LITIGATING IN THE SHADOW OF DEATH

Vol. 17 No. 2 (February, 2007) pp.147-149

LITIGATING IN THE SHADOW OF DEATH: DEFENSE ATTORNEYS IN CAPITAL CASES, by Welsh S. White. Ann Arbor, MI: University of Michigan Press, 2006. 232pp. Cloth. $60.00. ISBN: 9780472099115. Paper. $21.95. ISBN: 9780472069118.

Reviewed by Evan J. Mandery, John Jay College of Criminal Justice. Email: emandery [at] jjay.cuny.edu.

Read at one level, Welsh White’s LITIGATING IN THE SHADOW OF DEATH is a primer for any attorney embarking upon the Byzantine and macabre enterprise of litigating a capital case. Based largely on interviews with more than 30 outstanding death penalty lawyers, White explains how these attorneys – including Michael Burt, Stephen Bright, David Bruck, and Millard Farmer – have managed and continue to manage to secure often improbably favorable outcomes for their clients. Some of these lessons are not particularly surprising. The need to select jurors strategically, to investigate the mitigating elements of a client’s background thoroughly, and to present a powerful closing argument seem obvious components of good lawyering. But other lessons are more nuanced and decidedly not obvious.

White devotes substantial attention to the need for a defense attorney to develop a theme for mitigating evidence and, most compellingly of all, to the basic strategic dilemma that confronts all capital defense attorneys: the tap dance of managing the bifurcated trial. Following a guilty verdict, capital litigators face the Hobson’s choice of arguing the innocence of their client – and hence disrespecting the jury’s verdict – or conceding guilt and offering explanations for the client’s reason for committing the crime and hence appearing deceptive. White convincingly shows the necessity of beginning to develop a mitigating theme during the guilt phase of the trial lest the jury become hardened against defendant.

All of these lessons are presented cogently with illustrations from some of the most publicized death penalty cases in recent memories including, for example, the Lee Malvo case – where the defense offers evidence of insanity in part to lay a foundation for a sentencing phase argument, the William White case – where the defense strategically (and apparently judiciously) conducted jury selection with an eye to the sentencing phase of the trial, and the Daryl Atkins case, which, as is well known, created new protections for mentally retarded defendants. Simply for its useful guidance to capital litigators, helping them to think through thorny strategic issues, LITIGATING IN THE SHADOW OF DEATH is a valuable contribution to death penalty literature.

But LITIGATING IN THE SHADOW OF DEATH is also an important and damning critique of criminal justice in America. This is, to some extent, an easy case to make. Anyone who has litigated criminal cases or studied their practice can offer shocking anecdotes of attorneys who are less than competent, [*148] less than prepared, and less than zealous – occasionally so less than zealous that they see fit to sleep through substantial portions of their client’s trial. White offers particularly appalling examples of attorney misconduct in the death penalty context and presents them in a cogent manner, thus adding to the readability of the book. He also offers a well-reasoned critique of the inadequacies of the Supreme Court’s jurisprudence on ineffective assistance of counsel (mitigated somewhat after STRICKLAND by its more hopeful decisions in WIGGINS and WILLIAMS). But this is all old hat. The failings of attorneys and, more aptly, of the courts in regulating the behavior of attorneys has been well documented in the academy.

The more substantial contribution of this book is explaining why the inadequacies of representation are a death penalty issue. It may seem peculiar in a way to point to this as the legacy of a book that is explicitly about capital litigation. Of course capital defendants are overwhelmingly poor and hence dependent on court-appointed attorneys, and of course the poor performance of these attorneys can have the most dire consequences. But it also true that criminal defendants on the whole are overwhelmingly poor and hence dependent on court-appointed attorneys, and while these clients may not be threatened with death as a penalty, the poor performance of their attorneys can have dire consequences also. To identify the poor quality of representation as a death penalty issue, as opposed to a problem with American criminal justice in general, one has to demonstrate that capital defendants are uniquely affected – and not just by adverse outcomes – by the inadequacies of their attorneys. Professor White makes this case with aplomb.

White’s examination of the subtle strategic decisions that death penalty lawyers make – the kind I characterized as not obvious earlier – show that many of these considerations are beyond the ken of ordinary attorneys and often have a dramatic impact upon the outcome of a case. For example, White shows that many defense attorneys do not prepare for the guilt phase of a capital trial. This may seem like egregiously bad lawyering, but this forbearance is not necessarily borne of laziness or incompetence. It may be that an eager lawyer believes fervently in his ability to secure a favorable guilt-phase verdict for his client and cannot allow himself to think of the worst result, or that preparing for the sentencing phase will divert needed energy and resources from the guilt-phase effort. But as White shows, this is almost inevitably the wrong choice for the client. Similarly, it would not be clear to any but the most experienced capital litigators that the foundation for the theme for sentencing phase must be laid during the guilt phase of the trial or possibly lost forever, or that it would be a strategic error to rely exclusively on a lingering doubt argument during the sentencing phase.

The inadequacy of trial counsel for indigent defendants is a grave concern for the criminal justice system as whole and no more or less objectionable in the death penalty context because the stakes are higher. But LITIGATING IN THE [*149] SHADOW OF DEATH demonstrates that, in a system of capital punishment that regards arbitrariness as a primary evil, the choice of trial counsel (and later post-conviction counsel) makes an even greater difference than it would make in the ordinary criminal case. Capital litigation, White shows, is a world unto its own, and in many respects, categorically more complex than other sorts of criminal litigation.

One could quarrel with the absence of data to address some of the key questions here. It is ultimately an empirical question whether, as White contends, lawyers make all the difference. He says, for example, relying on Stephen Bright’s assessment, “capital defendants who have the ‘worst lawyers’ are likely to get the death penalty regardless of the nature of their crimes” (p.197). And he maintains the converse too, that “capital defendants who have the best lawyers are unlikely to get the death penalty regardless of their crimes or the government’s aggravating circumstances” (p.198). This is ultimately an empirical question. It is a complex question, but answerable all the same. Nevertheless, after reading this account of horrors and occasional successes, it is impossible to imagine that the answer could be anything other than what White intuits.

CASE REFERENCES:

STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984).

WIGGINS v. SMITH, 539 U.S. 510 (2003).

WILLIAMS v. TAYLOR 529 U.S. 362 (2000).

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