Unstoppable v. Unwaivable

I've had some question as to what I wanted to do with you today. My assigned topic is to talk to you about my experience with indigent defense reform in Virginia. I've been asked to tell you that story to illustrate many of the points that you've heard discussed over these remarkable two days. But I think too that I want to do something in addition for some of you, especially the law students who are in attendance. How many law students are here? Oh, that's wonderful. Now I know what I want to do. I want to talk to you about what it is to be a criminal defense lawyer because you heard Norman [Reimer], our brilliant executive director, identify himself as a criminal defense lawyer, and say that he always has been, he always will be, and there is nothing he is prouder of than that fact.So let me tell you about my first death penalty case. I was not so many years out of law school, when I woke up one morning to find in my paper the headline that several young men had been arrested the night before for the brutal assassination of a hotel clerk and a businessman in a botched hotel robbery. They had committed, obviously, capital crimes, they would be charged with capital murder, the death sentence would be sought, and I was sick to my stomach because I knew one of these young men. He was a kid I had represented from the projects on a variety of misdemeanor charges and now he was facing a certain death sentence, and I knew that the call would come. I was happy to see that he was appointed counsel, but I was unhappy with what might be expected from that counsel.I hoped that he wouldn't call, but he called and I went to see him, and he begged me to represent him. I agreed to do so as long as he agreed that the only goal of my representation would be to save his life, and that the certain outcome would be his receiving at least a mandatory life sentence without parole. His guilt was obvious, he had been caught there at the scene, there was no question about it, the only question was whether he would die, and certainly he would, but I would try to avoid that, and he agreed to those terms.We went to trial, and because this was such an awful case and the publicity so extreme-this happened in Henrico County, Virginia-a jury was brought in from Albemarle County, and they were sequestered for the duration of the trial. The first part went as expected, and he was convicted of capital murder; and then came the second part, and that was the death phase, that's what they call it. That is an awful experience, I'll just tell you. It's unconscionable that our system permits one person, requires one person to take responsibility for another person's life. When I arrived at the courthouse that morning, it hit me, terribly, that this young man was going to die because it was then and it remains still a fact in Virginia that if you are sentenced to death you will be put to death, and you will die within four to five years. That is a given in Virginia. It was also a given that day, many years ago, that at the end of that day my client was going to receive the death sentence. And the only way he was not going to receive the death sentence was if I performed at a level of such extraordinary skill, a level that so exceeded my ability, that the only chance he had was if I was 100 times, 1000 times a better lawyer than I knew I was, and yet I was his only hope. With those thoughts and knowing that the day was going to end with the imposition of a sentence of death, a result that was my responsibility to avoid, I went into that courtroom. That is what criminal defense lawyers live with every single day, that degree of responsibility.The morning proceeded pretty badly. This guy had terrorized the public housing communities during these years of drug wars, and the police would come in as witnesses and take the stand and talk about their surveillance of him and his gang.They talked about one instance where they watched him arrive in his vehicle with his gang and they described his getting out of the vehicle and they said they arrested him, and when they arrested him he was wearing a flak jacket. …