When, many years ago, I first began a career in the field of state-funded indigent criminal defense, friends, relatives, and strangers would stereotypically react by wondering how on earth I, or anyone, could defend "those people." But now, after taking the position of Deputy Defender in the newly created Death Penalty Trial Assistance Division of the Office of the State Appellate Defender, in the era of the moratorium, I get a much different reaction. Friends, relatives, and strangers alike wonder how on earth I get away with being paid to do ... nothing.
This common misperception conceals the real drama of the Illinois death penalty. In fact, the entire system is in turmoil. The moratorium is, of course, a moratorium only on executions. Convictions and death sentences together with the ensuing direct appeals and collateral attacks--all the cogs in the death penalty engine grind forward, and almost every month see at least one new death sentence imposed. At the same time, however, our courts and legislatures have begun to "tinker with the machinery of death."
On March 1, 2001, the Illinois Supreme Court promulgated a revolution in death penalty law and procedure. (See, 195 Ill. 2d R. 416, 417, 701 and 714.) Under the new rules, the state must now give notice to the defense of its intent to seek the death penalty and of any aggravating factors making the defendant eligible for death. The discovery rules now apply to the death penalty hearing. Either side is allowed, on good cause shown, to depose the other side's witnesses, whether called at trial or sentencing. A capital defendant is entitled to two attorneys. The state must specify Brady material--crucial exculpatory evidence--that it has tendered. A case management conference must be held. Judges are required to receive continuing training in death penalty law and procedure. In a state which has never known a continuing legal education requirement or certification to a specialized bar, death penalty attorneys must--by March 1, 2002--attend 12 hours of certified death penalty training. To serve as lead or co-counsel they must meet minimum requirements including years of practice, numbers of jury trials, and proficiency in scientific evidence.
These rules have been overlaid upon the earlier legislative reform that created the Capital Litigation Trust Fund. While the rules will make attorneys on both sides work harder and do more--depositions, case management conferences, sentencing discovery--the Fund, potentially, gives them the resources to do it with. Capital litigation, like all litigation, is legal warfare, and "the sinews of war are unlimited money." From this point onward, every capital case that is not settled quickly will begin to resemble the kind of complex civil litigation depicted in A Civil Action. Hopefully, the very cost and complexity of the litigation will induce both sides to reach some agreement short of death.
In the Death Penalty Trial Assistance Division we are doing our part to provide the defense with the very latest weapons in legal warfare--experts, focus groups, demonstrative aids, mitigation specialists, and sophisticated investigators. In many cases, our staff attorneys--John Hanlon, Thomas Cosgrove, Mark Lyon, and Todd Berg-- have helped defense lawyers persuade the state not to seek death, sometimes after only a few weeks of work. In the long run, the very size and power of the weapons newly available to the defense may induce the prosecution to devote its own resources to those few cases that are so unusual as to justify a reasonable person in believing that death is appropriate, thereby saving the public from the exorbitant costs of death penalty trials, appeals, and pre-execution confinements.
In any event, and like anything worth doing, it is a lot of work.
(Editor's note: An article appearing in the July 24, 2001, issue of the Chicago Daily Law Bulletin indicates that approximately 200 Cook County attorneys have requested applications for the new Capital Litigation Trial Bar mandated by the Illinois Supreme Court. During this same period, the article notes that fewer than 50 lawyers from the remainder of the state had requested applications.)
Stephen L. Richards is the Deputy Defender, Death Penalty Trial Assistance Division, Office of the State Appellate Defender. Mr. Richards received his B.A. from the University of Chicago and his J.D. from Brooklyn Law School in 1983. He has worked as an instructor of legal writing and research at IIT/Chicago-Kent College of Law, as a judicial clerk for the late William G. Clark, Justice of the Illinois Supreme Court, and as an assistant public defender in the Law Office of the Cook County Public Defender. As a public defender, he worked in the appeals, felony trials, and homicide task force divisions.