'It’s a horrible business. Never should have gotten involved in it.'
Mary Claire Mulligan has been defending clients facing the death penalty for a decade. "It can be very disheartening to not actually win anything in ten years." (Photo by Evan Semón)
It was late December 2019 and defense lawyer Mary Claire Mulligan spent the last week of the decade accompanying a client to his murder sentencing, visiting other clients in jail, and writing motions at home in her pajamas.
Exhausted and irked by all the folks on Facebook listing 10 years of happy achievements, she posted a list of her own.
“What I accomplished this decade: I gave up a private practice fighting the death penalty. I lived apart from my family fighting the death penalty. I caught pneumonia fighting the death penalty. I lost my beliefs fighting the death penalty,” she wrote.
Mulligan, 54, from Boulder County, has spent 10 years trying to overturn capital sentences against one — and, at times, two — of Colorado’s three death row inmates. She wrote she has lost “any belief that the system was fair, or just, or would ultimately work.”
Some of her colleagues echoed her frustrations about a sentencing law they, too, see as political, ineffective, racist and wrong.
“The system is so broken,” one of them commented on her post.
“F@#% the death penalty and the people who seek it,” wrote another.
The thread offered a rare glimpse into the small corps of legal experts who specialize in trying to keep murder convicts off death row in Colorado. Theirs is a dogged, close-knit bunch of about 100 lawyers and investigators accustomed to long waits and setbacks in their clients’ cases, and prone to bouts of frustration and burnout. They tell themselves what they tell their clients: Expect the worst so you won’t be disappointed.
That’s how they weathered the six legislative sessions since 2007 during which Democratic lawmakers sought and failed to end the death penalty. And it’s how they approached this year’s session as lawmakers drafted yet another repeal bill.
With bipartisan support, that bill managed to clear the high bar of the state Senate in January. It breezed through the House Judiciary Committee on Tuesday and is likely to do the same before the full House early next week. If fast-tracked, Gov. Jared Polis could sign it into law by early spring.
Even the most wary among Colorado’s capital defenders admits she is hopeful.
“We’ve all wanted this so badly for so long,” Mulligan says. “Nothing would make us happier than getting out of the death business.”
Jim Castle, one of Colorado’s longest-practicing capital defense lawyers, was drawn to the work by geography and faith.
He grew up in Auburn, NY, home to the first prison to use an electric chair. He remembers corrections officers and their kids “always bragging about that, as if it were something to be proud of.” And he was creeped out just passing by the building.
“I was raised Catholic and thought it was just really, uh, depressing,” he says. “Although I probably don’t talk like a devout person because I use salty language, my opposition to the death penalty remains rooted in my religion.”
David Wymore, a former public defender who helped train Castle in the 1980s, traces his calling to a movie he watched as a kid. It was the 1958 film noir “I Want to Live!” in which Susan Hayward played a prostitute wrongly convicted of murder. It crushed him, he says, when her character was handed a death sentence.
“I must have been 9 or 10 years old watching as they were about to kill her and I was like, ‘What is the point of that? What? Really? What?’” he says. “The whole execution thing, the whole reaping lethal vengeance on the citizenry thing, yeah, well, I’ve never been big on that.”
Tamara Brady, who represented Aurora theater shooter James Holmes, didn’t plan to defend death penalty cases. As a young public defender, she says she “naively assumed that Wymore and the people of his generation would be there to handle those cases, and I always took comfort that they were really good at it.”
But most burned out, retired or died, she says, “So I sort of found myself involved in it.”
“Nothing in law school comes close to teaching you how to tell some mother that the state of Colorado is trying to kill her son. It’s a terrifying job.” Brady retired from capital defense shortly after persuading Holmes’ jury in 2015 to spare him from death.
As David Lane, a veteran capital defense litigator tells it, the work calls for a badass and bleeding heart.
“It takes an incredibly persuasive trial lawyer to convince at least one juror to save someone’s life after that person has committed an absolutely atrocious crime,” he says. “You have to be able to withstand the terror of it when the government lawyers on the other side of the room are trying to kill the guy sitting next to you. You better be cutthroat or you’re going to lose.”
He notes that private, appointed lawyers work capital cases for the state’s $90 hourly rate even though their staffing and overhead may cost more than twice that per hour.
“Money-wise, it’s a losing proposition,” Lane says. “People are doing this work for one reason: They believe state-sanctioned killing is wrong and that we owe it to society, to basic human dignity, to fight it as hard as we can.”
In Colorado, capital defense work is done in teams, which typically consist of at least two lawyers, an investigator and a “mitigation specialist” tasked with researching aspects of a client’s history that lawyers, in the penalty phase of a trial, may use in trying to persuade a judge or jury to spare his or her life. (Disclosure: I worked as a mitigation specialist on a capital case for about a year with Lane and several others in 2012.)
Because murder defendants tend to be indigent, the teams are either provided by the Colorado Public Defender’s Office or, in cases when that office has a conflict, appointed by Colorado’s Office of the Alternate Defense Counsel, also at taxpayers’ expense.
U.S. Supreme Court decisions and American Bar Association guidelines require defenders to “leave no stone unturned” for capital clients. Colorado — whose public defender system is one of the strongest in the nation — ensures capital defendants representation at every stage of their trial, appeal, and post-conviction proceedings.
Defense teams learn their clients’ cases inside and out. They pour over 911 calls, police files, and reports on bullet trajectories, blood spatter and autopsies. They investigate witnesses, alternate suspects and even the first responders.
Investigators comb through birth and medical records, IQ and psychological tests, report cards, photos, letters and diaries not just of their clients, but also of their clients’ family members going back three generations. They interview childhood friends, former neighbors, teachers, principals, social workers, doctors, coworkers, lovers, gang affiliates, drug dealers, cell mates and others. They look for signs of childhood neglect, physical, sexual and emotional abuse, diseases, brain injuries, addictions, disorders, humiliations or abandonment — anything that might help explain why their clients became killers.
“I’ve never had a capital client who wasn’t severely damaged in some way. I’m not saying anything to justify their actions, only as a way to explain how they got there,” says former Colorado Public Defender Doug Wilson.
“The truth is that we usually have a victim sitting next to us as well as victims on the other side of the courtroom,” Castle adds. “If you don’t understand the pain, you can’t do the work.”
Mitigation entails investigating not just what is wrong with their clients, but also what is good about them and perhaps even honorable. Have they apologized, expressed remorse or sought redemption? Who needs them and why? Are they loved or capable of loving? And what about them is worth saving? They are not blind to the irony of trying to validate the humanity of a person who is facing possible execution because he or she robbed the humanity of another.
“You can’t, I think, effectively present the humanity of your clients to a jury or a judge unless you feel it yourself deeply enough that you can tell their stories,” Mulligan says. “And, in the intensity of that process, you can’t help but bond with them.”
Colorado’s death penalty was reinstated in the mid-’70s, but it wasn’t until 1997 that the state put it to use, legally injecting convicted murderer and rapist Gary Davis.
How much taxpayers have spent prosecuting and defending capital cases since then is one of the state’s most tightly held secrets.
District attorneys have for decades refused to quantify the cost of their death penalty work. They say it’s impossible to keep track of the hours their prosecutors, paralegals, investigators, victims’ advocates and records managers spend on capital cases in the context of their broader workloads. Some also, in certain judicial districts more than others, have refused to disclose the costs of consultants, expert witnesses, and the travel- and other expenses associated with them.
Likewise, the offices of the Colorado Public Defender and the Alternate Defense Counsel won’t divulge the costs of their defense efforts, arguing it would breach attorney-client privilege. Wilson, the former state public defender who now runs that agency’s office in Aurora, spent years fighting transparency efforts.
“It’s not about secrecy as much as us following our constitutional and ethical obligation to that individual client,” Wilson says.
The ACLU of Colorado estimated in 2013 that a state death penalty trial cost taxpayers approximately $3.5 million compared to $150,000 for a life-without-parole trial. That didn’t include the costs of appeals.
Wilson acknowledges that leaving “no stone unturned” in a capital case isn’t cheap: “Let’s just say that on both sides, when all is said and done, it probably costs many more millions.”
Other costs are incalculable. Like the extra time victims’ families spend waiting for outcomes in capital cases. And the toll the threat of a death sentence takes emotionally on defendants’ families. And, of course, the emotional toll it takes on defendants themselves, a factor many death penalty proponents see as a plus. Murders for which the death penalty is sought are typically the most heinous. Understandably, many victims’ families want killers to suffer.
Capital defenders don’t seek pity for their clients, nor for themselves. Little is ever said, though, about the impacts on those doing the defense work.
“I don’t think most people understand the extent of time and sweat and commitment that goes into these cases. The stress of them, the responsibility for someone’s life, it’s like a weight bearing down on you, and it’s bad, so bad for you,” Wilson says. “Every attorney that walks into that arena comes away with some scarring.”
Those scars often appear at night. Most capital defense experts interviewed for this story say they dream, sometimes repeatedly, about failing to file an important pleading or forgetting their closing arguments. Some dream about lethal injections and electric chairs. Wymore describes a nightmare in which he was forced to cross-examine a key witness from behind a window on the balcony of the Boulder Theater where nobody could see or hear him.
“Ugh, I hate that dream. So powerless,” he says.
For many in the capital defense community, scarring also has come in the forms of alcoholism and drug addiction, failed marriages and failed health. Lawyers describe having lost friends and colleagues to illnesses or accidents they attribute, at least partly, to job stress. The veterans still grieve a particularly talented and beloved capital defender who in 2002 drowned during a drug trip in an isolation tank. They speak of the incident in hushed tones. It could have been any of us, they say. There but for the grace of God go we.
Brady, for her part, looks back on the impact her capital defense career had on her family. Her daughter was 3 when Brady worked her first death penalty case in 2000. Two weeks after the verdict in her last one, Holmes’, she drove that child to college.
Along the way she worried what the long hours and dark corners of her work were doing to her daughter, especially in high school when schoolmates asked what kind of monster would defend the Aurora theater shooter. Brady, nearly in tears, remembers saying, “I wouldn’t leave you to do this trial unless it was super important and someone needs my help, and even if nobody else in the world thinks I should do this, I need to because that’s what I think is right.”
She remembers her husband warning her during Holmes’ trial not to search her name on Twitter.
“People were saying horrible things about the defense team and I didn’t need a million voices from around the country messing with my head,” she says. At one point, a letter arrived threatening Brady if she continued defending Holmes. “I’m not going to even repeat it,” she says. “It was pretty graphic.”
Brady’s father was diagnosed with late-stage cancer and died shortly before the trial began.
“We were a month away. In any other kind of case you can take time off and do what you need for your family. But in a capital case where someone could die, you approach the work like you can never rest, like you can’t let down mentally in any way. I still have guilt that I wasn’t more available to be with my dad and help him at that time, and I’m not sure that guilt will go away.”
Capital defenders are keenly aware of the horror and grief their clients have caused. They know that many folks do not agree with or understand their work.
Brady is quick to note that fighting and seeking abolition of the death penalty is “never, ever meant in any way as disrespectful to victims and their families.”
“We’ve always tried really hard to be respectful to them and what they’re going through to do our job and not to cause them any additional suffering,” she says. “But it really is just an antiquated and barbaric thing for a government to try to kill its own people.”
The work also takes a toll socially, sometimes isolating capital defenders from people they love. Mulligan recalls the time a dear friend commented that one of her clients deserved to be executed.
Mulligan understood those eye-for-an-eye sense instincts. She knew that most people who live and work outside the system don’t have a nuanced understanding of “how unjust, how racist, how horrible it is,” she says. She told herself that her friend may not know that prosecutors have withheld key evidence from capital defense teams or that, in a state with a 5% black population, each of its three death row inmates was African American. She tried keeping in mind that her friend, like most people, “wasn’t likely to have studied the ACLU white papers [on racism and other problems with capital prosecutions] because that stuff doesn’t affect their lives.”
Still, the comment was indelible.
“It pretty much ended our relationship,” she says.
Wymore has even less tolerance for people who tolerate the death penalty. Once you see how it works and what it implies more broadly for Colorado and the nation, he says, it’s impossible to look away.
“You know the ugliest part of the death penalty, the part that’s not talked about a lot? The ugliest part is watching families of African American men and Hispanic men, families with a historical context of deprivation, non-privilege, gang use, drugs, everything, the whole mishmash. It’s watching them in the penalty phase begging a jury of white people for the lives of their loved ones. And you look at the jurors’ faces, they’re screaming, ‘We wouldn’t have done that, so you shouldn’t have done that.’ And you’re hoping, you’re hoping for one juror, just one, to see what’s happening here. And it’s like, oh my God, it’s so colonial, so medieval, the picture of it, it’s so obscene, so unseemly, so pathetic that we do nothing but repeat this history and repeat it and repeat it. You’re watching this going down over the years and it really just takes you and drives you to a point of anger and frustration.”
“It’s a horrible business,” he added. “Never should have gotten involved in it.”
Those who know Wymore get that his indignation and rage power his work. He has, after all, chosen to spend his retirement teaching younger lawyers throughout the country the “Colorado Method” — a strategy for jury selection he and others devised to prevent death sentences. He plans to continue doing so even if repeal passes and the method is no longer needed in the state where it started.
Those who know Mulligan likewise understand that what underlies her disillusionment and disappointment is her almost palpable need to believe that the justice system is, in fact, just. On behalf of her death row client, she spent years researching and arguing about things that went wrong with his trial. Mulligan and her client have been waiting almost two years for the judge to rule on his post-conviction order. In a state whose judicial system almost always preserves its outcomes, overturning his death sentence is a longshot. And the repeal bill, should it pass, would not apply to him retroactively.
This in part explains her despair that day on Facebook.
“I don’t know what it’s like to have a client executed,” she says. “And I hope, frankly, that I never have to find out.”
Members of Colorado’s capital defense bar are schooled in the ethos that you save someone’s life, you become partly responsible for it. It speaks to their training and commitment that when their cases are over, and even long after they retire, so many keep in close touch with the people they used to represent.
“Once a client, always a client,” says Brady who still writes and visits Holmes and others.
Lane, like all his colleagues, has been closely following the repeal bill as it inches forward at the state Capitol. Abolition, he says more freely than some more skeptical colleagues, “is within sight.”
“I have been trying to put myself out of business for 40 years now and am right on the cusp of succeeding,” he jokes.
But he is quick to point out that, should the time come, there will be no back slapping, no beating of the drum, no celebrating the death of Colorado’s death penalty.
“When violence — I’d argue ultra-violence — ends, you don’t throw a party,” Lane says. “What you do is stop, take a deep breath, and let it sink in that none of it should have happened in the first place.”