For Their Clients' Lives. And For Their Own.

I

I've told this story before.

Three of us, were in a room across from the death house at the Southern Ohio Correctional Facility. Our client had just been executed, killed by the state of Ohio. Two of us represented him at the end. The third had been lead counsel at his trial. Now he was dead. We hadn't witnessed the killing, but we'd seen the body in the body bag wheeled out of the death house and into the hearse.  The one who'd tried the case looked at the hearse, then at me, and said, "That's the definition of failure."

Our client's family was in the room with us. And as the three of us stood together, now it was over, they came up to us, hugged us, shook our hands, as if we were a reception line.  And like a mantra, one after the other said

You did all you could.

Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and we'd tried our best and they appreciated that. 

And we said, again and again, "Thank you." Because they meant well, meant to be kind. Anyway, what else can you say. The thing is, though, when your client has just been murdered and you've been powerless to prevent it, if you did all you could, then you're not good enough.  Which may not be true, but just then, along with the anger . . . 

II

I've told this story before, too.


A week or so before Ohio's planned murder of Darryl Durr the ACLU there got a call from his lead counsel. There was a necklace they wanted to have tested for DNA that might just prove he was innocent but that the state wouldn't test.  Durr's lawyer asked the ACLU if they'd take on that part of the case, sue in federal court to try and get the right to testing (and get a stay, so he'd be alive when the test results came in).  The ACLU of Ohio doesn't generally do direct representation in criminal cases, but it does this sort of thing, and it agreed.

I happened to be in the office while they were preparing the lawsuit, and since I was there, I volunteered to help. After all, I knew the death-penalty and criminal-law related issues better than anyone else in the office.  And I knew what it was like to do this sort of last minute work.  I explained to the staff that we would probably lose, that all the other litigation would probably fail too.  I told them that at 10 next Tuesday morning, Darryl Durr would likely be executed, and that even though they'd never met him, they'd be devastated.  Be prepared, I said, for one of the very worst days of your life.

All of the ACLU folks said that it would be sad, but that it wouldn't be as bad as I said.  After all, they'd never met Durr, and ours wasn't his main case.  And I was going to be lead counsel and have to do the actual arguing before the courts, not them.  I told them to wait. 

We lost our case in the federal district court. We filed our papers and lost in the Court of Appeals.  We filed more papers and then lost late Monday night in the US Supreme Court.  That same night, the Court turned down Durr's main lawyer's application for a stay and with that the latest appeals.  The next morning, Darryl Durr was murdered by the State of Ohio.

I was right about how the involved ACLU lawyers and staff would feel.  They were wrong.  How can you do this, they asked me?  Lots of really good, caring lawyers wonder the same thing.  Typically, I give a flip answer.  Because really, what can you say?

III

Susannah Sheffer wondered, too.  

What is this like? That's what I wanted to know.  Not what it's like in the courtroom or in the offices of a capital habeas unit where attorneys are writing pleadings late into the night, rich and textured though those stories are.  My greater curiosity was, what is it like for capital defenders in the middle of the night, in the pit of the stomach, in their last visit or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?

And since Sheffer has good connections and no shortage of smarts and plenty of tenacity, she convinced 20 capital defense lawyers to sit down and talk with her about it.  Not folks like me, criminal defense lawyers who do a fair amount of capital work because we want to and care about it and can.  She talked to the hard-core folks, people down south in the killin' belt who do nothing or almost nothing but comparatively late stage capital work.

The result is Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys. 

When capital defense attorneys get together, they may tell stories, they may discuss cases, they may (hell, they do) drink too much.  What they don't do, at least not much, is discuss the experience of what they do.  They're not touchy-feely types, not inclined to brooding introspection.  Their psychological insight and understanding is aimed not at themselves but at their clients. Still.

"We don't talk about this this stuff," one after another explained to me, and yet here they were now, talking.  Contemplating this at the end of his interview, one said, "I think there is a need to speak the unspeakable."

They got into this work, they tell Sheffer, well, because they did.  Maybe they worked in a capital defense clinic of interned in a capital defense office during law school.  Maybe they were activists before.  Maybe it's just from something they heard on the news that grabbed them and wouldn't let go.  Maybe it's just about justice (whatever that is) or trying to save people.  After quoting several who try to explain, she boils it down.

The above comments show us something about these individuals' preoccupations and passions: the way people treat one another, the plight of the "wretched and despised," the relationship between the powerful and the powerless.

At least in hindsight it seems inevitable.  She talks to one who got out and then returned.  It's what they do, who they are. 

Of course, once you're in it, there's the responsibility.

That feeling never goes away: could I have done something differently? I've had periods where I've worked all night every night for three nights in a row. . . you know, go seventy-two hours on four hours of sleep or something like that.  The adrenaline that kicks at times i, for me, I think, driven by, "I have to do everything I can possibly think of." Because I don't want to walk away from something thinking, "If I had just done. . . ."  It feels like, the weight of it, and the fear. I think-- fear of making a mistake or overlooking something or not doing something right.

And even then.

One describes walking out of the prison after a last visit with the client and his mother, leaving when the guards evicted them so the killing could go on.

We were standing on this burning blacktop, you know how the parking lot gets, the sun's beating down, and I'm there with the minister and [my client's] mother, who's hunched over, and she is just--broken down.  Sobbing, delirious, you know; she's just said goodbye to her son for the last time.  That was one of the hardest moments.  And, you know, that's the thing about the death penalty that people don't see.  It was just brutal.  I remember that scene so vividly. What can you do? You can't leave, and you can't change anything.  You can't do anything for her.

And maybe not for yourself.

You're laid out from the experience, emotionally you're laid out, and there's a kind of flattening.  Underlying it is kind of--you're wounded in some way.  I mean, it's a blow, obviously.  And there's a little bit, I think, of--the ends get a little burnt of.  It feels like flat affect, like exhaustion.  No. Not flat affect resulting from exhaustion; it's from the ends being burnt off. It's just, it's so--I don't know. I think one doesn't know how to cope, so there's a little bit of just shutting down, and there's a little bit of survivor's guilt that happens--that has become a pretty familiar thing, like it takes a while to get your appetite back, like you shouldn't be enjoying a good meal, and yet at the same time there's a little bit where it's like: the sky is blue; the trees are green. You know, it's a very--a lot of opposites.

The thing is, the client's aren't abstractions.  They're people.  You represent them, you get to know them, to care about them.  You see them as people.  You become their fucking support system.  One after another says some variation on "I promised I wouldn't abandon him the way everyone else did."

And so despite the stress and strain and exhaustion and something at least akin to PTSD, despite talking about giving up capital work for something less . . . well, less.  They stay.

Fighting for Their Lives isn't the only book about capital defense lawyers.  There are, in fact, quite a lot.  Most are told from the outside, by a writer who tells stories of heroic lawyers battling the system, fighting for their clients.  They may try to dig into the personal, but they don't mostly get beyond the superficial anecdote.  A few lawyers have written their own versions.  But they tend toward war stories.  Sheffer's book is personal.  How it is to be who they are.

The closest analog I know is probably David Dow's The Autobiography of an Execution, but as the title suggests, that's a single story that doesn't lend itself fully to generalized understanding.  What it was like for David is telling, and not all that different in many ways from what it's like for others, but still, it's David's story, and how is the curious reader to know where and how it's typical rather than idiosyncratic.  Really, Sheffer's book stands alone, I think.  

Yet it's also part of a trend.  In recent months there's been Jody Lyneé Madeira's exploration of the experience of survivors and victim family members fo the Oklahoma City bombing, Killing McVeigh: The Death Penalty and the Myth of Closure, and then Saundra D. Westervelt and Kimberly J. Cook's Life after Death Row: Exonerees' Search for Community and Identity. Like Fighting for Their Lives, those books are built around numerous and extensive interviews, around the words and self-revelations (after significant probing) of their subjects.  And like Fighting for Their Lives, they offer both an intimacy and immediacy as well as a broad-understanding not readily found elsewhere (including, perhaps oddly, in books actually written by survivors or exonerees - books more likely to tell the author's story than to probe his experience to see how it is or isn't generalizable.


Fighting for Their Lives is a terrific book and an important one. 

N.B.  My thanks to Vanderbilt University Press for sending me a copy of the book to review.