Fearlessness and Humility in Capital Defense

Public defenders are usually good trial lawyers.  They have learned how to investigate.  They have learned how to challenge the State’s case.  They know how to find the resources that they need.  They are up-to-date on the law.  They’re good storytellers.  These skills and work habits provide an excellent foundation for capital defense.

But, death is different.  Public defenders have to be wary about relying on their own resources if they’re going to embark into capital defense.  Capital defense requires more reliability and thoroughness.  There is no such thing as a good solo capital defender.  Capital defense forces the public defender to become a team player.

The ABA Capital Defense standards highlight that it takes a team.  In addition to the lawyers and a fact investigator, a team must have a social history investigator, a highly skilled paralegal who is excellent at case organization and mapping, and someone with a strong background in mental health issues.  And, that is just to get started.  A team must have someone who is very knowledgeable in capital legal issues.  Most importantly, the team must remain humble and eager to seek help from outside the team or to grow their team.

Fearless capital defense starts with fearlessly asking for help from anyone and everyone.  Fortunately, there are more resources available than ever. Many states have public defender capital case units or resource centers.  Federal defenders have capital resource counsel, who are very knowledgeable and helpful.  Now, state public defenders have NAPD and the MyGideon site.  MyGideon features an abundance of resources in all facets of capital litigation.

Fairless capital defense also starts by reducing your other responsibilities.  This is hard for overworked, underfunded public defenders.  We have learned how to make do with very little.  But this kind of coping is dangerous and it will not work in capital defense.

Fearlessness in capital defense means that you say “no” to being named as capital counsel until you have worked on a capital case as a helper first.  This allows you to learn some of the skills, work habits, connections and strategies that are used by successful capita litigators. Usually you have terrible facts, angry victims, publicity hungry prosecutors, hostile judges and community that are pushing for a judicial lynching. 

Experience teaches us that lives are saved by settling capital cases.  Capitol litigators learn how to creatively tackle this challenge and never stop trying regardless of how hopeless it seems.  It takes great patience and humility to work through the political and emotional obstacles to settlement.  This is only one of dozens of skills that the team must have and use.

NAPD is devoting substantial resources and time in developing the MyGideon site for capital lawyers.  It promises to be an excellent framework for the analysis and planning of a capital defense case.  I am so grateful to be a part of this community of excellence.