“Some of them might as well be pall bearers,” Michael said.
If an attorney does not want to take a death penalty case, the judge or administrator spins the wheel again or calls the next attorney on the capital-qualified list. The judge may have to call several attorneys before one agrees to take the case. In some Texas counties, only two or three people are on the list. When Texas increased the certification requirements, but not the compensation, the list of certified attorneys dropped dramatically. Why put in more time and effort to maintain your death penalty certification if the pay does not change? The work is thankless and tormenting. If you care, you feel responsible for someone’s life. Most people do not last long under that kind of pressure.
As late as the mid-2000s, more than seven hundred attorneys were qualified to take death penalty cases in Texas. On the day Michael called me, there were less than seventy.
The lack of death penalty certified attorneys was especially bad in rural West Texas. Judges would demand that Michael, who happened to live in Lubbock, find someone to take a capital case because of his role with capital assistance at the Texas Criminal Defense Lawyers Association. “Who’s on your list?” Michael would ask the judge.
“He was too busy,” said the judge. “Get me someone else.” Or maybe the attorney had angered the judge somehow: hadn’t contributed to the judge’s reelection campaign or was combative on some other case. Or maybe the attorney really was too busy, doing too well in private practice to want to put everything on hold for years to take on a soul-retching death penalty case.
Meanwhile, there was pressure from outside Texas to get things in order. Next door, in Louisiana, they were having similar problems appointing attorneys to defend capital cases. Higher courts told Louisiana that they were serious about the constitutional rights to a defense. If Louisiana was not able to provide a defense against the death penalty, these courts pointed out that Louisiana could no longer charge people with it.
Bloodthirsty Texas took notice. With judges breathing down his neck to get more attorneys certified to do death penalty cases, Michael made an innovative suggestion. “What if we had a permanent capital defense team?” Michael asked. Then no one would have to worry about appointing attorneys to capital cases anymore.
No more judicial appointments. No more lists. No more wheels. If the district attorney charged someone with the death penalty, the case would automatically go to the public defender team for capital cases. The team would handle only death penalty cases, but all of the death penalty cases, across a large geographic area. It would be like an anti-DA’s office. The district attorney’s office is a permanent office in charge of prosecuting crimes. We could have a permanent office in charge of defending crimes, but only death penalty cases.
Administrative judges in Texas talked, the Task Force for Indigent Defense got involved, and they decided to start the capital defense office as an experiment, based in West Texas. A big part of the task force’s concern was providing indigents’ defense for death penalty cases because those cases are so high-profile and come under so much scrutiny from higher courts—not to mention the media.
We named the new office the West Texas Regional Public Defender for Capital Cases. It was supposed to be an experiment lasting a few years, and it was meant to serve only two of the nine Texas judicial administrative regions, in which capital case appointments had been particularly challenging. The team took all the capital cases from the seventh and ninth judicial regions, which covered the entire Panhandle of Texas, all the way down to Midland and Odessa, and west over to Pecos and east past Abilene, an area that included more than eighty counties and almost a third of Texas.
In line with the American Bar Association guidelines, the new team would be made up of attorneys, mitigators, and a fact investigator. There would be office staff. For death penalty cases, the courts mandate two attorneys, a first and second chair, for each death penalty defendant. Mitigation specialists and fact investigators assist with various investigations to support the defense. Some judges in Texas were hesitant to adhere to the guidelines because it was not a good look politically to spend taxpayer money defending killers. Typical Texans were not eager to hear about their tax dollars being used to defend murderers.
Counties signed on in droves. Not having to fork over taxpayer money to pay for the defense anymore was mouthwatering. Instead of paying the entire cost of providing a defense, counties would now pay a nominal fee and have all the death penalty defense team expenses covered in the event of a capital case.
Counties referred to our office as providing “murder insurance.” Each county paid a little bit every year to avoid a big expense in the event of the catastrophic costs of a death penalty case. For rural counties, a death penalty case could wipe out the entire budget. Capital case expenses lasting several years can easily reach a million dollars once you add up the prosecution, investigation, defense, defense investigation, and mitigation costs, not to mention the costs to pay for expert testimony on both sides, and other court costs such as seating a jury. No matter where a killing occurs, the defendant is entitled to an effective defense, and the local government must cover all of these costs, even if the county is dirt poor. With the new team in place, the appointment problems would be gone and the cost would be controlled. It was very attractive financially. No one gave much thought to whether we would win or not. Given the past record, why should that enter anyone’s mind?
So far, Walter had been the only person hired. “So how do we go about building the team?” Michael asked me.
“Well, I’ll try to find somebody who can help you,” I said. “Most people—and they are smart people—might suggest coming up with a strategy and talking about things like hierarchy, mission statements, job descriptions, and team composition.” Michal and Walter nodded. Those were the first terms out of my mouth they recognized.
“But I wouldn’t do any of that stuff,” I said.
Michael and Walter glanced at each other. “Well…what would you do?”
“I would create a team narrative. I would have the whole team collectively write a whole new narrative about the way we should defend death penalty cases. All the team members will have a role in the story, and our story will detail who is doing what when, and why, and what other team members are doing at every stage of a case. I would even include people outside of the team in a new narrative, like the DA and judges, to include the actions that others typically take during a death penalty case because they play a role in the narrative too. We must take into account the likely actions of others. All of those other voices will be included alongside the team’s voice. That’s one major departure from a typical strategy, which focuses on what an organization wants to do and how. If we’re going to be interacting with the opposition during real cases, that needs to be represented in a team narrative.”
“So we would start fresh?” Walter asked.
“In some ways,” I said, “but we will still rely on all your experience and knowledge, and fashion a new narrative out of that existing material, putting it together in new ways. We will come up with some new ideas as well. We have a chance to literally rewrite the way the death penalty is defended.”
“So what exactly is a narrative?” Michael asked. “Is it like a playbook?”
“You could say that,” I said, “but a very descriptive one. It’s more like a story, or a vision with a plan for bringing it to fruition. We would use the narrative to guide our actions and decisions. I like the phrase ‘go by.’ A team narrative is something we would go by in doing our work.”
I told Michael and Walter that I often used the metaphor of a first date to explain narratives to my students. In class this past semester, I asked the class if anyone recalled going on their first date. I got a few reluctant hands. “Well, if you’d never done it before, how did you know what to do on your first date?” I ask. “How did you know how to behave?”
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