A Rarefied Kind of Dread

There's always anxiety involved in representing death-row inmates. But when the Supreme Court grants certiorari in a death-sentenced client's case, nightmare scenarios begin to loom. Of course, there's the fear of losing, and in a capital case, that's no small matter. But if the legal claim that the Supreme Court has agreed to consider seems very strong, you're likely to encounter a different, more rarefied kind of dread. After all, your claim only seems strong because Supreme Court precedent suggests that you're going to win. But what if the Court took your case not simply to apply its own precedents (as you claim the lower courts had boneheadedly refused to do), but to overrule or weaken them? Then your Supreme Court case will turn out not only to have been a personal disaster for your client, but also to be a historic catastrophe for scores, even hundreds, of other death row inmates. (1) In Skipper v. South Carolina (2) the Supreme Court had granted review (I hoped) to consider whether South Carolina was violating the Court's most well-established Eighth Amendment protection--the right to have sentencing juries or judges consider all the reasons why the death penalty should not be imposed. (3) The South Carolina Supreme Court had held that juries deciding whether to sentence a convicted murderer to death should not be allowed to consider evidence that he'd make a well-adjusted, non-violent prisoner if sentenced to life imprisonment instead. It seemed obvious to me that a jury could reasonably decide not to impose the death penalty simply because the defendant had shown that he'd do all right in prison if allowed to live, but the state supreme court found it just as obvious that a capital defendant's post-trial behavior was "irrelevant," and that his jury could be prevented from hearing evidence bearing on that issue. (4) At the time (and for many years before and since) I devoted most of my solo law practice to defending capital clients at trial and on appeal. Of course, after I had repeatedly failed to persuade the state supreme court that its peculiar rule violated the Lockett principle, (5) I was gratified and excited when the Court granted my certiorari petition. (6) And the cert grant in Skipper was all the sweeter because exactly six months earlier, the Court had denied the cert petitions I'd filed on behalf of two other deathrow clients raising the identical claim. (7) As I worked on the merits brief, writing and circulating draft after draft to about a dozen members of an informal network of capital defense attorneys and law professors around the country, I tried to reassure myself that the Court had simply granted review to straighten out an aberrant state court that had not read its previous death-penalty decisions closely enough. But those earlier Supreme Court decisions were life-lines to which hundreds of death-row inmates were clinging. So I couldn't help brooding over the fact that the more obviously the state court's decision seemed at odds with Supreme Court precedent, the more disastrous a Supreme Court loss would be. A win for my client would help maybe half a dozen other inmates. But a loss would greatly weaken one of the few constitutional protections--the right to present mitigating evidence--that the Supreme Court had not already watered down. What's more, just six weeks before the Skipper argument, I had seen first-hand what it means to lose a capital case. Terry Roach was a mentally impaired South Carolina prisoner who'd been sentenced to death for his part in two murders committed when he was 17. (8) I had not been one of his lawyers, but I spent the final six hours keeping him company before he was electrocuted early on the morning of January 10, 1986. After his body had been hoisted from the electric chair onto a gurney and rolled out of the death chamber, I took a small bundle of his belongings (a comb, a Bible, some flip-flops) to his family, who had been waiting in a borrowed apartment a few miles from the prison. …