Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys

1. The Challenges of Capital Defense

Chapter 1 The Challenges of Capital Defense The first time one of his clients was executed, Adam had been working on the case only six weeks. By the time he was asked to help, almost all the available strategies had been exhausted and the execution date was looming. For those six weeks he lived on three hours of sleep a night and thought of almost nothing but the legal petition he was preparing. “The only way I can describe it,” he says, “is that I would get up in the morning and there was an elephant on my chest.” Adam knew the odds were against him; he’d known that from the moment he agreed to take the case so late in the game. But he still remembers the night of the execution, the strange desolation of being on the phone with the colleague who had begged him to take the case in the first place and just crying together. He remembers telling himself, “I had done everything I could do. I couldn’t give another ounce of effort.” By the time Adam tells me this story, he has been a capital defense attorney for over two decades. He has learned and relearned how to give every ounce of effort for a client facing execution—and how to remind himself that he’s done as much as is humanly possible. It’s persuasive, and I don’t doubt him, but still I ask, “Do you ever not feel that? Do you ever have questions about whether there was something else you could have done?” Adam nods: oh yeah. He begins describing a morning not long after he 2 Fighting for Their Lives had lost his third client in three years to execution. Sitting in his kitchen drinking coffee, he happened to hear a radio news story about a boy who had wandered away from his family on a hiking trail. It was late fall, the nights were getting colder, and the search team understood that they didn’t have much time. Adam looks at me to see if I can guess where this story’s going. I can already picture the exhaustion and fear in the rescuers’ faces by the third night, when, as Adam tells it, they finally found the boy’s body in a cove several yards from the main trail. Alone in his kitchen, getting ready to go to work, Adam was overtaken by sobs. “I listen to the rescue guy explain that he thought they had looked everywhere,” Adam recalls, the memory thickening his voice. “And out loud in the kitchen I say to myself, what was wrong with him?” Never mind the many possible ways to see this story. That morning, for Adam, it had its own cruel logic: if the rescuer had the power to save the boy, then it must have been the rescuer’s incapacity that failed him. Adam doesn’t need to make any transition as he switches back to talking about the death penalty; the analogy is palpable. “I mean, you know, intellectually, that the execution is not your fault. But your job is to save this person’s life! And you didn’t do it.” He pauses and looks at me. “No matter how much you tell yourself that you’ve done everything you could do, your job was to save his life and you didn’t.” In the landscape of the death penalty, capital defense attorneys stand in a very particular spot. Like those who testify at legislative hearings, hold vigils, or organize conferences promoting death penalty abolition, these attorneys are working in opposition to capital punishment. But although many may call for an end to the death penalty, only the capital defenders are specifically charged with the task of stopping, and have the legal tools that might be able to stop, each particular impending execution, over and over again. An individual execution may be cited as significant because of the particular issues it represents, or it may pass largely unnoticed by the wider The Challenges of Capital Defense 3 community. For capital defenders, however, the political utility of focusing or not focusing on any one execution is not foremost in their minds. However sympathetic or unsympathetic the client, however illustrative or not illustrative of some problem within the death penalty process, each one demands an all-out effort. Each one not only represents but actually...