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It was a Danny Thomas “spit take” moment. I was watching the State of the Union and drinking a cup of coffee (alright, it was a single malt scotch) when President Bush implored Congress to appropriate more money for DNA testing to prevent wrongful convictions. He also asked for funds for the training of death penalty defense lawyers. While cleaning the rug, I realized my startled response was a product of past trauma, an old nervous system that had not fully integrated new and improved realities.
Something fundamental has changed. In a campaign about “moral values,” John Kerry was not attacked by the President for opposing capital punishment. Opposition to the death penalty, particularly when life without parole is an alternative, is no longer a third rail in American politics. The United States Supreme Court has outlawed it for juveniles and the mentally retarded. New York has almost certainly ended its nine-year death penalty experiment, and New Mexico may be next. Most importantly, as signaled by last year’s passage of the Justice For All Act (JFAA) and the State of the Union, even proponents of capital punishment acknowledge the system is broken. The time is right for serious, substantive dialogue and action.
The Bush Administration has asked NACDL, the National Legal Aid and Defenders Association (NLADA) and other defense groups to participate in helping the Bureau of Justice Assistance (BJA) design capital training for defense counsel, prosecutors, and judges. The Bush Administration proposes to spend $50 million over three years for this purpose, split three ways; the Justice for All Act authorizes $70 million a year, split between defense and prosecution only. At a meeting in February, BJA representatives noted that no funds had been appropriated yet for the JFAA, there was no assurance it would be fully funded, and the Department of Justice (DOJ) was merely trying to “jump start” a planning process.
This is obviously a delicate political situation, but, there is no point in being cynical about anyone’s motives. The entire defense bar must be united and speak with one voice, a mutually supportive coalition of liberty’s last champions. Whether it be the death penalty colleges run by Professors Andrea Lyon and Ellen Kreitzberg, the Airlie Conference run by the NAACP Legal Defense and Educational Fund, Inc., (LDF), the numerous training programs run by NLADA and NACDL, or the fine programs run by the DOJ Administrative Office, we know who can do this job on both the state and national level, how it can be done better with more resources, and that it takes more money than is currently on the table. Bring-your-own-case small group programs, scholarships for lawyers, mitigators, and other team members, distance learning capability, seminars in the underserved states, and systematic jury work are all important but expensive components of a comprehensive plan.
We also need the support of judges. The new, extremely thoughtful and comprehensive ABA Guidelines for capital counsel must be adopted and implemented. No amount of training can make inexperienced, unqualified lawyers ready for a capital case, and the most experienced and capable lawyer will surely fail, as the Supreme Court recently reminded us in Wiggins, without an adequately funded team, real mitigation investigation, and access to qualified experts.
This is a time for cautions optimism, but all the old slogans apply. Follow the money. Trust but verify. And – money on the wood makes the training (and the trial) go good
