How A Public Defender Keeps Death (Sentences) At Bay
posted by Dan Filler
Some people have expressed surprise, and even doubts, that the Philly PD has managed to keep all of its clients off death row. The explanation is less grand, but perhaps more important, than one might think. The PD’s – lawyers, social workers, and others assigned to these clients – simply work these cases harder than most appointed counsel. And they don’t just do thorough investigations. They do the work that so many defense lawyers appear to dread: they spend serious time with their clients. (Let me say at the outset that, notwithstanding my broad criticisms of lawyers who handle indigent appointments, there remain many such attorneys who do good work. Many, but not nearly enough.)
Most criminal cases settle with a plea bargain. The same is true for the Philly PD. But to make a plea bargain work in a capital case, you have to do two things. First, you have to sell the DA on a deal. This means you must investigate the case thoroughly – and early on – so that you can explain to the DA why your client does not deserve death, and why you would have a good chance of getting either an acquittal on the capital charge, or a life sentence, if the case proceeded to trial. In non-capital cases, defense lawyers will often be far more secretive about some of these details, figuring that they’ll do better with a jiury than with the prosecutor. Because trying capital cases is so risky, the better approach – with a DA who will talk (i.e., one who does not use every case as an opportunity to advance his or her political fortunes) – is often to bring out many of these factual and equitable claims in the negoitation process.
Perhaps even more than doing great investigation, you have to build close relationships with your client. One might assume that every defendant would be looking for a way to plead to a life sentence, in order to avoid death. But it turns out (no surprise, really) that the prospect of voluntarily accepting lifetime incarceration is a whopper. Death penalty advocates may believe that “life doesn’t mean life”, but most defendants think it does. And particularly for the 18 or 19 or 23 year old defendant, a life sentence may feel comparable to death. So the staff of the Philly PD’s homicide unit actually create strong relationships with their clients, in order to garner the trust necessary to sell a plea bargain. It turns out that this is not only good from an instrumental view – getting a better sentence – but it’s also better for the client’s psyche. Rich or poor, most defendants are the same: they’re afraid and unsure and need a great deal of information and reassurance from their lawyers. Unfortunately, few indigent clients ever receive that kind of treatment.
Individual appointed counsel, with bulging caseloads and relatively little expertise in capital cases, are likely to treat capital investigation and negotiation as a doppelganger of their non-capital practice. This is bad news since, too often, these attorneys generally provide sub-optimal representation. They don’t like meeting clients very much, so they only visit when a particular need arises. They don’t do much investigation in advance since they only need the results the night before trial. These lawyering deficiencies are consequential even in mundane cases, but their implications are much more serious in a capital matter.
Also, appointed counsel in capital cases often have an incentive not to settle: it’s not good for business. One reason why private counsel want capital appointments (and fight to keep them even in jurisdictions with fully developed public defenders ready to handle these cases) is that they provide gobs of press attention. Even a lawyer who loses his capital trial gets a PR boost from repeated mentions in the media (particularly if he or she makes lots of boisterous statements in court and to the press). Many people assume that lawyers doing homicide cases are the “big fish” criminal attorneys in town. (It’s similar to law students’ assumptions that the 1L profs are the law school bigwigs.) Unfortunately, when you plead out a case before trial, you lose much of that publicity (and thus much of the benefit of taking these low-rate appointments.) I doubt many lawyers intentionally avoid pleas for this reason, but this perverse incentive – combined with other factors – cannot possibly be good for capital defendants.
Why do capital clients of the Philly PD fare better? The lawyers in the homicide unit are first rate, and I’d pick them to try my capital case over the great majority of other criminal lawyers. But it takes a lot more than trial skills to keep death at bay. And in those areas, the Philly PD truly shines.