We came back into the courtroom after a couple of days’ deliberations and rendered our eleven-person guilty verdict on murder in the first degree and rape. We were expecting to hear more evidence before deliberating a second time on a different issue—whether a person deserved to live or die for his heinous crimes. As our foreperson read the first-degree-murder guilty verdict, I looked around the jury box. Some jurors were at ease. Others were ashen, sitting in twisted-up positions, perhaps dreading the decision that we would have to make next. We stood, raised our right hands, and confirmed our guilty verdict, one by one, eleven times.
But there was no second phase after all. We faced no such thing because the county, having spent a small fortune to try the case and to house and feed the sequestered jury, had cut a deal. Or maybe because the DA thought it was better politics than starting the trial over again after a mistrial. In order to proceed with an otherwise illegal verdict of eleven, the county and the defense agreed that the state would not seek the death penalty. For its convenience and to save some money, or maybe for politics or some other reason I’ll never know, the prosecution bargained away the death penalty.
Being a young juror made me choose law school, and a career as a trial attorney in criminal justice. I entered Stanford Law School, still riveted by my jury experience: the clear evidence; the able, swift, and careful investigation by law enforcement; the heinous crime; the variable quality of the lawyering; the madness, wisdom, unfiltered bigotry, and decency of the jury. I saw on display the justice system’s volatile mix of excellence and mediocrity. But one particular observation from the experience stuck with me: I was not persuaded that juries that decide momentous things, such as whose liberty should be taken or who should live or die, are perfect. Or that the process that decides the death penalty—which in this case hinged on one juror’s hidden mental illness and the dominoes it knocked down—was flawless.
The death penalty, informed by my jury service, followed me to law school. Not only was it discussed and taught in coursework, but it was our law school class’s unique topic for moot court. Nearly all law students in American law schools participate in class-wide moot court competition at least once before graduation. It’s shadowboxing for future lawyers, or maybe pilot training in a flight simulator. You make all the moves, but it’s not for real. Performing well is a résumé builder, and also an exciting opportunity for students drawn to brief writing and the theatrical aspects of law.
The topic professors selected that year for our moot court was as dramatic as it gets: Is it constitutional to execute people who commit murder when they are children? As we prepared our moot court briefs and arguments, juveniles had received death sentences in different states; some juveniles had already been executed.
The social justice lawyer Bryan Stevenson would resolve that question in arguments before the U.S. Supreme Court decades later: NO, it is not constitutional to execute people for murders they commit as juveniles. The Supreme Court reasoned that juveniles who commit murder should not be executed due to their mental immaturity, which reduces culpability but also increases their potential for rehabilitation.
But that seminal U.S. Supreme Court ruling would have to wait until decades after our law school years. This was appellate moot court, which meant we would research and write legal briefs arguing both sides of an issue different courts had already decided in opposite ways. We would also argue and answer questions on the fly asked by professors or lawyers playing judges (or real judges who volunteered) in a courtroom.
The competition required teams of two. I cajoled Lisa into being my partner, which was probably a better deal for me than for her. She was less enthused than I was about taking the class, and she made me promise to find a different partner if I could. I didn’t try very hard. She was a gifted debater in college and a stellar legal writer in law school. I was more drawn to storytelling and the drama of courtroom than to the formality of writing briefs.
My research turned into a transfixed tour of the rich history of the death penalty in U.S. Supreme Court opinions and thought. The opinions detailed arguments for and against the death penalty, explained in wonky terminology such as “deterrence,” “general deterrence,” “specific deterrence,” “incapacitation,” and so on. I worked my way through the sociological studies relied upon in those opinions. Grasping so much detail burned a lot of time, but prepared me well to answer the judges’ extemporaneous questions we would face during the various rounds of moot court competition.
In that research, I heard the steady drumbeat of Justice William Brennan’s opinions. His dissents are revered for their eloquent persistence, as if he were speaking to a future America that would be more open to his arguments after his death. Brennan, a former state court judge whose legal experience prior to the Supreme Court was closer to the reality of criminal justice than the experience of nearly all his Supreme Court colleagues—with the notable exception of Thurgood Marshall—went to his grave opposing the death penalty.
We were only a few miles from Silicon Valley in 1986, but we couldn’t afford computers. So we stayed up all night in the basement of the law school using the law review’s computers. We finished in time, but we missed our deadline by about ten minutes due to unforeseen printer problems. Our score on the brief got docked severely for that lateness, a deficit that would follow us through every round of the competition. But at least the brief was good. Lisa’s writing was brilliant, as always. Mine was decent.
The courtroom rounds started. We hadn’t rehearsed, so we were nervous at first, but we did well in early rounds and started having a great time. After Lisa and I had a particularly strong round in the moot court competition, I still remember one of the judges, who turned out to be a criminal defense attorney in private practice in San Francisco, finding me in the hallway outside and offering me a permanent job. I had already decided I was headed for public service work as a public defender or prosecutor, the two sides I had watched from the jury box before law school. I declined too quickly.
The death penalty followed my national job search as well, in my final year of law school, as I interviewed with chief prosecutors’ and public defenders’ offices in big cities around the country. I had a lot of interviews, and got offers from both sides. Interviews generally went well, with a couple of tumultuous exceptions. In Oakland, during my second interview, a senior prosecutor was so disgusted I liked the ACLU that he angrily ended the interview and chewed out the less senior prosecutors who had recruited me. One especially ideological public defender’s office was cold to my interest in both defense and prosecution; it disqualified me in their eyes. But no interview was harsher than the one at the Philadelphia District Attorney’s Office (DAO) around December 1986. Having received offers from prosecutors’ offices elsewhere, I guessed my hometown prosecutor’s office would look favorably on my law school summers spent in public service, my strong academic background, and especially my deep roots in the area. I assumed this interview, like most of the others, would go well. It didn’t.
My Philly DAO interviewers were a team of two. One, a man whom I got to know and like well enough later when I was working as an assistant public defender, was cordial. The other, a woman only a few years older than me, was cryptic and gave no eye contact when I first greeted her and sat down. She asked me early in the interview what I thought of the death penalty, which was unexpected. No new prosecutor in Philly was going to be involved in a death penalty case anytime soon in their career. I assumed it was a litmus test, a bad sign for my chances since my answer was somewhat nuanced. We began discussing my death penalty jury service and the case law and sociological research I remembered from moot court. At one point I blandly referenced the uncontroversial notion that there is a lack of scientific consensus on claims that the death penalty deters crime. She was not favorably impressed and angrily snapped back that executions deter the person executed. I wasn’t impressed by what she knew or
how she reacted. I politely corrected her misunderstanding of what “deterrence” means, knowing it might inflame her. Polite wasn’t good enough. She jumped up and exploded anyway, making very clear that the interview was over, and at step one. As I endured her outburst, both disappointed and amused, I got up and looked toward the other interviewer. He was quietly looking back at me as if to say he was more interested and somewhat embarrassed but had no real say. I gathered my things and left.
A cartoon of the event would have had me flying out the DAO’s front doors, feet over head as if the building had spit me out, my papers fluttering in the air and falling around me as I hit the sidewalk. That cartoon wouldn’t be far from the truth. No complaints, though. Looking back, I have to admit it was for the best: I was telling an uninformed, traditional prosecutor she didn’t know what she was talking about, which is not how you ask for a job you actually want. She was angrily telling me that I didn’t make the cut for the Philly DAO circa 1986 and what that team stood for at that time. We were both right.
My legal career began on a different team, at a different government office in Philly where I did belong in 1987, the office of the public defender. Although I tried and won a lot of serious cases in the first several years of my career, I didn’t try my first homicide until I was in private practice, hired by the family of a defendant facing the possibility of a death sentence. The defendant was found not guilty of all charges on a shaky identification. A death phase was avoided.
After trying more homicides over several years, I eventually found myself in a second death penalty case. My client, the defendant, testified well during hours of questioning at trial. He had shot and killed another man with several shots to the back and side and was caught close to the scene by police who happened to be in the area. The number and location of the shots, as well as there being no weapon found on the victim’s body, were strong evidence of first-degree murder that would enable a death phase if the jury convicted on that charge. But the defendant testified for hours about the victim’s intimidation of him and his family, which he attributed to the victim’s trying to silence him for knowing the victim had killed the defendant’s friend. The defendant’s testimony was somewhat supported by the victim’s own Facebook postings, which tended to show the victim’s prior involvement in killing the defendant’s friend. My client was found not guilty of the higher murder charges, but he was convicted of a lower-level homicide charge, voluntary manslaughter, sometimes referred to as “imperfect self-defense,” which carries a maximum sentence of ten to twenty years in custody plus other charges. He got a total of twenty years. A second death phase was avoided.
Just before I decided to run for district attorney, in 2016, I tried my third death penalty case. It was the most wrenching case of my career as a criminal defense attorney and involved nearly five years of preparation before the trial began. The defendant and his codefendant were accused of killing three adults in a botched bodega robbery. The victims were the bodega owners—mother, father, and aunt to two traumatized teenage girls who witnessed the murders. At trial, the defendants were convicted of all three murders in the first degree, and faced the very real possibility of a death sentence on each case. A death phase went forward, but the jury narrowly rejected death, in my opinion based on evidence that the defendant was raped as a child. That evidence was absolutely crucial to our chances of persuading a jury not to sentence the defendant to death. His first manifestations of schizophrenia appeared after the rape. That evidence also arrived very, very late. It would be a stretch to say prosecutors provided it.
The prosecutors had the evidence of my client having been raped, but kept it to themselves before and during trial, including when experts (whose opinions should have been informed by this fact) took the stand. Instead, the prosecutors waited until the experts had finished testifying before giving me a fat, oddly shaped pile of half-legible records the night before the death phase started. They didn’t tell me what it contained, possibly hoping I wouldn’t look closely.
Even then, they handed the documents over only after I noticed them sitting on the prosecutors’ counsel table and started asking what they were. Late that night, I read the records for hours. Around two a.m. I found the documentation of my client having been raped as a child, buried at the back of more than one hundred pages. The defendant, who was in his thirties, had never reported to me, my co-counsel, or anyone else who would admit it, including his troubled mother, that he had been the victim of childhood rape in an alley by a stranger. He was what the courts call a “poor reporter” in the sterile language of death penalty litigation—someone so mentally impaired that fully communicating or even remembering everything in their past is impossible. Yet here it was, obscure social services paperwork from his childhood that our death penalty investigator had been unable to find after diligent work, indicating the defendant’s immediate report of extreme and damaging trauma when he was a child. There was no clear indication of any treatment having been provided to address the rape. This was crucial information, especially layered on what was already known of my client’s blasted childhood and the long, documented history of hallucinations and paranoid delusions we already understood. My experience as a lawyer did not convince me that the process by which some prosecutors and defense attorneys try to persuade jurors who should live or die is perfect.
For decades, prior administrations in the DAO relentlessly pursued the death penalty in Philadelphia. Lynne Abraham was known for her DAO’s office obtaining death sentences over one hundred times in nineteen years and for her self-described “passion” for the death penalty. Sadly, her office was less passionate about integrity in the process of pursuing executions. The prosecutorial threat to seek death was cynically used to coerce guilty pleas for sentences of life in jail with no chance of parole, even when the circumstances of a case and the defendant’s history did not support a death sentence. Everyone in the system knew that a jury picked for a death penalty case, all of whose members have confirmed they could impose a death sentence, was more likely to convict during the guilt phase than a jury that includes people who are opposed to the death penalty. So some prosecutors’ pursuit of the death penalty was really about fixing the trial on guilt by getting a jury biased toward guilt during the guilt phase. And there were other ways to fix a trial. In many cases, the prosecution did not disclose essential and constitutionally required information to the defense. Outlandishly illegal closing arguments by Roger King and others in death penalty cases caused retrials. But prosecutors were not the only ones to blame for a crooked system.
The game was also fixed by the system as a whole to disadvantage the defense by paying court-appointed defense lawyers next to nothing. People charged with homicides are overwhelmingly broke, unable to pay for counsel, and locked up through trial. Homicide defenses in general and death penalty defenses in particular have been routinely conducted in Philly and elsewhere by a small cadre of underfunded, court-appointed defense counsel whose underperformance was almost unavoidable and became the norm. They often did not obtain or present the legally necessary records, experts, and witnesses a death penalty jury must hear in order to consider life or death. The court system, including the judges who repeatedly appointed these same defense lawyers (two of whom I used to call “Team Hemlock”), did far too little to even up this one-sided mess. The system was okay with the outcomes.
Philly’s chief prosecutors didn’t interfere. In my opinion, they were okay with such a flawed system because it fed the sensationalist journalism and politics of fear that built their political careers. And so the lack of integrity in failing to disclose required information to the defense in those death penalty proceedings was almost universally covered up post-trial by prior administrations. That cover-up violated fundamental notions of justice as well as the chief prosecutors’ sworn oath—to seek justice without regard for politics.
How flawed were these Philadelphia death pen
alty proceedings? Before I became district attorney, nearly three out of four Philadelphia death sentences rendered since the end of the U.S. Supreme Court’s moratorium on the death penalty—a nearly forty-year period—had been overturned. The other death penalty cases remained in litigation; even more were likely to be overturned in the future.
And how many years passed from the time of the death sentence until it was overturned? Lawyers who did nothing but death penalty post-trial work for a living said it usually took more than fifteen years between the time the death sentence was given and the time it was overturned. Over fifteen years of litigation that was costly to taxpayers but even more costly to survivors of homicide and others touched by it—the victim’s family and friends, as well as the defendant’s—who endure all those years of an adversarial ping-pong game invading their daily existence; more than fifteen years of wounding notifications and dreadful anticipation prior to attending damaging hearings. There is no closure.
How bad is a reversal rate of nearly three out of four death sentences? Understand that appeals judges very seldom overturn verdicts in other contexts. Defendants ordinarily win only a small portion of all post-trial legal challenges in criminal matters. I would estimate the defense succeeds in overturning trial outcomes on appeal about 5 percent or less of the time; prosecutors win the other 95 percent. But the government’s obtaining authority to execute a prisoner under its control, which must be based on proceedings with factual and legal integrity, has overwhelmingly failed to meet that standard.
And why were these death sentences overturned so frequently? My sense was that about two out of three of the overturned sentences came from the defendant’s counsel failing to do their job. In court it’s called “ineffective assistance of counsel”; think of it as professional malpractice. Experts who could have established a defendant’s early trauma or psychological damage from educational and other records or events were never hired. The records those experts needed were never obtained. Neighbors, teachers, employers, and family who witnessed the defendant’s life and could have provided insight on the defendant’s history were not interviewed, or subpoenaed, or presented to testify in any meaningful way.
For the People Page 6