The barbarism of democracy: my death row experience

As someone deeply convinced of the aberration and barbarism of the death penalty, I was overwhelmed when I successfully obtained an internship in which I would be assisting with the representation of inmates on the federal death row.

In fact, as an aspiring solicitor specialising in criminal law and human rights, I could not have wished for a better opportunity. Furthermore, I would be working with the National Capital Mitigation Coordinator of the Federal Death Penalty Projects. I also thought that I would finally be able to test my preconceived ideas to see if they would survive their confrontation with the real world.

In order to prepare for this internship, I followed the training seminars with legal charity AMICUS. It consisted of theoretical and practical seminars to introduce the American legal system and obtain information about the death penalty.

My first week was extraordinary. I arrived in a very nice office in Oakland, California. I have to admit that I was expecting employees to be more or less like the characters found in Suits, or any other stereotypical idea of lawyers working in a hardcore environment. However, I have rarely come across such genuine people. They worked extensive hours and often faced the prospect of losing a client to the death penalty. Despite this, they were always helpful.

During this internship I was assigned to work on the case of Mr X, who was convicted of kidnapping and murdering a 10-year old girl: a horrific crime.  However, a new claim was issued on a habeas corpus basis at the Federal level because he was not defended properly, and mitigating circumstances were not adequately presented to the jury, who then sentenced him to death.

Colombe Cahen-Salvador

It is relevant to note that the defendant had his frontal lobe damaged, which means that he does not always have full use of his executive functions. Under advisement of the defence counsel, he pleaded guilty to the charges hoping to gain some sympathy from the jury. Obviously, it did not work out as planned.

Mr X also comes from a very traumatic background. In fact, he was born prematurely with oxygen depravation, which can often cause neurological damage. He was also regularly abused by his father, mother, grandmother and one of his brothers. He was sexually abused as a child on a few occasions. It is not exaggerating to say that he grew up in a very toxic environment. Furthermore, there is a strong tendency of schizophrenia in his family which means that he might be subject to it as well. His parents and grandparents were alcoholics and suffered from other diseases.

However, almost none of these factors were presented to the jurors as mitigating evidence as to why such a crime was committed. I want to be sure not to create confusion – mitigating evidences are not about excusing a crime: they try to humanise the defendant and show the jurors what factors may have contributed to his crime. It can be anything and everything.

The defence was not ready for trial. In fact, his attorney had a heart surgery two months earlier and had to recover for a few weeks. They still went to trial, without objecting to the prosecution’s closing argument (which was completely out of line) or trying to effectively show the jury that the defendant did something horrific and unforgivable, but still took responsibility for it and had some mitigating circumstances.

I had to read through a huge amount of documents explaining the conditions in which the client grew up, I looked at his family history of mental illnesses, drug abuses and emotional, physical and sexual violence. I went through transcripts of trials in order to show that his defence was not adequate, and that if they presented correctly the mitigating circumstances it is reasonable to think that at least one juror might have been for life and not for death. In fact, at the federal level, if one juror is for life verdict, then the defendant will receive a life sentence. To have a death sentence jurors must be unanimous.

I was shocked by all of the different sides of the defence that went wrong. From the very start it seemed that they did not care that a man’s life was on a balance. I am not saying that they are bad lawyers or bad people; I even heard that they are extremely competent, but they had got it wrong this time. The lead counsel in the case admits it himself: he “dropped the ball”. Too many cases, too much work, not enough time. However, it might result in a man’s execution. 

This is representative of a deeper problem, which is the one of the American public defense system for people who cannot afford their own defense team: public defense caseload is extremely heavy, which leads to some cases being neglected as attorneys simply do not have time to work on every issue presented to them. This causes miscarriages of justice, which can lead to the death penalty being inflicted on someone because counsel’s performance was deficient, as a result of unmanageable caseloads. 

I spent two weeks working on this case and summarizing transcripts in order for the defence team to be able to use them later on in the appeal process.

The third week, I went to Santa Clara Death Penalty College, which was definitely one of the highlights of this internship. In fact, it is an intensive one-week training program limited to defence teams who represent persons charged in capital cases. It is composed of lectures from experts who assist the lawyers in preparing and presenting the penalty trial. In addition, there were small group workshops for defence teams to brainstorm and work on their pending cases, with the help of the faculty and other teams. The aim of this college is to learn the most effective strategies and skills for defending someone facing death penalty.

I was surprised by many aspects: the dedication of the faculty, the range of cases presented as well as the lawyers working on them.

Despite not knowing the defendants and reading about the horrifying facts, I became involved and attached. I believe anyone would: it is human nature to empathise and try to understand.

Furthermore, I strongly believe that no one is born “bad” or “good”, but that, as a result of how things are, people act in a certain way. I am not trying to say that they aren’t responsible for their actions but merely that these cannot be based entirely on their “meanness” but also on the flaws of society. As shown in the case that I gave details about earlier, many factors intervene and it is not taken into account enough in most capital cases.

Colombe Cahen-Salvador is a law student at the University of Warwick

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