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'First thing we do, kill all the [death penalty] lawyers'¹

Taking a life has serious consequences. This must be so whether it be a criminal defendant or the government. When a government decides that it should kill a criminal for his crime, government should know by now that it will not come easy or cheap.

It is our duty and obligation as criminal defense lawyers to put the government to its proof to make sure that our clients do not suffer the ultimate penalty. The cases articulating ineffective assistance of counsel under the Sixth Amendment in death penalty cases set a high standard of attorney performance.² The Supreme Court expects us, requires us, to go the extra mile in a death penalty case.

The prosecutors and legislators don’t want us to go the extra mile because we stand in the way of their goal of populating death row. In the politics of the death penalty, politicians still think that anything that facilitates death is good. Lawyers and procedural protections are bad. It plays well to the voters.³ It generally plays poorly to the courts.

Criminal defense lawyers — the guardians of individual rights — become scapegoats for politicians, thinking more about getting re-elected than what is just fair and just for the case. As politicians, I include one of Florida’s elected public defenders who cleaned out the experienced death penalty lawyers to save money, a public defender who ran with the endorsement of the police union and a personal friend of the DA on a campaign to save money on public defense.⁴ 

When a death penalty case becomes as visible as the Brian Gene Nichols case, the March 11, 2005, courthouse shooting in Atlanta, the whole system becomes skewed from the weight of the crime and the public response to it. Some in the Georgia Legislature want to cut off paying lawyers and again “tinker with the machinery of death”⁵ to facilitate more death penalties. This is, of course, not new.⁶ 

I am not the first to say this: They need to wake to reality — if one wants the death penalty, one has to commit the state to pay the extraordinary costs of administering it.⁷ It is a necessary cost of doing the business of death, completely aside from the question of whether the death penalty even deters homicide, which it apparently does not.⁸ In our downward spiraling economy, “Every dollar we spend on a capital case is a dollar we can’t spend somewhere else. … We have to let the public know what it costs.”⁹ 

Does any state really have the luxury of being able to afford the death penalty? Politically, it is far easier to support the death penalty in pro-death states. “Well, send me the bill!” said one prosecutor. Like he was really going to pay it. Sounds really good before a jury, no matter how asinine it sounds on close examination.

Back to Brian Nichols. On December 13, 2008, Nichols was sentenced to four lifes without parole plus 485 years.¹⁰ All this, after a five-month trial, jury selection having begun July 10 and opening statements September 22, the guilty verdict was rendered November 7. On December 12, the jury voted 9-3 to spare his life. Failing to get death in state court,¹¹ the DA wants the feds to take up the killing of the federal officer and seek it in federal court.¹² Ever the crybaby in this case, the prosecutor complained that a life sentence meant, “We didn’t get a fair trial.”¹³ Now he wants the Georgia Legislature to do away with unanimous death verdicts.¹⁴ 

Some of the jurors spoke out after the verdict. For example, juror Tijuana Wade, a death penalty opponent, somehow got on the jury and then voted for death. She admits she was vocal for the death penalty. However, “The other three were stuck on [the fact] that it’s still a life.”¹⁵ Stuck? That is the point of the defense job in these cases: Impress upon the jury that this is a life worth saving.

At what cost for this life verdict? While the jury was hearing this case, the governor complained that Georgia had a $2 billion budget shortfall projected on October 1, 2008.¹⁶ Millions were wasted on trying and convicting and sentencing Nichols to life when he offered to plead guilty and take life all along.¹⁷ 

What was the emotional cost to the participants and the families of the victims for a life verdict where the defendant offered to plead to life nearly two years before the verdict?

Death from a jury for a mass murder is never a foregone conclusion. Here are two examples.

Terry Lynn Nichols was tried twice seeking the death penalty. In the federal prosecution the government sought death, but he was convicted of conspiracy instead and got life.¹⁸ Then, the state took up the prosecution the federal government could not, for the murder of the 161 people, and he was convicted and sentenced to life by a death qualified jury in McAlester, home to Oklahoma’s death row, on a change of venue.¹⁹ The state case became a political issue over the cost of the trial when a federal jury had already declined to sentence him to death.²⁰ The state case reportedly cost $15 million to prosecute and $4.2 million to defend.²¹ 

Zacarias Moussaoui was tried for murder and conspiracy in the September 11 attacks that killed nearly 3,000 people, and he was convicted and sentenced to life without parole. Apparently the jury was disinclined to make a martyr of him, contrary to his desire to die at the hands of our government.

Again, back to Brian Nichols. The money ran out along with the public defender’s capital defense budget,22 and some legislators have blatantly used the Nichols case as an excuse to not adequately fund other death penalty cases.²³ The legislators regularly mocked the trial judge for requiring, and the defense lawyers for requesting, that the defense be adequately funded.²⁴ The defense, however, pressed on, undeterred.²⁵ They forget that the state of Georgia wanted to kill Brian Gene Nichols for his crime. Without the defense lawyers, it certainly would have gotten its way.

As criminal defense lawyers, we all know what it really means to refuse to adequately pay for death: The state might not get to try a death penalty case if lawyers don’t take the cases. Brilliant stroke. Think maybe this Georgia legislator who wants to get rid of unanimous verdicts is really opposed to the death penalty and this is his Machiavellian response? I doubt it. I’m not giving him that much credit.

The reality is that, in this worsening economy, public defense budgets are being cut nationwide, and the system of justice will suffer greatly as the quality of capital defense declines because there are not enough death qualified lawyers to take cases.²⁶ This actually started before the economy stalled when lawyers in states that refuse reasonable pay for appointed counsel found the pool of available lawyers quickly drying up because lawyers just did not want to get involved in a yearlong case without fair compensation.²⁷ 

And who can blame them? Death penalty work is arduous. It takes a physical, emotional, and financial toll on the lawyers, too. When the cost of living increases and the compensation for death penalty lawyers does not, lawyers will reduce or drop out of death penalty cases, both trial and post-conviction.²⁸ 

But, without lawyers, the cases cannot be prosecuted and death cannot be imposed. Who would have thought that the economy could cause a de facto death penalty moratorium?

Notes

1. Apologies to Shakespeare. This timeworn phrase from Henry IV (part 2), Act. II, Sc. II, is really likely the first recorded lawyer joke along the lines of “a school bus full of lawyers going over a cliff,“ although many have attributed far loftier ideals to it.
2. Wiggins v. Smith, 539 U.S. 510, 546 (2003) (adopting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases for effective assistance of counsel). See also David Von Drehle, Death Penalty Walking, Time (Jan. 3, 2008).
3. To add insult to injury, it plays so well, in fact, that an elected Florida public defender ran on a platform of saving indigent defense costs. See note 4, infra. Aptly, his name is Shirk.
4. Paul Pinkham, Public Defender-Elect Fires 10 Seasoned Attorneys, Jacksonville (FL) Times-Union (Nov. 28, 2008) (public defenders featured in HBO’s Murder on a Sunday Morning fired to save money); Tonyaa Weathersbee, New Public Defender Is Looking Pound Foolish, Jacksonville Times-Union (Dec. 15, 2008).
   Doesn’t it violate the Sixth Amendment for an accused person to have a public defender who was elected with an inherent conflict of interest of endorsements by the police union and promises (essentially) to not be zealous in representing indigent clients? The inherent ineffective assistance of counsel claims and motions to disqualify the public defender for conflict of interest could seriously distract the trial judges. This will be interesting, and sad at the same time.
5. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
6. Some crimes are so atrocious that the law changes in a knee jerk reaction. Congress’s adoption of the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214 (1996)) was a product of the Oklahoma City bombing — the crime that killed habeas. Even the Administrative Office of the federal courts recognized this. See http://www.uscourts.gov/ttb/may96/terror.htm. So, the Georgia legislators making all this noise now are doing nothing new.
7. http://www.deathpenaltyinfo.org/costs-death-penalty.
8. Texas has killed more inmates than any other state, yet its homicide rate is not going down. Apparently the Texas death penalty deters nothing. States without a death penalty have a lower homicide rate. The Death Penalty — Does It Really Deter? Texas Death Penalty Blog (posted Jan. 11, 2008).
9. John M. Bailey, former chief state’s attorney, Connecticut (date not provided).
10. Steve Visser & Jeffry Scott, The Brian Nichols Case: No Death Penalty / Deadlocked Jury Will Mean Life for Killer, Atlanta Journal-Constitution (“AJC”) (Dec. 13, 2008). The AJC has a fascinating chronicle of this case on its Web site, www.ajc.com, with a tab for full coverage of the Nichols case.
11. Steve Visser, Jeffry Scott & Rhonda Cook, The Nichols Case: DA: Public Denied Fair Trial, AJC (Dec. 14, 2008).
12. Rhonda Cook & Steve Visser, Howard Wants U.S. to Pursue Nichols Death Penalty, AJC (Dec. 13, 2008).
13. Killer’s Sentence: Life + 485 Years / Some Jurors Say Holdouts Didn’t Do Job, AJC (Dec. 14, 2008) (“‘That means we didn’t get a fair trial,’ said Fulton County District Attorney Paul Howard, whose office spent millions of taxpayer dollars in a quest to send Nichols to death row.”). Notice that it says “send … to death row” and not “to kill him.” Using the passive voice to mask reality.
14. Steve Visser, Legislature Urged to Revamp Death Penalty Law, AJC (Dec. 13, 2008); Robbie Brown, In Georgia, Push to End Unanimity for Execution, N.Y. Times (Dec. 16, 2008).
15. Bill Torpy & Steve Visser, Nichols Trial Holdouts: ‘Show Me Something,’ AJC (Dec. 16, 2008).
16. James Salzer, Georgia’s Budget Shortfall Could Top $2 Billion, AJC (Oct. 1, 2008).
17. It was revealed in a February 8, 2007, filing by the defense that Nichols long ago offered to plead guilty and spare the state of Georgia and Fulton County this agony and expense. DA Rejects Deal to Spare Nichols Death Sentence, AJC (Feb. 9, 2007); Nichols’ Family Hopes for Plea, Life in Prison, AJC (April 1, 2007).
18. United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999), cert. den. 528 U.S. 934 (1999).
19. Tim Talley, Religion Credited in Nichols Jury’s Choice, Wash. Post (June 13, 2004) (jailhouse conversion credited by lawyers). There was also Nichols’ comparatively lesser role to that of his co-conspirator, Timothy McVeigh, who was executed for the crime by the federal government.
20. During the race for district attorney just before the trial, the incumbent’s opponent said that the $15 million expected for the prosecution should be spent elsewhere. The incumbent vowed to get Nichols the death penalty. See http://findarticles.com/p/articles/mi_qn4182/is_/ai_n10155982.
21. http://www.cnn.com/2005/LAW/01/04/nichols.defense.costs/index.html. See Nichols v. Jackson, 55 P.3d 1044 (Okla. 2002) (attorneys entitled to a reasonable attorneys’ fee).
22. Public Defenders’ Payments on Hold; Nichols Case Affected: Defendant in Courthouse Shooting Among Hundreds Whose Attorneys not Being Paid by State, AJC (March 20, 2007); Greg Land & Alyson M. Palmer, Funding Woes Halt Trial of Accused Courthouse Killer, Law.com (Oct. 18, 2007).
23. Nichols Case Has System in Bind; Twists, Turns and Lawsuits Cause Expenses to Mount and Give Fuel to Political Fights Over Funding for Indigent Defendants, AJC (Sept. 22, 2008); Legislation Addresses Nichols Issues; Defense Costs Would Be Shared and Judges Would Be Held More Accountable for Spending in Capital Cases, AJC (Feb. 21, 2008); Report Criticizes Defender Council: High Costs: Legislation Will Be Introduced to Address Budget Issues, AJC (Feb. 2, 2008).
24. Lawyers Honor Ex-Nichols Jurist; They Advise Caution on Criticisms, AJC (Feb. 23, 2008).
25. The Nichols defense team, Henderson Hill, Robert McGlasson, and Penelope Marshall, worked under onerous conditions, to say the least. They represented Nichols in the highest standards of the American criminal defense bar while legislators sniped at them in the press. I have visions of the gallery standing as they leave at the end of the trial. Well done.
26. Tara Cavanaugh, Missouri Public Defenders Announce Hiring Freeze, Columbia Missourian (Dec. 15, 2008); Judge Orders Hearing on Defense Funding, Columbus (GA) Ledger-Enquirer (Dec. 16, 2008).
27. Vesna Jaksic, Capital Case Crisis: Low Pay Leads to Lawyer Shortages, Stalled Prosecutions, Nat’l L. J. (July 2, 2007).
28. Id.

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