4.2.12 WC: 191694
Part III: Criminal Justice: From Sherlock Holmes to Barry Scheck and CSI
Chapter 11: “Death is different’°*: Challenging Capital Punishment
From the beginning of my academic career, I taught classes involving the criminal justice system, but I had little practical experience as a criminal lawyer. My primary exposure to the criminal justice system had come during my clerkships, which focused on the death penalty and cases involving the interface of law and science. Not surprisingly, when I decided to obtain some practical experience, I was most comfortable beginning with such cases and causes.
Cases involving death are different. I have litigated or consulted on more than three dozen cases involving the deaths or intended deaths of human beings. These cases fall into three categories: 1) Cases in which the defendant faced the death penalty; 2) cases in which the defendant was charged with killing someone; 3) cases in which the defendant was accused of attempting, intending or conspiring to kill.
Whenever a defendant is at risk of losing his liberty, the stakes are high, but when he or she is at risk of losing life—when the death penalty is on the table—the stakes are the highest. Even in murder or attempted murder cases in which the death penalty is off the table, the life and death nature of the case makes it different both in kind and degree.
I take the hardest cases, often with low prospects for success. Usually, though not always, I am called after the defendant has been convicted and is seeking an appeal or habeus corpus, where the prospects are even lower. Yet, I have won nearly all of the death cases in which I played a significant role. In no case has one of my clients been executed or died in prison.
The reason I have won so many death cases has more to do with science than with law. Most of my death cases were centered on forensics and applied science. Even before the popularity of such television shows as CSI, Bones and Dexter, I had developed an expertise in the scientific aspects of homicide cases. My academic focus has been on the interface of law and science, and so it was natural for me to employ my expertise in the courtroom. Many of my death cases, particularly those involving science, have become the basis for film, television and books.*° Death is not only different. It is the stuff of drama.
In addition to the individual cases involving death that I have litigated, I have also played a significant role in the campaign to abolish or limit the death penalty. This began more than a half century ago when I was a law clerk responsible for drafting the first judicial opinion challenging the constitutionality of the death penalty as “cruel and unusual punishment.”
My role in challenging the constitutionality of capital punishment
> Justice John Paul Stevens 6 Tison brothers, Miller, Borokova, Sybers, Murphy, Claus Von Bulow, O.J. Simpson, Seigel, Connolly, Davis, MacDonald, Kennedy, Rosier. [name films of books]
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