Death row is quiet.
That was attorney Peter Johnson’s first impression as he walked the narrow corridor at the Georgia Diagnostic and Classification Prison with the jury he brought from Richmond County. All the inmates stood quietly at attention by their cell doors for the warden, but Johnson couldn’t bring himself to look at their faces.
“These are dead men,” he thought.
This was in 2001, four years before Georgia established the Capital Defender Office to correct what was seen as a widespread disparity in the quality of representation of indigent defendants facing the death penalty. In recent years, however, experienced capital defenders have quit the office as funding dwindled and the case load expanded.
In March, attorney Teri Thompson argued for a continuance in the Adrian Tywan Hargrove case because she was too busy preparing for other capital trials. She frankly admitted: “We’re just exhausted.”
Johnson has represented six cases and spared five men from execution. In 2004, after jurors sentenced serial rapist Reinaldo Rivera to death, he gave up capital defense cases.
“It really is a crucible,” he said.
The challenge with death penalty cases is in large part because defense attorneys are planning for two trials: the guilt/innocence phase and the mitigation phase. While the attorneys are working toward an acquittal, they know the odds are greatly stacked toward conviction. By its very nature, a jury in these cases is composed of people prepared to send a man to his death.
“The case is already won or lost when the jury is picked,” said Michael Garrett, who has served as counsel on 42 death penalty cases. “You just buckle your chin strap and try … it anyway.”
A big reason death penalty cases take years of work is the mitigation phase after conviction, in which the prosecution argues for the death penalty and the defense presents evidence in favor of life without parole. To make their case, most capital defenders subscribe to the philosophies of legendary attorney Clarence Darrow, who argued that a criminal’s actions are rooted in genetics and childhood experiences.
Jacque Hawk, who said he slept for 36 hours straight after one death penalty case, worked with Johnson on many cases and posits that it’s both nature and nurture that cause criminal actions. In the case of Rivera, who was convicted of raping and killing one woman and confessed to doing the same to three other women, Hawk said the defendant went to a pornographic theater as a young teenager in his native Puerto Rico and prostituted himself to men.
“There’s a steady buildup to what becomes a death penalty case,” Hawk said.
Leading up to the trial, the attorneys become intimately familiar with the defendant and his background, from his time in the womb to the moment of the crime. They hear details about the last moments of the victims from the defendant
that even the prosecution and law enforcement don’t know. They are also privy to details of the trauma so often inflicted on defendants as children.
Johnson stops short of calling the defendant a friend, but a bond is formed.
“Then it becomes the very grim reality of what’s at stake here,” he said. “They’re trying to kill this guy … and you don’t want to kill your client, someone you know and understand in quite a few ways.”
Even after the years-long buildup to the trial, more time, often decades, of appeals await.
All three of the attorneys want to do away with the death penalty, and they see the extensive appeal process as a good thing. Garrett said that’s especially the case after dozens of innocent men have been set free from death row with the introduction of DNA testing.
In spite of having the most experience with these cases, Garrett has never attended an execution.
“Once you’ve looked at the evidence in a death penalty case, you’ve seen enough death to satisfy anybody,” he said.