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2023 Summer Forum: Where Zealous Representation is Life Saving.

Following the Poverty Law Panel we welcomed our experts on the Criminal Law and Death Penalty Panel. The conversation highlighted the many ways lawyers can make an impact in the criminal legal system on both a systemic and individual level, the practical impact of past and recent Supreme Court decisions, and ways to center self-care when providing zealous representation in tough situations. 

Our Criminal Law and Death Penalty Panel was moderated by Gwen Washington, Pro Bono Attorney at Cleary Gottlieb. Our panelists included Emily Olson-Gault, Director & Chief Counsel for the ABA Death Penalty Representation Project; Naida Henao, Head of Engagement at the Network for Victim Recovery of DC; Andrew Wise, Chair of the Litigation Department at Miller & Chevalier; Stephanie Johnson, Director of Externships and Public Interest Programming at Howard University School of Law; and Quiana Harris, general felony trial attorney at the D.C. Public Defender Service. You can learn more about our panelists here

Our discussion kicked off with an analysis of Gideon v. Wainwright and what it means practically to have the right to counsel in our legal system. While the right to counsel seems fundamental, our panelists spoke about how limited Gideon is in extending this right to folks interacting with the legal system. Gideon only protects the right to counsel in criminal cases and only at the trial level. 

Stephanie highlighted how jurisdictions differ in their definitions of “crime” and offenses with jail time attached will fail to meet the criteria. An example includes traffic offenses with fines that result in jail time if not paid putting people in jail without the right to an attorney. Emily and Andrew emphasized the impact of limiting the right to counsel at the trial level. On appeal, there is no right to counsel so if you did not have counsel or your counsel was ineffective at the trial level, there is even less support at the appellate level. Therefore, there is no way to enforce the right to counsel that Gideon promises and there are too many cases where representation of indigent clients at the trial level is reasonably ineffective but no relief is offered.

The focus then shifted to recent relevant state and federal decisions. The Florida government decided that a jury need not be unanimous to sentence someone to the death penalty and expanded what convictions are eligible for the death penalty. The panel agreed that this invites more errors in the process. Not only did our panel agree, but they discussed an op-ed written by Alabama governors saying they regret signing off on death penalty cases because either the person was innocent or because the imposition of the death penalty was wrong. There is no doubt that we will see more cases where people’s rights are violated and where people get it wrong coming from Florida. 

On a federal level, the panel discussed the recent Supreme Court decision that states prisoners may not present new evidence. Emily acknowledged that the opinion reads as very technical so people may miss its impact. While there is a statutory right to a federal defender in a death penalty case, that lawyer cannot introduce new evidence even to show previous counsel was ineffective or that the person didn’t have counsel. Therefore, it doesn’t matter what evidence exists, it cannot be presented, and executions that should have been reversed are going to come to fruition. 

The panel then turned to how direct client services play out in our larger criminal legal system. The first topic tackled included an examination of the public defender system in the United States with a focus on flaws that make it difficult to provide effective and zealous representation at the trial level. As a system, public defenders are not prepared with the resources to handle the overwhelming dockets around the country full of complex cases. In many cases, folks are not only trying to provide representation but also help their client meet their daily needs from hygiene to transportation. Quiana emphasized the importance of holistic care for clients and has a passion for helping people in the community to ensure clients receive zealous representation. 

Stephanie raised the point that when dockets become too overwhelming some courts stop or reduce screening lawyers representing indigent clients. In these cases, clients find themselves with ineffective counsel and, given the previously discussed decisions, are stuck with the actions or inactions of whoever represents them at the trial level. The solution needs to focus on taking the burden off the system through holistic criminal legal reform that stops creating opportunities for bad lawyering. Beyond the issues of ineffective assistance of counsel, our panel discussed issues they see with prosecutorial discretion, bench warrants, and the lack of mental health services or even an understanding of how mental health comes into play for folks convicted of crimes that must be considered in criminal justice reform.

We concluded with self-care tips. The self-proclaimed poster girl of self-care, Quiana, discussed the importance of taking care of herself to best care for her clients through work-life balance, setting boundaries with clients, judges, and colleagues, and doing what makes her happy in her free time. Quiana changes the hours she’s in the office to match the flow of her work, she also makes time to see friends, get her nails done, and see shows. Stephanie admitted that she wasn’t great at self-care at the beginning of her career but has been able to improve immensely since she started seeing a therapist. Stephanie recommends therapy in whatever form that may come in for every person in this work because of how much it helps keep you grounded and helps you to prioritize your well-being.

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