their representation begins to suffer. Defenders harbored little doubt that the worst among them look at clients as “nasty, difficult criminals” whose cases justify “basic” representation, if that. But that’s essentially the straw man argument. Skilled capital representation demands that defense lawyers see clients for “the entirety of their lives,” recognizing that the horrors of a charged crime may be linked to traumatic events in the client’s past. To do this right—to humanize clients in the eyes of both the jury and oneself—requires immense amounts of time, patience, and thoughtfulness on the part of attorneys, even when faced with aggressive, distrusting, or mentally ill clients, terrible case facts, and problematic family members.

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The more challenging question is where effective defenders should draw lines—between believing the client and fact-checking his story, between pushing hard for a plea and accepting the client’s desire to go to trial, and perhaps most significantly, between letting the client in emotionally and keeping him at arm’s length. In this last respect, capital defense lawyers did not have a specific answer, nor, really, could they. If anything, this is the true challenge for advocates.

5

Gender Dynamics “I’m Your Lawyer”

“Doing this work as a young woman,” Eliza begins, “and having a lot of older male clients, even though I’m their lawyer, I think there are times when [they] sort of see me almost like a niece figure or a daughter figure.” “There is just that sort of dynamic,” Gregory tells us when we ask him about the impact of gender on capital defense work. “If a twenty-something [female] law student can get a client who’s bent on self-destruction to care enough about his life that he goes off that course”—he stops for a moment, then continues—“I care how she does it, but the fact that it has something to do with her femininity or, say, her sexuality, is that a bad thing? I don’t think so,” he states plainly. Interview by interview, we gained a sharper glimpse of the intersection of gender and capital work. However, it was Joan, an attorney with nearly three decades of capital experience under her belt, who offered the clearest clue that something significant and new was afoot. “If there is sexism going on,” she paused, “at least women are being shunted into the most important part of the case.” We asked at the outset of this project how do gender dynamics operate in the capital context. Are female capital defenders treated differently from their male counterparts by colleagues and clients? What role, if any, does gender play in capital defense and the capital workplace? We expected that gender would operate in the capital context in ways similar to other legal contexts. That is, we thought the field would generally be cast as masculine and that women would experience some sexism in the workplace, forced to adopt various coping strategies in the face of biased assumptions and expectations. We came to find, however, that at times 172

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gender operates in the legal world in rather captivating, unexpected ways. While both female and male attorneys described capital defense as being a male-dominated “macho” field, they simultaneously drew our attention to the important role women play on the capital team. However, the same attributes that garnered women praise—their communication, relationship-building, and teamwork abilities; their capacity to be empathic and nurturing; and their “soft” feminine natures—seemed to make women vulnerable as workers and professionals. Women were at once venerated and objectified, with their work—perplexingly—both highly valued and overlooked. Indeed, what we would eventually learn through numerous conversations with capital defenders about gender surprised us.

A Man’s World We were familiar with the notion of law as a “masculine” profession when we began this study. Throughout the nineteenth and much of the twentieth century, law was not only considered masculine in character, but was an occupation formally reserved for men.1 As with many other professions, women fought for entry into the legal world, perhaps ironically, through legal challenges.2 The Supreme Court’s 1872 Bradwell decision gave states permission to unilaterally exclude women from the practice of law.3 It took five decades of legal struggle before women finally gained the right, state by state, to practice law across the country.4 However, women were still denied entry to most American law schools until the mid-twentieth century. Columbia Law School did not admit women prior to 1928; Harvard did not accept its first female law student until 1950.5 To be sure, the civil rights and women’s liberation movements had profound effects on the field of law, as women and minorities gained unprecedented access to law school. During the 1960s and 1970s, the percentage of women lawyers in the United States grew from 3 to 14 percent. By the 1990s, women accounted for around half of all entering

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law students. In 2017, women make up over one-third of the American legal profession.6 Despite an end to formal gender discrimination, law remains a maledominated and “masculine” field. As Martin and Jurik note, “Law was and continues to be ‘constructed as male’ (i.e., presumed to be rational, logical, dispassionate, objective, professional, intimidating and demanding).”7 Women are often thought to lack the attributes and skills needed to succeed in the legal field. By gender alone, they are simultaneously criticized for being “too tough” or aggressive as well as for acting “too soft.” They may be excluded from key social interactions, mentoring opportunities, assignment to important cases, or exposure to valued clients. Attorneys, clients, and judges are more likely to challenge women’s actions and abilities compared to those of male lawyers. Discrimination, gender disparagement, and sexual harassment can be, at times, par for the course.8 Female attorneys cope with such inequalities by choosing settings and specialties deemed “appropriate” for their gender (e.g., nine-to-five positions “more conducive” to having a family, social justice– and social work–related specialties, etc.), delaying or forgoing marriage and children, and carefully balancing two sets of divergent expectations: those governing appropriate behavior for lawyers and those governing appropriate behavior for women.9 It is no surprise that women are more heavily concentrated in certain areas of law (e.g., government and legal aid) and are still vastly underrepresented in high-status legal positions (e.g., partner, general counsel, and supervisor).10 Ultimately, gender influences who performs what kind of legal work. As Jennifer Pierce argues in Gender Trials: Emotional Lives in Contemporary Law Firms, gender biases and gender divisions in the legal profession are circular, with one reinforcing the other—gender divisions normalize biases, and biases justify division across gender lines.11 Criminal law is no exception to this “rule.” It, too, is often characterized as “hypermasculine.” From this perspective, attorneys spend their days aggressively pursuing legal strategies in a tough, adversarial sys-

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tem—or, at least, this is how criminal defense is portrayed in the media and thought about by much of the public.12 Criminal attorneys are also aware of this characterization, and many believe it to be accurate. One need not look far to discover a litany of criminal—and capital—defense memoirs with titles such as How Can You Defend Those People? and Indefensible, which depict criminal attorneys as fiercely zealous “lone wolves” aggressively fighting the state on behalf of their clients.13 While most such memoirs contain sexist undertones that demonstrate commonly held biases in the field, only a handful criticize the discrimination found in criminal practice.14 Like their memoir-writing colleagues, most defenders interviewed for this book characterized criminal and capital defense as “masculine” occupations, many without prompting; this was the less-surprising aspect of our findings. Many interviewees noted that, although there are more female defenders today than ever before, men—and run-of-the-mill gender biases—still dominate the field. Attorneys—female and male— indicated that criminal defenders must be “aggressive,” “bold,” “courageous,” and “fearless.” As Eve shared, “I think the story of a defender is that you are, or you have to be, kind of a tough guy. I guess when you lose it and your mushiness takes over, that’s time to retire.” Attorneys also noted that criminal and capital defense both involve perpetual fighting, or at least that’s what it often feels like. It is well established that fighting is a stereotypically “masculine” or “hypermasculine” activity, and that fighting in the capital context also has a masculine tinge.15 “Everything is a fight. Everything is a battle,” one attorney shared, his words delivered in a blunt, staccato fashion. He continued, “I battle everybody. I don’t just fight with the prosecution. I fight with the judge. Sometimes it’s a battle with my client. It’s a battle with my client’s family. It’s a battle with my co-counsel.” Daniel used more gender-conscious language to describe this aspect of the work, explaining that “there’s sort of a macho thing if you will, regardless of gender, that you don’t allow the state’s death machinery to get to you. You’re in the battle and you have to stay there.” Of course, it is impossible to separate the meaning

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of “macho,” derived from the Spanish word for “male” and defined as “a strong sense of masculine pride or an exaggerated masculinity,” from understandings of gender.16 Thus, Daniel’s comment is directly related to gender, not “regardless” of it. While seemingly “gender neutral,” such remarks frame masculinity as the status quo in the world of capital defense. As explored in chapter 1 and highlighted here, attorneys must be fierce, resilient, and zealous to the bitter end. Attorneys of either gender cannot allow capital punishment to “get to them” because weakness is not thought to befit a capital defender. As one female attorney put simply, “This is a very macho kind of profession.” Female defenders, like Pierce’s civil litigators, must adapt to this “masculine” ethos, a finding that we expected. They must not to get “too close” to their clients and should maintain professional boundaries, as described in chapter 4. After all, in the words of one attorney we interviewed, “I’m no social worker.” Similarly, losses in court, along with the loss of clients to execution, shouldn’t be met with explicit acknowledgment of one’s feelings. Instead, as is discussed in chapter 6, feelings are generally believed to be best kept to oneself, suppressed with the aid of substances, the distraction of casework, or sheer mental determination. Thus, to be part of the capital defense community, attorneys must eschew attitudes and behaviors that could be construed as “too” soft or stereotypically “female.” Yet there simultaneously exists a “softer” side of capital defense, dare we say a more “emotional” side—one that is often overlooked in the media and perhaps unknown to the public, a side of capital defense that, admittedly, we, too, initially overlooked. As it turns out, capital defense involves a lot of what the literature calls “emotional labor,” or the management of one’s own or others’ emotions as required for the performance of a particular job, which is work traditionally associated with women.17 In fact, as we will argue in this chapter, teamwork, relationship building, and mitigation—all of which are part and parcel of capital defense—involve substantial amounts of emotional labor. In-

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terestingly, while such activity tends to go unnoticed and unrewarded in many occupations, in speaking with attorneys we learned that it is highly valued—at least in an abstract sense—in the capital context. As in other occupations, however, it is women who are primarily responsible for this “emotional” work. What’s more, in practice, their efforts are often overlooked and undervalued, and even run the risk of threatening their credibility as professionals, reducing their abilities and skills to little more than their perceived femininity and sexuality.

Gender and Emotional Labor None of the capital defenders we interviewed referenced emotional labor by name. Nor did they always frame the emotional labor at the core of capital defense as just that—emotional. Instead, some of our conversations on emotion, gender, and capital defense were relatively coded, filled with allusions to emotional labor and couched in gender-neutral language. Yet, as the project progressed and we mused over attorney reflections on gender and capital defense, we concluded that the connection between capital work and emotional labor operated in rather striking ways. The term “emotional labor” was coined in the 1980s by Arlie Russell Hochschild, a sociologist at the University of California, Berkeley, and has since been explored by economists, psychologists, and sociologists, among others. Emotional labor is defined as the act of trying to change, in degree or quality, the emotions or feelings of oneself or others as required for the performance of a particular job. More specifically, it involves a vast array of communication and interpersonal skills used in attempts to alter (1) images, ideas, or thoughts; (2) somatic or other physical symptoms of emotion (e.g., trying to breathe slower); and (3) expressive gestures in the service of changing inner feelings (e.g., trying to smile or cry). Emotional labor can require workers to feign emotion, suppress emotion, turn emotions “on and off,” and withhold judgment while showing concern for others.18 For example, just as an

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actor performs the scenes in a play to elicit desired emotions from an audience—such as anxiety, grief, or joy—throughout a trial a defense attorney “performs” before a jury, maybe in an attempt to enrage jurors over a given injustice or to pull on jurors’ heartstrings and sway them in favor of the defendant. This does not mean, however, that emotional labor is just an “act” one puts on to manipulate clients, customers, or coworkers. Authentic expressions of emotion can also be work, including “spontaneous and genuine” emotional displays, such as a nurse’s concern for—or efforts to console—patients and their family members.19 In our example, it is perhaps quite likely that a defense attorney is just as outraged over a given injustice as she hopes a jury will be after hearing her closing remarks. Moreover, even if the expression—or masking—of emotion by workers fails to produce the intended result, it is, nonetheless, still work.20 If a nurse’s attempts to console a patient provide little comfort, or an attorney fails to bring a tear to a juror’s eye by the end of a trial, he or she is still doing emotional labor for the sake of the job. However, emotional labor is not simply the display of emotions in the workplace, nor is it merely being emotional at work—two realities with which we imagine most readers are quite familiar. Crying at your desk in the face of a looming deadline or taking an “aggressive” approach to collecting customer debts does not necessarily constitute emotional labor. Rather, servers maintaining a smile as they are berated by angry diners or police officers expressing remorse to crime victims reflects emotional labor. Most emotional labor shares three characteristics: it is typically thought of as “women’s work,” it is frequently overlooked, and it is often stigmatized. Emotional labor, as a concept, was originally intended as a tool for exploring discrimination and exploitation experienced by women in the workplace. It draws attention to the way that gender-based assumptions and biases can dictate who gets to do what kind of work,21 as well as the ways that women’s labor can sometimes be viewed as the by-product of “natural” attributes rather a reflection of effort, skill, or

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training.22 Just what are these “natural” attributes women are supposed to possess? Generally speaking, the attributes associated with emotional labor, and women more generally, center on “communal skills,” such as being nice, caring, helpful, and concerned for others’ well-being.23 Thus, both because female occupations entail much emotional labor and because such characteristics are thought to come “naturally” to women, such work is often conflated with “what constitutes being a woman,” not “what women do, but as part of what they are.”24 Just because emotional labor has traditionally been associated with women and female occupations doesn’t mean that men aren’t doing it, too. In fact, women and men in all sorts of occupations engage in emotional work. For example, policing, a field dominated by men, requires lots of emotional labor. Managerial work, as well as many client-facing professional jobs, also require emotional labor.25 Typically, however, emotional labor refers to the unrecognized emotional work of women employed in female-dominated occupations.26 For example, while the ability to console sick and dying patients may be a difficult skill nurses hone over time, it may be overlooked when done by women, who are assumed to be nurturing by nature. Recall the actor and attorney from our previous example. The emotions the actor and the attorney draw on and evoke are recognized as the product of skill and training: talented actors make audiences feel, just as zealous defenders have the ability to sway jurors. What’s more, this effort is rewarded as work—the better the actors or attorneys, the more prestige and money they will receive in exchange for their labor. Emotional labor, on the other hand, tends to be under-compensated, if rewarded at all, because it is thought to result from one’s “natural” tendencies and personality traits rather than the effort or skills used in the “craft” of theater or legal defense. In some cases, however, emotional labor is rewarded. Pietrykowski, an economist by training and profession, for example, finds a wage bonus for caring skills and activities in some well-paying male occupations like police detective work, medicine, and psychiatry. He offers two

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plausible explanations for this unexpected finding. First, “soft” social skills may be deemed complementary in male-dominated occupations that require significant technical knowledge, whereas these skills may be considered natural attributes undeserving of additional wage recognition in traditionally female occupations. For example, while an engineer might be promoted to team leader after demonstrating strong communication and interpersonal skills, similar skills exhibited by a secretary might go unnoticed, chalked up to the secretary’s “sweet” and “caring” demeanor. Pietrykowski concludes that this points to a biased labor system that rewards men and women, as well as those in more-prestigious occupations and those in less-prestigious occupations, unequally for their work.27 Thus, in thinking about emotional labor and capital work, the importance of gender cannot be overstated. As we argue in this chapter, gender is more than an organizational category within the realm of capital defense—it is a mechanism of control that influences who does what on the capital team, how this work is valued, and what counts as work, all of which has serious implications in the realm of capital work and beyond.

Teamwork As we highlighted in chapter 1, attorneys repeatedly stressed the importance of teamwork in good capital defense. Recall that teamwork consists of collaboration, cooperation, sharing, support, the suppression of one’s ego, and the deliberate division of labor to make the team more effective and efficient. Both the prevalence of teamwork and the high value placed on it by attorneys suggest a “softer side” of capital defense involving lots of emotional labor. Yet the existence of teamwork alone does not evince a gender imbalance in capital defense. Rather, the division of labor among capital teams tends to reinforce gender inequities. Attorneys agreed that women tend to bear the brunt of the emotional labor the team faces. Many female attorneys we interviewed pointed out that, for better or worse, they—and not male attorneys—are often

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pigeonholed into “emotional support” roles on the capital team. As Gabriella remarked, “Most often you’re the one that’s being very maternal, very supportive. I find myself assuming that role in most of the teams.” Maria, with nearly fifteen years of experience representing capital clients, noted that she continues in this support role for many of her clients long after having finished their cases, explaining, “I look at these clients and I feel like they’re my kids—like I’m the mom and I have to take care of them and make sure they’re okay.” “It’s that mom instinct,” she adds, “you know, that poor little kid, yes, he did a bad thing but he’s still a person.” Women are not only primarily responsible for playing such supporting roles on the capital team, they are often expected, de facto, to take on these roles because they are female. Most of the women we spoke with pointed out that, in fact, both clients and colleagues hold gendered expectations of them. For instance, one female defender recounted a story in which her colleagues assumed that she would be the team member to work more closely with a client because, as a mother, she would be better suited to this task than others on the team. Eve openly wondered if she had been promoted to senior trial attorney because, of all the lawyers in the office, she is the most “motherly,” suggesting that her gender may have been playing a significant role in the way tasks were assigned in her office. Similarly, Eliza told us that “even though” she is a lawyer, clients’ perceptions of her are still tied to her gender. This leads them, at times, to thrust her into a familial role. She explained, “Doing this work as a young woman and having a lot of older men clients, even though I’m their lawyer, I think there are times when clients sort of see me almost like a niece figure or a daughter figure, because there is just that sort of dynamic. So I think capital defense team members, they’re often wearing a lot of different hats with their clients, whether they intend to or not.” These remarks evidence a belief that the identities of lawyer and woman may somehow be in conflict with each other. Despite being professionals, female attorneys and mitigation specialists are often thought of as akin to daughters or mothers by capital clients and other members

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of the capital team, and are expected to behave accordingly. The emotional labor involved in capital defense—in this case playing a familial support role—is, thus, not only considered to be distinct from lawyering work by many in the capital community, but is often relegated to women. While both male and female attorneys agreed that females fulfill emotional support functions on the team more frequently than do males, several male attorneys pointed out that men, too, can be cast in familial roles. Just as women on the capital team may be viewed as—or may willingly play the part of—mother or sister figures, men on the team may come to relate to clients as father or brother figures. Gregory expanded on the intersections of identity, teamwork, and client relationships in detail: I think most of us, unless you were reared in an orphanage, come from a family, and most organizational systems are reminiscent of a family. There’s a mother and a father and there are siblings and uncles and aunts; to some degree you replicate this in the team. That’s part of the reason why it’s really good to have diversity in terms of age, ethnicity, attitudes, and gender, so that you can create a familial environment. . . . As a young lawyer I tended to be the brother, then the older brother, and in a very short time I went from being that to being a father figure. And now I tend to be a father figure for all of my clients. . . . I have a client who wrote me a holiday card last year and he signed it with his first name and my last name. And what he’s saying is “It would’ve been great to have a dad like you.”

However, unlike the women we heard from, not one of the male attorneys who shared these sentiments said they ever felt expected to play such roles, which means they can choose whether they want to “play” father or brother. Many male defenders were, in fact, quick to stress boundaries that team members—at least male team members—must not cross when representing capital clients, including the adoption of supportive roles that mimic family structures. They explained to us that maintaining professional boundaries with clients can be very difficult,

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but, as Chris said, “you just have to do it.” Failing to maintain appropriate boundaries with clients can jeopardize team members’ ability to make level-headed decisions about their cases. When women fail to maintain these boundaries, it is seen not only as a threat to their ability to effectively do their jobs, as is the case with men, but also as a threat to their professional standing, too. This is perhaps most obvious in the context of the sexual objectification women may experience on the capital team. Such treatment, while at times implied and not overt, was described by both female and male attorneys. In some instances women are, in fact, strategically positioned on the capital team in the role of “sexual object” in order to gain access to—and information from—capital clients and others being interviewed. From this perspective, sexuality is a tool that women can use to their advantage for the benefit of the capital team. As Gregory explained: When I was doing this work in the South, the death row inmates loved the summer because our office would be flooded with young, attractive female law students and interns. . . . These young women [would] come in [with us to the jail to meet the clients], and the [clients] would just love that. I think it’s good to be honest and open about what that is, but I don’t think it’s a bad thing. If a twenty-something law student can get a client who’s bent on self-destruction caring enough about his life that he goes off that course—I [do] care how she does it, but the fact that it has something to do with her femininity or, say, her sexuality, is that a bad thing? I don’t think so.

Another male attorney stressed that women’s sexuality is an effective tool when working with clients “because of the male–female dynamic, where virtually every guy in the world . . . is run by their penis, like, sees a pretty woman across [from] them and will share a vague idea that if you’re giving her what she wants, you might have sex through the glass with her [laughing]. Guys are so stupid, right? They all see a woman and they’re like, ‘Anything you want.’”

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Ultimately, many male defenders seemed to argue that, whether they like it or not, whether they use it to the team’s advantage or not, women on the capital team will be objectified at one point or another. Nick, who has handled capital cases across the country and was one of the handful of gay capital defenders we interviewed, felt that female members of capital team must simply “lump it,” ignoring and working “past” their sexualization. He explained, “You can’t be too thin-skinned [in this line of work]. Particularly if you’re a female, I think it’s really difficult. Our clients all think that the female lawyers ‘make friendly’ with them and all of a sudden are their girlfriends or something. So you have to have somebody who has the ability to not take it personally and just, you know, do their work.” Over the course of several interviews, we began to believe that the objectification of women on the capital team was, to a certain extent, inevitable. While most of the male attorneys we interviewed acknowledged that the objectification of female defenders can be a slight nuisance, overall they viewed it as an asset. By contrast, no interviewee attributed the role of “sexual object” to male members of the capital team. Male sexuality is simply not perceived as a tool in the capital context, if only because capital defendants, who are predominantly male, are presumed to be heterosexual and desirous of female attention. Indeed, when attorneys highlighted the sexual objectification of their female colleagues, they attributed responsibility to the clients, absolving themselves as “savvy” for strategically drawing on this “naturally occurring” sexual dynamic in their defense strategy. In reality, however, many attorneys were themselves guilty of objectification by reducing women’s contributions to the capital team, at times, to their bodies. Unlike their male counterparts, female defenders and mitigation specialists were quick to describe this sexualized dynamic as a problem that must be dealt with swiftly and directly. As Gabriella shared, “[Gender] can be a hindrance because sometimes clients will build a story line that isn’t there and you have to diffuse that. There is not going to be a happy ending where you get out of jail and we date and then get married

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[laughs]. You know, that’s not going to happen. Sorry [laughing]. I have a basic prerequisite of no past felonies [laughing] on the dating resume.” Even when women said that they had not personally experienced objectification on the capital team, they still acknowledged its existence. For example, Sharie, a mitigation specialist, noted that clients tend to bond more often with women on the capital team than with men, and this bonding can have familial and sexualized undertones. “When I started,” Sharie recalled, “I was so young that [the clients] didn’t think of me as motherly, [and I didn’t let them treat me] as a girlfriend because I usually nip that in the bud. . . . I do think that, in general, if [the client] does have a bond with somebody, it’s usually a female.” As another female attorney stressed, “It’s really important for women who do this work to set those boundaries early so there are not misunderstandings about our role; we have a professional relationship, and we’re not their girlfriend. I’ve really not had many problems with that over the years because I have been very clear, very early on with clients and so it hasn’t left room for any ambiguity there.” Female attorneys and mitigation specialists cannot easily escape the gender biases and sexism present in their work life. They have little say about whether they are objectified by members of the capital team, who may view their gender and sexuality as strategic tools, or their capital clients, who often view them as potential surrogate girlfriends, lovers, and mothers. Instead, they are left to decide whether to embrace or challenge their objectification. Yet, because sexism is deeply ingrained in both the legal world and American society more broadly, challenging this objectification is quite difficult. In the context of capital defense, gender operates as a “master status,” or a primary identifying characteristic that overshadows other aspects of defenders’ and mitigation specialists’ identities.28 Sociologists and criminologists have explored the idea of master statuses for decades, arguing that some characteristics or labels have more significant effects on people’s lives than do others.29 In addition to gender, one’s race, ethnicity, or sexual orientation can act as a master status, trumping other

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aspects of individuals’ identities. For example, one may not be seen as a doctor who happens to be black, but a black doctor. The neighbor in a wheelchair may not simply be thought of as a neighbor, but the disabled neighbor. A coworker in a same-sex relationship may not be considered a coworker, but a gay coworker. Master statuses not only affect the way people view themselves and are viewed by others, but also the way that they are treated by others, and gender is no exception. In law as in other traditionally maledominated professions, gender greatly affects the way that women are treated. For example, in their study of the sexual harassment of female doctors by patients, Susan Phillips and Margaret Schneider point out that although professionally in a position of power, female doctors are viewed as women, not as physicians, by many male patients.30 In fact, 77 percent of doctors in Phillips and Schneider’s study said they had experienced some form of sexual harassment by a patient at least once in their careers.31 Just as in the medical context, female capital defenders and, especially, mitigation specialists may be seen as women first and professionals second. Recall that as with many criminal justice occupations, “masculinity” is the status quo in the world of criminal and capital defense.32 To be a female attorney is to be something other than what is presumed to be the standard—in short, one’s gender is not seen to line up properly with one’s profession—not unlike being a “lady cop” or a “male nurse,” causing women to inevitably stand out and greatly affecting their treatment by colleagues and clients alike.33 This reality is seen in the way gender influences (and is used to justify) the distribution of roles and tasks among members of the capital team. It is also exemplified in our interviewees’ descriptions of client interactions with female team members, as well as the way that many male—and some female—attorneys talk about and value female members on the capital team. Unlike male attorneys, women in capital defense don’t always have the luxury of eschewing the support or familial roles in which they are cast. They face the dual responsibility of managing clients’ romantic and sexual advances and, as we will soon dem-

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onstrate, stereotypes held by others in the criminal justice community about female defenders and mitigation specialists becoming romantically or sexually involved with their clients. Male capital defenders simply do not face these realities. The inherent contradictions between the stigma suggested here and the fact that emotional labor is not only integral to capital work but also highly valued, are further illuminated in the discussions of relationship building and mitigation work that follow.

Relationship Building As discussed in chapter 4, relationship building is a crucial component of capital work. Like teamwork, relationship building is also a form of emotional labor. It, too, depends on interpersonal and communication skills, as well as the management of emotions. For this reason, it is often framed as “women’s work” and goes hand in hand with a perception that women use gender and sexuality to build relationships at work. Of interest to us here is not that relationship building is taking place or that is important to capital defense, but instead, as we discovered through our interviews, that relationship building is thought to be, in large part, a byproduct of naturally occurring gender dynamics and, therefore, poses a threat to women’s credibility and respectability. When push came to shove, most attorneys said that women on the capital team were more likely than men to engage in relationshipbuilding tasks, often suggesting that the lopsided distribution of labor is the “natural” result of gender differences: women just tend to be better at relationship building than men by virtue of their gender, or so many interviewees implied. From this perspective, women are innately better than men at connecting with others and getting them to open up about difficult emotional topics, given women’s softer, more compassionate, and/or more nurturing sensibilities. Of course, few attorneys came out and said this explicitly. Instead, they used coded language and referred to a number of biased assumptions to suggest that women have a “leg up” when building relationships with clients.

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For example, most defenders differentiated good communication and interpersonal skills, more generally, from women’s ability—presumably a natural one—to connect with clients and their family members simply by being female. Like many of the attorneys we interviewed, Kate, who has worked as both a mitigation specialist and a capital defense attorney, distinguished between professional skills and female assets that work to her advantage when it comes to relationship building. As Kate explained, “I’ve certainly had to be tough when I’ve needed to be tough and I have used very persuasive skills to talk people into things that I thought were right, but I do think gender has been a positive part of my identity in being successful at [building relationships with clients].” Similarly, as Dawn, a mitigation specialist, shared, “I guess clients see me as female and they try to take advantage and manipulate a little, but you just have to be strong and know what your job is. And I know I’m good at my job. And there have been times that, yeah, I think that it has helped that I’m a female. I can get more information and things like that.” Yet the relationship between gender and capital defense is, perhaps, much more nuanced than some attorneys and mitigation specialists like Dawn suggest. Eliza highlighted the complex intersections of capital defense, gender, emotional labor, and boundaries, which at times both help and hinder her work. In the following reflection, she challenged biased gender assumptions while, at the same time, acknowledging the very real consequences that they can have in the context of capital defense: Being a younger female doing this work has its advantages and disadvantages. . . . [Clients] may view me as benign, nonthreatening. They’re sort of more comfortable with me because they feel like they can talk to me. Oftentimes male clients are more open with female team members whether it be the lawyer or the investigator or paralegal. . . . Now, I’ve had clients that do better with male members of the team. . . . They may treat me as an inferior member of the team. They don’t think that I’m going to have the legal knowledge that is required or something because, in their view, lawyers are older white men. . . . On the whole, a lot of the women

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who do this work have a little bit more of an edge . . . [however, it’s] really important for women who do this work to set those boundaries early so there are not misunderstandings about both of our roles and that we have a professional relationship and we’re not their girlfriend.

As Eliza explained, being female can at times facilitate relationship building with clients. Yet the same assumptions that make women “more approachable” to clients also cause some clients to doubt, or even challenge, women’s professional abilities. These gender assumptions risk sexualizing women in ways that blur the boundaries between attorney and client. In this context, the interplay of gender biases and emotional labor has the power to mask women’s work and devalue them as professionals by considering their relationship-building abilities to result, in large part, from their gender and not their aptitude. Relationship building requires well-developed communication and interpersonal skills, as well as a keen ability to manage one’s own and others’ emotions. Even if, due to gender dynamics in American society, women actually do have some sort of advantage over men when it comes to building relationships with capital clients and their family members, it doesn’t mean that women aren’t using skills that they have acquired, practiced, and perfected over the years to accomplish this. Our interviews, in fact, suggest that women are engaged in significant work when building relationships, much of which is simply overlooked. The perception that women use gender and sexuality to build relationships at work—as opposed to skills—not only runs the risk of devaluing women as skilled professionals, but also has the potential to disparage women’s character. Keep in mind that while members of the capital team may partake in women’s objectification (e.g., referring to women’s sexuality as a tool in the workplace), the objectification and sexism women experience in capital work is more pronounced in the context of their relationships with clients. Through relationship building, the boundaries between professional and unprofessional, skilled and unskilled, law-

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yer and client, and woman and man are established. Carmen’s opinion, while not unique, captures the connection between emotional labor and boundaries in capital defense rather well. As she noted, “I have heard just the most amazing stories about women attorneys—which is probably why I’m even more cautious—where that line is crossed. And you can’t cross that line, because you lose credibility as a professional and you’re not helping your client.”

Mitigation As our interviews unfolded, we quickly realized that the complexities and stigmas attached to gender in the capital context—such as the undermining of women’s professional abilities and their overt and implicit sexual objectification—are perhaps most visible in the context of mitigation. The ABA’s “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” define mitigation as involving the collection and presentation of any evidence in a capital trial that is used to make a case for a punishment of life without the possibility of parole over execution in the event of a guilty verdict. Mitigation evidence includes compassionate factors stemming from the diverse frailties of humankind, the ability to make a positive adjustment to incarceration, the realities of incarceration and the actual meaning of a life sentence, capacity for redemption, remorse, execution impact, vulnerabilities related to mental health, explanations of patterns of behavior, negation of aggravating evidence regardless of its designation as an aggravating factor, positive acts or qualities, responsible conduct in other areas of life (e.g., employment, education, military service, as a family member), any evidence bearing on the degree of moral culpability, and any other reason for a sentence less than death.34

As discussed previously, mitigation evidence frequently includes deeply personal, sensitive, and/or troubling information about capital clients,

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their life histories, and their families. For example, a client’s experience with psychological, physical, or sexual abuse is often introduced as a mitigating factor in many capital cases. The gathering of such information requires strong communication and interpersonal skills, as well as the successful management of one’s own and others’ emotions. In other words, emotional labor is integral to mitigation. Mitigation efforts are the product of the defense team and involve attorneys and mitigation specialists alike, the latter of whom may or may not be attorneys themselves. As expressed in the ABA’s capital guidelines, mitigation specialists are “indispensable” members of the capital team: Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing, and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental, or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case. . . . The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death. For all of these reasons, the use of mitigation specialists has become part of the existing “standard of care” in capital cases, ensuring “high quality investigation and preparation of the penalty phase.”35

Although mitigation specialists play an important role on capital teams, mitigation is ultimately the responsibility of defense counsel. Thus, mitigation specialists must work closely with capital defenders throughout the capital process.

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The overwhelming majority of attorneys we spoke to placed a very high value on mitigation work and mitigation specialists alike. As stressed by Anna, a straight-talking attorney who has yet to have a client sentenced to death after nearly two decades of working capital cases, “The mitigation part is absolutely critical to the case and, frankly, the mitigation case that you build can go a long ways toward negotiating your way through the guilt and innocence phase.” One attorney explained that “[a good capital lawyer is] a person who actually knows what they’re doing. Who has taken the time to learn how it is that you effectively work on a capital case—and mostly that’s mitigation investigation.” Furthermore, many attorneys told us that mitigation evidence often plays a definitive role in obtaining relief for capital clients. Anthony captured the importance of good mitigation work succinctly, noting, “[Our mitigation investigator] is going to be the hammer. She’s going to be the one that rings the emotion. She’s going to be the one who cries, gets [the client] to cry, and she’s going to be all we’ve got. Three lawyers on the case, a neuropsychologist, a forensic psychologist, a psychiatrist, and the most important person is going to be the mitigation investigator.” Beyond stressing the value of mitigation work in the capital context, Anthony’s remark also explicitly highlights the emotional labor inherent in mitigation. As he explained, the mitigation specialist will be the person on the capital team who “rings the emotion,” “cries,” and “gets [the client] to cry.” Mitigation specialists use emotional appeals, carry the emotional energy of the team, and are often the repository of emotion within the team. Like teamwork and relationship building, mitigation is primarily done by women and can, at times, carry a stigma despite being highly valued by the capital defense community. This is not surprising when examined through the lens of emotional labor, which draws attention to the fact that, in the capital context, men are allowed first access to the “serious” tasks and women are presumed to handle the “softer” side of defense work. Sharie’s description of the division of labor on her capital teams is characteristic of comments we heard from many of those we

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interviewed. As she explained, “I’m very happy when I get to share the case and someone does the guilt [phase], but when somebody else does the guilt it’s always a guy. And I do the mitigation. And I think mitigation has tended to be done by the female attorney, and by female . . . mitigation specialists.” We asked defenders why so much of mitigation work is done by women. By and large, they suggested that women are better at mitigation than men—not necessarily because the individual women involved are superior at mitigation investigation, but because women are, once again, presumed to be naturally better than men at relationship building and providing emotional support. As Gregory reflected: The truth about most pain is that women tend to have higher pain thresholds [than men] both in physical pain and emotional pain. . . . So a lot of [mitigation] work is done by women. There are plenty of good male lawyers, but I think most male lawyers are not well suited for this part of the work. And there’s this kind of “plantation mentality” in the work where women are mitigation specialists and men are the lawyers. And that’s because men, by and large, don’t want to do that difficult work. . . . But it would be much better if more men could do [mitigation]. It’s not a surprise that a lot of the male mitigation specialists are gay men.

Gregory’s feelings were shared by many of the attorneys with whom we spoke. Although at times not expressed as eloquently, we found a pattern of assumptions about femininity (and masculinity), an unequal distribution of labor along gendered lines, and the ghettoization of women’s work embodied in Gregory’s words across the majority of our interviews. Hence, while men—at least heterosexual men—can choose to take on mitigation work, women and gay men on capital teams may not have such freedom of choice. This remark highlights not only the denigration of women and gay men but also the denigration of femininity itself, revealing how deeply entrenched gender biases really are in capital work.

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Several female attorneys told us that they preferred not to handle mitigation work, tired of being pigeonholed in this stigmatized area of capital defense. As Anna remarked, “I’m all over the guilt and innocence phase. Frankly I like that better. I don’t like to be relegated to just mitigation because . . . I don’t have a lot of the warm and fuzzy going on [laughs].” The framing of mitigation work as something one is “relegated to,” along with its association with “the warm and fuzzy,” is indicative of both the feminization of mitigation as well as its stigmatization as somehow “less than” the “skilled” work involved in other aspects of capital defense. Several of the women we interviewed shared this perspective. They chose to distance themselves from mitigation work as well as attributes they considered “too feminine” for capital work, such as being “warm and fuzzy.” Thus, while challenging gender stereotypes when applied to themselves, these women still use such stereotypes to describe others, potentially reinforcing gender biases and sexist practices within capital defense. The handful of mitigation specialists we interviewed—the majority of whom were women—framed mitigation work much like the lawyers, highlighting the gendered dynamics of mitigation in the context of capital representation.36 However, these interviewees were quicker to pinpoint and emphasize the stigma attached to mitigation work. This mark does not differ from the dual sexualization and de-professionalization described by female attorneys more generally when discussing their roles on the capital team and their relationships with clients. Instead, the stigma is amplified in the mitigation context, perhaps because, historically, most mitigation specialists have held neither law degrees nor professional degrees, which are not prerequisites of the job. As Dawn commented, the sexism linked to mitigation work is pervasive within the criminal justice community: “[Mitigation specialists] are given kind of a bad name for [actually] marrying their clients [because] they’re the ones who are getting the closest with [the clients].” When asked to provide an example, Dawn recounted the story of a mitigation specialist “who was on a plane once with a district attorney who said to her, ‘So how many

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of your clients have you actually slept with?’ And she was like, ‘Are you kidding me?! That is so inappropriate!’” The district attorney in this story certainly represents an extreme version of the sexist stereotypes we’ve highlighted throughout this chapter. Yet his remark is not so far removed from some of our interviewees’ remarks suggesting, on the one hand, that women on the capital team have a leg up when working with clients by virtue of their gender—read sexuality—but must be careful, on the other hand, to maintain appropriate boundaries with clients. Although many mitigation specialists were offended by sexist assumptions of their motivation and work, others piled on to the stereotype. When we heard remarks insinuating that mitigation specialists become intimately involved with their clients, we always pushed for concrete examples. The stereotype was rampant; the concrete examples were not. That said, we did manage to find a few firsthand examples of female mitigation specialists “falling for” their clients. One such account, as it turns out, was shared by Dawn. Shortly before recounting the tale of the mitigation specialist and the prosecutor, Dawn remarked on what she believed to be many mitigation specialists’ susceptibility to clients’ romantic and sexual advances: A huge problem, well I don’t know if it’s huge, but a big problem is, like the one client [I mentioned], he married his mitigation specialist. . . . I took over her job because it’s unprofessional and she got fired. . . . They’re divorced now. Trouble in paradise. Go figure. But it’s inappropriate. So I think if a female doesn’t have a strong kind of sense of self—because every, every, every single client will hit on you—it doesn’t take much. So you can’t be honored that they would hit on you. It’s expected, and you need to just keep that line where there’s just no question. You don’t flirt with them. You don’t try to give them false hope. . . . I just don’t respond to it.

At first, the contradictory nature of Dawn’s comment was perplexing. In one breath she chastised a prosecutor for perpetuating unjust stereotypes about mitigation specialists, and in another she herself reinforced

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the narrative that mitigation specialists often fall for their clients. But Dawn’s perspective was not anomalous. Interviewees suggested a distinction between mitigation specialists who, like Dawn, have a “strong sense of self ” and can maintain professional boundaries with clients, and those who, for want of professionalism, become too close with their clients. Mitigation specialists who became romantically or sexually involved with their clients—whether in myth or reality—are seen as giving “professional” mitigation specialists a bad name. These remarks highlight the threat that mitigation work—and thus emotional labor more generally—pose to female attorneys’ and mitigation specialists’ moral character and credibility as professionals. They also underline just how pervasive biased and sexist views are—even if operating just below the surface—in the world of capital defense. Examined together, our conversations with attorneys and mitigation specialists alike shine light on the complex and somewhat contradictory realities of mitigation work, which is at once glorified and stigmatized within the capital community. Conversations also evidence the precarious role of “emotional laborers” in the capital community, especially among mitigation specialists. Much of the intense emotion management, communication, and interpersonal work inherent in mitigation is taken for granted, made invisible, and overlooked. “Good” mitigation specialists tend to be women because women are “better” at working with clients and their family members than are male members of the capital team. And, as explained to us by many of the capital defenders with whom we spoke, women are better suited for mitigation not only because of their knowledge, skills, or training— even if these qualities are mentioned in the ABA capital guidelines— but merely because they are women. Essentialist understandings of women as compassionate, nurturing, supportive caregivers—and men as lacking in these attributes—form the basis for the framing of mitigation and the division of labor among capital teams. This is the epitome of emotional labor, which is understood not as “what women do, but as part of what they are.”37

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Even members of the capital community who find problematic the hierarchical gender dynamics of mitigation work explored here appear to accept them as they are, or even perpetuate them. As Joan summed up, “[Mitigation] is treated like [women’s work] sometimes, but I like the mitigation part the most and want to do it the most, so I don’t care why anyone would want me to do it. The best of the best capital defense lawyers know that mitigation is the most important part of the case. And if they don’t, they have so much more to learn. If there is sexism going on, at least women are being shunted into the most important part of the case.” Yet, for us, this perspective begs the follow-up question: if women are, for the most part, responsible for what is arguably one of the most important parts of capital defense, do they get the credit they deserve? It appears that the answer is no.

Capital Defenders and Gender Capital defense is often portrayed as a hypermasculine profession. Yet, as repeated by capital defenders and explored here, it requires substantial amounts of emotional labor as manifested in teamwork, relationship building, and mitigation. On the one hand, capital defenders greatly value this work, to which our interviews are a testament. This work is also held in high regard by the capital community writ large—at least on the surface—as evidenced by its “codification” into standards set by the American Bar Association. On the other hand, as we predicted, emotional labor performed in the capital context is both gendered and stigmatized. Teamwork, relationship building, and mitigation require capital defenders to restrain the more “aggressive” and, at times, ego-based—read masculine—tactics and tendencies that dominate the world of criminal defense in exchange for the use of a “softer” touch. Accordingly, women are often pigeonholed into capital tasks involving emotional labor. This is especially true of relationship building and mitigation, which are generally cast as “women’s work” in what amounts to a binary, gendered division of labor,

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which is built on and reinforces sexist stereotypes about what it means to be “female” and “male.” Women are expected to play caregiver roles on the capital team, to foster intimate relationships with clients, and to elicit sensitive information that will play a crucial role in the capital defense case—and, of course, to do all this better than men due to a set of imagined “natural” attributes they supposedly possess. Indeed, the attorneys we spoke with, male and female, often characterized women as having two inherent advantages over men in this arena: their femininity and their sexuality. Such a reading of capital defense by the capital community makes invisible the immense amount of effort, skill, and work women put into relationship building and mitigation. Equally problematic is the reality that relationship building and mitigation, despite being characterized as central to “good” capital defense, are in fact stigmatized—at least when carried out by women. The work involved in teamwork, relationship building, and mitigation is, in many ways, considered by defenders to be outside the “normal” bounds of legal work. Again, it is thought to be grounded in personal traits as much as, if not more than, professional skills. This stigma extends from the emotional labor to the emotional laborer. Sexualized by clients and coworkers, female members of the capital team are forced to reconcile gender-based performance expectations with the demand that they become close with clients, but not “too” close. This threatens women’s professional and moral credibility as members of the capital team and, more broadly, the capital community. While deeply informative, conversations with defenders about gender in the capital context still left a few questions unanswered. For example, when men are primarily responsible for emotional labor, do they face the same or similar stigmas as women? Our data left us unable to answer this question, as the men in our sample were not primarily responsible for emotional labor. The interviews we conducted suggest that, in general, it is women—and not men—who carry out most of the emotional labor taking place in the capital world today. Yet we still wondered if

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emotional labor might ever stand to threaten men’s professional standing, just as it does women’s. We turned to other occupations for some clues as to the possible future of gender and emotional labor in capital defense. On the one hand, when performed by male defenders and mitigation specialists, emotional labor may be rewarded as a valuable skill, as suggested by Pietrykowski’s study of wage bonuses for caring skills found in highwage male occupations.38 On the other hand, performing emotional labor might make men feel emasculated. This possibility was hinted at in the remarks of one of our interviewees when he stated that “it’s not a surprise that a lot of the male mitigation specialists are gay men.” Complicating matters, mitigation also appears to be a subfield of capital defense in transition. As highlighted by many study participants and briefly addressed in chapter 1, mitigation work has become increasingly professionalized over the past several years. For example, it is more common than ever before for mitigation specialists to have—or be required to have—specialized professional degrees. Similarly, as it is now considered part of the cannon of “best practices” in capital defense, mitigation work has become integrated into capital defense strategies that are carried out by the capital team as a whole. It is still unclear what this will mean for gendered divisions of capital work in the future. As with other activities traditionally viewed as “women’s work,” such as cooking,39 further professionalization could drastically alter perceptions of mitigation—and the emotional labor it entails. Musings on the future aside, what does this examination of emotional labor tell us about gender and capital defense today? Is capital defense really the hypermasculine field many purport it to be? The answer is a resounding no. The field of capital defense may appear, like criminal defense more generally, to be quite stereotypically masculine, but the emotional labor it entails challenges the validity of this masculine ethos. That such emotional labor is highly valued—even if the workers who actually do it are not—also calls into question the application of norma-

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tive gender frameworks to the division of labor found in capital work. However, as explored here, emotional labor in the capital context is both feminized and stigmatized. Female members of the capital team are not only generally expected to handle tasks involving emotional labor, but are, in fact, considered best suited for such tasks because they are women. Yet the same gender biases that grant women primary responsibility for some of the most significant components of capital defense also minimize their crucial contributions. Women on the capital team find themselves in a precarious position, at once bolstered and threatened by their gender. Capital defense is, thus, perhaps best described as gender-bending. At the level of community discourse, capital defense challenges traditional notions of gender and labor, elevating the status of emotional labor by highlighting the importance of teamwork, relationship building, and mitigation in the capital context. The elevation of emotional laborers, however, has yet to follow, leaving such professionals—in this case, primarily women—caught in a biased labor hierarchy that closely resembles that found in other occupations. Ultimately, through emotional labor, capital defenders define “good” and “bad” capital defense, as well as capital defenders, all the while reinforcing and challenging traditional gender norms.

6

The Toll “You Can’t Just Turn It Off ”

Horrible crimes. Difficult clients with histories of abuse and mental illness. Lack of resources. Endless motions to file. A system that is “stacked” against the defense. The possibility of execution constantly looming in the background—or becoming an actuality. This is the world of capital defense that attorneys often described. One would almost need to be superhuman to remain unaffected by the realities of capital work. Sitting in Russell’s office after a lengthy recitation of the challenges of practice, we finally asked how it is that capital defenders cope with the work that they do. “Recognize that we don’t sit around talking about this stuff, right?” Russell said. He continued, “[Maybe] because it never comes up.” Or, he paused and said, maybe it’s “because we’re embarrassed. Because it’s not something anyone wants to talk about.” Indeed, getting attorneys to open up about the effects of their chosen profession on their personal lives and emotional, mental and physical well-being, was difficult. Offering insight into the lives and actions of their clients, of prosecutors and judges, and even of other capital defenders seemed quite natural for most of the attorneys we spoke with—in fact, good capital defense often demands it. Yet attorneys were reluctant to reflect on their own reactions to capital practice and its effects, which can, at times, be quite troubling: addiction, compulsion, depression, divorce, nightmares, and even serious physical problems such as chronic back pain and heart attacks. Instead, in most of our conversations, capital defenders sought to avoid, minimize, normalize, rationalize, or outright suppress the anxiety, pressure, and trauma that tends to accompany their work. 201

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Those who were more introspective remarked that defenders must push aside some of their feelings so as not to show any signs of weakness to their clients and colleagues for fear of being seen as incapable or unprofessional. Yet some suggested that any secondary trauma or work-related stress they experience pales in comparison to the difficulties faced by the clients, family members, and victims in the cases they handle. Still others explained their detachment as a type of coping mechanism: were defenders actually to acknowledge the emotional, psychological, and physical tolls of their work, the weight of the burdens might become overwhelming. To say that law is generally a stressful profession is not novel. Lawyers are disproportionately affected by psychological distress when compared to the general population and other occupations.1 However, surprisingly little has been written about the toll that criminal work takes on defenders, and even less has been published about the psychological effects of capital practice.2 Much of the existing research focuses on the burdens of heightened caseloads on criminal defense lawyers and the coincident lack of resources.3 Yet an emerging body of literature on the effects of trauma in “helping professions”—including law enforcement, medicine, rescue work, therapy, social work, and, most recently, the practice of law—suggests that capital defenders may face increased risks of anxiety, depression, stress, substance abuse, and vicarious traumatization from their work.4 Vicarious trauma—sometimes called compassion fatigue, countertransference, psychic battering, secondary traumatic stress, or secondary trauma—is defined as indirect traumatization from exposure to others’ trauma.5 This includes exposure to the trauma of both victims and perpetrators, two categories that apply concurrently in criminal cases. The condition “reflects the painful psychological effects that result from engaging with traumatic material and integrating the material into one’s cognitive schemas, disrupting beliefs about trust, safety, control, esteem, and intimacy.”6 Research suggests that working with victims of childhood sexual abuse, domestic violence, and sexual assault carries an even greater risk of vicarious trauma, the symptoms of which resemble those

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of post-traumatic stress disorder (PTSD).7 The Diagnostic and Statistical Manual of Mental Health Disorders catalogs these symptoms as including: disturbed sleep, poor eating habits, irritability, substance abuse, relationship problems, hypervigilance, isolation or attachment issues, paranoia or feelings of helplessness, as well as potentially fatal effects such as heart attack, stroke, or even suicide.8 Several studies suggest studies that criminal defense lawyers are especially susceptible to vicarious trauma.9 Criminal defense lawyers “see, hear, and feel the impact of trauma daily,” say psychologists Lila Vrklevski and John Franklin. “Overwhelming emotions, injustice, despair, rage, selfharm, and other self-destructive behaviors are exposed and reenacted in intricate detail in the hallowed halls of justice. [Lawyers] experience a veritable kaleidoscope of traumatic material in the course of providing legal and other professional services to their clients. . . . [Attorneys] who work in criminal law deal with rape, sexual abuse of children, murder, and manslaughter on a daily basis. They are exposed to horror in graphic detail through witness testimony, court reenactments, witness conferencing, and photographic and forensic evidence.” The pair argue that it would be a mistake to assume that even intentional professional detachment could protect attorneys from the risks of vicarious trauma.10 Apart from increased risks of vicarious trauma, attorneys have been found to report high levels of anxiety, depression, and stress, as well as problematic drinking at levels nearly twice the average reported by U.S. professionals in general.11 As Krill, Johnson, and Albert explain, “Some individuals may drink to cope with their psychological or emotional problems. . . . The ubiquity of alcohol in the legal professional culture certainly demonstrates both its ready availability and social acceptability, should one choose to cope with their mental health problems in that manner.”12 As the difficulties of legal practice, and criminal defense more specifically, are amplified in capital representation, it would not be surprising to find that the negative personal effects of the work are amplified, too. In this chapter we’re primarily concerned with the overall toll of capital defense on the lawyers involved and the different ways they respond.

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While most attorneys initially implied—or explicitly claimed—a level of detachment from the unpleasantness of their cases, when pressed they eventually acknowledged, if only implicitly, the vicarious trauma of their work and some of the common coping strategies they employ, which include detachment from the job as well as avoidance through the job; compulsive habits and substance use and abuse; hobbies such as reading, watching television, or doing hands-on projects; playing sports, working out, or enjoying the outdoors; and relying on family, friends, peers, and the occasional therapist for support. While some defenders manage to successfully cope with the work, it is a never-ending battle. For many the work is, ultimately, debilitating.

The Stress of Life and Death As we have reported throughout this book, we heard from countless respondents that “death is different.” Certainly, the Supreme Court’s jurisprudence suggests as much, but defenders, too, told us during our research that the effects of the cases are almost impossible to comprehend. “It’s hard for me to even explain,” said Jacob, a public defender with ten years’ experience. “I walked in thinking that I knew what it was going to be like [to represent a capital client], but it’s just so different to be in a jail cell with somebody who the government’s trying to kill. It’s just so different. It really just shook me and made me think about death constantly.” Or consider Sarah’s account of the early stages of her capital career. “The first six months I worked [in capital defense] I remember living in fear,” Sarah recalled, “[fear] that I would inadvertently do something that would end up killing a client.” With over twenty years of capital work now under her belt, Sarah explained to us that this feeling of dread faded over time. Sarah’s sentiments were echoed by most defenders we interviewed, but, as many stressed, the anxiety never entirely disappears. “If that person ends up on death row, well, it’s because I did a shitty job. . . . The stakes are high in every [case],” one attorney warned. Knowing that just

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one small error—a lead overlooked, a legal strategy not considered, a missed piece of evidence—can result in the death of a client would be a heavy burden for most to bear just once, let alone dozens of times over the course of a career. It’s not surprising that many of the attorneys we interviewed seemed to work, or at least think about work, around the clock, given the constant pressure to be at the top of their game. Nor does the feeling easily go away. David, who recently retired after an extensive capital career, instantly recalled the all-consuming pressure of a capital case going to trial. “There’s no such thing as a weekend,” he stressed, continuing, “I would always make it a point to try and get home for dinner so that I could have dinner with my family and then twenty minutes later go upstairs, where I have an office, and work until I passed out.” David nervously laughed and said, “And that goes on and on and on, and there’s literally no escape from the pressure.” Like David’s comments, Robin’s remarks were rather typical. “You can never really leave the work,” he told us. “When you lie in bed at night, what you’re thinking of is what you should be doing in [your] case, right now.” Even Pat, a newcomer to capital defense, mused, “I mean, it’s just part of who you are. . . . [It’s not like you] go home and then suddenly you don’t think about [the work]. You think about it all day and all night. You can’t just turn it off. It would be nice if you could.” The constant perseverating about cases was so common among capital defenders that one attorney had even given the phenomenon a nickname. “Well, I always call that the ‘three o’clock in the morning time,’” Chris explained with a hearty laugh. “It’s the middle of the night still, no one else is up, it’s dark outside . . . [but] that has always seemed like the time when you can’t sleep and you start wondering, ‘Have I done everything? Should I do this? Did I do that? Have I done this?’” While many attorneys attempted to laugh off the around-the-clock pressures of their work, both their anxiety and fatigue were palpable. Dozens of the attorneys felt unable to put their capital work aside, some to the point of compulsion. Alexander described his approach to the work as being one of total control. “My theory,” he began, “is that

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you do best working the case very hard.” He continued, “If you can tell yourself at the end of the day that you have done everything, done every single thing possible for the client, you’ve left no stone unturned, you’ve gotten every expert that you’re supposed to get, you investigated everything that you’re supposed to investigate, you’ve done all the legal research and filed all the motions and so forth, that’s the most you can ask of yourself. That’s how I deal with the stress. I make sure I do everything.” Or consider the following exchange with Louis on what it’s like to work a capital case: Louis: I’ll keep a little notebook on the side of the bed because I’ll wake up with a thought, or I’m going to sleep and I’ll have a thought, and I’ll make a note [about the case]. The funny thing is, I get up in the morning trying to read these notes that I wrote in the middle of the night—I can’t figure out what the hell I wrote. Or you’re getting ready for work, taking a shower, [thinking,] “Oh I’ve got to do this!” There’s water all over [my] pad. . . . It just seems like there’s a lot to do and never enough time to do it. And how do you deal with that intensity? Louis: Wait for it to pass. That’s all you can do. . . . You just deal with it and you focus on the moment. I mean, if you’re at a family birthday party, you focus on the family birthday. . . . But that stupid little notebook always seems to be around. So what I’m saying is, you never lose it.

This compulsive work ethic is a sign of the lawyers’ s unrelenting perfectionism, almost a psychological defense against fears of inadequacy. Some described their compulsion as a useful, even necessary, component of good capital defense. “I think fear is a great motivator,” Martin began, reflecting on decades of experience. “And so, if you’re fearful that you don’t do good a job, if you’re fearful that you don’t meticulously go through every last thing and run everything up the flag pole and turn up every rock and talk to every witness maybe two, three, four, five times,

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then you haven’t done your job,” he warned. “I think that’s the motivator. So you say, ‘I have to be perfect. I’m going be perfect. And if I’m not perfect, I’m going to be as close to perfect as I can [be].’” Similarly, James emphasized, “I feel a lot of weight and pressure to do a perfect job. I want to do a perfect job. . . . I don’t want some omniscient force coming down later to say I could’ve done this, I could’ve done that.” Lawyers feel an immense pressure to hold themselves to standards that seem barely possible, which stems as much from an immense fear of failure as it does their own sense of professional responsibility. Yet the “weight of the pressure” to be perfect builds with each capital case, and for many lawyers it eventually becomes too much. Eve, who has represented capital defendants for nearly three decades, related a conversation she had with her young daughter: “My [kid was at the breakfast] table as I was crying into my cornflakes [one] morning saying, ‘You know, Mom, I can’t do your job. It’s too sad.’ And I’m like, ‘That’s okay. Mom doesn’t know if she’s doing it very well either.’. . . . So, while I hope my clients are benefiting from my [years of experience], I am not benefiting from being stressed beyond belief.” Eve, at least, remained in the field, as opposed to James, who began to cut back after several decades handling death penalty cases. Explaining his decision, James lamented, “I want to do a perfect job. And so the pressure of that, the tension of that, was like, who needs it?” As bad as the demands and pressures can be, some lawyers downplayed the stress of the work. “Well, it’s not as though I’m sitting around wringing my hands every day,” Alexander exclaimed. He admitted that, while “you have some sleepless nights and it can give you headaches,” it’s more of an “unconscious thing—it’s working on you, but you’re not thinking about it.” A few attorneys even told us that capital defense is no more stressful than any other job. After all, “everyone just seems so stressed out no matter what your job is, right?” one capital defender remarked. How could this be, we asked them, after hearing about the long hours, sleepless nights, and high stakes. Something just didn’t add up.

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Over time, however, we identified a pattern: defenders seemed to minimize the stress they experienced by attempting to normalize it. In fact, whether comparing their workplace stress to that found in other occupations or among other legal specialties, many we spoke to found ways to minimize the stress they experienced as capital defenders. Consider Dawn, a mitigation specialist, who seemed to rationalize, if not defend, the stress that she and the attorneys experience: “The work that needs to be done, [it’s] like a cloud over my head. It’ll never be done. It’s hard to even vacation [because there’s] so much I should be doing.” But, she insisted, “it’s a lifelong balance. No job is easy. Everything has its issues. . . . [For example,] I don’t have a boss that I have to deal with and I don’t have to do a [traditional] eight-to-five [work schedule].” Similarly, Deborah, who compared the stress she experienced doing capital work to that of kindergarten teachers, argued that while “[being] a kindergarten teacher sounds like a joyful job, you sing and you play with [the kids] . . . it’s very stressful. I think that’s a condition of life.” As another lawyer related while chuckling, “My partner teaches junior high and always thinks [that] job is harder [than mine]. I’m like, ‘Oh, I know! God! I couldn’t stand that!’” A handful of attorneys claimed that capital law is not as stressful as some other kinds of legal work. For example, Heath reasoned that the stress associated with capital defense isn’t so bad because it ebbs and flows, with periods of low stress punctuated by periods of high stress. “There are periods of time when, for whatever reason, there are lulls in my practice and I won’t have a trial for a stretch of a few months,” he said. “[In capital work,] we have our cases from beginning to end, not like some of the other [criminal defense attorneys], who [may be] assigned to particular courtrooms on a particular day. So they have to do all the cases in that courtroom . . . even the serious felony cases . . . and they haven’t had these cases from [the] initial interviews. So there is a lot of stress involved with those cases.” Others felt that the work, while difficult, was “manageable.” As Russell shared, “People say, ‘How can you deal with those death penalty cases?’

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Well, the immediacy of the death penalty is not present day to day. It’s almost never present.” He continued, “It’s not something I think about at all most days. . . . I virtually never think about it because it’s not immediate. It’s not likely. It’s not close. It’s not like everyday a client is about to be executed and it’s unlikely that most of my clients will be executed, ever.” As another suggested, “You kind of live with the pressure. If you don’t feel pressure, you shouldn’t be doing the work. But it’s not as though, on a day-to-day basis, I am plagued by the view of my client lying on the gurney with a needle in his or her arm. That’s just the reality of what can happen, why you take [the work] very seriously.” She paused to sigh before continuing. “How can I explain it? It’s [stressful], but you learn to deal with it. . . . If it was really so stressful I don’t know why anybody would do the work. It’s stressful, but it’s manageable.” These lawyers were sincere in their declarations that capital work involves a “normal” amount of “manageable” stress, but the incongruity of the attorneys’ stressful stories of practice and their reports that “all was well” left us doubtful. Therefore, we began to push back gently during interviews, wondering if attorneys truly believed their own characterizations of the work. Upon further reflection, some changed their tune. “Maybe I minimized the pressure [earlier],” Beatrice conceded. “I don’t think so, but you kind of have to minimize it to some extent,” she continued, “because if you’re thinking about it all the time it just . . .” Her words trailed off in a whisper. After a brief pause she said, “Yeah, I think most capital lawyers minimize the pressure.” “Is it a sort of survival mechanism?” we asked. “Yes. Yes, that’s exactly right,” Beatrice concluded. Indeed, it proved difficult for most to completely discount the stress of the work. As Aaron, a defender with nearly four decades of capital experience in the South, summarized, “The pressure is enormous, and the work is enormous and never ending. There is always more you can do. You don’t sleep at night, and, [at times,] you just worry yourself to death.” Aaron likened the experience of representing capital clients to a psychology experiment he learned about in college and had never forgotten:

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If I remember correctly, [they] called [it] “The Executive Monkey Experiment.” They had these monkeys wired up. One of them would periodically get an electric shock, and the other monkey, if he was paying attention enough and could learn quickly, could push a button [that] would keep his buddy from getting an electric shock. . . . They determined that [this] caused all kinds of distress for the monkey who was able to stop the electric charge. They called him the “executive monkey” because he had the decision-making power. That’s what it’s like being a [capital] lawyer. Unless you make the right moves at the right time, somebody is going to pay a big price. . . . It takes a toll.

Although attorneys did not agree about how much stress they actually faced, nor how, exactly, this stress manifested itself, they all acknowledged that capital work comes with a heightened sense of pressure. What’s more, like Aaron, they admitted that, if they are not careful, this pressure will make itself known—and often in negative ways.

There’s No Winning in Capital Punishment Pressure aside, capital work can be extremely demoralizing for many of its practitioners. For one thing, as one attorney said with a sigh, “you hardly ever win.” Another half jokingly said, “If you need victories to constantly remind you that you’re great, then don’t be a criminal defense lawyer. Go be a [district attorney]!” These remarks were typical. When we asked interviewees what they liked least about their jobs, many pointed out that there is no winning in capital defense. “What we’re fighting for most often,” Joyce, a mitigation specialist, related, “is for our clients to die in prison. There’s a great sadness in that. . . . And the longer you do this work, hopefully the longer the list of guys there [are who], because of your work, will die in prison.” As several attorneys explained, fighting for clients to “die in prison” is often a “best-case scenario.” The odds are certainly working against capital defenders in many cases: the odds of being sentenced to death

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in a capital case are real if clients go to trial. Recounting one death verdict, Chris recalled, “I remember very clearly standing beside [my client] and the verdict of death being read. It was very devastating, very difficult. I found it to be very emotional and very sad, almost overwhelming. I remember having to make sure that I maintained a professional demeanor . . . but as soon as a verdict comes in like that . . . my feeling was wondering, ‘Should I have done something different?’” Similarly, another attorney exclaimed, “[The death verdict] was a verdict on me and the representation I had provided. . . . That case is like ashes in my mouth!” As Eve described it, “The [death verdict] was like a mystery. I was very upset and could not understand and felt bad. I must have picked the shittiest jury I ever picked because they couldn’t see it my way. . . . It was an ugly case. They all are. I always feel responsible for every verdict.” Yet, even when a client is sentenced to life without parole, attorneys may not be satisfied. One mitigation specialist explained, “Even if you keep them off of death row, there are no winners. The [victim is] still dead. [The clients are] spending their life in prison. All the families are hurting. It’s a lose–lose situation.” Given this reality, many attorneys we interviewed approach their cases expecting the worst no matter how good their defense skills. Pat explained, “I generally feel prepared to lose, and not because our cases lack merit or I’m not doing a good job or whatever, but because that’s just the way things go. I’ve had cases [where] everything is right about them [but we] still lose. And people just want you to lose. So it’s a little bit discouraging. . . . I’m trying to save myself the emotional up and down of having too much hope. . . . How does it feel? It sucks.” It should be stressed that most of the attorneys we interviewed had rather impressive capital records, many having won more cases than they had lost. Yet even these attorneys couldn’t shake the feeling that there is no winning in capital work. James captured these sentiments well when emphasizing the sting that can still accompany a life sentence or even an acquittal. He explained, “I’m not fully satisfied in the work. . . . I’ve had

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a few wins and it did feel okay. They’re not great. To be honest with you, when a jury comes back and says, ‘We find in favor of your client, the plaintiff, for half a million dollars,’ that meant more to me than getting a not-guilty verdict. Yeah. A Not Guilty verdict is like they never should’ve been arrested to begin with. You know, that’s no great shakes. Not guilty. Big deal. It’s not going to do it for me.” Given the slim shot at “outright wins,” finding one’s own version of success in capital work becomes increasingly important. “There are all different kinds of success,” some attorneys said, explaining that winning is often defined on a “case by case” basis. Even when a client is executed, some attorneys are able to “see victories in [the work],” such as “seeing families come together.” For many, finding success in capital defense means accepting that, despite everything, they are “doing their best.” As Beatrice declared, “I do the best I can, I mean, that’s all that I can do. I think I do a good job, but I don’t see how you could do capital cases if you have doubts, if you’re plagued by second-guessing yourself. [Of course] we do that—to some extent everybody does it in trial. . . . I’m not infallible, but I do the best I can.” Similarly, as Mitchell described it: You have to come to grips with it. I’ve had my fantasy moment where . . . I take my shoes off and I put them on the table and I say, “These are my shoes. If you think you can stand in them, do it. And good luck.” That’s an angry thing to say, but that’s the feeling sometimes. [I go] home from [this] job [much differently] than I ever did [in commercial practice. Then, I would say,] “Well, I did the best I could, and I just need to accept that.” That’s a very hard thing for me. I wasn’t raised that way. I don’t think I’m naturally that way, but this job has humbled me to do that sometimes. I sit there and say, “I could not possibly do more.” I may not be great, but I say, “I’m reasonably smart. I work very hard. This is what I do. And I could not have done more.” [Still,] that’s a tough thing to have to face.

Other lawyers have learned to deflect responsibility for their case outcomes. To a certain extent “it’s out of my hands,” they said. While an im-

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perfect way to manage the feelings associated with losing, the attorneys who shared this opinion explained that it helps them cope. Consider the following exchange with Russell, who was somewhat hesitant to admit that he doesn’t feel fully responsible for case outcomes: Russell: I have a perspective—which I don’t share with clients or their families because they might misinterpret this—that I’m not responsible for what happens to the case. There are a lot of factors, and there are a lot of decision makers, and I am responsible for doing the defense part and working as hard as I can. I just don’t take on [full responsibility for the case]. I don’t take it on because I truly believe [that I’m not fully responsible]. I don’t take it on because I know [that], psychologically, thinking about it [this way] is helpful. Do you think that a lot of capital defenders take that same position? Russell: Nope, I don’t think so. You don’t think so? Most of them feel very responsible? Russell: Yeah, and so I’d be very hesitant to express [this] to other lawyers because they might misunderstand it as I’m not responsible for doing everything that I can. No, no, no. That’s not what I said. I am responsible for doing everything I can. That’s all I’m responsible for—I’m not responsible for when they die. “Oh, of course you are!” [some say]. But no, I’m not. Of course I’m not.

Like Russell, Robin called this approach to the work “really helpful.” “[A colleague] told me that a lot of lawyers blame themselves when things go badly in their cases and feel like they’re responsible if their client gets a death sentence,” he said, elaborating, “But, on the list of people who are responsible for my client getting executed, I need to make sure that my name is at the bottom. . . . That’s all I can do. I don’t get a vote on the jury. I am not the prosecutor. I am not the judge. But I am going to make sure that my name is at the bottom of that list. Other than that, it is kind of out of my hands.”

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The Painful Realities of Capital Work Out of their hands, perhaps, but rarely out of their heads. As Robin said, “This work can be very soul crushing.” During our interviews, attorneys frequently remarked on the troubling nature of their cases, as well as one strategy they employ to cope: avoidance. Several defenders mentioned how much they dislike reading case files or looking at case photos. One attorney recounted a case in which the pathologist’s description of the victim was “so nauseating” that they “could only read a page or two at a time.” The case details can be searing and, as Kevin mentioned, difficult to forget even years after a case is over. Describing his first capital case, which centered on a child’s brutal sexual assault and murder, he recalled: [The facts were] about as horrible as a case could be . . . and I’m [fresh out of law school,] and I’m looking at the crime scene pictures and it’s like nothing I’ve ever seen before. The first time you see it, you kind of want to throw up. You can’t believe that a human body could be like this. And it was so bad. It was so horrible. . . . I remember how it was when I first saw that picture of [that child], but I’ve seen so many different crime scene pictures—really, really graphic ones. I have this Rolodex in my head of these different pictures. [And sometimes] a specific restaurant where a crime happened, like at a pizza place or a 7-Eleven, or tons of [other] little things in life, will remind me of [a crime scene photo].

Nor is the gruesomeness limited to the crime scene photos or case facts. “The worse the [case] facts are, the more you always discover the terrible upbringing and social histories of your clients,” one attorney lamented, continuing, “When your client has killed children or tortured people, you [can] guarantee that it didn’t start with him. You’re in the middle of a long, long dysfunctional [history involving] many, many people.” As a mitigation specialist described it, “Just understanding the ways in which [society] fail[s] people, it’s really appalling.”

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Because capital matters are generally quite disturbing, minimizing exposure to nasty case facts is a helpful strategy to continuing in the field. “Colleagues say, ‘Look at this picture,’” Eve related, “[and] I say, ‘No! It’s not my case. No thank you.’” She continued, “There are some people who thrive on it, doesn’t bother them, [but] I actually don’t even like looking at blood.” Similarly, Russell acknowledged that he tries to avoid unpleasant photos or thinking about upsetting case facts when possible. “I just do my best not to think about it or look at the pictures,” he admitted, pausing to laugh and noting that this is not a “very sophisticated” strategy. He then explained, “It’s just like, do I really have to look at those pictures? What am I going get out of it? [Are we] really going to have some forensic challenge to how [the victim] died? Okay, sometimes you do. You have to be thorough. You have to look at everything. But I don’t have to keep looking. I don’t have to keep thinking about it.” Yet dealing with the distressing aspects of capital work is necessary, at least to a point. We were told by our respondents that this is something one must “learn” how to do even though it is deeply affecting. Capital defense lawyers are hardly the only criminal justice professionals frequently exposed to trauma. Severson and Pettus-Davis note that parole officers, who must regularly deal with challenging clients and unpleasant fact patterns, attempt to manage the difficult aspects of their work through avoidance. For example, officers often “[cope] with the stress of managing sex offenders by trying to limit the amount of information read and remembered about the crime and the offender.”13 Yet to truly avoid the displeasing aspects of capital defense would require one to avoid capital work altogether. Defenders simply cannot do this— tragedy is, for better or worse, their bread and butter. Thinking about the sadness that hangs over capital cases—such as that found in clients’ life histories, witnessed during victim testimony, or revealed at sentencing— can be very difficult for defenders. As Chris, a defender with decades of experience, recounted, “I’ve had to fight emotions many times in court. When I hear victims testify, when I hear [them] talk to the judge at the time of sentencing and say

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how their lives have been destroyed by what my client did. And times when I see the results of what’s happening to my client, when a nineteenyear-old boy is getting life in prison, to never come out again. It’s hard not to cry at that point.” In fact, many interviewees did cry or become emotional when discussing the sorrows of capital work. “I’m trying not to cry right now [just] thinking about it,” one mitigation specialist acknowledged. “It’s bad. It’s such a sad thing all around.” Martin, an investigator who shared the sentiments of Chris and many others we interviewed, reflected on the sadness frequently felt at sentencing. Even when a client avoids a death verdict and is sentenced to life imprisonment, “they won’t have contact visits, they won’t have access to any programs. They’ll basically be locked in their cell for twentythree and a half hours a day.” He continued, “You know, that’s the black cloud that hangs over this [work]. Somebody’s dead and there are a lot of people who are sad and angry about that. And you have to try to find the best possible outcome for someone that has done something that’s very, very [tragic]. That’s what these cases are—they’re very sad.” As another attorney reiterated, “Homicide sentencings are often like memorial services or funerals. There’s an incredible outpouring of emotion and loss and tragedy for the victim’s family, for the victim him- or herself. And then, on the other side, your client’s tragedy—their family, that life wasted, destroyed. [That’s] tough stuff to deal with.” The effects of capital cases extend well beyond the attorneys and their clients or the victims and their family members. The impact reaches all those involved in the capital process, from administrative assistants and receptionists to bailiffs and prosecutors. As one attorney exclaimed, “You talk to the court staff or even the most-hardened bailiff and they’re like, ‘God, I can’t wait for this to be over!’” Capital trials are just “unrelentingly grim.” Indeed, consider the following exchange with Sharie, a mitigation specialist: A moment ago, you said that [capital work] affects everyone. Who is everyone?

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Sharie: Yeah, [in] our office, secretaries and clerks, receptionists and paralegals. I think that sometimes people don’t think that it affects them, [but] the receptionist is the one that’s taking the call of the person who might have a death warrant. . . . They might say “hello” to them often. They might not know them very well, but sometimes they do. I don’t think people always give credit to the fact that these are the secretaries who sent the client a million of your letters. They have a connection, or even if they have no connection to the client, they still feel the pressure we all do. . . . Whether you’re faxing a brief to the Supreme Court [or whatever], everyone has a right to feel [something], no matter what part you play, because the work can’t get done without a million hands really.

Or as another mitigation specialist put it, “many people are victims” of the capital process. “The first responders who have to initially respond to the murder are traumatized by what they see. The jury gets traumatized by what they are told and what they see. It’s everybody, all of us . . . it’s like everybody gets traumatized by all of it.” She paused and laughed, perhaps to deflect, before continuing: “But you go home and hug your dog.” One attorney went so far as to characterize capital punishment as a “public health menace” because of its traumatic effects on all involved. “I’ve been looking at the death penalty from a completely different lens, which is a public health perspective,” he began, “and it has a traumatic effect on everybody who’s associated with it—doesn’t matter whether it’s a prosecutor, defense attorneys, murder victims’ family members, defendants’ families. You know, it’s not just about what effect it has on the defendants. It’s the way the system is constructed. It is detrimental in a very dramatic way to everyone who’s involved.” As another attorney exclaimed, “I don’t think the general public gets that [this work] is awful!” She summarized, “There’s nothing good that comes out of working on a death penalty case. . . . [I see] colleagues who are in their sixties and seventies still doing this—I don’t think I will be.” Try as one might, in capital work there is no avoiding trauma.

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The Trauma of Execution As if confronting the details of capital cases and the sorrows of the capital trial process were not enough, many attorneys, at one point or another, are forced to face their client’s execution. Some had seen their capital clients’ cases through the entire appeals process or had kept in touch with former capital clients sentenced to death. Some had taken on habeas cases, fighting death sentences that were handed down under another attorney’s watch. Still others advised colleagues on post-conviction cases. Although we sought out trial attorneys in the interviews—not post-conviction counsel, who would more likely be involved in the final stages of capital litigation—we came to realize that few defenders were strangers to a client’s execution. “I was on the plane,” one attorney began, recalling the execution of a client he had earlier represented at trial. “Executions were at 11:00 p.m. I remember because the concept of time was different than I had ever experienced before. There was nothing else to do, nothing to distract you. . . . It was the inexorable march of time. Nothing can stop it. Nothing can slow it. It just keeps marching on.” This sense of helplessness— the feeling of powerlessness against the march of time—was shared by numerous defenders whose clients had been executed. Whether at the prison, the office, or the bar, you “sit and wait” for someone to be “killed by the state,” we were told. “I sat in my office [during the execution] and cried with my head on the table—I wept like a child whose blanket had been taken away,” one attorney stated, noting that he hadn’t even particularly liked the client. “[We] were drinking when the witching hour arrived,” another attorney said, recalling his first execution. He continued, “I knew it wasn’t going to end pretty. I just sort of slept-walked through it. It was an extreme lack of consciousness about what was going to go on.” A third defender recounted that “[several] colleagues came and got us and got pizza and beer, and we kind of sat in the office and drank and [my client] was executed at midnight.”

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As trying as the waiting can be, interacting with clients before an execution is often even more difficult to bear, ranging from “unpleasant” to absolutely “heartbreaking.” Perhaps most difficult is having to explain to a client that the courts have denied his final appeals and that the execution will proceed as scheduled. For Mike this happened following around-the-clock appeals to the U.S. Supreme Court. Once the Court lifted its stay of execution, Mike was left to convey the news to his client. As he recalled the story, he was overcome with emotion: “[John] was the first client I had executed, [more than twenty years ago].” He sighed before continuing. “He was mentally retarded,” Mike explained, emphasizing the numerous ways the legal team had argued against the execution. He described a zealous investigation that “went back more than half a century,” the defense team even compiling affidavits from the client’s former special education teachers. “Everybody loved [the defendant],” Mike said. “Even the [prison] warden had trouble with [this case]. I mean, it was tough.” Mike’s voice began to break as he described his final conversation with his client: So, I get a call. . . . “The Court has lifted the stay. I’m going to give you fifteen minutes before I tell [anyone else].” So I got [the client] on the phone and I said, “The Supreme Court has denied your stay of execution. They’ve lifted it.” Most clients would know what that means, [but he] says, “What about my writ of serturary?” He couldn’t pronounce certiorari [correctly]. And I said, “Well, that was it.” I mean, most people of normal intellect, [even if they understood that the execution would now proceed,] would [still] have trouble understanding how the case went from the lowest federal court to the highest federal court in forty-eight hours—that you win, you win, you win, you win, and all of the sudden you lose at the very last step.

Mike continued in a soft voice, “I tried to say it by implication and, finally, I just had to say, ‘Your case is over. They’re going to kill you.’” It

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was at this point that Mike took a long pause. He let out a gasp, and the words that followed were muddled by soft crying. “And I can’t help,” he said. He became silent, then managed to blurt out, “And [my client] said, ‘Well, they’re here. Goodbye.’” In a shaky voice Mike continued, “And then, the very next day, I had to be in court on a different case”—he paused—“and just get up and go and do it.” Mike was hardly the only defender to struggle with composure when discussing executions. “It was a very helpless feeling,” another attorney said when describing an execution memory. She was crying over a glass of wine on her porch when the execution took place, and she was about to “start crying again” in talking with us before having to “change the subject” promptly. As a different lawyer, Brandon, reflected, “[Executions] are very emotional, very, very, very difficult. I firmly believe if most Americans actually witnessed an execution, the poll numbers in support of capital punishment would change dramatically. . . . It’s not something that you would ever forget.” Witnessing an execution is, not surprisingly, quite difficult. Some lawyers said they had deliberately chosen never to witness their clients’ executions because they feared it might prevent them from representing capital clients in the future. One attorney recalled his co-counsel letting him off the hook: “[When] the warden came in and said, ‘We’re going to read the death order. Do you want to come down?’ I looked at [my cocounsel] and she looked at me and [then] said, ‘You don’t have to come down.’ So I said, ‘Put me down as seen and objected to.’” However, several defenders told us that they felt an obligation to witness their clients’ final minutes. Characteristic in this regard was Daniel, who reported, “It was probably because I thought I needed to do it once, or should’ve done it before.” The image of this execution, which Daniel described as “pretty horrific,” has stayed with him for nearly three decades. After that, he said, he has always “found an excuse for not being there.” Nick, with several decades of capital experience, said that whether it is called “a duty or an obligation, my job is not done until I [witness the execution] and make an effort to give my client some sense that

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somebody cares for him.” Similarly, Jordan noted that while witnessing an execution is “very upsetting,” this has not stopped him. When asked why he attends executions he explained simply, “There was never a question of not attending.” He recounted the first execution he witnessed in a straightforward, almost clinical manner: “You sit and sit and sit. Then they brought in [my client], strapped him to the gurney, and he didn’t move. And he never moved again.” Jordan was silent. “What I was struck by,” he elaborated, “was the banality and the boredom of the execution routine. For the [people at the prison,] it was just another day at work.” Like Jordan, Mike found the execution experience rather “bizarre.” He recounted the first time he was present during a client’s “death watch” (the twenty-four hours of around-the-clock specialized supervision leading up to the condemned’s execution). It was an experience over which he had almost no control: The warden met me at the gate and took me through the press room. And they’ve got cake and cookies and deli trays and people are laughing, and it’s like a party—an office party. So I walked through that, [and] I felt like I was on the hell-bound train or something. It was such a surreal experience. And then I get to the rest of the prison and it’s quiet, except occasionally I hear over the PA system, “Execution team report to the infirmary.” And I go in to the death-watch cell. It’s a room about the size of a spacious office, but at one end there’s this wire mesh cage and that’s where the prisoner is. It’s about a five-by-seven cage with a television and what looks like a hospital bed. So I walk in. [My client is] there. He has been given a shot of Demerol, and he’s barely lucid. I talk to him, and he’s scared, he’s crying. We sit next to the screen—as close as we can get [to each other]. It’s a strange [woven wire mesh]. You can’t really see the person on the other side—just their outline. If you push really hard on the screen we could touch fingertip to fingertip—just barely touch, but that seemed important, so we did that. And then I saw that [my client’s] fingers were bleeding because he was pushing so hard on the screen. At the end of the death-watch cell there is just a clock that’s right across from

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the prisoner on the wall. It’s the kind of clock that you put on the wall of a gymnasium so that everybody can see. And you could hear it. It was a cheap plastic thing, but every time the second hand would click, the tip of the second hand would quiver—that’s how big the clock was. You’d just see it tick, tick, tick, and that’s where the prisoner was. It’s like Chinese water torture. It was incredible, just this image of the clock . . . [and] it’s the first time I’ve been in that room. I had no idea that [the first client of mine who was executed] had to sit there [alone] with that clock. Everybody has to sit there with that clock.

One might just as well expect to find the scene described by Mike in an episode of The Twilight Zone rather than in an American prison, for, as in the words of Kevin, “normally people don’t sit around and wait for someone to be murdered.” While the moments leading up to execution can be quite traumatic for clients, at times they actually try to console their attorneys, adeptly aware of the trauma that they, too, experience. “Most clients thank you for all the work that you’ve done,” Sarah said, “[and] we’ve even had clients who have sought to comfort the attorney, [saying] ‘It’s alright. I understand.’” She paused and then said, “I mean, that’s really difficult.” The moments during and just after an execution are not any easier to handle. “Some of [the executions I’ve witnessed] have been very unpleasant and real heart-wrenching,” Nick explained. However, he continued: watching the client die is not as difficult as watching the parents deal with the fact that their child, who is a healthy normal person, was just killed by the state. Watching those people see what is happening to their children [is just heartbreaking]. I saw one mother one time who—and I would never recommend that you witness the execution of your own child—but she was there. She said, “I was there when he was born. I’m going to be there when he dies.” I’m not exaggerating—we had to pick her up and carry her out of the room she was so distraught, [just] beside herself. The prison didn’t lift a finger. They were very upset that we were even touch-

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ing her and trying to help her, but she [couldn’t do it on her own]. To me, that is more heart-wrenching than anything.

Escaping the effects of execution is nearly impossible. Some attorneys attempt to cope by staying busy with work during and after a client’s execution, but this strategy is only so successful. As Russell explained: You can do this sort of psychological game of busywork, right? Well, I’m a lawyer, my job is to stop his execution. I can still ask the governor and check if there’s anything else you need, and my petition is still pending for a stay in the U.S. Supreme Court and I can do that. . . . So you busy yourself with that shit. You busy yourself when there’s stuff to be done [the] day [of the execution.] We almost [always] have very, very good issues. We believe we [do]. And so you sort of fool yourself or busy yourself with that kind of stuff.

It’s simply astounding how lawyers go right back to work following their client’s execution. Nick, for example, witnessed his client’s death, drove the three hours home, and “was at work the next day at eight o’clock because I had other clients I had to deal with. . . . I just always felt like, ‘Well, that case is done. Now I’ve got these other guys that are alive, and I’ve got to help them.’ I can’t be wringing my hands about this guy I just lost, I need to get on with these next cases.” The tendency to get back to work after an execution reflects the desire to “return to normal,” Jordan explained. “It’s catastrophic at the time, but you go to work the next day. . . . You tend to want to lose yourself in your work.” Ian, too, found solace in returning immediately to work, but largely because he sought the companionship of colleagues who would understand how he was feeling. As Ian described it, he came to the office one morning knowing there was an execution scheduled for later that day but thinking that he would be on desk duty. Instead, he was asked to join the defense team at the prison as an observer. Because of multiple last-minute appeals, the execution did not occur until around

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3:00 a.m. The condemned man was brought into the death chamber at one point and strapped in, only to be taken out again when another temporary stay was issued. Eventually, the execution took place, which Ian described as simply “horrifying.” When it was over in the wee hours of the morning, Ian “went home to take a shower and then went back to the office.” Why would he return to work, having been up all night? “I wanted to be with the team,” Ian replied. Only they could understand what each of them had just been through. While imperfect, work was not only a coping mechanism for an execution but, at times, also a way to deal with the losses and sadness of capital work in general. “How do you deal with the pain associated with capital work?” we asked Heath. He responded: Get out there and do it again. You know, [you] get up and you have just got to—I mean, you do not want to dehumanize, just turn it all off, which I think is probably one defense mechanism. It is okay to feel things. It is important to feel things, to feel empathy and to feel some of the pain, but you can’t let that overwhelm you. At some point you have to be able to go, “Next!” Like, “Now what? How do I make use of myself today for this next client that is coming down the road?”

Heath’s remarks were common. As another defender summarized, the best way to address the bad feelings associated with capital work “is to work all the time to prevent losses. [When] we tell the clients that we are working hard, that’s for us—it validates us. I work all the time.” Regardless of one’s coping mechanism, “[Execution] takes an emotional toll and eventually you do hit a wall.” Although close friends may offer support, “you can’t ever completely understand [what it’s like to have a client executed] if you haven’t been through it,” said Jordan. Pausing, he added, “You can’t even understand it completely yourself. . . . It’s a specialized kind of grief, a specialized survivor guilt.” Or, as Nick reflected:

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Lawyers who get involved with these cases and they’re younger—I went through this some, too—they have this belief that this system works here. [This belief] that if you have some sort of constitutional violation or something wrong in your case or something wasn’t fair, it’s all going to be sorted out. It’s all going to be okay because America is this great wonderful place. When you watch lawyers, younger lawyers, and they see, even when they’re not in the execution chambers, that the client they’ve been working for has been executed—and these claims are lost for stupid reasons, because you didn’t present it at a certain time or something like that—watching those people’s belief in America and the legal system that they were taught is just this great system, watching that fall away is really hard. . . . Watching somebody die is the grimmest, [but it’s also] really difficult [to see] parents and children and lawyers have their whole belief system destroyed.

Or, to sum up in the concise words of another defender, “Damn! I haven’t seen anybody that could walk away from an execution and be all peaceful and wonderful after that.”

Emotions, Health, and Secondary Trauma Given the complexities and demands of the work, feelings that the deck is stacked in favor of death, disturbing case facts, and the ever-looming threat of execution—which sometimes becomes a nightmarish reality—it is almost impossible to imagine a scenario in which defenders and others working on capital cases would not be profoundly affected by their jobs or experience vicarious trauma. Yet, again, many were reluctant to acknowledge these effects. We put this question directly to Beatrice, a veteran of twenty years in the field, asking about capital defenders’ reluctance to acknowledge the emotions and stress involved in the work. She struggled to find the right words. Inhaling deeply, she allowed, “It’s kind of a strange phenomenon. I think it’s because we

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know that there’s stress. I mean, what are you going to do? It doesn’t get better if you obsess over it—we know it’s there. . . . In this community you don’t talk about it, [but] it’s nice being with people that do this work, who understand what’s going on without sitting down and commiserating about [how] this is tough shit. They’re there and they’re carrying on, and you, too, can carry on.” Beatrice was certainly not the only defender to frame the community’s silence on the personal impacts of capital work in this way. Like her, some emphasized that unspoken support from the community was sufficient, which meant there was little need for defenders to process, aloud, the ways the work challenged them. Yet Beatrice’s comment also illustrates a separate concern of defenders—that if they give in to the effects of capital work, they won’t be able to continue. Chris, for example, was adamant that he “can’t be thrown off track by a death sentence [or] the feelings” that arise in doing capital work because he has “many other clients waiting [that] need the full measure of [his] professionalism.” In what could be his mantra, he admonished, “You can’t wallow . . . you have to keep on moving.” Ignoring the effects of capital work, however, does not make them disappear. “[Capital work] is very difficult,” Paul shared. “When you finish [a capital trial], you’ll notice for the next month to six weeks that suddenly you’re standing up a little bit straighter, you’re breathing a little easier. You’re noticing that you have time on your hands that you can go do something with.” He concluded, “You don’t realize how far down you’ve been beaten until you get out from underneath it and suddenly you begin to open up again.” As we gently pushed interviewees to reflect on the more harmful emotional, physical, and psychological effects of capital work, they softened and began sharing stories of their numerous health problems, nightmares, and vicarious trauma. Some were relieved to let their emotions out in a confidential setting. Some seemed reassured to learn that we were interviewing dozens of defenders from across the country—knowing that their remarks would be combined with those of others made it easier to open up. Still others appeared to

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process the effects of capital work before our eyes, having never been prompted before to probe their own experiences. “People say [to me], ‘Do you have nightmares?’ And I say, ‘No,’” Dawn, a mitigation specialist, initially declared. She then recalled a recent case-related nightmare—several animals were murdered in the dream in the exact same fashion as the victims in one of her current cases. “[Maybe] I need to be more aware,” she wondered. Reflecting as if for the first time, she shared: In hindsight, I do lose sleep over my job quite often. I lay there thinking about what I saw or what I read or even the trauma that my client went through. It’s usually the victims that I think about the most, the crime. It’s horrendous. I need to stop being so naive, like, “Oh I can handle all this.” [I need] to make sure I do self-care. . . . And so far so good I think, for the most part, but it could get ahead of me. I try to keep an eye on it. I guess it’s not as easy as I thought. In hindsight, yeah, I have nightmares and lose sleep—can’t help it. I can’t unsee some of this stuff.

Beyond sleepless nights, capital work can lead to numerous health complications. Some problems were described as trial stress. Pat first recounted the story of a colleague who would break out in hives during capital meetings and later told us about the “somatic reactions” she herself had to one capital case. She exclaimed, “I was just wrecked! I had incredible neck and shoulder pain—constant! [And] lower back pain.” Other health issues were said to be triggered by specific case-related events, such as sentencing. Gregory, for example, was “incapacitated” for three days with a migraine headache following a death verdict. He thought this was because “you internalize all this stuff and your body kind of functions as long as it needs to [during trial,] and [then] it knows it doesn’t have to do it anymore and you just become incapacitated.” Or, even worse, capital defense can hasten death for its practitioners. Many defenders spoke of former colleagues who had been felled by heart attacks or strokes, which they attributed to the stresses of capital

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practice. As Daniel put it, many capital lawyers place their clients before their health: “There are just the self-destructive decisions some of us make. . . . We push ourselves and the case and the client become more important than our well-being.” He went on to recount the story of a capital defender with dozens of cases under his belt who finished a closing argument while having a heart attack. “He had a heart attack during a closing in a capital case,” Daniel exclaimed, eyes wide. “Maybe it wasn’t his first, so he knew the signs and continued,” Daniel said. “And what happened?” we inquired. “He finished the argument.” Another defender, Mike, told us that his own health was so severely affected by capital work that after one especially difficult trial his wife took him “straight to the doctor and he told me to stop [doing this work].” But Mike was reluctant to drop his practice. “That was the nineties. I had a lot of clients, [and I liked the work,]” Mike explained. “So I took a different approach. I didn’t fire my doctor. I started a concerted effort to take care of myself. If you could go back and see what I looked like [during that trial, I was in my thirties then and am nearing sixty now], you would say that that’s my future older self. I looked like hell.” And what of the emotional and psychological effects of the work? When asked if mental illness plays a role in capital work, one attorney joked, “For me, as a lawyer, probably every day. I’m mentally ill. I don’t know why I would do [capital work] if I was sane.” Although he was making light of the stress and trauma involved, his remark was perhaps not entirely off base. As this chapter illustrates, capital defenders are repeatedly exposed to unthinkable trauma as part of their everyday work lives. And as the lawyers would know themselves from mitigation work, regular exposure to suffering and loss makes one more susceptible to vicarious trauma, anxiety, depression, and stress. Indeed, our interviews suggest that defenders’ psychological well-being was threatened by this secondary trauma whether they realized it or not. Sharie, a mitigation specialist, related, “There is a lot of vicarious trauma [involved in capital work]. When you’re creating the history of your client, you’re talking to people about what they’ve grown up with

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or what they’ve seen. Or you’re in [their] neighborhood and it’s not good and you can see that. You experience things. You don’t just disassociate yourself and write a report—you’re kind of experiencing a little bit along with them.” It’s an experience that cannot be unlearned and that carries forward with the attorneys, affecting how they see the world; how they relate to their colleagues, friends, and families; and how they separate work from personal time. In a telling discussion of her recent work on a recent capital case, Pat revealed that she would likely need a therapist specializing in trauma down the road, especially if her client is eventually executed. She added that while she probably shouldn’t wait to start seeing a therapist, between balancing capital work and a family she doesn’t feel that she has enough time for that self-care. A few lawyers went so far as to claim that capital defense involves a kind of secondary post-traumatic stress disorder—although for other advocates, not themselves. According to Sarah, “There are other lawyers who develop PTSD.” Some people do go get help, and some people don’t. . . . There are certain things that make you more susceptible to PTSD, and there are certain things that will protect you. . . . I’ve recognized that I have a lot of protective factors”—she paused—“but not everybody does.” However, even when a lawyer does not develop PTSD symptoms, Sarah said, the trauma associated with grieving a client’s loss never really disappears: I think [the case] can all be traumatic, actually. I think when you lose a client, yes, it is a loss and you grieve. Of course, you’re grieving someone that most people don’t grieve [for]—even people who might support your work. They don’t really understand that you have known this individual. . . . Here, we’re in situations where we know these clients and we’ve met their families. We’re aware of the terrible circumstance that they’ve had to endure throughout their lives, and we feel great sympathy. And then we grieve. And our grieving isn’t recognized at all. There’s a saying in criminal defense practice that you don’t remember the victories, you remember the losses. That is very clear. I’ve had acquittals in my life. I’ve

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had people get off death row. I don’t wake up in the morning and think about those [cases]. I think about the ones I’ve lost.

“I do have PTSD symptoms,” Jay said plainly. “I don’t have PTSD, but I’ve got . . .”—he paused—“I don’t even know if that’s a valid thing to say. But, people who have trauma symptoms, they come from a series of instances [and] then [get] stirred up by all this other stuff in the future. . . . [I’ve] got this future fear, future concern, that impinges on the present.” Another attorney felt that the effects of capital work can be “like being a survivor of torture.” As Joshua summarized: I think that the lawyers I’ve seen who are most damaged are the people who have tried to be like, “This doesn’t bother me.” If I can see all this pain . . . the victim’s pain and anger, the profound damage that has been done to them, the client’s pain and anger and his family’s pain—and here you’ve got to be the reservoir for all of that, and the person who says, “This shit doesn’t bother me,” ultimately, it does. I think we all suffer from secondary PTSD. If you don’t find a way of [acknowledging and] dealing with that, it’s going to come out in unhealthy ways.

The Effects of Capital Work Vicarious trauma or not, we were certain that capital work had left a mark on most of our interviewees and wondered how they managed to cope, especially when it came to maintaining a healthy work–life balance. As it turned out, more than half acknowledged that this was quite difficult. For instance, when we asked Gabriella to describe the way capital defense had affected her life, she immediately broke out in laughter. “How about lack thereof?” she responded. Or as Beatrice explained, “Of course [capital work] affects my personal life . . . but whether my personal life has just evolved to accommodate my work, I couldn’t tell you that. I suspect it might have.” Joshua was more definitive in his answer even as he mourned what his family would say were the impacts of his

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work. “Wow. I would guess they would say that there are times that I probably put the work way ahead of them,” he acknowledged, “and that would almost certainly be true.” Like Gabriella and Joshua, dozens of defenders and mitigation specialists listed the ways their personal lives, as well as the personal lives of others in capital defense, have suffered due to the demands of the work: addiction, lack of family involvement, missed vacations, divorce. As Daniel—and others—warned, “You make a lot of sacrifices [in capital work]. . . . [And] you do bring it home a lot.” The effects of capital work manifest in defenders’ personal lives in different ways. For some it is all consuming, bleeding into their personal lives and taking over time that could be spent relaxing or with family and friends. As Scott reflected, “It’s very easy to work all the time. You just do it. But it’s much more difficult to carve out a time for family or friends or things you really like to do that you should do.” We wondered if he had found a way to achieve balance. “No,” he said. “I’ve not done a good job. Some people do a good job, but I haven’t. My idea of a good weekend is to get caught up on some of the work I didn’t do during the week.” It’s just too easy to become “consumed” by the work—personal time is pushed aside. As another attorney explained: It has probably been three or four years since I took my last vacation. Ask some of the defense attorneys you’re talking to “When was the last time you had a vacation?” A real one. We go to [some fantastic cities]—and my wife goes, too—but how come there’s a [death penalty] seminar every place that we go? They’re some great places, but we don’t go for the fun, we go to learn something. . . . [While I’m there] I’ll have some good meals and see some entertainment, [but] it’s a backwards way to live. I wouldn’t encourage anyone to do this.

Many worried that capital work had affected their children and partners. “It’s just sort of collateral [damage],” one attorney bemoaned. For example, Moe described how “grumpy” he can be with his children

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when he has “a bad day in court” or has to deal with a “difficult” client, client’s family member, or witness. But his kids don’t know why, and Moe doesn’t tell them. “They think it’s because they get a bad grade on a quiz or something.” Pat mentioned that one of her children had become very depressed during a recent capital trial. She lamented, “[My case] had a psychological toll on my kid, who’s just five now. . . . [My kid] developed—and it’s heartbreaking—actually developed what would look like depression. . . . There was a period where [my child] started saying things like ‘I’m never going to be happy again.’” Of course, it is difficult to know whether the depression was directly related to Pat’s capital work, but to some extent that is irrelevant. Pat believed this to be the case, and the diagnosis weighed heavily on her. Other attorneys worried that they might be exposing their children to the dark side of life at too early an age. Natasha stressed that she tried to “shield” her children from some aspects of the work but said that this was tricky. She recounted one close call in which she accidentally placed a file of crime scene photos in her computer’s screensaver folder. She recalled, “I walked into my office one day and there’s a picture of the [victims from one of my cases] with bullet holes in their heads and blood everywhere. ‘Oh, my God!’” she exclaimed. “It could’ve been my kids that walked in here!” Even when attorneys were more open in discussing their work with their families, they still had concerns about the potential effects on their children. As Deborah shared: I talk about [my work] all the time with my kids. They’ll often tell me that I ruined their childhoods, [because] I would talk to them about things that were going on in my cases [and sometimes reveal things by accident]. When my kids were really little, I was always trying to get them to nap. I would gather them into my bed and tell them a story, and [because I was so tired from my cases] I would often fall asleep before them. I guess I must

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have this habit of interspersing an actual story with something else as I’m falling asleep. So they will never cease to remind me of this time that I was telling this story [from a Disney movie], and I ended up having [the main character] strapped into the electric chair. . . . They tease me about that stuff all the time, but they say they have managed a fine childhood despite me.

Another defender recalled the time his son had a nightmare after the family discussed a capital case over dinner. After that, he stopped sharing so many case details at home. Yet doing this was difficult. As the attorney confided, “This is what I live with, and I can’t fully express what I live with [to my family].” It’s not just children who are affected by capital cases. An attorney’s partner may also pay for the cases he carries. Reflecting on his many years of marriage, Brandon remarked, “My wife will tell you [that I bring stress from work home]. I’ve been told . . . that I’m not the easiest person to live with when I’m in trial because, when I’m in trial, I eat very little, I sleep very little, [and] the only thing I ever want to talk about is the case.” Similarly, Heath commented, “When I’m in trial, [my wife] notices. I just won’t be around. I get up at three in the morning and work on my opening and come home after dinner is all cleared away and just grab something to eat. I’ll work another hour and then go to sleep and then get up at three again. I’m sure she notices what’s going on . . . and it causes an extra burden for her.” In the worst circumstances, capital work can lead to divorce. As Jay appeared to realize mid-thought, “I know a lot of attorneys who lost their marriages over this. Actually, I don’t know any attorneys who’ve had their marriages survive [capital work].” While Jay was the only interviewee to suggest such dramatic effects, capital defenders were certain that their brethren share a higher than average divorce rate though no one could confirm this assertion. Ultimately, it is not a matter of whether capital defense affects attorneys’ personal lives, but a matter of the degree to which it does and

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whether defenders can successfully minimize these effects. One attorney summarized this perspective rather well, noting, “You don’t want to bring it home, but you do. . . . [Your family] doesn’t understand why you’re working so hard on this. Why are you distracted? Why are you making these sacrifices? . . . A lot of lawyers I know, they don’t have children or they don’t have wives anymore. Or they’ve got several wives and several children, but they don’t live with them. . . . You feel guilty anytime you’re taken away from the work. And you feel guilty for any time you take away from your family. . . . I don’t know anyone who would tell you they’ve got a good balance.”

Coping with Capital Work Nonetheless, some attorneys claim that they manage to “do it well,” achieving a healthy balance between work and life. Who were these attorneys and how did they achieve such a balance? While they admitted to the occasional late night or weekend spent working on a deadline, they said this wasn’t their norm. Instead, they spent most evenings and weekends with family, on hobbies, and enjoying sports— all of which have been found in prior research to serve as attorneys’ coping mechanisms. They also spoke of extraordinarily supportive and understanding family members, partners, and children, who they felt were very proud of their capital work. For instance, Dawn lauded her “very awesome husband and amazing friends,” who support her through the “sad parts of the work.” Similarly, Chris stressed that his family is not only “proud” of the work he does but also “has been extremely patient with me, tolerant, and understanding,” all of which helps him to feel supported. So what was the key difference between those who said the work had little impact on them and those for whom the effects of the work weighed heavily? The answer to this question was rather straightforward: the ability to compartmentalize. Separating one’s personal life from one’s work life does not sound very novel. Indeed, capital defend-

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ers described strategies and tips for achieving a healthy work–life balance that one might expect to find in a run-of-the-mill self-help book or a magazine for busy working parents. Yet the ability to tune out and turn off separated lawyers who appeared to be relatively unscathed by the demands and realities of capital work from those who were clearly struggling with immense physical and emotional fatigue. Many suggested that it “takes effort to separate yourself from your work . . . to not take [the work] home.” As obvious as this may seem, it is a learned skill, defenders stressed. “I have a life outside of work,” Brandon remarked, emphasizing that he wants to live a “full” and “complete” life. “I have a family. I also run, bike, swim—I’m a triathlete. I do a lot of sports,” he said. As another attorney commented, “I have a family, two kids and a wife. . . . I do try to have those times of the day where daddy won’t be on the phone no matter what—dinnertime, bedtime, school drop-offs and pick-ups. . . . I try to get all of my jail visits with clients done during the day when the kids are at school or summer camp. . . . I try to do most of my research and writing after my kids have gone to bed for the night.” He was not alone. A number of attorneys described compartmentalizing family time and work time in this fashion. As Nick mused, “Now that I think about it, when I go home and I walk in the door, I turn off [the work]. That doesn’t mean that I don’t get calls from work or that there are lawyers in the office who call and have a question, but when I go home unless I am under the gun and have a project . . . on the day-to-day, I turn it off. . . . I don’t worry about [work] or wring my hands about it. . . . I just go home, turn on the TV [or read], and ignore it.” Sarah offered a similar remark, stressing, “I have such a separation [between] what I do in my day job and the rest of my life. . . . I have never gone home to talk about my cases. In fact, there have been more times than I can count throughout my marriage where my husband has opened the paper and said, ‘I didn’t know you were representing that guy!’” A handful of defenders revealed that they cope with capital work using more creative outlets, from artistic pursuits to gardening to home renovations. “My release is music,” one defender revealed. “I’m a jour-

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naler. It’s very therapeutic,” stated another. Eve told us that she has a penchant for various hands-on projects around the house, which she found especially satisfying because the experience is so different from what she does at work: Breaking glass and tile is actually quite good for me. It’s very therapeutic. And it’s cheaper than actual therapy, which is what I required [for a while]. You finish it. There’s a creative process. There’s a beginning, a middle, and an end. . . . I like painting, too—painting rooms, not art. You start, and it looks great when it’s done, and it gives you a feeling of accomplishment. There’s nothing sad. It’s just great. And that’s not our job. Literally, the day I stop one case, I have five more in my box. So it’s not like you ever really finish and things are on appeal. Sometimes your client goes to a mental hospital and then two years later they come back. There’s no feeling of accomplishment. It’s not a cut-anddried thing.

For the most part, capital defenders are not an introspective group. It came as somewhat of a surprise to learn that very few of them seek professional help to manage the effects of capital representation—especially since most would likely benefit from it and, as a group, they understand how useful psychologists can be to their casework. It’s quite possible, however, that some defenders believe therapists won’t be able to assist them, that the effects of their work are too specific and too traumatic to be served by standard practice. Eve, while a self-proclaimed believer in therapy, emphasized that she—and some of her colleagues—had gone through several therapists over the years. “I remember a colleague of mine who went to . . . [one] psychologist or counselor [when] she was doing sexually violent predator work,” she recalled. “The therapist kept asking about her work and colleagues’ work and was just appalled at the caseloads and stress!” she laughed. “I told her, ‘I’ll give you some numbers. Don’t keep talking to this guy—he is obviously not used to working

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with us.’” Eve referred her colleague to a therapist she herself had seen who works with professionals in high-stress occupations: “[The therapist is] a shrink who sees other shrinks [and] didn’t freak out about hard work and long hours [and stress].” Separating oneself from the work—no matter how one does it—has its rewards. Attorneys who managed to do this explained that it allowed them not only to have more fulfilling personal lives than they would otherwise, but also to recuperate from the work. This, in turn, made them better lawyers, they said. Gregory remembered that he “was working eighty- or ninety-hour workweeks” early in his career, something he called “unsustainable.” Over the years, he witnessed other capital defenders suffer through major health crises, suicides, and “strange deaths,” causing him to recognize the importance of slowing down: “Up until about five or six years ago, I was driving eighty miles an hour. . . . I think a lot of capital lawyers are that way. . . . Maybe I’m still going sixty-five or seventy, but the machine works a lot better when you [slow down a bit].” Some coping strategies, however, are healthier than others. “A negative coping response is defined as [behavior], which is used to combat distress, which ultimately contributes to increasing the level of subsequent distress,” say Lerias and Byrne. They point out that those who have experienced vicarious traumatization often use negative coping strategies, such as abusing alcohol, to manage their pain, but emphasize that these strategies “trigger and inflame subsequent posttraumatic stress symptoms.”14 For Robin, capital work and negative coping mechanisms can go hand in hand. “[This work involves] the kind of stress level that drives people to look for stress relievers—to drink, to do drugs, to [engage in] unhealthy behavior, to smoke. It just eats away at you,” he shared. His remarks were echoed by numerous defenders, many of whom highlighted the prevalence of compulsive behaviors and substance use among the capital community. Indeed, the potentially unhealthy coping mechanisms identified by our interviewees were con-

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sistent with many of those found in previous studies of the legal profession, which have included drinking alcohol, using prescription and nonprescription drugs, overeating as well as more constructive measures such as sports or exercise.15 There seemed to be a combination of coping mechanisms—perhaps both helpful and harmful—at play for most defenders. “How do folks cope with [capital work]?” we asked Joshua. “Well, I can really only speak to the everyday for me—bourbon,” he replied, “[along with] working out, staying healthy, and having friends that are not lawyers.” Another attorney played off this same point. “One word: alcohol,” he said, laughing. He continued, “I’m joking, [but] I once went to one of these [capital] conferences where someone got up and was talking and she said, ‘You know, sometimes you’ve just got to tie one on!’ That’s the way she put it. And everybody in the audience just laughed and acknowledged that sometimes [when doing this work] you just have to get drunk.” When asked how he deals with the stress of capital work, Heath blurted out, “Somehow, between meditation and drinking, I get through.” A minute later he added that exercise and outdoor activities are his primary coping mechanisms, but the fact that he led with alcohol was not coincidental. Even Pat, who said she is not generally a drinker, divulged that she began drinking much more frequently and even “developed an interest in whiskey” during a recent trying capital case. For Gabriella, like several other defenders, “there might be nights where [she needs] an extra glass of wine [to cope].” At times there can be a very fine line between “an extra glass of wine” and a substance abuse problem, between coping and addiction. As Kevin warned, “It’s true that there are a lot of people who do this [work] who have a lot of various addictions—some healthy, some not so healthy— but, [regardless,] they do something to the extreme.” Others, too, noted that there seems to be quite a bit of drinking and even substance abuse among the capital defense community. This observation is supported by the handful of empirical studies on alcohol abuse among legal professionals, who are, indeed, more likely to engage in problematic drinking

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than other professionals.16 As one attorney summarized, “There are lots of capital defense lawyers who suffer from the stress. . . . The thing that I’ve always noticed about [one of our major conferences] is that the bar is full. And it’s filled with lawyers who are drinking and who are drinking, I think, because they’re drowning their sorrows.” We’re not able to say whether the capital defense community as a whole suffers from an addiction problem, nor are we prepared to say whether, on the whole, defenders are able to cope successfully with the stress of capital cases. The reality is more nuanced. Whether through inner strength found in meditation, satisfaction from hobbies or sports, the numbing power of alcohol and other substances, or the guidance and support of friends, family, peers, and therapists, defenders manage to handle—with differing levels of success—the realities of capital work. At the end of the day, the only way to truly avoid the negative effects of capital defense is to leave the field—and even then, some of these effects will linger for a lifetime.

Conclusion Capital work is very difficult. Not only is it demanding, high-pressure work, but it is also startlingly grim. Those who work in capital defense are bombarded with loss and trauma daily. Many become anxious, depressed, fatigued, stressed, or even physically ill. For some, the work is made bearable through a combination of avoidance, compartmentalization, substances, exercise, hobbies, and interpersonal support. Regardless of coping abilities, the work still leaves a mark. Though dealing with the sadness and stress of capital work is hard, discussing these realities is just as difficult. Despite seemingly positive attitudes, beneath the surface capital defenders are plagued by a deep sense of melancholy. While most defenders were reluctant to communicate openly, we did manage to coax out their feelings, if only reflected in brief glimpses of unabashed honesty like that shared by Deborah. “I talk about it to anybody who will listen, and I watch a lot of really bad televi-

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sion,” she revealed. “I have children, and so I spend time with them, and they’re wonderful kids, and that takes my mind off of it.” She paused. “But you get to a certain age, and you realize that life is sad for a lot of people, and so you just kind of muddle as best you can.” In glimpses like these, we found the pain of the cases and the difficulties of coping, but we also saw the resilience of lawyers who do what is necessary to forge ahead.

Conclusion Defending the Defenders: “I’ve Helped the Lowest of the Low. . . . I’m Proud of Doing That”

If capital defense is so difficult, if the methods to cope with its stress and pain are limited, why do lawyers remain in the field? This is not the same question as to why they first enter the field, which we covered in chapter 2. There we revealed six interlocking motives for a lawyer’s choice to take on capital litigation. Some attorneys are inspired by moral conviction, including religious devotion. Some move to capital work as a natural, although perhaps unintentional, professional progression from traditional criminal defense. Some seek the excitement of capital litigation with its high stakes, stark deadlines, and pressure-packed court proceedings. Some lawyers are motivated by prestige and ambition, not unlike their law school classmates who gravitate to the bright lights of Wall Street litigation or deal making. Some defense attorneys exhibit oppositional personalities and tackle cases trying to remaster their own psychological trauma. And some lawyers—usually the less talented and committed—are attracted by the higher compensation that capital cases offer over “garden variety” criminal defense. Many of these motives also explain why defense lawyers remain in the capital field, but some lawyers realize another personal benefit from the casework: despite acknowledging how emotionally, intellectually, psychologically, and even physically challenging the practice of capital work can be, defenders also say it can be a privilege. Despite everything, lawyers feel fortunate to do capital work because it gives them a much greater appreciation for life than they would otherwise have. “[This work] changes who you are . . . for the better,” we were told time and again. 241

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Several attorneys stressed that capital work has not only shown them a side of the world they didn’t know existed, but also has allowed them to have a meaningful influence on the world. For Nick, capital work “has impacted” his life. As he explained: It has shown me families and poverty and things that, in this county, I just never would have believed existed had I not gone and seen that for myself. It has been rewarding in the sense that I feel like I have helped people. I’ve helped the lowest of the low—there just can’t be anybody worse off in this society than somebody that has been sentenced to death. . . . And I’m proud of doing that. . . . The more I work with people like that, the more it strengthens my resolve. . . . I’ve heard lawyers say, “Oh well these people that do the death penalty, they’re the trashmen of the law, they take care of the trash.” If that’s what it is, I’m fine with that, because let me tell you, it has been a privilege to do it.

Chris, too, explained that four decades of capital work had given him “a zest for life. It has made me vital and alive,” he asserted. He was not only upbeat but also thankful. We sat with Gabriella as she showed us a photo of her daughter. “There’s a flip side to the [dark aspects of capital work],” she said, tears beginning to well up. “I’m sitting here looking at a picture of my daughter on my desk and, I’m sorry, I’m getting emotional. Every moment with her, even if she’s being a total pain in the ass, you cherish. . . . My parents are amazing gifts. My kids are amazing gifts. I think that’s one thing that, if anything, this work probably teaches you—it’s just how precious life is and how easily people throw it away.” In fact, after doing capital work for about a year, Gabriella drove to her parents’ home to thank them in person for teaching her “what love is and knowing that you’re loved”—something most of her clients have never known. Apart from coming to appreciate life and living it to the fullest, capital work has the potential to make one “a better person,” lawyers said. Capital representation makes you “nicer and kinder to people and more

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understanding.” It leads defenders to become “more knowledgeable, more accepting, more tolerant, more humble,” and also more forgiving. Confronted with the “many stories of [their] clients,” lawyers come to appreciate that others may be laboring with unexpressed sadness, turmoil, or even trauma. “So, when someone slights me,” a lawyer explained, “[I can] let it go. What the heck do I know [about what they’ve been through]? I’m a little bit more forgiving.” Still, it’s a profession that usually takes some explaining when a layperson meets a capital defender and struggles to understand how, and why, the lawyers do their jobs. “I’ve stopped trying to have those conversations,” one attorney told us, his patience worn thin meeting people at parties, on the plane, or standing in line who ask what he does for a living and then express shock that “anyone would do that job.” Other lawyers may be more willing to chat and even “seek out” those conversations, seeing it as part of their professional mission to educate the public about the importance of capital defense. “I start out asking someone how he would feel if his relative were charged with a crime,” a defender described. “Does he think the prosecution should have to prove its case, and should his relative have a lawyer to ensure this happens? The answer is almost always yes. So then I say, ‘Wouldn’t this be most important if the government wanted to execute your relative?’ That usually gets a nod, too, and by then I’ve shown why we’re needed.” Needed, perhaps, and maybe tolerated or even admired for the lawyers’ commitment to civil rights and liberties. But the conversation takes another turn should attorneys acknowledge, like Jacob, that they “love” their clients or report, as did Joan, that they are “emotionally invested” with their clients. The public may understand why the attorneys feel committed to their clients’ cases and empathize with the sentiments of lawyers like Mitchell, who felt “pissed off ” when his client openly mused about the opportunities to attack the attorney in an interview room. But that’s only because the public may appreciate the lawyers’ role in the criminal justice system and feel bad that someone must assume their function. It’s almost impossible, however, to find someone who under-

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stands why lawyers not only enjoy the process of defending capital cases but also like the clients themselves. We noticed this ourselves while preparing the book. From time to time, we would share stories from the research with friends, family, and colleagues, and the accounts would often garner a collective wince. “How can they do that?” we would hear. “It must be so stressful and depressing to be surrounded daily by human misery and tragedy.” But the reaction that most stands out—and the one that capital defense lawyers would seemingly most challenge—is that from one of our most progressive lawyer friends. Commenting on a recent capital case in the news, she exclaimed, “That defendant sounds like evil personified.” “Capital defense attorneys would say that the crimes, not their clients, are evil,” we responded. “They believe they can find the humanity in their clients, that they may even like their clients. Their mantra is that people are more than the worst thing they ever did.” “Oh, no,” our friend countered. “Someone can turn evil, and when you’re raping and murdering children, you’ve become evil.” Her reaction would alarm, if not dismay, many capital defense lawyers. Even though it came from a public interest lawyer who opposes the death penalty, her response reflects the mentality of many prosecutors, who in a capital trial must convince jurors that the crime was so heinous, the perpetrator so irredeemable, that the defendant should be put to death. We are not prepared to say whether capital defense lawyers are correct about their clients. We did not interview the defendants or, for that matter, the prosecutors, judges, or jurors involved. We have not read transcripts from the cases, and neither of us is qualified as a psychologist or mitigation specialist. But it is hardly important if the lawyers are correct in their assessments. What matters is that the attorneys largely believe in and like their clients, and that their regard for the defendants’ humanity seems so inconceivable to much of the lay public. This disconnect moves capital defense into the category of the inexplicable, a profession so odd and unusual that it is rarely considered by the public, and, when it is, the effort becomes stigmatized as “dirty work.”

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We referenced this term in chapter 1, which refers to “occupations that are stigmatized because of associations with problematic physical (e.g., garbage, death, danger), social (e.g., tainted clients, servile relationships), and/or moral (e.g., sinful, confrontational, deceptive) issues.”1 Capital defense incorporates all three elements of the definition. It is potentially dangerous, a notion illustrated by Mitchell’s story of an aggressive client. It is socially branded, with the public put off by the horrific facts of the underlying crimes. And, for some, it is morally problematic, with people regularly asking capital defenders, “How can you defend those people?” In many ways, the public would like to sweep capital defense under the rug, saddened and horrified at the crimes that give way to the cases, perplexed at the nature of the work, and mystified that an attorney could come to like his client, the capital murderer. In this book, we have tried to pull back the curtain that shrouds capital defense from public view and understanding. We have explained how it differs from traditional criminal defense—how much of the work is done outside the courtroom by lawyers who are often used to being lone wolves, but who must learn to work with and manage a team that includes other attorneys and a mitigation specialist. Although the attorneys spend considerable time investigating the facts and litigating substantive motions, in reality, the goal is a guilty plea and life in prison or perhaps even a term of years—as opposed to a verdict of not guilty. This is true whether the attorney is one of the “old guard” who cut their teeth in the South or an occasional capital practitioner appointed as a panel attorney. The primary difference is how thorough the investigation will be and whether the attorney is ultimately able to convince either the prosecutor to drop the capital charge or his client to plead guilty and accept a lesser punishment. Given the stigmatization of capital defense, it is hardly a wonder that the profession attracts attorneys with oppositional personalities, often trying to master their own trauma through the cases. But the work also draws attorneys motivated by a heightened sense of morality, some of it driven by religious conviction. The “state shall not kill,” they say, citing

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scripture, or at least the power of the state should not be imposed against those who were themselves victimized, whether physically as children or structurally through lack of real opportunity. Capital defense lawyers are also motivated by more self-centered intentions, some drawn to the excitement of the work, others attracted by the opportunity to work on complex cases or with lionized attorneys, and a contingent regretfully seeking the higher compensation that comes with these high-stakes cases. Attorneys don’t just fall into capital defense—although many we interviewed initially told us just this. They may transit from traditional defense, but the work takes a level of commitment not necessarily appreciated when handling ordinary criminal matters. Lawyers also find a gender-bending practice when they take on capital representation. From one perspective, capital defense challenges traditional notions of gender and work, elevating the status of emotional labor by emphasizing teamwork, relationship building, and mitigation in capital cases. But this emphasis has yet to elevate the status of emotional laborers—primarily women—who operate in a gendered hierarchy that closely resembles that found in allied professions. This contradiction, which premises “good” capital defense on the emotional labor disproportionately performed by women while nonetheless reinforcing traditional gender norms and biases, is perhaps best summed up by one capital defender who said, “If there is sexism going on, at least women are being shunted into the most important part of the case.” When it comes to questions of race, however, there is no contradictory dichotomy. Most capital defenders are white, and they often represent clients who are not. While attorneys are quick to point out the many racial injustices of the justice system, many are uncomfortable acknowledging the potential for their own racial identity to affect their work. Yet attorneys’ race undeniably influences their capital practice despite prevailing professional norms that they “erase” their personal identities and despite the challenge this may pose to egos and legal abilities. Fortunately, the vast majority of capital defense attorneys recognize that racial differences between themselves and their clients must be ad-

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dressed head-on: although there may be “nothing [lawyers] can do” to change their racial identity, they can have “genuine,” “open,” and “honest” conversations about race with their clients. They can also bring in liaisons, members of the team whose backgrounds more closely resemble those of the clients, hopefully making them more relatable. The most progressive attorneys warn against assumptions that race—or any other aspect of identity for that matter—is a key determinant when connecting with clients and others. Instead, these attorneys stress the intersectional nature of identity and strive to create space for each team member to connect with the client in his or her own way despite assumed gendered, racial, or socioeconomic differences, to name a few. This, they argue, bolsters the capital team’s connection with the client and facilitates zealous representation. Regardless of the attorneys’ or clients’ identities, the challenge for both remains the same—to form a relationship of trust in which the lawyer fully investigates the case and the client’s background so the attorney can adequately advise and represent the client on the best possible resolution. Of course, this process is easier said than done. Clients often have been let down by others in their lives—including prior lawyers—and the mental disabilities, addictions, and other trauma that many clients bring to the case make it difficult for them to form relationships with others or understand the lawyer’s role or advice. Nonetheless, establishing a workable attorney–client relationship is the central task of effective capital representation and the feature of death penalty work that many attorneys simultaneously find most rewarding and most difficult. If, as many attorneys said, the ultimate goal of a case is a plea, they must successfully navigate the client’s family, deal with his disabilities and dysfunctions, compartmentalize the crime, and illustrate his humanity, all in the service of an outcome other than execution. As difficult as this process may be, many defenders find themselves closely connected to their clients, who they say are “remarkable” and even “likable” people. Still, the work is trying, both physically and emotionally. Lawyers who succeed at handling capital cases over the years must find a way

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to draw boundaries around the work, whether literal or figurative. For some it means leaving the motions, investigations, and interviews at the office or working at home only when an emergency arises or a trial approaches. For most it means trying to turn off the “if only” soundtrack that plays in their minds. If only they interview another witness, if only they uncover another document, if only they file another motion, they will keep their client from execution. When the stakes of a representation truly are life and death, it is exceedingly difficult for lawyers to be satisfied that their efforts were sufficient. The stress ultimately wounds and even ravages some lawyers. From health problems to broken relationships, addictions, early exit from the field, and even death, it is difficult for attorneys to handle the pressure of capital representation. The most grounded lawyers must rely on a variety of coping strategies to keep the stress at bay, including exercise, meditation, outside interests, strong personal relationships, reasonable expectations, and a little bourbon from time to time. We said at the beginning of this book that our interviews focused on the “cream” of the American capital defense bar. For the most part, the lawyers chronicled here are the “best of the best” according to their peers. This was a conscious decision on our part, to showcase the highest standards and expectations of practice and to illustrate how the challenges of capital defense permeate the entire field, hampering even the finest defenders. Or, put another way, if even the best capital defense lawyers find it difficult to establish a relationship of trust with their clients, to see past the client’s crime to his underlying humanity, to maintain energy and focus in the face of unrelenting prosecutors and hostile public opinion, one can only imagine how trying—and lacking—capital representation is among those lawyers motivated less by service to the client than regular employment, higher hourly rates, or even the dare of taking a capital case just to tell the story later to friends. Capital representation is hard when done well. It is easier to perform when the attorney avoids client meetings, hesitates at filing motions, and conducts a hurried or sloppy investigation. It is also potentially more

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lucrative for a lawyer to take a case to trial, when he can bill for the guilt and penalty phases, than it is to negotiate an early plea that would remove the possibility of an eventual death sentence. But securing a plea requires that the lawyer deal closely with a client he may dislike, fear, or even abhor. In jurisdictions where judges appoint capital defense lawyers from the general bar, there is no guarantee that a defendant’s attorney will oppose execution, including the client’s own. This does not mean that inferior lawyers are doing the work of prosecutors, but their failure to be thorough or to look past whatever views they may have about the client often has the same effect. How can we say this? Because past research and evaluations have shown these problems and effects. In fairness, it is rare that a capital defense lawyer intentionally provides substandard representation.2 Over time, structural barriers are assembled against a full-throated defense. Even in the federal system, sometimes called the “gold standard” of indigent defense, presumptive funding caps exist that cabin the acceptable level of attorney time and investigative resources a defense team spends on a capital case. According to both judges and seasoned defenders, these “presumptive caps” are so low that a capable attorney would quickly “blow through” the limits if doing her job well. As a federal judge has explained, the “presumptive limits . . . don’t seem to really provide much of a guidance for anybody because they’re out of sync with today’s reality.”3 They also create serious hardships for the attorneys as well as the defendants, who are literally facing a life-and-death battle. In turn, many qualified attorneys will refuse capital appointments, and younger attorneys avoid this work. “We know that’s been a huge difficulty within our circuit and within our state,” said a Texas lawyer. “When I get somebody interested from out of state . . . and then I have to talk with them about the battle to get funding for resources for investigation and experts, that is a huge deterrent to people coming in. Because people understand that without those resources they cannot do their job.”4 Judges also cut attorneys’ vouchers for payment or refuse their requests for investigators or other expert assistance. When the federal

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courts established the Ad Hoc Committee to Review the Criminal Justice Act Program, it received testimony and data to suggest that up to 25 percent of attorneys’ vouchers are cut by judges, and half of those cuts do not offer an explanation other than that the judge wanted to reduce costs. More troubling, the Committee also uncovered evidence that capital defense lawyers were failing to ask the courts for sufficient expert services and other resources. Querying panel attorneys who had handled capital cases, the Committee found that a full quarter of lawyers almost never employ an investigator or expert in a capital case. Even when their clients are facing a possible death sentence, these attorneys do not seek the court’s permission to hire experts. The Committee heard multiple explanations for the failure of capital defense attorneys to seek expert services. In some cases, panel attorneys represent clients whose co-defendants are represented by a public or community defender, and the panel attorney can “piggy back” on the investigation or expert services produced by the defender’s office. But the larger problem is cultural. As a well-known, veteran capital defender told the Committee: One of the things that immediately strikes you . . . in [visiting] various districts in the country on capital cases . . . is that local counsel always tells you what you can’t do in connection with the cases, and that the judges are not going to approve this, and they’re not going to approve that. That’s an experience that we often have, [but it’s not always borne out in] talking to the judges. . . . It goes back to something [other witnesses have] said, and that is that you develop a culture where people don’t request.5

The failure of some capital defense lawyers to seek sufficient resources, whether it be an investigator, an additional law clerk, or a psychologist or psychiatrist, only compounds the resource disparity that even well-intentioned capital defenders face. In most capital cases, the defense is up against a local prosecutor’s office, which employs mul-

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tiple lawyers, investigators, and paralegals and is assisted by a variety of law enforcement agencies. At the federal level, the defense faces the local U.S. Attorney’s Office, the Capital Case Section of the Justice Department’s Criminal Division, and a variety of federal law enforcement agencies, including the Federal Bureau of Investigation; the Drug Enforcement Agency; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; and the Federal Bureau of Prisons. Against this behemoth, the defendant must depend on his two lawyers and any investigators, mitigation specialists, or professional experts the attorneys request and the court approves. For these reasons, it is essential to the client’s fate that his attorneys be qualified, dedicated, and zealous advocates. There is little margin for error when the state can commit a mountain of resources to the case and when the evidence is quite strong, as it usually is if the prosecution seeks a death sentence. As the attorneys interviewed for this book make clear, quality capital defense is time-consuming. It’s exhausting, stressful, and seemingly impossible. Yet it is also rewarding. Anyone who enters the field should do so with his eyes wide open, and a nation that maintains the death penalty and relies on capital defenders to enforce substantive and procedural safeguards should be acquainted with the nature of the work and be prepared to support it. Throughout our research we have been asked by many people what we think of the capital defenders interviewed for the book. Are they saints doing God’s work? Do they appear unbalanced, done in by the stresses of the job? Or, even worse, do they seem unscrupulous, working to excuse horrific crimes and release dangerous criminals? The truth is that none of these depictions is accurate. On one level, we have tremendous professional respect for the attorneys we interviewed, who perform a job we know we could not do. Just as a surgeon has her patient’s life in her hands, a capital defense lawyer is the bulwark against the client’s end. But surgeons cut out disease and regularly return their patients to health. Capital defense lawyers, by contrast, take a bad situation and try not to make it worse for their clients. The attorneys suffer many of the

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same stresses as do surgeons, but with significantly fewer resources and rewards, and they are often pilloried in public opinion for what they do. It’s hard not to respect an attorney who would assume this duty. But, in the end, the people who defend capital cases are just that— people. They are driven by a variety of motives, from the moral teachings of their religious traditions to the pecuniary interests of their pocketbooks or the ego needs of their psyches. They may be accustomed to solo practice and have difficulties working with others. They may have internalized sexist patterns, which they perpetuate in their dealings with coworkers, or may entertain preconceptions about race and identity that implicitly—or explicitly—influence the way they work, for better or worse. And they may cope with the stresses of the job in unproductive or even dysfunctional ways. This more nuanced picture of capital defense is the ultimate message of the book and, by extension, a greater lesson about the American criminal justice system. We send out people to do the work of criminal justice and yet are disappointed when the results fail to reach some higher mark. Our justice system is only as good as the people involved and is conditioned by the resources and support we allot them to perform their duties. The attorneys chronicled in this book are doing their utmost to provide capable representation to clients who are repeatedly labeled as society’s “worst of the worst.” That the attorneys can do this—that they largely succeed in forming relationships of trust with their clients and advocate passionately—is a testament to their dedication and training and a reflection of the fact that capital defense often attracts capable individuals. But they are a rare breed in a field that otherwise is seen as dirty work and in a system that is overburdened, under-resourced, and overshadowed by social, cultural, and political pressures. We call this justice in America, but it is possible, indeed quite probable, that it asks too much of the attorneys involved and that we, as a society, are all too willing to overlook the damage it does to them. In the field of capital defense, who defends the defenders?

Acknowledgments

The genesis for this book can be traced back more than a decade, when Jon served as a U.S. Supreme Court Fellow. During his appointment he met Lisa Greenman, then an assistant federal public defender working on a project to analyze the cost, quality, and availability of counsel in federal death penalty cases. Little did Jon know that he would be brought into that project or that Lisa would open up the world of capital defense to him. It has been a remarkable experience and the start of an extraordinary friendship. When it came time to contemplate this project and manuscript, Lisa was the first person we turned to for advice and guidance. Not surprisingly, her judgment was spot-on, and we are grateful for her support and course corrections along the way. This book also owes to the vision—and patience—of Ilene Kalish, our editor at NYU Press. There are few people in the publishing world who can match Ilene’s intellect, savvy, sense of humor, and slap shot. She recognized the market for this book early on and was willing to wait us out as a side assignment for Jon and a dissertation for Maya pushed back our availability. We hope it was worth it. We’ll keep attending academic conferences for years if only to swap stories of politics and hockey with Ilene. Ilene’s able colleagues at NYU Press were a tremendous help, too. Maryam Arain, an assistant editor, kept us on track; Nicholas Taylor improved our prose; and Mary Beth Jarrad helped bring this book to market with ease. We thank them all. Of course, this book would not have been possible without the insights of the numerous attorneys, investigators, and mitigation specialists who sat for interviews with us—often for hours-long stretches—despite their rather busy schedules. Not only did they trust us to represent capital work accurately and objectively, but many shared with us rather inti253

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mate accounts of the intersections of their work and personal lives. To these individuals we are grateful. We are also appreciative to all those who, drawing on years of experience with capital punishment, advised us anonymously. We want to thank as well Nitesh Singh, who diligently and steadfastly assisted us with the tedious task of interview transcription. We would like to give a special thanks to the book’s reviewers, who provided us with thoughtful and valuable feedback. It should be noted that we had considerable support throughout this project from our colleagues, friends, and families, who, through formal and informal conversations, pushed us to engage more deeply with the questions on which this book is premised. Although it is difficult to single out particular individuals for thanks, as so many have expressed interest in the project and offered regular support, a few warrant special mention. The Women’s and Gender Studies faculty at the University of Michigan–Dearborn, along with a handful of interdisciplinary faculty across UM–Dearborn’s College of Arts, Sciences, and Letters, offered both insightful comments and words of encouragement in response to early analyses of some of the book’s central themes. So, too, Janet Moore and Andy Davies, founders of the Indigent Defense Research Association, and Pamela Metzger, director of the Deason Criminal Justice Reform Center, were fountains of helpful feedback. We are also grateful for the early guidance (and hospitality) of Lynn Mather, whose own book on divorce lawyers provided a model for our research. Maya owes a special debt of gratitude to two individuals. First, to her husband, Josh, for whom it may have felt, at times, as if he were dragged into this book project against his better judgement (and his will), yet who was always willing to listen. Second, to Jon himself—a wonderful co-author who surprised Maya one day while she was still a PhD student and casually said, “I’ve been thinking about doing a project on capital defense for some time now . . . might you be interested?” For Jon, the choice of co-author was always clear. Maya stood out from her first class as a doctoral student, and not only because both she

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and Jon had attended the same alma mater (the University of Michigan, of course). Maya had already distinguished herself as a superb qualitative researcher, and her ability to master relatively new subject matter, elicit information in interviews that others would miss, and make sense of hours of transcripts was astounding. She, Josh, and their relations have become like extended family to Jon and his brood. This is the fourth book for Jon, meaning that his wife, Ann, has gotten used to what the process entails: months of anxious brooding, writer’s block, bursts of inspiration, and an exhausting sprint. That she puts up with this—and him—remains astounding, and it is only one of the many reasons he is grateful for more than a quarter century of her love and support. He is also thankful for his children, one of whom, sixteen-yearold Emily, even helped with some of the editing. Finally, we recognize and honor the many lawyers across the United States who defend capital cases. As this book illustrates, the work is physically and emotionally exhausting. Lawyers must deal with horribly tragic facts, sometimes recalcitrant clients, and an opposition that is trying to execute the defendant. Regardless of one’s view on the death penalty, it is impossible not to admire the lawyers’ dedication to work that virtually none of us would choose. This does not make the attorneys superhuman, for, like the rest of us, they have weaknesses and failings— some directly related to their jobs. But if the United States is going to maintain the death penalty, it is talented capital defense attorneys who hold the government’s feet to the fire, protect the defendant’s rights, and seek to preserve life. No less than the rule of law rests on their shoulders. It is an awesome responsibility.

Appendix Interview Protocol

I. We would like to begin by asking you a few general questions about your training and experience as a lawyer. A. Please tell us about your path to becoming a lawyer. What got you interested in law? Prompts: 1. Where did you go to law school and when did you graduate? 2. Did you go directly to law school after college? If not, what did you do in between college graduation and law school? 3. Have you practiced any types of law aside from criminal law? 4. What initially interested you in criminal defense? 5. When did you begin taking on capital cases? 6. How and why did you first start taking on capital cases? B. Now we would like to know a little bit about your current practice. Where do you work and what do you spend most of your time doing? Prompts: 1. Where do you currently practice and how long have you practiced in this area? 2. Where did you practice prior to this? 3. [If not in private practice] How many lawyers work within your workplace? 4. Do you usually work alone, in a team, or in a group? 5. What kinds of cases make up the majority of practice? C. We would like to ask you a few questions about being a lawyer. What would you say you enjoy most and least about being a 257

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lawyer? How do you measure your own success as a lawyer? Prompts: 1. What aspect of capital defense work do you enjoy the most/ least? Why? 2. How, if at all, has your gender played a role in your capital defense work? 3. How, if at all, has your race or ethnicity played a role in your capital defense work? II. Now, we would like to focus more closely on your capital defense work. A. How many capital cases have you handled in the last year, and roughly how many capital cases are you currently handling? Prompts: 1. [If more than one,] how do you manage your cases? How many cases are you handling total? 2. If you had the choice, would you like to increase, decrease, or keep the same the proportion of your practice devoted to capital defense? Why? B. We would like to ask you a few questions about your clients. In general, how would you describe your clients? Prompts: 1. How would you describe the demographics of your capital clients (e.g., socioeconomic status, race, gender, age, education, etc.)? 2. How would your clients describe you? 3. Would you say that in general you prefer guilty or innocent clients, or have no preference? Can you elaborate on this please? 4. Are there any types of clients or cases you prefer or try to avoid? 5. Are there any kinds of cases or clients that you will not take? What are they? 6. How often do you find yourself parting ways with a client either at your request or theirs? Please describe the circumstances of such cases.

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7. Would you say that your capital clients generally understand or misunderstand the nature of the legal process when they first come to you? (If misunderstand: What kinds of misconceptions about lawyers or the legal process do they have?) 8. How do you build trust with clients? 9. How do you define boundaries, if at all, between you and the capital clients you defend? 10. Some lawyers say that they can relate, at one level or another, to some of their clients. Do you think that you relate to any of your capital clients? If yes, how so? C. We would like to turn to your thoughts on effective capital defense. What skills do you see as important for effective defense work? What does ineffective defense work look like? Would you provide some examples? Prompts: 1. Which of these skills, if any, do you see as crucial to effective capital defense work? 2. What does it mean to you to zealously advocate for your client? 3. Have you had a to balance your advocacy with ethical concerns at some point? How did you resolve that? 4. Some defense lawyers note that “storytelling” plays a significant role in their defense work and that having good “storytelling” skills improves defense efficacy. What are your thoughts on this? 5. How do you react to cases that you win? Cases that you lose? D. We would like to know your thoughts on the effects of handling capital cases. How, if at all, does being a capital defense attorney affect your professional life (including your other practice if you also handle noncapital cases)? Your personal life? Your mental or psychological state? Prompts: 1. What, if any, criticisms do you face as a capital defense attorney?

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2. What, if any, are the effects of these cases on you as an individual? 3. Some capital defense attorneys say they feel as if they are always fighting. Do you feel this way? If so, please explain. 4. How, if at all, does your work impact your relationship with others, including family members? III. Now we would like to talk with you about some of the sorts of things that happen in capital cases to get your reactions to them. A. Have you persuaded a client to plead guilty when he did not originally wish to do so? What were the circumstances that led you to do so? B. Have you sought to persuade the prosecutor not to seek the death penalty? What did you do? What were more/less effective? C. Which is easier to litigate—the guilt or sentencing phase of a case? Why and how? D. Has one or more of your clients been sentenced to death? What did you do when the sentence was imposed? How did you feel? If you have witnessed a client’s execution, what sort of thoughts or feelings did it elicit, if any? E. Have you reached out to the victim’s family on one of your cases? Why? What was their reaction? How did you feel about it? IV. We would like you to think back to your most recently completed capital case. What was your most recent case like and how did it turn out? None of the questions will reveal to us identifying information about the client or violate your pledge to hold confidential information about these cases. We are trying to learn about how capital cases get handled, and this will provide a reference point about normal practice. A. Could you please walk us through the steps in this case and the part you played and your client played at each stage. B. How long did the case take from the point the client first came to you to the end?

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C. What do you think your client’s goals were at the start of the case? How realistic were those goals? How do you think they changed, if at all? What role did you have in changing them? D. How would you characterize the prosecutor’s approach in the case? E. What factors do you believe contributed most to shaping the outcome in this case? F. In retrospect, what, if anything, would you change about the way you handled the case? V. We would like to ask your views of capital defense lawyers, criminal defense lawyers, prosecutors, and judges, in general. A. From your experience, would you say that there are distinct types of capital defense lawyers or that all capital defense lawyers are pretty much alike? If different types, how, generally, would you characterize them? What about criminal defense lawyers in general? B. From your experience, would you say that there are distinct types of prosecutors or that all prosecutors are pretty much alike? If different types, how, generally, would you characterize them? C. How would you say prosecutors and defense lawyers differ, if at all? D. From your experience, would you say that there are distinct types of judges or that all judges are pretty much alike? If different types, how, generally, would you characterize them? VI. Now we would like to know how the general public and other criminal justice actors view capital and criminal defense lawyers. Prompts: A. From your experience, how would you say the general public views capital defense attorneys? Criminal defense attorneys? B. From your experience, how would you say prosecutors view capital defense attorneys? Criminal defense attorneys? C. From your experience, how would you say judges view capital defense attorneys? Criminal defense attorneys?

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D. [If not already mentioned] Do you believe that capital or criminal defense attorneys face any stigmas? If so, can you provide an example? VII.We would like to learn how you feel about the death penalty and the American criminal justice system at large. A. In general, what are your thoughts on the death penalty? B. Does your attitude towards the death penalty play a role in your capital defense work? How so? C. How about your thoughts on the American criminal justice system at large?

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Introduction

1 Deborah Kotz, “Injury Toll from Marathon Bombs Reduced to 264,” Boston Globe, April 24, 2013, www.bostonglobe.com. 2 Associated Press, “Who Is Judy Clark? Lawyer for Boston Bombing Suspect Has Saved Notorious Clients from Death,” Nola.com, February 22, 2015, www.nola. com; Linda Deutsch, “Reclusive Death Penalty Lawyer, Opens Up about Work,” San Diego Union-Tribune, April 27, 2013, www.sandiegouniontribune.com. 3 Nicky Woolf, “Boston Bombing Suspect’s Lawyer No Stranger to Saving Clients from Death,” The Guardian, March 5, 2015, www.theguardian.com. 4 Amnesty International, “International Death Penalty,” April 20, 2018, www. amnestyusa.org. The other nation is Japan. 5 Abbe Smith and Monroe H. Freedman, eds., How Can You Represent Those People? (New York: Palgrave Macmillan, 2013); William R. Montross Jr. and Meghan Shapiro, “Wrecking Life: When the State Seeks to Kill,” in Smith and Freedman; Susannah Sheffer, Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys (Nashville: Vanderbilt University Press, 2013). 6 Jon B. Gould and Lisa Greenman, “Update on the Cost and Quality of Representation in Federal Death Penalty Cases,” Report to the Committee on Defender Services, Judicial Conference of the United States, September 2010, www.uscourts.gov/file/2945/download. 7 David C. Baldus, George G. Woodworth, and Charles A. Pulaski Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston: Northeastern University Press, 1990). 8 John Blume, “An Overview of Significant Findings from the Capital Jury Project and Other Empirical Studies of the Death Penalty Relevant to Jury Selection, Presentation of Evidence, and Jury Instructions in Capital Cases,” 2008, www. lawschool.cornell.edu. 9 James Eisenstein and Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Lanham, MD: University Press of America, 1991); Steve Bogira, Courtroom 302: A Year behind the Scenes in an American Criminal Courthouse (New York: Vintage, 2011); Roy B. Flemming, Peter F. Nardulli, and James Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (Philadelphia: University of Pennsylvania Press, 1992).

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10 Malcolm M. Feeley, “Pleading Guilty in Lower Courts,” Law and Society Review 13 (1978): 461. 11 Raymond Paternoster, “Race of Victim and Location of Crime: The Decision to Seek the Death Penalty in South Carolina,” Journal of Criminal Law and Criminology 74 (1983): 754; Gould and Greenman, “Update on the Cost and Quality of Representation in Federal Death Penalty Cases.” 12 Patrick Schmidt, “Review of Lynn Mather, Craig McEwen, and Richard Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice,” Law and Politics Book Review 12 (October 2002): 10. 13 Schmidt. 14 Regarding criminal defense lawyers, see, e.g., Smith and Freedman, How Can You Represent Those People?; regarding law school, consider the findings from the American Bar Foundation’s “After the JD” longitudinal research project, available at www.americanbarfoundation.org; regarding gender, see Jennifer L. Pierce, Gender Trials: Emotional Lives in Contemporary Law Firms (Berkeley: University of California Press, 1995); regarding commercial law firms, see John Heinz, Robert Nelson, Rebecca Sandefur, and Edward Laumann, Urban Lawyers: The New Social Structure of the Bar (Chicago: University of Chicago Press, 2005); and regarding small matters, see Lynn Mather, Craig McEwen, and Richard Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (New York: Oxford University Press, 2001). 15 Sheffer, Fighting for Their Lives; Austin Sarat, “Between (the Presence of) Violence and (the Possibility of) Justice: Lawyering against Capital Punishment,” in Cause Lawyering: Political Commitments and Professional Responsibilities, ed. Austin Sarat and Stuart Scheingold (New York: Oxford University Press, 1998); Thomas Cahill, blurb on the back cover of Sheffer, Fighting for Their Lives. 16 Austin Sarat and Stuart Scheingold, eds., Cause Lawyers and Social Movements (Stanford, CA: Stanford University Press, 2006). 17 American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” Hofstra Law Review 31 (2003): 913. 18 Committee to Review the Criminal Justice Act Program, “The 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act Program,” April 20, 2018, http://cjastudy.fd.org. 19 Death Penalty Information Center, “Introduction to the Death Penalty,” April 20, 2018, www.deathpenaltyinfo.org. 20 See M. Watt Espy and John Ortiz Smylka’s database “Executions in the U.S., 1608–2002: The Espy File,” April 20, 2018, available at http://www.stanford.edu. 21 Furman v. Georgia, 408 U.S. 238 (1972). 22 Gregg v. Georgia, 428 U.S. 153 (1976). 23 Death Penalty Information Center, “States with and without the Death Penalty,” April 20, 2018, www.deathpenaltyinfo.org.

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24 The last year for which data were available was 2014. States paused executions in 2015 in anticipation of the Supreme Court’s decision on lethal injection in Glossip v. Gross, 135 S.Ct. 2726 (2015). 25 Ring v. Arizona, 536 US 584 (2002). 26 Ford v. Wainwright, 477 US 399 (1986) (mentally incompetent); Atkins v. Virginia, 536 U.S. 304 (2002) (intellectually disabled); Roper v. Simmons, 543 U.S. 551 (2005) (younger than eighteen); Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape but not murder). 27 Claudia Whitman and Lawson Strickland, Capital Defense Handbook for Defendants and Their Families (Philadelphia: American Friends Service Committee, 2005), 5. 28 Department of Justice, “Capital Case Section,” April 20, 2018, www.justice.gov. 29 Gideon v. Wainwright, 372 U.S. (1963). 30 Hence, their designation as “panel lawyers.” 31 Federal Capital Habeas Project, “Latest News,” April 20, 2018, www.capdefnet.org. 32 American Bar Association, 952, 961. 33 Strickland v. Washington, 466 U.S. 668 (1984). 34 Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). 35 Federal Capital Habeas Project, “Latest News.” 36 Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003). 37 James Liebman, Jeffrey Fagan, Valerie West, and Jonathan Lloyd, “Capital Attrition: Error Rates in Capital Cases, 1973–1995,” Texas Law Review 78 (1999– 2000): 1850. 38 Welsh White, Litigation in the Shadow of Death: Defense Attorneys in Capital Cases (Ann Arbor: University of Michigan Press, 2005), 17. 39 Pew Research Center, “Shrinking Majority of Americans Support Death Penalty,” March 28, 2014, www.pewforum.org.

Chapter 1. Behind the Curtain

1 Alexander Benikov, Defense Lawyer Confidential (Scotts Valley, CA: CreateSpace, 2015); David Feige, Indefensible: One Lawyer’s Journey into the Inferno of American Justice (New York: Little, Brown, 2006); Smith and Freedman, How Can You Represent Those People? 2 Heinz et al., Urban Lawyers; Mather, McEwen, and Maiman, Divorce Lawyers at Work; Austin Sarat and William Felstiner, Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (New York: Oxford University Press, 1997). 3 Regarding cause lawyers, see, e.g., Sarat and Scheingold, Cause Lawyers and Social Movements. An exception to this trend in scholarship may be Michael Scott Weiss’s Public Defenders: Pragmatic and Political Motivations to Represent the Indigent (New York: LFB Scholarly Publishing, 2005). Weiss’s work, now nearly fifteen years old, focuses on traditional public defense. As the title

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suggests, Weiss believes public defenders are motivated by such practical concerns as trial experience and such political motivations as standing up for the dispossessed. Bogira, Courtroom 302; Kevin Davis, Defending the Damned: Inside Chicago’s Cook County Public Defender’s Office (New York: Atria, 2007); Feige, Indefensible. Davis, 1. Mickey Sherman, How Can You Defend Those People? (New York: Lyons, 2008); Smith and Freedman, How Can You Represent Those People? Arthur Weinberg, ed., Attorney for the Damned (New York: Simon & Schuster, 1983), 513, 530. As will be true throughout the book, all interviewees are presented through pseudonyms to preserve their anonymity. Where necessary, we have combined stories or altered identifying details to prevent the unmasking of participants. David Carroll, “Why the State of California Is Responsible for the Public Defense Crisis in Fresno County,” September 29, 2013, http://sixthamendment.org. Blake E. Ashforth and Glen E. Kreiner, “Contextualizing Dirty Work: The Neglected Role of Cultural, Historical, and Demographic Context,” Journal of Management and Organization 20 (2014): 423. Jack Ladinsky, “Careers of Lawyers, Law Practice, and Legal Institutions,” American Sociological Review 28 (1963): 47; Barbara Babock, “Defending the Guilty,” Cleveland State Law Review 32 (1983). American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” 952. Linda Julian, “The Path to Partnership,” Proctor 16 (1996): 13–15; Deena Shanker, “Why Are Lawyers Such Terrible Managers?” Fortune, January 11, 2013, http:// fortune.com. Bureau of Justice Statistics, “Criminal Cases,” April 20, 2018, www.bjs.gov. Consider Stephen Schulhofer, “Is Plea Bargaining Inevitable?” Harvard Law Review 97 (1984): 1037; Armstrong v. State, 205 N.W. 2d 775 (Wisc. 1973). Federal jurors are drawn from voter registration lists, whereas states vary between driver’s license and voter records. Mather, McEwen, and Maiman, Divorce Lawyers at Work, 159. Andrea Lyon, Angel of Death Row: My Life as a Death Penalty Defense Lawyer (New York: Kaplan Publishing, 2010). Robert H. Coombs, F. I. Fawzy, and M. L. Daniels, “Surgeons’ Personalities: The Influence of Medical School,” Medical Education 27 (1993): 337; Marc Galanter and Thomas Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago: University of Chicago Press, 1991). John Heinz and Edward Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation, 1982); Heinz et al., Urban Lawyers.

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21 Mather, McEwen, and Maiman, Divorce Lawyers at Work. 22 Missouri State Public Defender Commission, “Caseload Crisis Protocol,” April 30, 2010, www.americanbar.org. 23 For example, Clark County, Nevada, public defenders spent an average of 2,298 hours on a capital murder case. See Terance D. Miethe, “Estimates of Time Spent in Capital and Non-Capital Murder Cases: A Statistical Analysis of Survey Data from Clark County Defense Attorneys,” Department of Criminal Justice, University of Las Vegas, Nevada, February 21, 2012, www.deathpenaltyinfo.org. 24 Marc Bookman, “Ten Ways to Blow a Death Penalty Case,” Mother Jones, April 22, 2014, www.motherjones.com. 25 Henry Weinstein, “Inmate in Texas Sleeping-Lawyer Case Pleads Guilty” Los Angeles Times, June 20, 2003, http://latimes.com. 26 Thomas Church, “Examining Local Legal Culture,” Law and Social Inquiry 10 (1985): 449. 27 Church, 507–8. 28 Church, 451. 29 See Jon B. Gould and Kenneth S. Leon, “A Culture That Is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases,” Journal of Criminal Law and Criminology 107 (2017): 643. 30 Stephen J. Schulhofer, “Criminal Justice Discretion as a Regulatory System,” Journal of Legal Studies 17 (1988): 43. 31 See Cass Sunstein, David Schkade, Lisa Ellman, and Andres Sawicki, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press, 2006). 32 Davis, Defending the Damned; Nicole Gonzales Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court (Stanford, CA: Stanford University Press, 2016); “The Chicago Council of Lawyers Evaluation Report,” September 15, 2016, http://chicagocouncil.org. 33 In Atkins v. Virginia (2002) the U.S. Supreme Court ruled it unconstitutional to execute individuals with mental disabilities. 34 Indeed, a research team led by professor James Liebman of Columbia Law School found that, over a twenty-two-year period, two-thirds of capital verdicts considered by the appellate courts had been overturned for procedural errors. See Liebman et al., “Capital Attrition,” 1839. 35 Regarding the narrowing of death penalty eligibility, see Ford v. Wainwright (1986) (mentally incompetent); Atkins v. Virginia (2002) (intellectually disabled); Roper v. Simmons (2005) (younger than eighteen); Coker v. Georgia (1977) and Kennedy v. Louisiana (2008) (rape but not murder). Regarding standardized procedures, see Gregg v. Georgia (1976); and Ring v. Arizona (2005). Regarding the raised bar for defense efforts, see Strickland v. Washington (1984); Rompilla v. Beard (2005); and Wiggins v. Smith (2003).

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Chapter 2. A Cruel and Unusual Job

1 Lyon, Angel of Death Row. 2 Smith, Case of a Lifetime; Abbe Smith and William Montross, “The Calling of Criminal Defense,” Mercer Law Review 50 (1999): 443; Smith and Freedman, How Can You Represent Those People? 3 Mather, McEwen, and Maiman, Divorce Lawyers at Work. 4 Mather, McEwen, and Maiman. 5 Thomas M. Hilbink, “You Know the Type: Categories of Cause Lawyering,” Law and Social Inquiry 29 (2004): 659. 6 Austin Sarat and Stuart Scheingold, “Cause Lawyering and the Reproduction of Professional Authority: An Introduction,” in Sarat and Scheingold, Cause Lawyering, 5. 7 Lisa Hajjar, “From the Fight for Legal Rights to the Promotion of Human Rights: Israeli and Palestinian Cause Lawyers in the Trenches of Globalization,” in Sarat and Scheingold, Cause Lawyering, 68. 8 Sarat and Scheingold, “Cause Lawyering and the Reproduction of Professional Authority,” 7. 9 Sarat and Scheingold, 7. 10 Sarat and Scheingold, 19. 11 Hilbink, “You Know the Type,” 659. 12 John Kilwein, “Still Trying: Cause Lawyering for the Poor and Disadvantaged in Pittsburgh, Pennsylvania,” in Sarat and Scheingold, Cause Lawyering, 14. 13 Hilbink, “You Know the Type,” 664. 14 Carrie Menkel-Meadow, “The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers,” in Sarat and Scheingold, Cause Lawyering. 15 Austin Sarat, “Between (the Presence of) Violence and (the Possibility of) Justice: Lawyering against Capital Punishment,” in Sarat and Scheingold, Cause Lawyering. 16 Menkel-Meadow, “Causes of Cause Lawyering.” 17 Sarat, “Between (the Presence of) Violence and (the Possibility of) Justice.” 18 Cahill, blurb on the back cover of Sheffer, Fighting for Their Lives. 19 Regarding same-sex marriage, see Scott Barclay and Shauna Fisher, “Cause Lawyers in the First Wave of Same Sex Marriage Litigation”; regarding a living wage, see Kathleen M. Erskine and Judy Marblestone, “The Movement Takes the Lead: The Role of Lawyers in the Struggle for a Living Wage in Santa Monica, California”; regarding Central American refugees, see Susan Bibler Coutin, “Cause Lawyering and Political Advocacy: Moving Law on Behalf of Central American Refugees,” all in Sarat and Scheingold, Cause Lawyering. 20 Jewish Virtual Library, “Vital Statistics: Jewish Population in the United States,” April 20, 2018, www.jewishvirtuallibrary.org. 21 Howard Kurtz, “The Opinionated Journalist,” Washington Post, August 17, 1999, www.washingtonpost.com.

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22 Robert V. Stover and Howard S. Erlanger, Making It and Breaking It: The Fate of Public Interest Commitment during Law School (Urbana: University of Illinois Press, 1989). 23 Peter A. Hancock and Gerald P. Krueger, Hours of Boredom, Moments of Terror: Temporal Desynchrony in Military and Security Force Operations (Washington, DC: National Defense University, 2010). 24 Rosie Vare, “Ten Most Hated Professions,” MSN, November 4, 2016, www.msn. com. 25 Heinz and Laumann, Chicago Lawyers. 26 Rebecca Sandefur, “Work and Honor in the Law: Prestige and the Division of Lawyers’ Labors,” American Sociological Review 66 (2001): 382. 27 Sandefur, 382. 28 Diane M. Elliott and James D. Guy, “Mental Health Professionals versus NonMental-Health Professionals: Childhood Trauma and Adult Functioning,” Professional Psychology: Research and Practice 24 (1993): 83. 29 Salary Genius, “Public Defender Salary in Mississippi,” April 20, 2018, http:// salarygenius.com. 30 Miranda v. Arizona, 384 U.S. 436 (1966). 31 United States Courts, “Defender Services,” April 20, 2018, www.uscourts.gov. 32 Gould and Greenman, “Update on the Cost and Quality of Representation in Federal Death Penalty Cases.” 33 Committee to Review the Criminal Justice Act Program, “2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act Program.” 34 Mather, McEwen, and Maiman, Divorce Lawyers at Work.

Chapter 3. Race and Identity

1 On lynching, see Equal Justice Initiative, Lynching in America: Confronting the Legacy (Alabama: Equal Justice Initiative, 2015); and Austin Sarat, From Lynch Mobs to the Killing State: Race and the Death Penalty in America (New York: NYU Press, 2006). Regarding McCleskey v. Kemp, by a vote of 5–4, the Supreme Court refused to accept social science evidence of racial disparities in Georgia’s administration of the death penalty as proof of an unconstitutional practice. Years later, one of the justices in the majority, Lewis Powell, acknowledged that he had ruled the wrong way. See Gould and Leon, “Culture That Is Hard to Defend.” 2 David C. Baldus, George Woodworth, David Zuckerman, and Neil Alan Weiner, “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia,” Cornell Law Review 83 (1998); John H. Blume, Theodore Eisenberg, and Martin T. Wells, “Explaining Death Row’s Population and Racial Composition,” Journal of Empirical Legal Studies 1 (2004); Stephen B. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,” Yale Law Journal 103 (1994); G. Ben Cohen and Robert J. Smith, “The Racial Geography of

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the Federal Death Penalty,” Washington Law Review 85 (2010); Richard C. Dieter, The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides (Washington, DC: Death Penalty Information Center, 1998); Sheldon EklandOlson, “Structured Discretion, Racial Bias and the Death Penalty: The First Decade after Furman in Texas,” Social Science Quarterly 69 (1988); Linda A. Foley, “Florida after the Furman Decision: The Effect of Extralegal Factors on the Processing of Capital Offense Cases,” Behavioral Sciences and the Law 5 (1987); Furman v. Georgia, 408 U.S. 238 (1972); Samuel R. Gross and Robert Mauro, “Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization,” Stanford Law Review 37 (1984); Gary Kleck, “Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty,” America Sociological Review 46 (1981); Rory K. Little, “Why a Federal Death Penalty Moratorium?” Connecticut Law Review 33 (2001); Mona Lynch and Craig Haney, “Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathic Divide,’” Law and Society Review 45 (2011); Scott Phillips, “Racial Disparities in the Capital of Capital Punishment,” Houston Law Review 45 (2008); Report of the Sentencing Project to the United Nations Human Rights Committee regarding Racial Disparities in the United States Criminal Justice System (Washington, DC: Sentencing Project, 2013); Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (Washington, DC: U.S. Government Accountability Office, 1990). Gould and Leon, “Culture That Is Hard to Defend,” 103. Theodore Eisenberg and Sheri Lynn Johnson, “Implicit Racial Attitudes of Death Penalty Lawyers,” DePaul Law Review 53 (2004). Eisenberg and Johnson, 1540. As the authors note, the IAT has been used to measure attitudes about a variety of issues, including race, gender, age, and political candidates. More specifically, the IAT uses forms of response latency to evaluate attitudes as either automatic or subject to intent or control. In other words, the IAT is designed to capture positive and negative associations by measuring how long it takes a respondent to pair items of interest with positive or negative attributes. For example, respondents may be asked to pair “good” words with pictures of white faces, “bad” words with pictures of black faces, and vice versa. In this case, if the respondent can pair white and good associations more quickly than black and good associations (or white and bad associations), it implies that the respondent pairs white with good and black with bad more automatically, or naturally. The IAT is commonly accepted as a valid research tool, and over five hundred IATs on racial bias have been taken online. It’s worth noting that, while implicit racial bias on the part of lawyers does not necessary lead to differential treatment of clients based on race, the potential for biased treatment cannot be ruled out. For instance, upon surveying 101 criminal defense attorneys across the United States, Vanessa A. Edkins found what

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arguably amounts to a bias in favor of white clients. Specifically, study results demonstrate that attorneys tend to recommend plea bargains for African Americans that entail longer sentences than those they would recommend for white clients. As she stresses, although “defense attorneys do not consider themselves as a relevant part of the process,” they may be blind “to the fact that their own ideologies (or at least their biases) may come into play when they are advocating for their clients.” See Vanessa A. Edkins, “Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?” Law and Human Behavior 35 (2011). “10-Year Trend in Lawyer Demographics,” ABA National Lawyer Population Survey (Chicago: American Bar Association, 2017). Elizabeth H. Gorman and Fiona M. Kay, “Racial and Ethnic Minority Representation in Large U.S. Law Firms,” Law, Politics, and Society 52 (2010). Monique R. Payne-Pikus, John Hagan, and Robert L. Nelson, “Experiencing Discrimination: Race and Retention in America’s Largest Law Firms,” Law and Society Review 44 (2010). J. Clay Smith Jr.’s Emancipation: The Making of the Black Lawyer, 1844–1944 (Philadelphia: University of Pennsylvania Press, 1993) provides an extensive legal and social history of black attorneys in the United States; see also Kenneth W. Mack and Kenneth Walter Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, MA: Harvard University Press, 2012). Smith, Emancipation, 13. Alissa Pollitz Worden and Andrew L. B. Davies, “The Criminal Defense Professions,” Encyclopedia of Criminology and Criminal Justice (New York: Springer, 2013). Worden and Davies. National Association for Legal Professions, “Employment Patterns: 1982–2004,” NALP Bulletin, June 2006. Unfortunately, statistical data on capital defenders and, more specifically, the demographics of the capital defense bar, is lacking. Joan Petersilia, “Racial Disparities in the Criminal Justice System: A Summary,” Crime and Delinquency 31(1985); Robert J. Sampson and Janet Lauritsen, “Racial and Ethnic Disparities in Crime and Criminal Justice in the United States,” Crime and Justice 21 (1997). National Statistics on the Death Penalty and Race (Washington, DC: Death Penalty Information Center, 2017); Population Estimates, July 1, 2016 (V2016) (Washington, DC: United States Census Bureau, 2016). Mona Lynch and Craig Haney, “Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathic Divide,’” Law and Society Review 45 (2011). Amanda E. Lewis, “‘What Group?’ Studying Whites and Whiteness in the Era of ‘Color-Blindness,’” Sociological Theory 22 (2004).

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20 Russell G. Pearce, “White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law,” Fordham Law Review 73 (2005): 2087. 21 Pearce, 2087. 22 Robin DiAngelo, “White Fragility,” International Journal of Critical Pedagogy 3 (2011): 57. 23 Bill Ong Hing offers interesting insights into the way lawyers handle the question of race in an exploration of teaching his Stanford law students about the effects of race and other identity aspects on defense work. He notes that, when discussing race and lawyering, “the question invariably is raised as to whether or not an attorney of color has a particular advantage coming into a community of the same color or ethnicity, and the corollary, more sensitive question of whether a white attorney could ever be effective and/or accepted in a community of color.” In answering these questions, students initially gravitate to one of two “extreme” positions: either it is said to be impossible for a white attorney to be truly effective and accepted in a community of color or, as long as the attorney has “good legal abilities,” he or she will be accepted and appreciated. Hing explains that, as his courses progress, he aims to convince students that neither position is entirely correct—identity differences between attorney and client matter, but can be managed through “conscientious attention” and “cooperation.” See Bill Ong Hing, “Raising Personal Identification Issues of Class, Race, Ethnicity, Gender, Sexual Orientation, Physical Disability, and Age in Lawyering Courses,” Stanford Law Review 45 (1993): 1813. 24 Wayne Rowe, Sandra K. Bennett, and Donald R. Atkinson, “White Racial Identity Models: A Critique and Alternative Proposal,” The Counseling Psychologist 22 (1994): 136. 25 Rowe, Bennett, and Atkinson, 136. See also DiAngelo, “White Fragility.” 26 Pearce, “White Lawyering,” 2090. 27 Roland Acevedo, Edward Hosp, and Rachel Pomerantz, “Race and Representation: A Study of Legal Aid Attorneys and Their Perceptions of the Significance of Race,” Buffalo Public Interest Law Journal 18 (2000). For more on the dangers of “bleaching out” personal identity in legal practice, see also Sanford Levinson, “Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity,” Cardozo Law Review 14 (1993); Martha Minow, “On Being a Religious Professional: The Religious Turn in Professional Ethics,” University of Pennsylvania Law Review 150 (2001). 28 Lewis, “‘What Group?’” 640. 29 Eli Wald, “Lawyers’ Identity Capital,” International Journal of the Legal Profession 23 (2016): 111. 30 Hing, “Raising Personal Identification Issues.” 31 Pearce, “White Lawyering,” 2083. 32 Pearce. 33 For parallel claims, see Wald, “Lawyers’ Identity Capital.”

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34 See also Levinson, “Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity.” 35 Wald, 109. 36 Interestingly, while this commodification has historically been implicit, with lawyers “claiming to hold themselves to universal objective criteria of professional excellence and denying the relevance of any personal identity considerations on the practice of law,” changes in identity politics throughout the twentieth and into the twenty-first century have forced attorneys to “reckon with the meaning of and consequences of using identity capital in their practice.” For more on the commodification of attorney identity, see Wald, 109. 37 Wald, 111. 38 Hing, “Raising Personal Identification Issues.” 39 Hing; Sue Bryant, “The Five Habits: Building Cross-Cultural Competence in Lawyers,” Clinical Law Review 8 (2001); Marjorie A. Silver, “Emotional Competence, Multicultural Lawyering, and Race,” Florida Coastal Law Journal 3 (2002); David B. Wilkins, “Identities and Roles: Race, Recognition, and Professional Responsibility,” Maryland Law Review 57 (1998). 40 Elizabeth R. Cole, “Intersectionality and Research in Psychology,” American Psychologist 64 (2009); Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43 (1991); Leslie McCall, “The Complexity of Intersectionality,” Signs 30 (2005). 41 Cole, 170. 42 Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” University of Chicago Legal Forum 1 (1989); Crenshaw, “Mapping the Margins.” 43 Crenshaw, “Demarginalizing the Intersection of Race and Sex,” 139. 44 Crenshaw, “Mapping the Margins.” 45 Crenshaw, “Demarginalizing the Intersection of Race and Sex”; Darren Lenard Hutchinson, “Identity Crisis: Intersectionality, Multidimensionality, and the Development of an Adequate Theory of Subordination,” Michigan Journal of Race and Law 6 (2001). 46 Wald, “Lawyers’ Identity Capital.” 47 Wald, 111.

Chapter 4. The Client

1 American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” 1008. 2 Gaia Di Luzio, “A Sociological Concept of Client Trust,” Current Sociology 54 (2006): 549.

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3 Birgit Leisen and Michael Hyman, “Antecedents and Consequences of Trust in a Service Provider: The Case of Primary Physicians,” Journal of Business Research 57 (2004): 990. 4 Often, “difficult” clients are the consequence of bad lawyering—either in the past or in the present. Simply treating the client with respect, listening and responding to his concerns, and keeping him informed about the case will often go a long way toward eliciting confidence and cooperation. American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” 1009. 5 Indeed, as ABA Guideline 10.5 urges, “Client contact must be ongoing, and include sufficient time spent at the prison to develop a rapport between attorney and client. An occasional hurried interview with the client will not reveal to counsel all the facts needed to prepare for trial, appeal, post-conviction review, or clemency. Even if counsel manages to ask the right questions, a client will not—with good reason—trust a lawyer who visits only a few times before trial, does not send or reply to correspondence in a timely manner, or refuses to take telephone calls.” 6 Russell Stetler, “Commentary on Counsel’s Duty to Seek and Negotiate a Disposition in Capital Cases (ABA Guideline 10.9.1),” Hofstra Law Review 31 (2003): 1163. 7 Steven Zeidman, “To Plead or Not to Plead: Effective Assistance and ClientCentered Counseling,” Boston College Law Review 39 (1998): 841. 8 Abbe Smith, “The Lawyer’s ‘Conscience’ and the Limits of Persuasion,” Hofstra Law Review 36 (2007): 479, citing Anthony G. Amsterdam, Trial Manual Five for the Defense of Criminal Cases (Washington, DC: ALI-ABA, 1998), 339. 9 Smith, 481. 10 Smith, 494. 11 American Bar Association Center for Professional Responsibility, Model Rules of Professional Conduct (Chicago: American Bar Association, 2013), Rule 1.2. 12 American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.” 13 American Bar Association. 14 Scott Laufenberg, “Every Lawyers Choice? Can a Lawyer Repulsed by the Client Really Be an Effective Advocate?” GPSOLO 22 (2005), www.americanbar.org. 15 Elizabeth Wolford, “Every Lawyers Duty? A Lawyer’s Oath to Uphold the Constitution Is Not Qualified by ‘Only If I Really Want To,’” GPSOLO 22 (2005), www.americanbar.org. 16 Deborah Lott, “Drawing Boundaries,” Psychology Today, May 1, 1999, www. psychologytoday.com. 17 Carole Curtis, “How to Handle Difficult Clients: Pointers That Will Help You Stay Sane and Safe,” Law Practice 36 (2010): 40.

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18 Beth Baker, “Deal with Clients You Don’t Like,” Monitor on Psychology 40 (2009): 58. 19 Sara Staggs, “Therapist Confesses: How I Really Feel about My Clients,” Psych Central, April 20, 2018, http://psychcentral.com.

Chapter 5. Gender Dynamics

1 Nina Burleigh, “Black Women Lawyers: Coping with Dual Discrimination,” American Bar Association Journal 74 (1998): 64–68; Catherine B. Cleary, “Lavinia Goodell, First Woman Lawyer in Wisconsin,” Wisconsin Magazine of History 74 (1991): 242–71; Cynthia Fuchs Epstein, Women in Law, 3rd ed. (Urbana: University of Illinois Press, 1993); Cynthia Fuchs Epstein, Woman’s Place: Options and Limits in Professional Careers (Berkeley: University of California Press, 1970); John Hagan and Fiona Kay, Gender in Practice: A Study of Lawyers’ Lives (New York: Oxford University Press, 1995); Susan Ehrlich Martin and Nancy C. Jurik, Doing Justice, Doing Gender: Women in Legal and Criminal Justice Occupations (Thousand Oaks, CA: Sage, 2007); Jennifer L. Pierce, Gender Trials: Emotional Lives in Contemporary Law Firms (Berkeley: University of California Press, 1995). 2 Hagan and Kay. 3 Bradwell v. Illinois, 83 U.S. 130 (1872). 4 Martin and Jurik, Doing Justice, Doing Gender. 5 Pierce, Gender Trials. 6 Martin and Jurik, Doing Justice, Doing Gender; Hagan and Kay, Gender in Practice; Pierce, Gender Trials; A Current Glance at Women in the Law: January 2017 (Chicago: American Bar Association, 2017). 7 Martin and Jurik, 111. 8 Martin and Jurik; Pierce; Bryna Bogoch, “Gendered Lawyering: Difference and Dominance in Lawyer–Client Interaction,” Law and Society Review 31 (1997): 677–712; Janet Rosenberg, Harry Perlstadt, and William R. F. Phillips, “Now That We Are Here: Discrimination, Disparagement, and Harassment at Work and the Experience of Women Lawyers,” Gender and Society 7 (1993): 415–33. 9 Kathleen E. Hull and Robert L. Nelson, “Assimilation, Choice, or Constraint: Testing Theories of Gender Differences in the Careers of Lawyers,” Social Forces 79 (2000): 229–64; Pierce. 10 Martin and Jurik. 11 Pierce highlights the ways the gendered structure of law firms reproduces hierarchical gender norms through legal practice. She argues that there exists a clear, sexed division of labor between paralegals—who are typically women—and trial lawyers—who are typically men. Along these lines, female paralegals are expected to play a caregiver role in relation to the lawyers with whom they work, as well as to

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tolerate attorneys’ emotional outbursts in the workplace; male paralegals are not held to such standards. When female paralegals contest these normative emotional expectations, they are sanctioned through reductions in annual raises and even termination. Female attorneys find themselves in the middle of this gender dynamic. Like many professional women in traditionally male occupations, they are caught in a double bind: act “too tough” and be deemed difficult to get along with, or behave nicely and be considered “not tough enough” to be a good litigator. Martin and Jurik. Sherman, How Can You Defend Those People? Feige, Indefensible. Lyon, Angel of Death Row. Eric Dunning, “Sport as a Male Preserve: Notes on the Social Sources of Masculine Identity and its Transformations,” Theory, Culture, and Society 3 (1986): 78–90; Merle E. Hamburger, Mathew Hogben, Stephanie McGowan, and Lori J. Dawson, “Assessing Hypergender Ideologies: Development and Initial Validation of a Gender-Neutral Measure of Adherence to Extreme Gender-Role Beliefs,” Journal of Research in Personality 30 (1996): 157–78; Stephen Meyer, “Work, Play, and Power: Masculine Culture on the Automotive Shop Floor, 1930–1960,” Men and Masculinities 2 (1999): 115–34.; Donald L. Mosher and Mark Sirkin, “Measuring a Macho Personality Constellation,” Journal of Research in Personality 18 (1984): 150–63; Donald L. Mosher and Silvan S. Tomkins, “Scripting the Macho Man: Hypermasculine Socialization and Enculturation,” Journal of Sex Research 25 (1988): 60–84. Merriam-Webster Dictionary, s.v. “Machismo,” July 20, 2017, www.merriamwebster.com. Arlie Russell Hochschild, “Emotional Labor, Feeling Rules, and Social Structure,” American Journal of Sociology 85 (1979): 551–75; Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling (Berkeley: University of California Press, 1983); Ronnie J. Sternberg and Deborah M. Figart, “Emotional Demands at Work: A Job Content Analysis,” Annals of the American Academy of Political and Social Science 561 (1999): 177–91; Ronnie J. Sternberg and Deborah M. Figart, “Emotional Labor since The Managed Heart,” Annals of the American Academy of Political and Social Science 561 (1999): 8–26. Hochschild, Managed Heart and “Emotional Labor, Feeling Rules, and Social Structure”; Sternberg and Figart, “Emotional Demands at Work” and “Emotional Labor since The Managed Heart.” Blake E. Ashforth and Ronald H. Humphrey, “Emotional Labor in Service Roles: The Influence of Identity,” Academy of Management Review 18 (1993): 88–115; Martin O’Brien, “The Managed Heart Revisited: Health and Social Control,” Sociological Review 42 (1994): 393–413. Hochschild, “Emotional Labor, Feeling Rules, and Social Structure.” Anat Rafaeli, “When Cashiers Meet Customers: An Analysis of the Role of Supermarket Cashiers,” Academy of Management Journal 32 (1989): 245–73;

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Anat Rafaeli and Robert I. Sutton, “Emotional Contrast Strategies as Means of Social Influence Lessons from Criminal Interrogators and Bill Collectors,” Academy of Management Journal 34 (1991): 749–75; Sternberg and Figart, “Emotional Demands at Work” and “Emotional Labor since The Managed Heart.” Irena Grugulis and Steven Vincent, “Whose Skill Is It Anyway? ‘Soft’ Skills and Polarization,” Work, Employment, and Society 23 (2009): 597–615. Aaron S. Wallen, Beth A. Devine, and Shira Mor, “It’s about Respect: Gender– Professional Identity Integration Affects Male Nurses’ Job Attitudes,” Psychology of Men and Masculinity 15 (2014): 305–12. Pamela Fishman, “Interaction: The Work Women Do,” Social Problems 25 (1978): 405. Sternberg and Figart, “Emotional Demands at Work.” Nicky James, “Emotional Labour: Skill and Work in the Social Regulation of Feelings,” Sociological Review 5 (1989): 15–42; Bruce Pietrykowski, “The Return to Caring Skills: Gender, Class, and Occupational Wages in the US,” Feminist Economics 23 (2017): 1–30; Sternberg and Figart, “Emotional Demands at Work” and “Emotional Labor since The Managed Heart.” Pietrykowski, “Return to Caring Skills.” Erving Goffman, The Presentation of Self in Everyday Life (New York: Random House, 1956) and Stigma: Notes on the Management of Spoiled Identity (Englewood Cliffs, NJ: Prentice Hall, 1963); George Herbert Mead, Mind, Self, and Society (Chicago: University of Chicago Press, 1934). Goffman, Presentation of Self in Everyday Life and Stigma; Mead, Mind, Self, and Society. Susan P. Phillips and Margaret S. Schneider, “Sexual Harassment of Female Doctors by Patients,” New England Journal of Medicine 329 (1993): 1936–39. Phillips and Schneider. Martin and Jurik, Doing Justice, Doing Gender. Wallen, Devine, and Mor, “It’s about Respect.” American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” 927. American Bar Association, 959–60. We interviewed a total of eight nonlawyers, of whom six were female and self-identified as “mitigation specialists” and two were male and self-identified as “mitigation specialists” and “investigators.” Pamela Fishman, “Interaction: The Work Women Do,” Social Problems 25 (1978): 405. Pietrykowski, “Return to Caring Skills.” Deborah A. Harris and Patti Giuffre, Taking the Heat: Women Chefs and Gender Inequality in the Professional Kitchen (New Brunswick, NJ: Rutgers University Press, 2015).

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Chapter 6. The Toll

1 Connie J. A. Beck, Bruce D. Sales, and G. Andrew Benjamin, “Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns among a Sample of Practicing Lawyers,” Journal of Law and Health 1 (1995–96); G. Andrew Benjamin, Elaine J. Darling, and Bruce Sales, “The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse among United States Lawyers,” International Journal of Law and Psychiatry 13 (1990); Veronica Hopkins and Dianne Gardner, “The Mediating Role of Work Engagement and Burnout in the Relationship between Job Characteristics and Psychological Distress among Lawyers,” New Zealand Journal of Psychology 41 (2012). 2 The exception to the paucity of research on capital defense attorneys can be found in Sheffer’s Fighting for Their Lives, which provides an in-depth look at the emotional experiences of capital defenders at the post-conviction stage. 3 Hopkins and Gardner, “Mediating Role of Work Engagement and Burnout.” 4 Mary Ann Dutton, Adriana Serrano, Sharias Dahlgren, Maria Franco-Rahman, Monica Martinez, and Mihriye Mete, “A Holistic Healing Arts Model for Counselors, Advocates, and Lawyers Serving Trauma Survivors: Joyful Heart Foundation Retreat,” Traumatology 23 (2017); Charles R. Figley, ed., Compassion Fatigue: Coping with Secondary Traumatic Stress Disorders in Those Who Treat the Traumatized (New York: Routledge, 1999); Grace Maguire and Mitchell K. Byrne, “The Law Is Not as Blind as It Seems: Relative Rates of Vicarious Trauma among Lawyers and Mental Health Professionals,” Psychiatry, Psychology, and Law 24 (2017); Sheffer, Fighting for Their Lives. 5 Figley; Maguire and Byrne; Martha D. Burkett, “Practicing Wellness: Stress Management for Lawyers: An Ounce of Prevention,” Michigan Bar Journal 89 (2010). 6 Maguire and Byrne, 233. 7 Dutton et al., “Holistic Healing Arts Model.” 8 Dutton et al., “Holistic Healing Arts Model”; American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 5th ed. (Arlington, VA: American Psychiatric Publishing, 2013); Lynn Jennings and Cindi Barela Graham, “Secondary Traumatic Stress: What Lawyers Can Do to Minimize Its Effects,” Texas Bar Journal 79 (2016). 9 Andrew P. Levin and Scott Greisberg, “Vicarious Trauma in Attorneys,” Pace Law Review (2003): 24; Maguire and Byrne, “Law Is Not as Blind as It Seems”; Lila Petar Vrklevski and John Franklin, “Vicarious Trauma: The Impact on Solicitors of Exposure to Traumatic Material,” Traumatology 14 (2008). 10 Vrklevski and Franklin. 11 Patrick R. Krill, Ryan Johnson, and Linda Albert, “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,” Journal of Addiction Medicine 10 (2016); see also Benjamin, Darling, and Sales, “Prevalence

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of Depression, Alcohol Abuse, and Cocaine Abuse among United States Lawyers,” International Journal of Law and Psychiatry 13 (1990). Krill, Johnson, and Albert, 51; see also Benjamin, Darling, and Sales. Margaret Severson and Carrie Pettus-Davis, “Parole Officers’ Experiences of the Symptoms of Secondary Trauma in the Supervision of Sex Offenders,” International Journal of Offender Therapy and Comparative Criminology 57 (2013): 15. Doukessa Lerias and Mitchell K. Byrne, “Vicarious Traumatization: Symptoms and Predictors,” Stress and Health 19 (2003): 135. Benjamin, Darling, and Sales, “Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse among United States Lawyers”; Jennings and Graham, “Secondary Traumatic Stress”; Krill, Johnson, and Albert, “Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys”; Vrklevski and Franklin, “Vicarious Trauma.” Benjamin, Darling, and Sales; Jennings and Graham; Krill, Johnson, and Albert.

Conclusion

1 Ashforth and Kreiner, “Contextualizing Dirty Work,” 423. 2 For that matter, defendants can plead ineffective assistance of counsel during a habeas proceeding where warranted. However, research has suggested that “after-the-fact review is doomed to failure.” See Stefanos Bibas “The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel,” Utah Law Review (2004): 2. 3 Testimony of U.S. District Judge Marcia Crone provided at a hearing of the Ad Hoc Committee to Review the Criminal Justice Act Program (2016), http:// cjastudy.fd.org/. 4 Testimony of Richard Burr at a hearing of the Ad Hoc Committee to Review the Criminal Justice Act Program (2016), http://cjastudy.fd.org/. 5 Testimony of Anthony Ricco at a hearing of the Ad Hoc Committee to Review the Criminal Justice Act Program (2016), http://cjastudy.fd.org/.

Index

abuse, 6, 13, 40, 94, 119, 124, 133, 201; child, 61, 73, 83, 124, 42, 133, 142, 156, 202, 203; domestic, 124; physical, 34, 141, 191; psychological, 191; sexual, 141, 156, 158, 191; substances, 6, 13, 34, 40, 73, 133, 141, 156, 203–204, 238, 278n1, 279n11; survivors of, 6 activism, 67, 70–71; Civil Rights Movement, 64, 66, 69, 125, 173; human rights, 12; Peace Corps, 72; Sanctuary Movement, 66; Women’s Liberation, 69, 125, 173 addiction, 6, 13, 26, 34, 40, 95–96, 133, 163, 201, 231, 238–239, 247, 248, 278; alcoholism, 6, 73, 95–96, 141, 156, 203, 220, 237–239, 251, 278n1, 279n11; drugs 6, 26, 95, 96, 141, 145, 237, 238–239, 251, 278n1, 279n11 Ad Hoc Committee to Review the Criminal Justice Act Program: report (2017), 264n18; report (2016), 279nn3, 4, 279n5 adrenaline, 65, 82–83 American Bar Association, 14, 21, 22, 34, 45, 108, 110, 134, 136, 147, 149, 151–152, 160, 169–170, 190–191, 239, 264n17, 265n32, 266n12, 271n7, 273n1, 274n4, 274nn11, 12, 274n13, 275n1, 275n6, 277nn34, 35; “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” 21, 34, 134, 264n17, 266n12, 273n1, 274n4, 274n12; Model Rules of Professional Conduct, 152, 274n11

appeals, 52, 71, 150, 192, 218, 219, 223; habeas/post-conviction, 10, 22, 47, 51–52, 57, 61, 71, 81–82, 147, 157–158, 218, 265n31, 265n35, 274n5, 278n2, 279n2 attorney-client relationship, 30, 117, 119–121, 127, 163, 166, 182; boundaries/ boundary maintenance, 163–165, 169– 171, 182, 185–186, 188–190, 194–198, 247; coercion/manipulation, 149–152; relationship-building, 12, 23, 28, 35, 48, 79, 116, 125–126, 134–136, 139– 140, 147, 149, 173, 187–189, 192–193, 197–198, 200, 246–247; trust, 13, 37, 39, 44, 47, 59, 112–113, 116–117, 119–121, 131, 133–135, 138–140, 147, 149–151, 153, 165, 170, 202, 247–248, 252, 259, 273n2, 274n5 attorney personality traits: antiestablishment, 92–94; compulsion, 13, 201, 204–206, 237; control, 51, 77, 205; ego, 2, 11, 35–36, 63, 64, 90- 92, 103, 123, 131, 180, 197, 246, 252; perfectionism, 205–207 Benikov, Alexander, 23, 265 Blume, John, 4, 15, 44, 90, 263n8, 269n2 Boston Marathon, 1 Bradwell Decision, 173, 275n3 Brando, Marlon, 94 Bright, Stephen, 4, 44, 90, 269n2 Bruck, David, 44 Burdine, Calvin, 52 Bureau of Justice Statistics, 38, 266n14 Bush, George W., 76

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Cannon, Joe Fran, 52 capital punishment: abolition, 70–71, 90; morality, 63, 66, 72, 75, 77, 245; support, 70–71 capital team: diversity, 139, 140, 182; division of labor, 35, 180–194, 196–200, 275; ego, 35–36; teamwork, 35–36, 173, 176, 180–182, 184–185, 187, 192–194, 197–200, 201, 246 career motivations: ambition, 65, 87, 91, 241; excitement, 82–87; financial gain, 99–102; moral conviction, 66–78; oppositional personality, 92, 93, 94; outcasts/outsiders, 12, 93–94; prestige, 87–92; professional progression, 78– 82; trauma, 92, 94–99 caseloads, 7, 30, 50–52, 202, 236, 267n22 cause lawyering, 11, 12, 24, 68–70, 105, 264nn15, 16, 265n3, 268nn5, 6, 268nn7, 8, 268n12, 268nn14, 15, 268n19 children/childhood: clients/cases, 6, 20, 26, 61, 70, 73, 83, 85, 87, 133, 140–142, 154–159, 161, 181, 202–203, 214, 222, 225, 244, 246; lawyers’ families, 207, 231–235, 238, 242, 269n28; lawyers’ youth, 12, 72–79, 87, 93–99 Clarke, Judy, 1, 2, 15, 32, 44, 90 community of practice, 10, 14, 25, 43–46, 50, 224, 226; “good ol’ boys system” in the South, 44–45 Constitution, 19, 26, 52, 61, 66, 72,160, 225, 267n33, 269n1, 274n15 coping: avoidance/denial/minimization, 201, 204, 207–208, 214–215, 223–224, 233–235, 239; communities of practice, 224, 226; compartmentalization, 13, 31, 234–235; compulsion, 201, 204–206, 237; exercise/sports, 204, 234–235, 238–239, 248; hobbies, 204–205, 234–236, 239; meditation, 238–239, 248; normalization, 201, 208–209; substances, 202, 204, 218,

237–239, 278n11, 279n15; therapy, 202, 236–237, 279n13 Courtroom 302 (Bogira), 9, 25, 263n9, 266n4 criminal defense books/memoirs: Angel of Death Row: My Life as a Death Penalty Defense Lawyer (Lyon), 42, 266n18, 268n1, 276n14; Case of a Lifetime (Smith), 274n2; Defending the Damned (Davis), 25, 266n4, 267n32; How Can You Defend Those People? (Sherman), 175, 266n6, 276n13; Indefensible (Feige), 23, 25, 175, 265n1, 266n4, 276n13; To Kill a Mockingbird (Lee), 23 criminal defense compared to capital defense, 25–46, 90–92, 100–103, 174–177, 197–200, 245, 261 criminal defense television/film: The Good Wife, 23; The Lincoln Lawyer, 23; The Twilight Zone, 222; The Wild One, 94 criminal justice system, 3, 7, 14, 23–25, 60–62, 66, 109, 119, 136, 243, 262, 270n2, 271n16 critical race studies, 125–126 death: death eligible, 20, 62; “is different,” 43, 62, 100–101, 204; death row, 43, 94, 109, 129, 183, 204, 211, 230, 269n2; death sentence, 8, 11, 13, 21–22, 24, 31, 38–41, 47–48, 51–52, 71–72, 149, 152, 154–155, 210–211, 213, 218–220, 226, 242, 249–251, 260, 269n2; death warrant, 62, 217 defense attorneys: “good” and “bad” lawyering, 47–52, 101–103, 111, 139, 165, 200, 274n4 Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association), 278 dirty work, 31–33, 244–245, 252, 266n10, 279n1

Index

discrimination: gender, 174–175, 178, 273n42, 275n8; racial 12, 60, 107–108, 116–117, 125–126, 145, 270n2, 271n9, 273n42, 275n1, Durkheim, Emile, 8 effects of capital practice: anxiety/pressure/stress, 6, 13, 63, 83, 201–210, 215, 225–228, 233, 236–241, 248, 251–252, 279n11; depression, 202–203, 228, 232, 278n1, 279n11; health/illness, 63, 201, 203, 217, 225–228, 237, 248; PostTraumatic Stress Disorder (PTSD)/ secondary trauma/vicarious trauma, 6, 201–204, 215–230, 236–237, 239, 243, 278n9, 279n13, 279n15; nightmares/ sleep problems, 201, 205–207, 209, 226–227; substance abuse, 202–204, 218, 237–239, 278n1, 278n11, 279n11; suicide, 203, 237; survivor guilt, 13, 224–225 emotional labor/emotion work, 35, 176– 182, 187–193, 96–200, 246, 276nn17, 18, 276nn19, 20, 277n21, 277n25 Equal Justice Initiative, 4, 269n1 evidence: graphic, 203, 214–215, 232–233; missing, 205–207; mitigation, 21, 151, 153, 190–192; State’s, 39, 83, 147, 152, 155; witnesses, 39, 67, 83, 122–126, 128, 131, 139, 154, 203, 206, 248 execution, 2, 3, 19, 51, 53–55, 60, 71, 76, 264n20, 265n24; loss of clients, 6, 13, 176, 201, 209, 212–213, 218–225, 228–230; secondary trauma, 6, 225, 228–230; volunteer, 149; witnessing 2, 220–225, 260 experts, 21, 33–35, 49, 67, 101–103, 191, 206, 249–251 family: attorney families, 13, 72–77, 79, 95–96, 99, 163–164, 204–208, 230– 241, 240, 242; attorneys as, 163–165,

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181–183, 185; client families, 29, 35–36, 61–62, 73, 103–104, 118–120, 122–126, 128–130, 133, 136, 140–142, 148–149, 151, 153–157, 170, 175, 188–191, 196, 222–223; victim families, 151–152, 211, 216–217, 260 Federal Death Penalty Resource Counsel, 147 Feige, David, 23, 265n1, 266n4, 276n13 Felony 26: noncapital vs. capital, 23–24, 27–29, 63, 83–84, 100–101, 103, 208 Felony Justice (Eisenstein and Jacob), 9 fighting: on behalf of the client, 151, 168– 169, 175, 210; with clients, 146–147, 166–168; constant fighting/“me against the world,” 36, 46, 92, 175, 260; “the good fight,” 46, 92; the government, 28, 92, 175; “a losing game,” 48, 210–211 Freedman, Monroe, 23, 64, 263n5, 264n14, 265n1, 266n6, 268n2 Furman v. Georgia, 19, 43, 62, 264n21, 269n2, 270n2, gender: commodification, 183–184, 187; femininity, 172–173, 177, 183, 193–194, 198; hyper-masculinity/masculinity/ macho, 13, 172–166, 186, 193, 197, 199, 276nn15, 16, 277n23; gender norms/ bias, 172–182, 185–189, 193–104, 196– 200, 246, 275n1, 275nn4, 5, 275nn6, 7, 275nn8, 9, 275nn10, 11, 276n12; love/sex interest, 183–187, 194–196; objectification, 173, 183–185, 188–190, 194, 198; sexism, 120, 125–126, 172, 175, 185, 188–189, 193–198, 246, 275n1; sexual harassment, 174, 184, 186–187, 277n30; sexuality, 172, 177, 183, 195, 198 Genocide, 75 Gideon v. Wainwright, 20, 100, 265n29 Gregg v. Georgia, 19, 62, 264n22, 267n35

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guilt: defending the guilty, 11, 26, 31, 73, 133–134, 147, 154, 160–161, 266; guilty vs. innocent clients, 42–43, 258; guilty plea 11, 13, 20, 38–43, 55–56, 103, 133, 146–153, 155, 245, 249, 260, 264n10, 271n6, 276n7; guilty verdict, 210–213; not guilty verdict, 212 guilt and penalty (a.k.a. mitigation/sentencing) phases, 19, 21, 28–29, 34, 40, 103, 135 154, 191–194, 248–249, 260 Habeas Assistance and Training Resource Counsel, 147 Holocaust, 12, 74 human rights, 12, 69, 147, 268n7, 270n2 IBM, 49–50 identity, 272–273; colorblind lawyering, 110–111, 121; commodification/ instrumentalism, 116–118, 122–125, 183–184, 187; intersectionality, 125– 128; language, 110, 123–124, 127–128, 139–140; master status, 185–186; race 106–125; religion, 120, 145, 272n27, 273n34; sexual orientation, 130–131, 139, 193, 199; socioeconomic status, 127–129, 258 Implicit Association Test (IAT), 107 incarceration, 136–137, 190; life without parole, 13, 20, 28, 38–42, 52, 55–57, 70, 133, 146, 152, 190, 211, 216 indigent defense, 110, 254 ineffective assistance of counsel, 21–22, 51–52, 81, 149, 259, 279n2 interview instrument: “Update on the Cost and Quality of Representation in Federal Death Penalty Cases,” 257, 263n6 investigation/investigators, 7–8, 13, 21, 28–29, 31, 33–36, 36–38, 44, 48, 85–86, 101–104, 106, 112, 123, 127, 130, 153–157, 188–200, 206–207, 219, 245, 247–251, 253, 277n36

judges, 7, 21, 28, 44–45, 47, 49, 52–61, 67, 83–84, 92, 103, 106–107, 119, 131, 150, 174–175, 249, 250, 261, 267n31 juries/jurors, 7, 8, 19, 28–29, 34, 39–41, 43, 44, 60, 107, 111, 116–117, 131, 143–144, 147, 150, 157, 170, 178–179, 211–213, 217, 263n8, 266n16, 270n3, 271n18 Kaczynski, Ted, 1 law clerks, 34, 79, 217, 250 law clinics, 80–81, 161 law school, 9–11, 27, 38, 40, 64, 69, 78–81, 86, 89, 91–92, 95–96, 99, 105, 160–161, 168, 173–174, 214, 241, 257, 264n14 Leboeuf, Denny, 44, 90 legal aid, 108, 174, 272n27 Liebman, James, 22, 265n37, 267n34, Loughner, Jared, 1 Marx, Groucho, 94 MASH surgeons comparison, 25, 62 Mason, Perry, 23 master status, 185–186 McClesky v. Kemp, 106, 269n1 McConaughey, Matthew, 23 media: press/publicity, 1–2, 23, 32–33, 90, 133; television/film, 2, 23 mental health/illness: of attorneys, 96, 143, 201–204, 228–230, 236–237, 259, 269n28, 278n4, 278n11, 279n15; of clients, 6, 7, 13, 20, 29, 61, 98, 119–120, 133, 140–143, 150, 156, 159, 163, 167, 170, 190–191, 219, 265n26, 267n35; depression, 202–203, 228, 232, 239, 278n1, 279n11 military, 111, 190 Miranda v. Arizona, 100, 269n30 misdemeanor, 24, 27, 65, 78, 83, 91, 101 mitigation, 21, 28–29, 62, 81, 85, 138–139; gender dynamics, 176, 181–182, 184– 200; humanizing the defendant, 157–

Index

159, 170; obstacles, 33–38, 44, 47–50, 121–124, 129, 153–157; professionalization, 198–199 Montross, William, 64, 263n5, 268n2 motions practice, 23, 25, 27, 31, 47, 83, 103, 151, 206, 245, 248 National Advisory Commission on Criminal Justice Standards and Goals of the U.S. Department of Justice (NAC), 50 Olive, Marc, 4, 15, 44, 90 panel attorneys, 100–101, 245, 250 paralegals, 217, 251, 275n11, 276n11 plea bargain, 20, 25, 31, 38–43, 53, 55–56, 59–60, 103, 145–152, 155, 157, 245, 249, 264n10, 266n15, 267n25, 271n6, 274n7 police, 20, 61, 77, 83–84, 100, 108, 155, 178–179 post-conviction work, 22, 51, 57, 71, 81, 157, 218, 274n5, 278n2 prison, 42, 136–137, 147, 190; life without parole, 13, 20, 28, 38–42, 52, 55–57, 70, 133, 146, 152, 190, 211, 216 private practice/solo practitioners, 21, 33–35, 43–44, 49, 101, 106–109, 160, 252, 257 professionalism/professional ethics/ professional socialization, 2, 9, 13, 14, 24, 66, 68, 88–89, 110–111, 114–115, 131, 134–135, 150–152, 160, 163–165, 740, 176, 182–190, 194–196, 202–203, 211, 226, 243, 246, 259, 264n12, 264nn14, 15, 268n6, 268n8, 272n27, 273n34, 273n39, 274n11, 277n34 prosecutors, 7, 20, 24–25, 29, 31, 36, 38–41, 44, 51–62, 103, 107, 116, 131, 150–152, 166, 175, 194–195, 210, 213, 216–217, 244, 249–251, 260, 261

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285

public defenders, 3, 7–8, 15–16, 20–21, 23, 25, 30, 33, 37, 41, 49–50, 59–60, 63–65, 78–79, 84, 99, 101, 105, 106, 159, 204, 265n3, 266nn3, 4, 267nn22, 23, 269n29 public interest law, 24, 244, 272n27 public opinion, 26, 32, 73, 244–245, 248, 252, 261 “public pretender,” 135 race/racism: African American/Black, 69, 106–114, 116–123, 125–126, 131, 139– 140, 186, 267n32, 269nn1, 2, 270n2, 270nn4, 5, 270n6, 271n6, 271nn8, 9, 271n10, 271nn16, 17, 271n18, 273nn42, 43, 273nn44, 45, 275n1; Asian, 111–112, 126–127; commodification/instrumentalism, 116–118, 122–125; Hispanic/ Latinx/Latin American, 69, 108–109, 122–124, 127, 129 Reagan, Ronald, 93 religion, 72–78; Catholicism/Christianity/Evangelism, 72–78; Judaism, 12, 74–75; Jewish lawyers, 120, 145, 272n27, 273n34; missions/missionaries, 72–73, 87 Rompilla v. Beard, 21–22, 49, 265n34, 267n35 Rudolph, Eric, 1 Sarat, Austin, 10, 68, 69, 70, 71, 264nn15, 16, 265nn2, 3, 268nn6, 7, 268nn8, 9, 268nn14, 15, 268n17, 268n19, 269n1 sentencing, 19, 21–22, 40, 133, 215–216, 227, 260, 270n2 sex, 164–165, 183, 194–196 sexism, 120, 125–126, 172, 175, 185, 188– 189, 193–198, 246 sexuality, 172, 177, 183, 195, 198 shame, 148–149 Sheffer, Susannah, 10, 71, 263n5, 264n15, 268n18, 278n2

286

| Index

Smith, Abbe, 23, 64, 149, 150, 263n5, 274n8, 278n2 Smith, Susan, 1, 133 social justice, 68–69, 78, 80–81, 174, 268n14 South, the, 44–45, 53–54, 106, 108, 145, 183, 245 Southern Center for Human Rights, 4 Stevenson, Bryan, 4, 44, 90 stigma, 26, 31–33, 178–179, 190, 192–200, 244–245, 262, 277nn28, 29 story/social history/life history of the client, 29, 34–35, 124, 141–142, 144, 147, 153–157, 163, 214, 228–229, 259 Strickland v. Washington, 21–22, 265n33, 267n35 success and failure, 40–43, 210–213, 258 terrorism, 26, 85, 145 trauma: attorneys and, 6, 201–204, 215–230, 236–237, 239, 278n4, 278n9; courtroom actors and legal professionals, 215–217 Tsarnaev Brothers, 1 Tucker, Carla Faye, 76

underdog, 79 “Update on the Cost and Quality of Representation in Federal Death Penalty Cases,” Report to the Committee on Defender Services, Judicial Conference of the United States, September 2010, 257, 263n6 U.S. Supreme Court, 19–22, 34, 43, 49, 60, 62, 100, 106–107, 168, 173, 204, 217, 219–220, 223, 265n24, 267n33, 269n1 victims, 151–152, 211, 216–217, 260 victimization, 73, 270n2 Weber, Max, 8 White, Welsh, 22, 265n38 Wiggins v. Smith, 21–22, 34, 49–50, 85, 265n34, 267n35 wrongful convictions, 42–43 zealous advocate/representation, 22, 31, 45–46, 49, 103, 123, 165, 175–176, 179, 247, 251, 259, 271n6

About the Authors

Jon B. Gould is Professor of Public Affairs and Law at American University in Washington, DC. A lawyer and social scientist, he combines empirical research with policy advocacy to advance justice administration and reform. He has been recognized for his scholarship, teaching, and service. Maya Pagni Barak is Assistant Professor of Criminology and Criminal Justice and an Affiliate of Women’s and Gender Studies at the University of Michigan–Dearborn. She holds a PhD in justice, law, and criminology from American University. Her research brings together the areas of law, deviance, immigration, and power.

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