Good Intentions, Bad Outcomes For Capital Defendants

Back when he was Alabama’s Attorney General, Bill Pryor used to complain that big (Northern) firms only lined up to represent capital defendants at the point of collateral challenges. Why, he’d ask, don’t they step up at the trial stage? A certain suspicion is present in this question, a suggestion that this decision is strategically designed to frustrate use of the death penalty. But as anyone experienced in criminal practice will tell you, it is easiest to prevent a death sentence at the trial stage – either by squeezing out a plea deal, winning at trial (really, almost impossible in capital cases, unless you roll the dice and give up any hope of showing forgiveness in the sentencing phase, should it occur), or “winning” life at the punishment hearing. (One caveat here: in Alabama, where judges override jury verdicts of life in order to further their own political ambitions, all the good lawyering in the world can lead to nothing. As a result, an Alabama capital defendant may actually do better on appeal than at trial. The fact that this is true shows the perversity of the Alabama override system.)

So why don’t these excellent, well-funded counsel take cases at trial? There are presumably a few reasons. One is that trials are harder and more expensive to handle when your office is 1000 miles away. A second is that firms may actually prefer that their junior associates get the experience of working on what (probably incorrectly) appear to be more law-based collateral challenges. (They also aren’t interested in giving up the large chunk of attorney time required to handle a trial.) But a third reason, I suspect, is that the lawyers in these firms just don’t feel up to the task of trying a capital case. They don’t think they have the proper background; they may even think it would be malpractice. It’s easy to picture a partner at Simpson, Thacher saying “I’ve never tried a criminal case in my life…let alone one in Alabama.”

It is one of the curiosities of capital work that the leaders in the field have successfully convinced many other good lawyers (and not just Big Law lawyers from out of state) that you shouldn’t take a capital case without a commitment of serious time and a strong background in criminal and capital practice. They’re right, of course. The problem is that when these good lawyers pass on capital cases, defendants in many jurisdictions end up with a mediocre or downright terrible lawyer. The attorneys who ultimately handle the case may have tried dozens of criminal matters, but they aren’t necessarily sophisticated or talented practitioners. They may never gave given a thought to the difference between guilt/innocence and the penalty phase. They may accept mediocre attorney/client relations that make it impossible to sell a young client on a plea of life without parole. And they may dedicate what seems to them a reasonable 30 or 40 hours to prepping the case.

When I first considered starting a capital defense clinic at Alabama, a friend who’d formerly worked at a Death Penalty Resource Center counseled me against it. He correctly believed that I was too overtaxed to dedicate the time such a clinic truly required. But I created a model that worked – reasonably well, though not perfectly – because it struck me that, in Alabama, in the year 2002 (and still today), perfection really can be the enemy of the good. I’m not sure I was right in setting up that clinic, but I hope that if nothing else, we trained a few lawyers to worry about exactly these questions.

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5 Responses

  1. Another view says:

    One more reason: there is little or no possible glory in those trials. So many of the defendants are guilty that the “public interest” aspect is less apparent and certainly less glamorous. Imagine explaining to summer associates how your most recent pro bono case involved a trial that you lost representing a murderer. Let’s face it: would-be pro bono lawyers in big firms are unwilling to do such work. They are willing to come in later and play David and Goliath, but they are unwilling to practice in the trenches. After all, they could have been in the trenches all along.

  2. Paul Horwitz says:

    Dan, good post — and you’re to be commended for setting up the clinic. I wrote my own take on this issue a while back, and I think there’s some overlap in our views: it’s here — I also wonder, although I don’t think my post mentions it, whether the big firm involvement at the collateral stage was ultimately detrimental to the extent that such high-profile involvement, rather than work at the trial level, might have encouraged the passage of legislation like AEDPA.

    One more reason, besides the good ones you suggest, why firms might be reluctant to be involved at the trial level, even at the less intensive, good-is-better-than-nothing level you suggest: Why subject yourself, and your firm’s valuable name, to the prospect of an ineffective assistance of counsel claim down the line?

  3. Ed Burke says:

    Great post.

    Isn’t the problem what they used to call “limousine liberalism”? Actually representing a criminal defendant at trial is icky: the client is a bad person, and there is a real dead body and everything. On the other hand, doing death penalty appeals is rather romantic and pure. For a biglaw associate who feels guilty that he’s not trying to help the world, doing death penalty appeals is about fighting evil by trying to “stop the death penalty.”

  4. BDG says:

    Dan, is the Alabama judicial override in favor of a death verdict still in practice? I’m no crim guy, but I thought it was obvious after Ring that such a statute would be unconstitutional. No?

  5. Dan Filler says:

    BDG, alas Ring has not ended judicial override in most cases. All the Supreme Court has held is that a jury must find any fact essential to a particular sentence. Most of the aggravators in Alabama are embedded in the charge itself and are proved beyond a reasonable doubt at conviction. Thus far, neither the Supreme Court nor the Alabama courts have held that the act of balancing aggs versus mitigators must also be done by a jury.