Carol Simpson

Avoiding burnout on the Death Row defense bar

Each week during our internship, the legal staff has an “Intern CLE,” or some sort of legal lecture. Sometimes we watch a video on some aspect of public interest law, followed by a Q&A with an attorney practicing in that field. It may be someone working in criminal defense, legal aid, a lobbyist, or a legislative aide. We even watched Good Night, and Good Luck. The interns get to learn a little about other areas of public interest law, and can network with attorneys in other non-profits. And it serves as a little break in an otherwise intensive work week.

We were fortunate to have Rob Owen, clinical professor in the University of Texas Death Penalty Clinic, speak to us on a recent Friday. He gave us a brief history of the Clinic, and of his involvement in Death Row cases. Some readers may be in states that have not had any executions since the reinstitution of the death penalty, but Texas seems to be the leader in that dubious fraternity. As Prof. Owen talked about the cases, the attitude of courts and the public, and the clients themselves, I began to wonder how someone “hangs in” while doing that sort of work. Working at a civil rights non-profit, I realize that those who work in progressive causes face significant obstacles. When Supreme Court or circuit court rulings come down, often we are assessing our losses and trying to regroup. That’s not to say we don’t have our share of successes, because we do, in large part by picking our battles carefully. But the overall success rate in capital punishment appeals is abysmal. Can you imagine how disheartening it must be to work in an area where you know your client is going to die, despite your best efforts?

Prof. Owen explained that areas with a vibrant capital crimes trial defense bar have many fewer death penalty verdicts. However at the moment it isn’t politic to advocate for those accused of capital crimes, even as the Law of Parties expands the bounds of capital crimes. Since most people tried on capital charges are poor and/or minority, they frequently rely on overworked public defenders, who may never have tried a capital case. By the time a committed capital defense appellate attorney receives the case, many evidentiary or error-preservation opportunities may be lost. The defense team starts out with a serious handicap before they even get started.

The development of DNA evidence has helped exonerate several Death Row residents, but many are destined for the ultimate imposition of their death sentences. Prof. Owen described the process of lethal injection and new theories on that process that are being applied to death penalty appeals. Through it all, he maintains a wry sense of humor, and an ultimate optimism despite repeated losses. He told us of the relationships he develops with his clients, and how difficult it is to attend the executions. I finally had to ask, “How can you get up each morning to work so tirelessly when you know that your efforts will most likely be futile? In most public interest cases, you may not have a good chance, but you at least have <i>some</i> chance.” His response was illuminating.

He said that he fully expects that one day he will wake up and won’t be able to do death penalty cases any more. And he said it would probably come without warning. He reflected on the personal connections built in the death penalty defense bar, and how wonderful it was to work with people with such drive and commitment. But he acknowledged that those in the field were potentially subject to burnout, and he fully expected that it would happen to him one day, as well.

The response made me think about my future in public interest law. I’m a person who doesn’t do things half heartedly. Dispassion isn’t in my nature or my vocabulary. But perhaps because I’m older-than-average, I recognize that a certain amount of distance is necessary in any legal endeavor. When you represent a client who depends on you because there is no other protection and no other option, maintaining that objective distance will be – at least for me – the most difficult task. I have one more year to work on that. I’m still deciding what I want to do when I grow up.

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