February 6, 1996
Late last year, I agreed to accept an assignment from Federal Judge Edward Korman in what was described as a "death eligible" case. A young Chinese man, Chen Jia Wu, who would become my client, was charged, along with three co-defendants, in the kidnapping-murder of a young Chinese woman. According to the indictment, the charge under 18 U.S.C. Section 1203 was that the murder victim and two others were held for ransom. All of the defendants entered pleas of not guilty.
The case is described as "death eligible" because under Justice Department protocol, an elaborate review must occur before a committee in Washington decides whether or not to seek the death penalty. The determination starts with the local United States Attorney's Office which makes its non-binding recommendation to Justice. At both the local and Justice stage of review, defense counsel has the opportunity to make a presentation in an effort to persuade the government attorneys against asking for the death penalty. At present, my case is under consideration by the local U.S. Attorney's Office.
Although I have been in a criminal defense practice for more than 26 years, and although I have handled a number of murder cases, I never before had a death penalty, or "death eligible" case. I practice in New York, where, until last September, there has been no death penalty since I began trying major cases. In the federal court, death penalty cases are still in the embryo stage.
Where I have defended many cases where the penalty was life without parole, I now find it to be quite true that, as the Supreme Court has said, "death is different." The responsibility I have undertaken in awesome, and I feel the difference. I have discovered that there is a whole universe of common knowledge about death penalty strategy that it not found in any case or book. Fortunately, each of the lawyers assigned to the case has the benefit of a "death penalty expert."
I will never forget, in one of the earliest conversations with the expert, I suggested a particular strategy which would have made sense in any conventional case. Based on his vast experience, the expert told me that my strategy would be a mistake and I'll never forget these words: "You'll get your guy killed. After trying about a hundred cases in federal court, I don't scare easily. But that one statement made me scared as hell and brought me to the point where I do nothing without thinking and rethinking the consequences, not only in defending the case, as I usually do, but in thinking ahead to what might--barring an acquittal--be the death penalty phase of the trial.
