My brush with death row - by Joseph Teller

Lawyer - turned - author Joseph Teller recounts his time working as a criminal defence lawyer in NY in the mid 90's when the death penalty was temporarily reinstated...

Back in the mid 1990's, New York State, where I'd been doing criminal defense work as a solo practitioner for many years, reinstated capital punishment.  Since it had been many years since we'd had a death penalty, there were virtually no lawyers around who'd had any experience with trying cases where a defendant's life literally hung in the balance.  Bad enough that when we lose a case a client may go off to prison to spend the rest of his life.  But having the guy sitting next to me looking at lethal injection if I were to screw up?  I wanted absolutely no part of the process.

Yet when the newly created Office of the Capital Defender went looking around for lawyers to take an intensive training session to bring them up to speed to be able to step in and try such cases, I got volunteered, so to speak.  Rather like it happens in the military, I suspect.  I'd tried a number of murder cases in New York City, with a pretty good record of success, and I reluctantly agreed to take part in what I quickly came to refer as "Death School."

For days on end we listened to out-of-state practitioners who'd tried capital cases, watched videos of interviews with condemned men, and learned the ins and outs of the new statute.  It was riveting stuff, but even as others excitedly took it all in, I continued to shudder at the prospect of hearing a jury foreperson announce a verdict that would mean the difference between life and death.  I found the whole experience truly overwhelming, and the notion that the new law represented progress absolutely absurd.  At the end of the training session, a form was passed out, on which we were asked to list our office addresses, phone numbers and counties where we regularly practiced.  I still remember the final question verbatim: "When will you be ready to accept a capital case assignment?"  "Immediately," wrote the colleague to my left; "Bring 'em on," answered the one to my right.  I thought about it for a long moment before writing, "I'm not at all sure I'm emotionally prepared to do this work."

Which, it turned out, was just what they wanted to hear.  Within two weeks, my phone rangthey'd evidently looked it up in the directory and the very first death-eligible case was assigned to me.  Three young men from the Bronx had had a shootout with the police, and when the smoke cleared an officer lay dead.  My client was a baby-faced kid named Jesus.  When the Bronx district attorney declined to opt for the death penalty, the governor who'd been elected precisely because he'd promised to reinstate capital punishment replaced him with his running mate, the state's attorney general, who quickly announced that it would be a death case.  All I could envision was standing in front of a jury, begging them not to kill baby Jesus.

Fortunately, it didn't come to that; my client and I got lucky.  Jesus hadn't been the actual shooter, it turned out, and the new law had no provision for executing a non-killer on a theory of felony murder.  (The shooter wasn't quite so lucky, at least the way he saw things.  A few weeks later, he hanged himself in jail.  And Jesus, whose case was transferred to federal court where some other lawyer represented him, is serving a life sentence.)

 A second case soon came my way.  It was a double homicide, automatically qualifying it under the new statute.  The defendant was a 51-year-old Manhattan man named Luis, and he was charged with shooting to death his mistress and her son.  The occupants of an adjoining apartment had heard the three of them arguing and recognized Luis' voice; one of them had even been wounded when a bullet came through a common wall and struck her arm.  Another witness had seen Luis fleeing the building moments later.  It all added up to a truly hopeless case.

Again, however, luck was on our side.  The Manhattan district attorney, like his Bronx counterpart, was a foe of capital punishment.  He, too, refused to ask for the death penalty, and this time the governor didn't intervene.  So Luis found himself facing only life imprisonment without the possibility of parole.  Only.  And a decent assistant district attorney offered us a lesser plea and a sentence of fifteen years to life, the minimum permitted.

But as generous as the offer was, Luis was having no part of it.  A diabetic in poor health, he figured he didn't have fifteen years, and wanted to take his chances at trial.  I did all the arm-twisting and head-banging I possibly could, but to no avail.  A trial it would be.

Throughout the two weeks the trial consumed, Luis repeatedly whispered into my ear that a "bonus" awaited me if I could somehow win the case; I had to keep reminding him I was appointed to represent him and couldn't accept his money.  Not to mention that it was a case that couldn't be won for any amount of money.

The jury took only half a day to reach their verdict, and after it had been read I huddled with Luis.  The often-heard words "I told you so" were spoken. "Yes," I was forced to admit, "you certainly did."  Go figure.

A few days later, Luis called from home and asked if he could come down to my office and see me.  I said sure, but even as I did, I prepared myself to explain once more that I couldn't take money from him, no matter how modest a sum it might be or how appreciative he was of my help.  But Luis had one more surprise in store for me.  He'd apparently forgotten all about the bonus, a sudden victim of selective memory.  What he wanted to know was, "Can we sue the bastards for false arrest, Joe?"  I explained to him that he could give it a shot, but not with my help.  I'd read about hubris back in high school, and had no interest in tempting the gods.

Some years later, the U.S. Supreme Court tossed out all the death penalty statutes on the books of state courts, and with them all the death row sentences.  While a number of legislatures hastily rewrote their laws to comply with the decision, New York wasn't among them; its lawmakers quietly chose to abandon the experiment. I, for one, am extremely grateful that they did.

 Joseph Teller

THE TENTH CASE by Joseph Teller is published by Mira on 17 July, paperback, price £6.99.

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