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Human Rights

Trial Lawyers College Training New Warriors for Battle against the Death Penalty

By L. Joane Garcia-Colson and J. Jude Basile

There can be no doubt that for some lawyers, money, prestige, and power are the allure-perhaps even the meaning-of their chosen profession. Yet there are others, a rarer breed, for whom the opportunity to use their entire minds and beings to fight for justice presents the challenge and meaning of lawyering. Among this group, a smaller number have decided or been asked to represent defendants who are voiceless, forgotten, and seemingly damned-namely, those accused of capital crimes for which the government is seeking the ultimate penalty: death. These warriors who handle death penalty cases often face insurmountable odds and carry emotional burdens unlike those of any other lawyers working on behalf of the downtrodden or dispossessed. The challenges they face may well be the most difficult of those faced by any lawyer in America today. Oftentimes these lawyers are despised by society, vilified by the media and politicians, and isolated by the majority of the bar. Far too often they are young, inexperienced, and without financial or other resources to adequately and effectively represent the defendants whose lives are placed-often without choice-in their hands. It is not uncommon for young, eager lawyers, fresh out of law school, to be appointed as counsel for defendants whom the government wishes to execute. Because they have little training, even less experience, and few resources, they are behind even before they begin.

The Role of the Trial Lawyers College

To aid lawyers who are dedicated to representing persons generally ill-served by the justice system, prominent trial lawyer Gerry Spence conceived and established the Trial Lawyers College in 1994 among the mountains of Western Wyoming. On what once was an old cattle ranch, lawyers can now come to learn and hone the skills necessary to fight for the lives of those accused of crimes-and in the process rediscover themselves and their values.

The Trial Lawyers College was born of a conviction that the experienced trial lawyers of this country can and must-to guarantee the availability of justice to all people-give of themselves to train the next generation of lawyers that will become dedicated to helping people in need. Spence and other colleagues believed that the future of a true justice system would depend on the availability of lawyers willing to stand up against the tyranny and injustice of government and corporate America. Both the jury system and the trial lawyers who play a key role in it are being attacked from all sides-and even from within. Recently, on the computer listserv of a major legal organization, a lawyer applauded the castration of a defendant convicted of sexual offenses. Many others have harshly criticized the efforts of organizations such as "innocence projects," which work to exonerate the wrongly convicted by promoting the use of a simple DNA test that often has won "clients" their freedom or saved their lives.

For years the criminal defense bar has cried out against the injustice of the death penalty. To a great extent, these cries have fallen on deaf ears. In 1999, more inmates were executed than in any year since 1952. The execution rate has dramatically soared 800 percent in the last decade, and currently there are more than 3,500 prisoners on death row, an all-time record.

Robert Jay Lifton and Greg Mitchell, Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions, preface (2000). In the media, we all too often hear or read about men and women who have been convicted of crimes they did not commit, their lives destroyed, only to be found innocent after years in prison. And still executions continue, and the government seeks to make it even more difficult for innocent people to obtain justice. Simultaneously the media, certain politicians, and various representatives of corporate America continue to denigrate lawyers and to blame the trial bar for all the evils of the world.

Despite the number of convictions being overturned because they were obtained with false evidence and the push for moratoriums on executions in several states, the number of defendants for whom the government seeks the death penalty is growing daily. These disturbing facts, compounded by the paucity of training, scarcity of resources, and increase in caseloads, have made many lawyers who handle death penalty cases weary. It is difficult personally and professionally to continue to fight when you have one hand tied behind your back and few allies.

The Genesis of a Capital Case Program

Recognizing these burdens, the Trial Lawyers College, which has trained more than 1,000 lawyers since its creation, offered its first annual program on July 7-14, 2001, designed specifically and exclusively for lawyers who handle death penalty cases. Tuition for the program is $1,750, including room, board, and course materials, and there are a limited number of partial tuition scholarships available for those lawyers who need financial assistance. This program focuses on techniques the trial lawyer can use to successfully and adequately represent and understand a defendant facing the death penalty and incorporates a method of teaching that the Trial Lawyers College pioneered and has refined over the years. Forty-eight capital defense lawyers attended the seminar, which was designed by lawyers who work in the death penalty arena to meet the needs of their colleagues and give them the skills necessary to save the lives of their clients. Although the college is not the first organization to offer such training, its program is unique and unlike any other currently in existence. It is not solely a typical lecture seminar nor a traditional perform-and-critique program. Instead, it is hands-on, interactive, and experiential. Yet because there is nothing like it, it is also somewhat difficult to describe.

The faculty for this unique seminar consists of some of America's greatest trial lawyers-some famous, some not-all of whom volunteer their time. Several of the most successful death penalty lawyers-Gerry Spence, Rick Kammen, Cyndy Short, and Dan Williams-are teaching. Many other lawyers who have successfully handled such cases are participating as well, including Milton Grimes and Garvin Issacs. Professionals from the mental health field, jury consultants, and communications experts such as Joshua Karton, Katlin Larimer, and John Nolte are also involved. Each of these people believes, like Spence, that the lawyers of our country need training in the art of trial work, especially those who fight against the death penalty. Each of these people believes in the power and wisdom of juries and knows from personal experience that trial lawyers, unlike doctors, have no real training prior to the moment they set foot in the courtroom to begin their first trial. We do not let a young surgeon take a scalpel to a patient without first undergoing years of training and practice under the watchful eye of a seasoned veteran. Yet we think nothing of sending a trial lawyer into a courtroom to fight the battle for justice, unarmed and barely trained, never having selected a jury or given a closing argument. He or she must learn the craft of advocacy in the courtroom, in the heat of battle for life and death, sometimes to the detriment of a client whose life has been placed, often without choice, in the novice lawyer's hands. The majority of these clients are people who cannot afford to hire big firm, moneyed lawyers and instead must rely on public defenders, small firm lawyers, or solo practitioners to help them get justice. The faculty at the Trial Lawyers College, the majority of whom have been through at least a portion of the program and have received extensive training and gained trial experience, work with these lawyers and teach them the tools and skills they will need to adequately-and with compassion and understanding-represent those who have the most to lose, life itself.

Lawyer, Know Thyself-and, Thereby, Others

The seminar begins with a premise that sounds esoteric but may well be obvious: We must know who we are and become better people before we can become better lawyers. A good trial lawyer must know himself or herself-his or her feelings-to be able to communicate a client's story in an open, honest, and effective way to a jury. Through a series of exercises, lawyers are given the opportunity to look at themselves truly, to examine their life experiences, to determine where they have come from and where they are going. The environment is secure and nurturing, and no one is required to do anything they do not wish to do. After this self-examination, the lawyers are encouraged to express their feelings about themselves with the other participants.

In doing so, they feel the power and experience the bond among people that grows and is created by expressing oneself openly and honestly with others. They learn about the dynamics of forming and bringing together, through the sharing of common experiences, a group of people from diverse backgrounds and with different viewpoints-and how this translates to the process of jury selection. A good trial lawyer must be able to understand the jury and to connect with the jurors on a human level. Through the process of group formation, these new warriors begin to understand the importance of finding the common ground that all people share, that can bring individuals together in the search for justice. Effective ways to address the strong feelings that jurors have about their own prejudices, crime generally, and the death penalty itself are presented and explored-but only after the lawyers look at their own feelings on these issues. When this work is done, lawyers see jury selection in a whole new light and have the tools needed to select a jury prepared and willing to give justice to their clients.

Just as important, lawyers who attend this seminar learn how to assume the identities of the witnesses and their clients, to feel and experience their pain, and even to understand and care for their opponents. The lawyers must empathize with the judge and experience how it feels to be a juror. You can learn how to communicate with others only by seeing yourself from the vantage point of the person with whom you are trying to communicate.

By doing such emotional work, the lawyers gradually shed their preconceptions and get more in touch with their basic humanity. They find within themselves the ability to face the pain that comes with losing clients to the killing machine, and they learn valuable skills for personally surviving the emotional intensity of a death penalty case. They learn to listen and seek to understand, not to be understood. Through this process of caring for and learning to love themselves, they are more able to care for and love their clients. Spence frequently says to program participants, "Caring is contagious. If you care about your client, the jury will care."

Attaining New Skills

Another basic concept stressed at the program is that the participants must learn to hear and open up their voices-you could say that they have to "learn to sing." The lawyers' voices are the principal instruments by which the "songs" of justice are transmitted. A trial lawyer cannot argue a client's case with a one-stringed fiddle. Melody and rhythm are important components to an argument, and are key to persuasion. Jurors are not moved to action by a monotone or a staccato speech. Nor do hollow intellectualisms result in justice. Poetry and its power must be used to great effect, and its importance to advocacy is demonstrated and felt.

The art of communication-with witnesses, jurors, judge, and client, with all of its nuances and intricacies-is intimately explored and experienced through small group exercises where each lawyer has the opportunity to work on techniques to increase his or her ability to communicate a case persuasively and effectively to the jury. The lawyers leave this seminar with a number of tools to help them empower a jury to stand up against the injustice of the death penalty.

The goal of the program is that, by its end, nearly every attendee will have entered into that most sacred realm of human experience, what Spence calls "personhood." Most of the people who have been through the Trial Lawyers College consider it to have been a life-changing experience. They have learned to tell the truth, not only about their case but also about themselves. They have learned the power of credibility. By repeated efforts in makeshift courtrooms, they have learned how to select and connect with a jury, how to make an effective opening statement, and how to deliver a winning final argument and thereby empower a jury to give justice to their clients. They have learned to trust themselves, to trust each other, and to trust juries. By the time the session is over, they have learned more about the essential ingredients of trial lawyering then most lawyers learn in a lifetime. Yet perhaps the greatest benefit of the program is found in the bonds and friendships formed among the lawyers-participants and faculty alike-who leave the ranch knowing they are not alone in the search for truth and justice. They leave Wyoming equipped with new tools they can use on the creative journey toward becoming a better person and lawyer. So powerful and empowering is the experience that groups of lawyers who have been to the Trial Lawyers College or one of its many regional programs have formed throughout the country and continue to experiment and work with the creative process learned at the college. They support and help each other and become allies.

The warriors who attend the death penalty seminar leave Thunderhead Ranch better prepared, personally and professionally, to continue defending the rights of those who need their help the most. Their spirits, long burdened by the traumas they have suffered in the battle to protect the accused, are renewed and their belief in the availability of justice for the weakest and most humble restored. They will approach their next capital case from a position of strength, born from the power of truth and love. Perhaps the most valuable benefit that will be derived from attending this program will be the communication skills that they can use to awaken the hearts of the jury so that it will recognize and stand up against the injustice of the death penalty. Only then can our dream of abolishing capital punishment in America become a reality.

L. Joane Garcia-Colson is a trial lawyer who practices in both state and federal courts and resides in Palm Summers, California. She is currently the executive director of the Trial Lawyers College.
J. Jude Basile is a California trial lawyer with offices in San Luis Obispo and San Diego. He was nominated four times for and twice received the Outstanding Trial Lawyer Award from the San Diego Trial Lawyers Association.