Saturday, August 22, 2009

Learning to get around Rule Two

I haven't been posting for the last couple of days, and probably won't post anything much of substance today or tomorrow, either. I'm on a working vacation at a death penalty defense seminar - this one focused on federal habeas corpus, the stage that comes after the ordinary state procedures are done. It's specialized work, not for everyone.

Like all capital work, it takes a certain crazed mindset to do what is literally life and death work, knowing that the result will sometimes be death. As Colonel Blake said to Hawkeye in an episode of M*A*S*H,
There are two rules of war. Rule number one is that young men die. Rule number two is that doctors can't change rule number one.
Same for us. We can stave it off. We can save some lives. But not all of them. You do enough of this work, you'll have clients who are killed on your watch.

And the work is damned hard. It's hard because when you do federal habeas you're picking up the pieces, working on a case that has gone down the tubes a couple or three times. Lost at trial, lost on direct appeal, lost in state habeas (or whatever they call it in your state) procedures. You're also fighting a patchwork of laws and court created procedural hurdles designed to make winning - or even staying in court - exceptionally difficult.

One procedural misstep through the minefield of AEDPA, one misstep that may have occurred a decade or more before you ever got involved in the case, and your client dies. If you win in the district court, the state appeals. If you lose in the district court, you can appeal only if the court tells you it might have gotten it wrong. (I'm oversimplifying almost but not quite to the point of being misleading.)

Counsel made a mistake a few years earlier about the deadline for filing a petition in state court. As a consequence, I was appointed to represent the client some 19 months after the final deadline for him to seek habeas review. We eventually found a way through that mess, but it's likely to come back some day and get the client killed. And there's a pretty good chance that the one who rolled over on him and got a deal is the actual killer. It's an ugly business when procedural error trumps life.

There are probably 250 of us here, learning and refining what we know. We're not kids. There are a few young lawyers, and a larger number of lawyers new to this highly specialized work but mostly we've been in the trenches for a while. What we already know, most of us anyway, is how damned hard the work is and how the odds work. We know our equivalents of Rule Number One and Rule Number Two.

And so we come to study and learn, from the people who teach and from the others with us in the trenches who learn. And then we go back and try to break through Rule Number Two.

In Raymond Chandler's seminal essay on detective fiction, "The Simple Art of Murder," he writes that "In everything that can be called art there is a quality of redemption." So there is in everything that can fairly be called human. We struggle for it, and to find it. Sometimes it's tough, buried among the horrid things one has done and had done to her. But it's there.

We're all better, as Sister Helen Prejean routinely reminds us, than the worst thing we've ever done.

It's 8 a.m. I have to get to class.

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