For the People

by Larry Krasner

  As a result, the court records of some of the death phases span a skinny couple dozen pages of brief testimony and improvised argument. Juries carrying the yoke of deciding between life and death heard next to nothing about the defendant’s life.

  Well-prepared defense attorneys will explain every mitigating fact about their client during the death phase. It’s a careful process of sifting through educational and social service records, and interviewing witnesses—schoolteachers, neighbors, relatives—to determine victimization and trauma in their childhood, neglect, physical and sexual abuse, mental deficits, and mental health problems among other things. Experts and testing are often required. But that’s hard work. It takes time and money.

  A hack lawyer who represents the defendant during the death phase skips getting the records, doing the testing, interviewing witnesses, getting the experts. A hack job looks a lot like putting on the stand whoever happened to be in the hallway on the defendant’s side right after the guilty verdict comes in. Maybe Mom testified and said, “Don’t kill my baby.” Or maybe the defendant testified and said he’s sorry right after his lawyer spent weeks saying he’s innocent. Or maybe no one testified in the death phase, and the same lawyer who argued that he was innocent of a heinous killing at trial then argues, “Okay, he’s guilty, but don’t kill him anyway.”

  And what comes next when a sentence of death is reversed, so many years later? The reversal of a death sentence, like the reversal of a trial conviction upon appeal, ordinarily means prosecutors can try again. But, curiously, that doesn’t happen; the prosecutorial fire to pursue a death sentence a second time goes out. Usually, in Philadelphia, prosecutors did not seek another death sentence the second time around, abruptly giving up on the ultimate sentence, a sentence they adamantly claimed at trial was necessary and the only one that fit the crime. It’s inconsistent and hypocritical to routinely decide that the ultimate penalty—the execution you sought—is no longer necessary after the passage of time. We are talking about human lives here. So why does it happen?

  There is more than one anecdotal theory of why prosecutorial zeal for death sentences wanes when a death sentence is overturned and a second death phase is allowed. The first theory is about politics and its symbiotic relationship with the press. The entire trial on innocence or guilt is not redone on a death penalty redo. So the evidence of the killing, in all its gory drama, is toned down in a second death penalty phase hearing. Journalism about the death phase is a grimmer story, especially in recent years as voters have become less inclined to support the death penalty. There’s less drama and less favorable press coverage to fluff up a prosecutor’s career.

  The second theory is that capable trial lawyers simply know better. Prosecutors sometimes know that a fair fight on a properly redone death phase is something they will lose. When all the information about the defendant’s traumatic background and sometimes severe mental health issues are fully presented at a new death phase, they may lose. In addition, after years on appeal there is evidence that most death row defendants have few disciplinary infractions or additional crimes. Where that is true, any jury is less likely to choose death. No prosecutor likes to lose, so why try?

  The third anecdotal theory is that in some cases, the victim’s family and survivors have already experienced the prior death verdict being overturned and are simply tired of the lack of closure. They have no appetite for a second death phase and more decades of legal challenges. In other families, the leading voices are new or have changed their views. They have come to a different stage of grief or are guided by a new faith or philosophy that rejects executing the person who killed their loved one.

  Systemically crappy, inconsistent representation on both sides is unacceptable in a fender bender lawsuit or any other civil matter. But it happens in the most serious criminal matters, where life hangs in the balance, for one reason: There’s money to be made in civil cases and almost none to be made in a death penalty criminal matter where the defendant is represented by court-appointed counsel. These defendants may be presumed innocent by the law, but they are presumed guilty in a criminal justice system that is driven by politics and power. The crimes are heinous, and so the defendants are presumptively despicably guilty, rather than presumed innocent, as the law requires. The most powerful players in the system traditionally prefer the politics of a guilty verdict and a death sentence, so power sets the rules and gets what it wants.

  What has happened in Philly is nothing new. In 1989, when Bryan Stevenson established the Equal Justice Initiative in Alabama to represent people in death cases, the total compensation for a court-appointed attorney representing a defendant through all phases of the case, including appeal, was $1,000. Prosecutors have no equivalent challenge; they are salaried and generally do fine with their funding compared with other governmental entities. The matchup of resources is so lopsided and the likely outcome so predetermined that Stevenson felt compelled to establish an independent and (eventually) better-funded alternative in order to make Alabama fulfill its constitutional obligations—and to obtain more accurate results. Once the defense could operate with similar resources, the outcomes began to change. Stevenson was right.

  In Philly, the system by necessity mostly picked among the few attorneys so desperate for clients that they would work for crumbs. They are mostly a motley crew of lawyers who have no better source of revenues and no overhead. Many of them have few private clients, and seldom have full-time staff or decent offices or a stable of happy vendors that includes investigators and experts ready to take their calls for underpaid court-appointed work. So when the system chooses what to pay these lawyers, it’s not just about money; the low pay guarantees poor representation.

  Before I became DA in Philadelphia, dismally low flat fees encouraged underpreparation—for example, a homicide case preparation fee of less than $2,000 no matter how much work was done. The low fees don’t just attract a pool of desperate lawyers, but the incentives built into the fees led the worst of those lawyers to hurt their clients. For instance, lawyers made more money trying death penalty cases than they made by trying to achieve a non-death plea ($400 for every day of trial; $0 after a plea), which incentivizes some of the worst of them to unwisely try cases even when doing so puts their clients’ lives in jeopardy.

  In general, public defenders do a much better job with death penalty defense in Philly due in part to their idealism, extensive experience, and moderate but steady salaries. Given how inadequately compensated public defenders are for the important work they do, we should be alarmed that public defender money looks like a ceiling compared to the floor of court-appointed pay in matters of life and death. And there are idealistic private defense lawyers who take some court-appointed work, rightly viewing it as charity since their office overhead alone far exceeds the compensation they will eventually receive. I was one. In 2011, at fifty years of age, I decided to take several court-appointed homicides and handle them as well as I could. It was public service; I thought it was giving back, God’s work, the good fight. It was also a nightmare of bureaucratic catch-22’s and passive-aggressive pushback when I tried to do something more than the normal, do-nothing approach. In one case, the judge became amnesiac about commitments he had made to ensure payment of my vendors—experts and investigators—after the work was done. His forgetfulness led to the vendors blaming me. My staff’s payroll was due every two weeks, but compensation for my services was ordinarily due only after sentencing—which meant upon completion of what ultimately became five years of work. Unless a lawyer is independently wealthy, this economic pressure is real and its effect is real as well—which brings us right back to that crazy high reversal rate for death sentences.

  In 2015, shortly after he began his first term, the new Pennsylvania governor imposed a moratorium on executions in the state that he kept in force during his second term, and for his own good reasons. Most Pennsylvania experts will tell
you that the death penalty in Pennsylvania’s sixty-seven counties is either beyond fixing or can be fixed only at tremendous cost with benefit that is at best debatable. Further, there is no consensus among criminologists that the death penalty deters murder or any other crime.

  The irony is that in Pennsylvania and many other states, death sentences are just words; they are not carried out. In 1962, a Pennsylvania killer was executed against his will. Despite former Philly district attorneys’ mad love for executions, no one has been executed against their will since then. There were two or three people executed in the late nineties who purposefully abandoned all post-trial appeals and challenges in order to expedite their executions. They included Marty Graham and Gary Heidnik, two serial killers who arguably added their own bodies to their piles of victims with the help of the government when they stopped fighting their executions. Objectively speaking, former DA Abraham’s passion for executions has been unrequited. I suspect her real romance with death had more to do with political ambitions.

  Thirty-three years after I sat on that death penalty jury, I was campaigning to become district attorney. I was being considered by the voters to make decisions about life and death again. I was hoping to sit in a different chair, in a chief prosecutor’s office, where I would hold discretion to seek the execution of people for having committed truly terrible crimes. I campaigned promising to give the defense all documents and information that the law and fairness require, and to consider all aspects of each case meticulously before exercising individual discretion. I campaigned promising to use very well-informed common sense. We need common sense in each case we review when we decide whether or not to seek a penalty that is irrevocable and final. Common sense includes what I know from having been a death penalty juror, seated at a different table, so many years ago—what was said and what was muttered and what it all meant. Common sense reminds me to question what I have witnessed prosecutors do in seeking executions I opposed as defense counsel, and what their conduct in those cases means about how prosecutors handled other cases in the past and what needs to change in that office’s culture. Common sense tells me to question whether people involved in death penalty cases are perfect or imperfect, strong or frail—jurors, judges, the defense and the prosecutors, the survivors and the accused, even the ones who only hear about it all on the news. And my common sense has answered that question for me. Yes, we are all frail and strong, but none of us are perfect who are given power to determine whether another person should live or die.

  CHAPTER 4

  Frank’s Long Shadow

  I did it my way.

  —Frank Sinatra, “My Way”

  Cities, especially old and storied ones like Philadelphia, can feel fixed in time, like their culture doesn’t change. But seen from the perspective of history, a city’s culture is far more fluid and changeable than it appears to the living. The moments of change are sometimes visible, though, captured in stone or bronze—in the city’s statuary. Philly’s dead, including two men whose statues have characterized the city’s ideals at different times, made admirable and despicable choices that changed the city, pointing it in opposite directions. Their statues were our daily reminder that choices we made long ago can be unmade, too. No monument is permanent. One of those statues had to go. In our campaign, it was bedrock that the living get to choose the future.

  I met the legendary and reviled Frank Rizzo just off Ninth and Christian streets, outside the mostly open-air Italian Market on a sunny weekend in July 1991. The former mayor of Philly was nearly seventy-one; I was barely thirty, nervously anticipating the birth of our first son, Nate. Eight days after I met him and four days before our son was born, Frank died of a heart attack.

  I was four years into my legal career, still a public defender but now dreaming of starting my own civil rights and private criminal defense practice. Thanks to a Federal Housing Authority loan that required almost no deposit, Lisa and I had just bought and moved into our “starter” home, where we would remain the next twenty-six years. Frank was well past his political prime but still politicking in his old South Philly neighborhood stronghold, running for a second set of terms as mayor. He had never wanted to leave office in the first place. He had been mayor from 1972 to 1980 but had to step down after his effort to eliminate term limits failed. Now, more than a decade later, he was trying to get back into City Hall for a new pair of four-year terms. His main opponent was Ed Rendell, who became Philadelphia district attorney in 1978 at age thirty-three, completed two terms, and then ran for governor in 1986. Rendell lost for governor, but five years later, he was trying to become mayor, running as a centrist to the left of Rizzo. Times had changed from Frank’s heyday of old Democratic machine politics, but he still had a real shot when I met him.

  I was waiting at the Italian Market with Ed Rau, my father-in-law. Ed was an ex-career-military pilot who had flown in Korea and Vietnam and endured the deaths in battle of most of his flight crew. Later he served two years as a pilot for the American ambassador to Afghanistan. Ed hunted in the hills with the locals, and carried his Leica camera to shoot “scenery” as the United States kept an eye on the USSR twenty years before the ill-fated Russian invasion of Afghanistan. He continued ascending the officer ranks, becoming a lieutenant colonel, before hitting a ceiling after putting a McGovern for President poster in the front window of his home in a neighborhood full of military families at his last stop, Strategic Air Command HQ outside of Omaha, Nebraska. Ed was a man who kept secrets and had been in the fight. When he said things, you watched his eyes. Though I’d been married to his daughter for two years, Ed still intimidated me. Lisa was still his baby girl.

  For a hunter and traveling foodie like Ed, the Italian Market on a sunny day was irresistible. The neon signage of Italian bakeries and butcher shops faced brightly colored piles of fruit and vegetables on sidewalks full of vendors hawking in the open. In the winter, vendors kept warm by burning crates in fifty-five-gallon drums. Ed and his second wife, Gretchen, were visiting from retirement in Colorado—retirement from the military and from his post-military law practice in aviation law and employment discrimination on the side of aging airline workers. As Ed and I wandered through the market, I spotted Frank, who was surrounded mostly by well-wishers on the hot, sun-drenched sidewalk across from the St. Paul Church on Christian Street.

  I knew all about Frank. Frank was not my people. To me, Frank was still the racist mayor my dad had railed against. He was still that black-and-white menace on our nightly local news when I was a kid, the one who famously showed up at a black-tie event with a nightstick stuck in his cummerbund. To hear my dad’s view, when Frank was on TV the rabbit ears antenna on top of the screen might as well have been Frank’s horns. My dad used to grin when he called Frank “Mussolini.” Having volunteered and served in World War II, I guess he was entitled to call out a fascist.

  Frank exchanged mutually suspicious looks with Ed and me—over the years he must have honed his senses to detect the presence of enemies, especially liberal lawyers. Insincere pleasantries and the obligatory shaking of hands followed. I remember the thin lapels of his immaculate Rat Pack suit, retro even then. I remember the flash of a threatening demeanor that smacked of suppressed rage, the easy power of his charisma wrapped in a Sinatra tan. Ed Rau’s steely gaze belied his diplomatic words. Ed could also spot an enemy. I could tell Frank was not his people, either.

  Frank Rizzo started as a beat cop in the 1950s and rose to become the police commissioner of Philadelphia. Whether he was a cop or a commissioner or the mayor of the city, Rizzo’s record for racism and brutality was widely known—and widely embraced in some parts of Philly. He opposed school desegregation. One-way streets were redirected to isolate Black neighborhoods. While Frank was police commissioner and then mayor, scores of unarmed young Black men were shot in the back by police only to have their killings excused with copycat stories made up later. The usual tale was
that the police had spotted some object, often the ubiquitous Afro picks of the era, that supposedly looked like a gun for an instant in the hand of the unarmed man they shot. The absurd story that the victims brandished Afro picks at armed officers—and the picks somehow reflected the light as if they were guns—was good enough for Philly prosecutors and police at the time, no matter how many times it was repeated.

  Frank directed the police to strip-search young Black men in the middle of their streets to make sure the residents all saw and understood that their neighborhoods were occupied and by whom. Rizzo’s rhetoric was so memorably brutal, bigoted, and foolish that the Southeastern Pennsylvania chapter of Americans for Democratic Action circulated a widely read compilation of his quotes titled “The Sayings of Chairman Frank.” It included such gems as “The way to treat criminals is spacco il capo [break the head]. If you [the Rome police] need some help, we’ll transport some guys over here and they’ll straighten them out right away.” Or: “I’ll make you a rich man. I’ll give you five dollars for every liberal who jumps off the Walnut Street Bridge when I’m elected.” Or, on the Black Panthers: “They should be strung up. I mean with the law. This is actual warfare.” Frank’s brother became fire commissioner during his reign. On Frank’s mayoral watch, the city’s economic future was sunk by the permanent entitlements he gave to his beloved clan of police and firefighters, who were treated better than other city employees. In Frank’s era, high school graduates who became police at eighteen retired by forty-three with fat pensions for life. His affection for other unions outside his tribe was more limited, transactional at best.