Organizational researchers do the same thing with companies. Just like their cultural anthropologist forebearers, organizational ethnographers observe or work in organizations so they can describe what it’s like in that setting. Ethnographers study norms by observing corporate rituals such as sales meetings, where outstanding customer service behaviors and others are rewarded with titles like Employee of the Month. Or perhaps they get a job at a car factory to gain insight into the informal rules of working on an assembly line.
Corporate narratives tell us a lot about an organization’s culture. We have all heard stories about behaviors that are celebrated or sanctioned in the places we have worked. For example, people who work all night may be lauded, whereas people who question the authority of the boss are fired on the spot. Perhaps you have heard about the proverbial hardworking CEO who is still the first one in the office every day and the last one to leave each night. We hear stories about employees who go to extraordinary lengths to satisfy customers. Perhaps a new manager is brave enough to cancel a high-profile product launch at the eleventh hour because the product did not meet the company’s standards. Instead of being fired, the new manager is immortalized in company folklore for her insistence on quality. Stories like these are told over and over in companies so employees know what is important in that culture and to encourage, we might even say control, behavior. Stories help socialize newcomers and model the norms that make up the culture in a way more memorable than any corporate policy manual.
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“So where will this new team be? What will they be doing?” I asked Michael and Walter.
“It will be right here in Lubbock,” Michael said. The new team would cover most of West Texas. The new office would serve as a public defender’s office, but only for death penalty cases. Michael and Walter gave me a primer on how the death penalty usually works. They were both experienced and had tried many death penalty cases, some together. Overall, things had not gone well with death penalty defense in Texas.“The State wins over 90 percent of the time,” Walter said. I was flabbergasted at the time, but now that I know how it works, I am shocked that the percentage was not even higher.
To be certain you will get the death penalty in Texas, you have to kill at least two people, a child under six years old, or a cop. “If you kill a cop, they’ll break the bank to kill you,” Michael said. You can also get the death penalty for murdering someone in the course of another crime, such as a rape-murder or murder in the course of a burglary.
Of course, not every murder results in the death penalty. The DA is supposed to consider a list of aggravating factors, but in reality the odds of getting the death penalty depend less on any aspect of the crime itself than on the race of the victim and the defendant. The heinousness of the murder is supposed to be a factor, but nothing appears to be more heinous than minorities killing white people. The social status of the victim is probably the largest determinant in whether a murderer is charged with the death penalty, and in the United States, with our history, social status is still too closely tied to race. For people on death row in Texas, all else being equal, their victim was white more than 70 percent of the time and black just 11 percent of the time. Texas seeks “more justice” when whites are killed because the justice system deems white lives to be worth more than black lives.
In late 2011, Texas executed Lawrence Brewer for the infamous dragging death of James Byrd Jr.1 Brewer and his codefendants were white supremacists. They chained James Byrd behind a pickup truck and dragged him along the road until his body tore apart. Lawrence never showed remorse, and if he had the chance, he said he would do it again. Texas executed him.
It was the first time that Texas had ever killed a white person for killing a black person.
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“So the new team will replace the current court-appointed defense system?” I asked.
“Yes,” Walter said, “but only for death penalty cases. We will be the permanent death penalty defenders.”
“If there’s a death penalty case, it will be ours,” said Michael. “For other types of cases, the court will continue to appoint attorneys just like they do now.”
When someone is charged with a crime, if the person cannot afford an attorney, the court appoints one. If it is a death penalty case, that attorney has to be death penalty qualified. Similar to medical specialists, capital certified attorneys have to have additional experience, training, and continuing education to qualify them to do the highly specialized work of death penalty cases. As part of his responsibilities for the Texas Criminal Defense Lawyers Association, Michael organized continuing education training for lawyers seeking to become death penalty qualified.
The pool of certified capital attorneys in Texas had been dwindling for several years. “In some jurisdictions, you just needed a bar card and a pulse to take a death penalty case,” Michael said. Incompetent attorneys were being appointed to death penalty cases by judges who did not care. Texas has made national headlines for using defense attorneys who have slept through capital trials, to name just one popular example.2
In the past decade, appellate courts have ordered retrials for capital cases when defendants have had ineffective counsel. Sometimes the lawyers did not present mitigating evidence or call experts that may have changed the outcome of the trial. Sometimes lawyers failed to file routine motions to exclude prosecution evidence. And, yes, sometimes they fell asleep during a trial when someone’s life was on the line.
Texas seemed immune to the embarrassment but not to the increasing expense of footing the bill for all those retrials. Giving someone a retrial means an entire do-over, a clean slate. A retrial costs just as much as the original trial, and perhaps more if it is done right the second time. Courts hate spending money to have someone sentenced to die twice just because of some amateur snafu. The Texas legislature was getting agitated about the expenses.
One fix was to increase the training requirement for attorneys to be death penalty certified. There were also new resources, such as the Capital Case Bench Book, to assist judges presiding over capital cases. That book identified common issues and gave judges direction as to what is legally required in capital cases. The American Bar Association developed guidelines for capital cases, which most courts adopted, such as requiring a defense team made up of two attorneys, a fact investigator, and a mitigator. On its face, these changes would seem to help, but Texas did not increase the amount they paid attorneys to take capital cases. Texas often paid attorneys a flat fee of $25,000 to take a death penalty case.
There is no bigger case than a death penalty case. They are long, drawn-out juggernauts that require all your time, effort, and attention. If you have a capital case, it should be a priority. Cases often take years to resolve, even if you reach a plea. Death penalty cases are not for the faint of heart.
Attorneys on court appointment lists usually have their own private practice to run in addition to making themselves available on the public defender roster. The appointment process varies across jurisdictions. Sometimes judges appoint attorneys, and cronyism and campaign contributions can play a role in who is assigned to death penalty cases. Sometimes there is a list and a court administrator simply appoints the next lawyer in line. Sometimes they literally spin a wheel to see whose name comes up. If the attorney has a private practice that is going gangbusters and has plenty of money coming in, the attorney may turn down the case. Who wants to put everything on hold for three years to take a death penalty case, especially when you are only paid $25,000 to do the whole thing?
In fact, two types of attorneys take that kind of work: the very best and the very worst. The very best are ideological, true believers who do whatever it takes to focus on saving someone’s life. The worst are doing so poorly in their private practice that the $25,000 flat fee looks attractive. They often take a death penalty case alongside trying to manage their private practice, doing divorces, DWIs, and whatever work they can bill. Because they get