Monday, November 15, 2010

Keeping 'Em Alive

I don't hang out with heart surgeons or neurosurgeons.  But I understand that when they are doing their particular form of cutting and splicing and sewing and whatever all it is that they do, they are holding a life in their hands.  Screw up and the patient can die.  To do the job right must require absolutely steady hands, strict focus, and either extraordinary callousness or devil-may-care nervelessness.  Many, I suspect, drink too much and abuse drugs and get divorced and leave to go into some less pressure-cooker field of medicine.
I do spend a lot of time with death penalty lawyers.  They too hold lives in their hands.  The difference is the odds.  (OK, there are lots of other differences, too.  It's the odds I'm interested in here.)
Before the surgeon cuts, she's mostly going to have figured out that the best chance of survival is surgery and, for the most part, the odds will likely be decent.  If the probable outcome of surgery is death, presumably the typical decision will be to skip surgery.  (I may have this all wrong.  It doesn't really matter.  It's all just part of the set-up for the actual subject of this post.  Pretend I'm right and it'll go faster.)
For death penalty lawyers, the calculation is different.  They don't have the luxury of saying, "Well, shucks, the odds here suck so he's got a better chance if we just don't do anything."  The state will kill.  The lawyer's only choice is whether to go into this sort of work.
It's best at trial, of course.  Actually, it's best before trial, when you're trying to get death off the table.  If the case can be resolved without trial, there's no death sentence.  
Next best is trial.  At least the lawyers get to investigate and put on the evidence and make the arguments to a jury.  The math is that the odds are good.
But once there's a death sentence the math changes.  The fictive presumption of innocence becomes a formal presumption of guilt.  And a presumption that the death sentence was the right one.  The state no longer has a burden of proof.  The condemned person does.  And the law and the judges are working to make that presumption stick.  From here on in, it's all procedural booby traps and hurdles.
Maybe there's a win.  Too often there isn't.  But here's the basic rule:
If the lawyer does everything right, the client might live or might die.  If the lawyer screws up anywhere, they kill the client.
At every stage, it's high stress.  It just keeps getting worse as you go on.
And yet, somehow, just as there are heart surgeons and neurosurgeons, so there are capital lawyers.
Some are, sadly, terrible.  Some are brilliant and talented and committed.  Some are callous, don't care about the clients or the cases, just want a few bucks (far too few) and maybe their name in the paper.  Some have that devil-may-care nervelessness.  Too many drink too much or abuse drugs or get divorced or leave to go into some less pressure-cooker field of law.
Estate planning, anyone?
But there are those who day after day get up and go back into their trench, whether it's trial or direct appeal or habeas (or heart surgery or neurosurgery).  Even after the last client was killed (patient died), even knowing that the next one will probably be killed, too.
There's a sort of insanity in that (I've not checked the DSM to see if it's actually listed).
All of that would be a terrific introduction to a review of David Dow's powerful Autobiography of an Execution (reviewed here).  It's probably not quite as apt for a book I liked a whole lot more than I expected I would, Andrea Lyon's Angel of Death Row: My Life As a Death Penalty Defense Lawyer.
It turns out, it's terrific.
Like Dow, Lyon is a capital lawyer.  She tried homicide cases for a living with the Cook County Public Defender's Homicide Task Force.  Thirty of those cases were capital.  She kept all her clients off the row.  That's no small feat.  Then she founded the Center for Justice in Capital Cases at DePaul University doing post-trial work in death penalty cases.
She's good.  Really good.
But the book is an autobiography, a collection of anecdotes and stories.  Where would be the theme?  What would be the developing point?  A Foreward by Dershowitz.  And that title.  It all seemed so self-indulgent.
And so while I figured a good war story or two, I had my doubts.
What I should have realized is that Lyon is a capital defense lawyer.  And that means she knows that the life story matters.  And she's been in the trenches and seen the pain, the abuse the violence, the lying and cheating, the dishonest prosecutors and the dishonest judges.  And the book really isn't about her, though she probably spends too much time on her life and her quest for "justice" (which god knows I've talked to death here) and she can be just too, well, too self-absorbed about it all.
There's Judge Novak.  She'd never been in front of him before.  Now she's got a case in his courtroom.  The case is about to be called, so she's going to check on her client.
       "Where are you going?" the judge boomed. . . . Even though he sat above me on the bench, I could tell I had half a foot or more in height on him.  Great.  Would I have "little man" stuff to death with, too?  Okay, maybe I'm guilty of stereotyping, but my experience has been that men in positions of power wh are shorter than me feel compelled to let me know that they command the driver's seat.  Some of my women friends say I imagine this.  Maybe so, but none of those women are six feet tall.  Judge Novak's hair had thinned above his round face.  His light, nearly colorless eyes were fired up.
       "I was going to see if my client had been brought up, Your Honor" . . . .
       "Your client?"
       . . .
       The courtroom experienced the unsettling silence that fills a crowded place when someone's private words are suddenly heard by everyone, or in that moment on the playground right before a fight starts.  My heart rate accelerated, even though the words exchanged had contained no obvious threat.  this was Judge Novak's courtroom, after all.
       "You're a lawyer?" he asked, incredulous.
       "Yes, Your Honor.  I'm sorry, I should have introduced myself.  My name is Andrea Lyon.  I'm a member of the Public Defender's Office."
       . . .
       "Well, well, well."  The judge looked around to make sure he had the room's attention.  "Why did they send you here?  Don't you know that I don't like women lawyers?"
       Really.  What do I say to that?
Indeed.  As I say, too self-indulgent.
But as in this business, it's not the stories about her, or about the cheating prosecutors or the lazy cops or the misogynistic judges that drive the book.  It's the clients.
Forget that she thinks some innocent and others overcharged.  Those beliefs and what she does to act on them - how she goes out and by god that witness will tell talk to her or the pathologist turns out to be honest or the (spoiler alert) governor acts decently.  That's trivia.
No, it's the clients themselves.  Those needy desperate, interesting people.  It's their hopes and dreams, their unlikely desires (the street gang "enforcer" who finds the story of Lysistrata in some book at the local jail but needs Lyon to get him a copy of Aristophanes' play).  It's the mother she frees who names her baby Andrea.
And it's Lyon's compassion for the clients and their humanity that shines through the book.
Frankly, most of our clients aren't this interesting.  And Lyon has, of course, cherry picked the ones she thinks interesting enough to talk about.
But there is, still, a lesson, and an important one.
The accused and the condemned - they're not just monsters.  They're human.  If you prick them, they bleed.  They love and are loved.  They hurt.  They dream.  They bring more than a few tears to the eye.
Raymond Chandler, the great novelist of noir detective fiction, wrote about what he did in a seminal essay on the form, "The Simple Art of Murder."  In describing the hero (his was Phillip Marlow) of that sort of fiction, Chandler wrote:
In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.
Make that man a storyteller rather than a detective (it's actually a very small alteration), then make him a woman, and you've got something not far removed from Andrea Lyon.  And Chandler's fiction not all that far removed (though you have to snuff out the noir) from Angel of Death Row.


  1. Great analogy. I'm a death penalty trial lawyer and my dad's a heart surgeon. I tell him the difference between our jobs is that it just takes longer for my screw-ups to kill.

  2. Jeff: I had a recent post making a doctor-lawyer analogy. Do you ever go over to

    When are you going to add it to your blogroll?

    I still like your stuff. Read it almost every day.

  3. The analogy is pretty clearly in the public domain. I've been using it for years (I may have put it in the blog before, too, but frankly I don't remember and don't care enough to search), and I heard it from several other people before I took it up. Trauma surgeons make a closer analogy than heart surgeons or neurosurgeons to general criminal defense, but capital defense gets to the heart/neuro model.

    Yes, Atticus, I go to your blog from time to time. I'll add it to the blogroll when it seems to me a good idea to do that and I feel like taking the trouble. Lobbying won't speed up the decision to add it - which may or may not come.

  4. Hey, I wasn't accusing you of lifting the idea or anything. I wouldn't care even if you did. Just thought it was an interesting coincidence.

    And I'll stop lobbying. Perhaps this is a breach of acceptable blogging protocol?

  5. I have no idea what acceptable blogging protocol might be. Greenfield and Bennett and Tannebaum have the handle on that stuff. I just make it up as I go along.