In this edition, co-hosts Jonathan Amarilio and Nykoel Kahn are joined by renowned death penalty defense lawyer, author, speaker, professor and former Dean of the Valparaiso University Law School, Andrea Lyon, for a discussion about the politics, sociology and personal stories behind the death penalty in America. Dubbed “The Angel of Death Row” by the Chicago Tribune, Andrea was the first woman to serve as lead attorney in a death penalty case, and today holds an unparalleled 19 wins against the application of the death penalty in 19 capital cases. Andrea shares her experiences and candidly discusses the challenges of a career spent advocating for justice for those on death row, and why to this day, she remains steadfast in her belief in the power of redemption.
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The Angel of Death Row Edition
Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and young-ish lawyers have unscripted conversations with our guests about legal news, events, topics, stories and whatever else strikes our fancy.
I am your host, Jon Amarilio of Taft Stettinius & Hollister and co-hosting the pod with me today is Nykoel Kahn of the Froum Law Group.
Nykoel Kahn: Hey everyone.
Jon Amarilio: So Nick, we are joined today by a true Crusader, a living legend in her field, a lawyer, author, speaker, professor, former Dean of Valparaiso University Law School, Andrea Lyon of Lyon Law.
Andrea has been called “The Angel of Death Row” and has a book by the same name, appropriately enough, which should give our audience a good idea of what she does for a living.
Before private practice, Andrea served as a public defender trying over 130 homicide cases and discontent with an ordinary career, went on to become the first woman in the country to serve as lead attorney in a death penalty case.
She then not only smashed through that glass ceiling but kept going successfully arguing 19 times in 19 death penalty cases that her clients should be spared from capital punishment.
Andrea has dedicated her career to advocating for justice particularly for those on death row. In addition to representing her clients, she founded the Capital Resource Center representing all inmates in Illinois on death row. She’s taught at several law schools. She has won numerous awards for her work and she is pretty much the lawyer so many of us wanted to be when we first thought about going to law school.
As Millennials might say, Andrea is living her best life.
Andrea Lyon: Well, thank you, that’s very kind introduction.
Jon Amarilio: Thank you so much for joining us.
Nykoel Kahn: We are really excited to have you here.
Jon Amarilio: So before we started recording today, you mentioned something that really caught my attention which was that you were on a radio program this morning and that you ran into a phenomenon that I think you often run into, which is that people tend to conflate you with your clients or at least with the crimes that your clients have committed. Can you explain what you meant by that?
Andrea Lyon: Well it just it — it isn’t true, of course everywhere you go and in front of every judge and to every prosecutor, I don’t want to paint with too broad of a brush, but you do tend to get treated as though you committed the murder your client is charged with and is or that you think murder is a good idea or that you think murder should never be punished.
Jon Amarilio: Like that you’re defending the crime.
Andrea Lyon: Yeah, that you sort of think, oh good, let’s, we even had a murder and let’s have another one. It’s a very interesting phenomenon. Part of it is because I think sometimes the prosecution or the judge want to yell at the client and they sort of can’t, because the client is represented so they yell at me instead.
Jon Amarilio: Yeah.
Nykoel Kahn: In your book you mentioned like media portrayal of like the slimy defense attorney. Do you think that has something to do with it?
Andrea Lyon: I do think it has something to do with it. I do think that there’s this view that we are all these terrible people who run around looking for those technicalities to get our guilty clients off and we’re not a part of the justice system, we’re trying to stop justice from happening, and that’s a very unfortunate view of us.
Part of that is a media driven view. It’s 20 years or more, however maybe it’s been of law and order in which prosecutors and police are always wonderful and if they get the wrong person they immediately correct their mistake and apologize.
Jon Amarilio: Well I mean Jack McCoy was the best. We should agree on that, right?
Andrea Lyon: My daughter certainly would.
Jon Amarilio: Yeah.
Andrea Lyon: Yeah, but that’s just not reality, and I think to be fair, prosecutors have a very difficult job, because they have two masters. One of the Masters is to do justice, the other master is to win, and that one often holds sway over the first.
Jon Amarilio: So it occurred to me when I was coming over here this afternoon that were I in your position, I think one of the most difficult things for me would be the daily pressure that you must face. I think most of our audience is comprised of lawyers and other professionals who understand what it’s like to have a high stakes, high pressure kind of job, but with you, your clients’ lives are literally in your hands. What’s that like to live with on a daily basis?
Andrea Lyon: It’s very hard to describe. If I were to tell you how emotionally, intellectually in every other kind of way difficult it is, I’m sure you’d believe me, but it’s kind of like trying to describe childbirth, nobody thinks you’re lying, but it’s just not susceptible to description really.
And if you — if I dwell on the risks to my client and that the exposure that my clients have too much, I can become frozen by it. So to some degree you have to compartmentalize and just work the case.
Jon Amarilio: Right.
Andrea Lyon: But to some degree, it’s impossible to ignore because you really are — you’re trying two cases. You have to prepare the case, the murder charge that your client is facing whatever other charges he or she might be facing and the case for his or her life, which requires knowing everything there is to know, good and bad and in the middle about your client’s life and often requires traveling down a road full of pain.
Jon Amarilio: I would imagine. Can we break that down a little bit?
Andrea Lyon: Sure.
Jon Amarilio: The two phases of trial, just explain for our audience what you mean by that.
Andrea Lyon: Well in the United States, we have what’s called a bifurcated proceeding. The same jury makes this both decisions but the jury first decides if the client is guilty or not guilty of the charges or perhaps of a lesser included or whatever that might be.
If they find that he or she is guilty of a capital crime and they find what’s called an aggravating factor, which is – it’s first-degree murder plus like first-degree murder of a police officer in the discharge of his duties or first-degree murder of someone in the course of an armed robbery. There’s some other kind of crime. And the aggravating factors vary enormously from state to state and there are 60 of them in the federal system. So there’s a lot.
Jon Amarilio: Yeah.
Andrea Lyon: If they find that the defendant is both guilty and that at least one aggravating factor is there, the jury then makes a decision as to whether the punishment should be life imprison or death. Usually that’s the choice. In some jurisdictions, there’s more than one choice, but most places that’s the choice.
Nykoel Kahn: You talk about — I’ve heard you reference the trial stage is kind of the law portion and the sentencing phase is more of the emotional portion. Do you think that that’s accurate?
Andrea Lyon: No, there’s no such thing as a trial that it doesn’t involve emotions. People do not vote based on rational thought. All we have to do is look at the extraordinary people we elect. We had many questions about that, but the question is much more narrow on in the trial, right.
Was there a homicide? Did the defendant do it? Was it a first-degree? These are more narrow questions, whereas the question that the jury is answering in the penalty phase is a moral question, and an emotional question and that is — can I understand who this person is and how they got to be who they are and need I fear them anymore.
If your jury is still frightened of the client, still thinks the client can do harm, they will kill them.
Jon Amarilio: Even though life imprisonment is the alternative in all cases, right?
Andrea Lyon: Not in every case in every jurisdiction, but generally speaking that is the alternative. Kentucky has other alternatives so the jury can vote between life with a minimum of 25, life with a minimum of 35, life without parole or death, so they have a multitude of choices. So there are some differences state to state. That being said, most of the time that is the choice and people who think that the defendant might be dangerous while locked up, will vote to kill him.
Jon Amarilio: So is that a defensive reaction by the jury or are they acting in defense of others? I’m just trying to understand the psychology behind that?
Andrea Lyon: It’s difficult to explain but remember that the only people that can sit on a jury in a death penalty case are people who believe the death penalty is appropriate.
Jon Amarilio: Right.
Andrea Lyon: Anyone who thinks that this is the only opinion you can hold in the United States that disqualifies you from jury service. If you do not believe in the death penalty, you are excused for cause and you are a juror who could do it if it was bin Laden or something of that level, the prosecution can use their peremptory challenge to get rid of that person.
So you end up with a politically homogeneous jury, that is very conviction prone, very pro police tend to be, and fear is a big part of their lexicon and you have to address it.
Jon Amarilio: Sure. And that’s an interesting point that you just brought up, you kind of breezed through it I think, because you’re so used to it, but you could get up on the jury stand while jury selection is going on and say I am a neo-Nazi and a million other horrible things and that doesn’t automatically disqualify you from the jury right?
Andrea Lyon: Correct.
Jon Amarilio: But in the capital murder case if you say I’m morally or ethically or religiously opposed to capital punishment, you’re out.
Andrea Lyon: You’re gone. That’s right. And it used to be a bright line and the original case would go, Witherspoon v. Illinois, there was a bright line, you had to say I cannot consider it.
Now, it’s more of the judge look some in the eye under case called Wainwright v. Witt, which says I heard some waffling language but in my view they could never consider it, so excused for cause.
So it presents an extra challenge and it is in my view one of the reasons that you see as many erroneous convictions in death penalty cases, whether the death penalty was obtained or not, because you have such a politically homogeneous jury, they are less likely to question each other. Okay, I’m seriously going to Nerdville here, but –
Jon Amarilio: Go for it because we love that.
Andrea Lyon: There’s — there was a study that was done that was published in Law and Human Behavior, what they did was they videotaped a trial like an hour and a half, sort of smooshed up trial and showed it to 12 mock juries, six of which had both people that could be excluded for cause, because they didn’t believe in the death penalty and people who believed in the death penalty, and six that didn’t — that were all death qualified. And then they had them watch the same videotaped trial and then they deliberated and they whatever it is that social scientists do turn that into number some kind of way.
And what they found was unsurprisingly to me is that the death qualified juries convicted more often convicted of higher offenses, but what was really interesting was the mixture, we got the facts right more often.
Jon Amarilio: Interesting.
Andrea Lyon: Because they’d argue with each other, because they didn’t see the world quite the same way. And so they did, well, wait a minute, was he standing such-and-such a place and they —
Jon Amarilio: Yeah, and they were actually deliberating –
Andrea Lyon: They were.
Jon Amarilio: As opposed to just group think.
Andrea Lyon: It can have that effect, and of course, there’s the process effect too, because you’re — if you’re talking to a jury before they’ve heard a single witness about punishment, it feels to the jury naturally like the trial is just a formality, why would the judge be talking with us about penalty if there was any question about guilt.
Jon Amarilio: Right.
Nykoel Kahn: Innocence until proven guilty is really not accurate for a lot of these trials I would say. Would you agree?
Andrea Lyon: Well, it’s hard, it’s counterintuitive anyway. I mean if you don’t — no, if you’re — you read that there’s been a bunch of burglaries in your neighborhood Nyk and you read that you know they’ve arrested somebody, you don’t say to yourself ah, but I presume I’m innocent. You just say to yourself, I’m glad they got the guy, because that’s the natural human reaction. It doesn’t make you a bad person, it is just counterintuitive to presume innocence anyway, let alone after this process.
Nykoel Kahn: Yeah.
Jon Amarilio: And here the process embeds that, right. But that is counter to the trend that we’re seeing in public opinion generally in the US, right?
Andrea Lyon: Yes.
Jon Amarilio: So I was looking at historical Gallup Polls before I came over here, and the Gallup every two years asked the question are you in favor of the death penalty for a person convicted of murder, now I realize the phrasing of that is probably a little bit problematic, but that’s the question they’ve been asking forever, so they stick with it for comparative purposes. And support has fallen from 80% in 1994 to just under 50% in 2016.
Andrea Lyon: It’s even more if the question you ask after a conviction for first-degree murder would you prefer the death penalty or life without parole, then the number of people that are for the death penalty goes down even more.
Jon Amarilio: So you give them the option? And then what I thought was also very fascinating which I suspect I know where you’re going to take it and I want to go there, that’s why I’m asking it. Is that there’s significant differences to the answers if you break it down by race.
Andrea Lyon: Yes.
Jon Amarilio: With 63% percent of Whites supporting death penalty, 40% of Hispanics, 36% of Blacks, there’s been a slight uptick over the last couple of years but we don’t have to get into why that’s the case. What does that tell you, the racial disparity and opinion?
Andrea Lyon: Well that tells you that people who understand what it is to be oppressed worry they might be part of that oppression and worry that they might make mistakes. And unfortunately, particularly for African-Americans, we have a long and ugly history of killing Black people with impunity and this is Reverend Jackson refers to this as legal lynching.
Jon Amarilio: Can you explain that a little bit?
Andrea Lyon: Well that we — most of what has happened in the criminal justice system has happened since reconstruction.
And the Thirteenth Amendment doesn’t allow for slavery except if somebody has committed a crime and what we saw in the South was an enormous uptick in finding almost anything to be criminal so that you could lock up black people in particular black men and force them to work for free.
Jon Amarilio: Put them in a chain gang.
Andrea Lyon: Yeah essentially. And so that memory for older African-Americans and for Hispanics of being mistreated by the law, informs their concerns about the fairness of the death penalty whatever their moral position might be first of all. And for younger people, who have seen what happens now because of the advent of camera phones, they’re very wary as well.
Nykoel Kahn: I actually just saw an article yesterday, there is a case going up into the Supreme Court of North Carolina right now to talk about the strategic bleaching as what they the term they refer to dose of juries in the South in particular because of this kind of underlying racism, that the article referred to it is as legal enforcement of segregation in some ways.
Andrea Lyon: I mean, I think that that’s true and we certainly with the Curtis Flowers case that was just reversed after trial number six, six trials, same guy, because the same prosecutor keeps excluding everybody Black from the jury, and this the Supreme Court reversed it for I guess trial number seven, but Mississippi is an interesting place. I was speaking to someone who does defense work there and she said she tried very hard to get anyone to run against this prosecutor and they’re afraid to.
Jon Amarilio: Why is that?
Andrea Lyon: It’s entrenched power. If they lose they feel like they won’t be able to practice in the county anymore, there’s a whole lot of political considerations you have to think about when you’re doing a death penalty case to underestimate what the politics are is a big mistake.
I mean sometimes — sometimes people ask me, what’s the first motion you file in a death penalty case, I’m like motion to continue this to an uneven numbered year. I do not want to be part of any prosecutor’s re-election campaign or any judge’s re-election campaign, the case is going to be hard enough I’d like to try it when nobody is mugging for the cameras.
Jon Amarilio: And our judges understanding of that?
Andrea Lyon: Well I don’t actually file that.
Jon Amarilio: Oh, I thought –
Andrea Lyon: I do, do that’s to get it off of the — to not be so directly affected by the politics of what’s going on in that particular county or state or jurisdiction.
Nykoel Kahn: I know one of the things you actually highlighted in a couple — in a number of the cases that you talked about in your book were the politics and how I’m thinking of you deferred to him as Lonnie Fields in your book about on, just some background for our listeners, this was a man who went in and had shot his ex-wife’s defense attorney, a divorce attorney rather and the judge who was trying and Andrea represented him in his death penalty case, and you talked about how much politics came into that because of how publicized the case was and how everyone knew — all of the other judges knew that Judge, and could you talk a little bit about.
Andrea Lyon: It added a level of complexity to the case. First of all, he killed a judge and a lawyer in front of 27 eyewitnesses in courtroom, so there was no reasonable doubt anywhere around and he was African-American, they were White, we saved his life. I hope you’re impressed, it was not easy.
One thing they did is they brought a judge in from Lake County to try the case just so that even if that you didn’t know the judge is just for — not to have the appearance of impropriety I think that that made sense.
But it was very complicated to deal with the politics of it and some of the politics were quite surprising. I mean for example, my client got very angry with us for trying to save him, because he wanted to get the death penalty because then it would go to the Illinois Supreme Court, they would declare divorce against God’s law and he would be a martyr. You may now be getting an idea of what the defense might have been. So there was that.
But I also started to get very bizarre mail from men’s rights people. There were bumper stickers that said my client had a point.
Jon Amarilio: Wow.
Andrea Lyon: It was very, very strange dealing with that and dealing with the amount of media attention and this is — I tried this case quite some time ago so it was before social media. I’m sure it would have been much worse with social media.
Jon Amarilio: Right.
Nykoel Kahn: I think this kind of ties back into the point that we started on is that people equate you with your client in some ways that you were getting this fan mail that you’re defending the just right person and on the other side you have the people who are — you are the demon who are defending this person.
Andrea Lyon: Yeah, it was very interesting and there was a life verdict and the two sets of victim’s families, the attorney’s family and the judge’s family were very, very different in how they responded to the defense and to us. The judge’s family were — they never said they were against the death penalty but I had the feeling that they were for perhaps religious reasons, I’m not sure.
And they were very understanding and made a point of speaking to us and the attorney’s family, in particular his brother was very angry and when the jury said no death, the sheriff’s had to keep him from assaulting me in court, which never actually made it into the newspapers, which is also interesting what actually makes it into the paper and what doesn’t.
Jon Amarilio: And that’s probably a good place for us to take a break.
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Jon Amarilio: So Andrea, something we were discussing briefly when we were on break was how you, as an expert in this field, can make the difficult transition between the first phase of the trial where the jury’s determining whether your client is innocent or guilty of the crime, to the second phase of the trial, where if he’s convicted, the jury is then deciding whether to impose capital punishment.
And from an outsider’s perspective, I just imagine that would be really difficult because in the first phase of the trial, assuming you weren’t making an insanity defense or something like that, you are arguing this guy didn’t do it and then in the second phase, you’re arguing okay, okay he did it but you shouldn’t execute him because of X, Y or Z reason.
That seems really difficult to me, how do you manage that?
Andrea Lyon: Well first of all, you don’t say okay he did it.
Jon Amarilio: Okay.
Andrea Lyon: You have to face it. So, I’m thinking right now of a case where it was a question of identification and we fought very hard for an acquittal and didn’t get it which wasn’t a particularly a surprise. And so at the opening of the penalty phase, I just told the jury we fought very hard because this evidence is insufficient because we believe that the identifications are faulty and that you shouldn’t have relied on them and that he shouldn’t have been convicted.
That being said, you heard the evidence, you worked hard, you thought about it, you deliberated and you disagree with us. So I have to accept your verdict because I’m an officer of the court, but I also want you to know I do accept your verdict whether I agree with it or not, I accept it.
And now you have to make a decision of what kind of punishment is appropriate for my client and it wouldn’t be fair if I didn’t tell you who he is, because how would you make that decision, so let me tell you who he is.
Jon Amarilio: That was very smooth. I got the impression that you’ve done this once or twice.
Andrea Lyon: Well and I’ve taught it a lot, because it’s — the first — there’s been a lot of sort of experimenting that hasn’t worked over the years. You can’t say on the one hand, he didn’t do it, oops, just kidding, you know, I mean that is talking about sets your mouth and the jury will punish you.
Some people have this idea well you have one lawyer who does the trial and then if they lose then you have a different lawyer do the penalty phase but I just don’t.
Jon Amarilio: To avoid the credibility problem.
Andrea Lyon: And I just don’t agree with that. I think you got to face the fact that the jury has rejected you and you have to be respectful of that. You just have to be even if you disagree.
Jon Amarilio: So let’s talk about where the country is right now on the death penalty issue. She’s rolling her eyes for our audience.
Andrea Lyon: No that was deep sigh not the eye roll.
Jon Amarilio: Okay, all right. 29 states I think still have the capital punishment on the books at least.
Andrea Lyon: Yes.
Jon Amarilio: The Federal Government still does and the military still does. 11 of those 29 states though have a moratorium officially in place, which is usually an intermediary step toward full abolition. More than a third of the states that have the death penalty haven’t used it in more than a decade, many of them much longer. I saw one state that hasn’t used it in over 50 years even though it’s still on the books.
And then interestingly something else I saw was that the map of states that retain capital punishment roughly matches the electoral map, which – and by that I mean that the “red states” particularly in the south retain capital punishment and the bluer states either of abolish or have a moratorium in place.
I was wondering what does that tell you as someone who’s in this field about the politics behind capital punishment?
Andrea Lyon: Well, more conservative folks tend to favor death penalty. I mean they just do and they tend to be more retributive, retributive, retributive, I said it once. And so that is an unsurprising.
But it’s also part of the history of our Civil War and of the slaveholding States, those things continue on till today however much people wish to deny that and if we have any doubts about that watching what has happened in our political world in the last few years, with all of the racist tropes that are everywhere that people used to be at least a little embarrassed about, they’re not embarrassed about anymore. So that’s a big part of it.
Another big part of it is the sense that I think some people have that there isn’t enough control. They don’t have enough control on what’s going on in their world and so they want to lock up people and throw away the key.
In the Philippines, they admire Duterte for extrajudicial killing of anyone who uses drugs, right. There are people who feel that way and it has to do with a sense of being out of control and not being heard and that is something that some very cynical politicians have played to.
It’s also a way of diverting people’s attention from the very real problems we’re facing. It is harder to talk about climate change than it is to talk about bad guys who kill people. If you ask most people if there is a really serious crime problem in our country they would tell you yes, but that’s actually not true.
Statistically, we are down violent, this crime has been down by 30-35% in the last 20 years. Almost all criminal actions have something to do with personal use of drugs or sale of drugs, usually small amounts. The facts are simply not in favor of that.
Nykoel Kahn: Do you think that ignorance plays a role in the pro-death penalty opinions or do you think that even if people were educated about how many times an innocent person is put on death row or how the faults in the system or the actual facts of some of these crimes that it would change anything?
Andrea Lyon: When I was a finalist to be the Dean at Valparaiso, a lot of people sort of asked me this question in one way or another given that I was from Chicago, which was can you talk to Republicans. I mean that was didn’t quite put it like that but was kind of there was kind of that view.
And when I said to them who do you think is on my jury, who do you think I’m talking to all the time? I have learned that just because people might not agree with something that’s very important to me and very central to me, which is the power of redemption, the belief that every life matters and that no one is only the worst thing they’ve ever done.
I believe that to my core, but I don’t think people who don’t believe that are bad people or evil or stupid. I just think they need to know the stories. Now, some people won’t listen. They’re shut down, they’re just not going to hear you. But most people will listen if given the opportunity and if given some measure of respect.
And I feel that at our core, all of us want our children to be safe. All of us want education to be good, nobody wants to see the Amazon burn, all of us have some basic things we hold in common and those are the things that I reach for in learning my clients story, in telling my clients story and trying to reach people with whom I fundamentally disagree but I do respect.
Jon Amarilio: Why do you believe so deeply that the death penalty is wrong?
Andrea Lyon: There are a lot of reasons, some of them just from watching how it works and doesn’t work.
Jon Amarilio: Sure.
Andrea Lyon: But –
Jon Amarilio: But do you believe it’s inherently wrong. If we could come up with a system by some miracle, I know this will never be the case, that only executed people who were unquestionably guilty of these heinous crimes, would you support it in that instance or would you still be opposed to it?
Andrea Lyon: I’d still be opposed to it because I believe there is such a thing as redemption. I’ve seen it too often not to know that it’s true. I’m not saying that there aren’t people that are so damaged that we cannot have them among us, they are –they’re just unable to control themselves, they have frontal lobe brain damage, they have all kinds of things.
I know that that’s the case but it’s the case much less than I think the general public thinks, because of entertainment, over emphasis on crime because of local news, over emphasis on crime because it’s easier to tell the story of a good guy and a bad guy than to tell a story of people that are sort of a little leech. That requires a little bit more time to do.
And because — may I tell you a story that sort of sums this up. I was representing a guy, his name is William, and he was charged in a double homicide home invasion terrible awful case and when I say terrible and awful, I mean that the rumor in the neighborhood was that this older couple had money, they broke into their house, tortured the wife in front of the husband to try to — it was terrible.
Jon Amarilio: Sounds like in cold blood.
Andrea Lyon: It was terrible.
Jon Amarilio: Yeah.
Andrea Lyon: Okay and my client wasn’t the person who actually dealt the fatal blow but it doesn’t matter. He was deeply involved and it was a terrible crime, but my client — my client came from a terrible background too. He’d grown up in a small town in Mississippi and I don’t know how much you know about child abuse but sometimes what’ll happen is a parent will pick one child and that’s the child that gets it and this was William.
He didn’t have clothes or shoes most of the time. He still had belt buckle welts on his back from beatings. He had places where there was no skin because it had been ripped off by hot wax. I mean it was really bad. So he ran away when he was like 13 I want to say, maybe 14 around that age and it came to where his brother was here in Chicago and I don’t know what your judgment was like when you were 13 but mine was not great.
Jon Amarilio: Mine was bad until I was 30.
Andrea Lyon: I mean remember how you wanted to be cool.
Jon Amarilio: Yeah.
Andrea Lyon: Yeah. I was an egghead and that was just that, but anyway I — he came here and his brother was a drinker and he began drinking and then he began using drugs and then he became an addict and then he got — this is what happened to him, okay. So I wanted — I was talking to him at the jail and I wanted to talk to him about his father and the abuse and I don’t know if you’ve ever had this experience when you’re talking to somebody but they like, they’re starting to rock.
You just have the feeling they’re going to run out of the room and just shut down if you keep going so I said you know what William, why don’t we talk about this another day and like that he kind of just — a couple of deep breaths later and I said, I said to him, I’ll tell you what let’s talk about what you’ll do with your time, if you’re spared the death penalty, what positive things can you do with your time. So what would that be?
And he looked at me and he said, Ms. Lyon, I’d really like to learn to read. I mean where were somebody when he was five? No, I know I’m supposed to be a lawyer and tough and all that but of course I had got him a tutor and by the time we went to trial he was reading at the fourth grade level and he didn’t get the death penalty.
And I got a letter from him, I don’t — I want to say maybe almost a decade after the case and in it he said that he was at a Menard prison. He was working as a cook there and I don’t know I think they pay him a dollar a day or something some little tiny bit of money and he wrote this letter and he said, I know it doesn’t make up for what I did but I just want you to know that I used the money that I make to support two children in Africa.
Jon Amarilio: Power of redemption.
Andrea Lyon: The power of redemption.
Jon Amarilio: So when you’re in front of the jury, I presume you were telling them all this and the strategy, not to be too much of a lawyer about it in the face of a story that powerful and emotional but the strategy is pity.
Andrea Lyon: The strategy is empathy. To think about all the things that most of us were fortunate enough to have. Parents that loved us, decent schools, safe environments to grow up in, not getting beaten and having wax put on you until your skin got pulled off.
I mean just getting people to listen, it’s not to say that what William did wasn’t a choice and wasn’t a crime, but it’s a different choice than if I’d made that choice. I think it’s allowing the jury to see your client as a human and not just someone who committed a crime.
I think it’s just — we just take a walk together through his life and just look around and give people a chance to understand, that’s kind of — that’s kind of what I do.
Jon Amarilio: It’s a good thing to do.
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Nykoel Kahn: One of the things that we had talked to you about before we came in was there’s a case that was in Illinois recently Brendt Christensen, he, we wanted to talk to you a little bit about this because Illinois has moratorium on the death penalty.
Andrea Lyon: We’ve actually abolished it.
Nykoel Kahn: But he was being tried. It’s a capital case and for our listeners, a little background on this, Brendt Christensen was a student at the University of Illinois. He killed another student, admitted to it openly and his trial recently wrapped up in Peoria.
And so we wanted to talk to you a little bit and have you kind of shed some light for our viewers about how do cases like this happen, how are we having capital cases in Illinois when we have abolished the death penalty and what does a case like this look like?
Andrea Lyon: So as was mentioned earlier, there are 29 states that still have the death penalty, but that means that there are quite a few that do not, but the Federal Government can ask for the death penalty anywhere as long as they can establish Federal jurisdiction for the crime, which is not particularly difficult to do, especially if a gun is involved because if a gun is involved, it probably cross state lines and you get jurisdiction that way.
I’m representing somebody right now here in Chicago who was charged with a death penalty case and he knew that he was coming to Federal Court but he didn’t know why and I met him for the first time and told him that they were asking for the death penalty, he didn’t know.
Well he started to cry, his mother collapsed in my arms. She said I thought we didn’t have the death penalty here anymore and I said well, the Federal Government can ask for it anywhere.
Nykoel Kahn: How do you handle that conversation with a client?
Jon Amarilio: Carefully.
Andrea Lyon: It’s very difficult and people react differently, sometimes people shut down, sometimes people are very emotional, sometimes they get angry. Once you give a client that kind of news and I was very worried about him that he might harm himself and I was very worried about his mother as well who I was concerned was less than stable to start with just even just from meeting her right then.
So that’s difficult and explaining this dual jurisdiction stuff to people just doesn’t make sense or that double jeopardy isn’t really double jeopardy.
Jon Amarilio: Right, you don’t just hand them the federalist papers.
Andrea Lyon: Yeah, no, it’s very complicated to do. One of the things that I know some people that are Federal Resource Counsel, which is a group of lawyers that help those of us who are doing death cases throughout the country and just kind of keep track of everything, and I’m told that this administration has been asking for the death penalty in many, many, many cases.
To quote one, Kevin, he said it was like reigning federal capital defendants and in particular there seems to be an interest in targeting states without the death penalty.
Nykoel Kahn: Why do you think that is?
Andrea Lyon: I assume it’s a political decision. I can’t answer the question because I don’t have the information, but it is unsurprising to me.
Jon Amarilio: Okay let’s talk about something more lighthearted.
Andrea Lyon: Okay then.
Jon Amarilio: Let’s go to Stranger than Legal Fiction.
Andrea Lyon: All right.
Jon Amarilio: Game we play at the end of each episode. The rules are very simple. Nyk, did you do your homework on this one?
Nykoel Kahn: I did do my homework.
Jon Amarilio: Awesome, because like half my co-host also, so I’m really pleased to hear that. All right, so the rules are very simple. Nyk and I have done a little digging around the Interwebs to find a strange law that is still on the books somewhere, but probably shouldn’t be. We’ve made another one up and we’re going to quiz each other and you Andrea and which one is real and which one is not. Are you ready to play?
Andrea Lyon: I think so, let’s see how it goes.
Jon Amarilio: Nyk, why don’t you lead us off?
Nykoel Kahn: All right. So, my two laws are both from Louisiana, New Orleans specifically. The first one is that in New Orleans you cannot get married on the same day as a family funeral. The second law is that in New Orleans a fortune-teller cannot officiate your wedding. Which one do you think is the real law?
Jon Amarilio: Good. New Orleans, Louisiana is so weird. I’ll just in the audience members from Louisiana.
Andrea Lyon: Right. Those are interesting. I — I’m going guess the fortune-teller.
Jon Amarilio: Is the real one?
Andrea Lyon: Yeah.
Jon Amarilio: I’m going to go with that too. Yeah. That just seems very mysterious and New Orleans like —
Nykoel Kahn: And you are both correct. Apparently in New Orleans, a fortune-teller or a tarot card reader cannot officiate a wedding.
Jon Amarilio: Wow. I feel like there’s a lawsuit there.
Andrea Lyon: You sort of wonder what caused somebody to go and propose such a law. Like what happened?
Jon Amarilio: Right. Like you are marrying someone and you’re like by the way I’m a fortune-teller and this isn’t going to work out. So, but –
Andrea Lyon: Maybe that was it.
Jon Amarilio: Yeah.
Nykoel Kahn: Oh my god. What is it the Heart-Balm Statutes kind of thing like.
Jon Amarilio: Yeah. All right, second round option number one. Both are death penalty centric.
Andrea Lyon: Okay then.
Jon Amarilio: In Hungary, a person can be executed for hanging out with gypsies; specifically for being in the company of gypsies for one month or longer. So option number one, hanging out with gypsies. Option number two, in Papua New Guinea tribal law allows for a person to be executed for sorcery. I am seeing a lot of shifting eyes around this table.
Andrea Lyon: I’m thinking. I’m going to go with Papua New Guinea.
Jon Amarilio: As the real one?
Andrea Lyon: Um-hmm.
Nykoel Kahn: That was also what I was going to go with.
Jon Amarilio: Okay, that’s too easy. What are we thinking? Why?
Andrea Lyon: My reason for that is that I believe that Hungary has abolished the death penalty.
Jon Amarilio: So you just know that’s cheating.
Andrea Lyon: I am sorry.
Jon Amarilio: Background knowledge is not fair.
Andrea Lyon: Oh I’m sorry.
Jon Amarilio: And Hungry is like sliding into right-wing dictatorship right now. I thought that was like —
Andrea Lyon: No that doesn’t mean it’s going to stay that way, but right now, I think it is one of the countries that doesn’t have capital punishment. I could be wrong but I think that’s right.
Jon Amarilio: I think that’s right too because it’s part of the EU.
Andrea Lyon: Yes.
Jon Amarilio: So, yeah I thought that wasn’t quite as slick as I imagined it would be. Well, I’ll say this though the gypsy one was a real law in 18th Century England.
Andrea Lyon: I have no doubt about that. I mean, just being a gypsy was a crime.
Jon Amarilio: Right. Yeah. And in Papua New Guinea, sorcery is not officially one of the reasons you can be executed, but as I qualified it specifically to say tribal law because it very often is. In fact, there’s an uptick in lynching of suspected sorcerers there lately. Unfortunately they tend to be young women who are suspected for it. So, actually if I was trying to end this episode on a lighter note that’s probably a really bad example.
Andrea Lyon: That was not your best one. No.
Jon Amarilio: No.
Andrea Lyon: It really wasn’t.
Jon Amarilio: I’m not really having a great day.
Nykoel Kahn: We should have switched. I should have gone with our — the fortune-telling heart-balm laws.
Jon Amarilio: Yeah. Well —
Nykoel Kahn: Well maybe next time.
Andrea Lyon: Here’s a weird law that I found. So when I was teaching University of Michigan I read my way through all the criminal statutes because I was starting a clinic there and there are a number of crimes that you would not consider as something that should be a crime. For example, did you know that you can get up to a year in jail for misrepresenting how many apples are in a barrel?
Jon Amarilio: I did, yeah, now.
Nykoel Kahn: There is no way you —
Jon Amarilio: Do we know the story behind that?
Andrea Lyon: I don’t know the story behind it but I bet it’s funny.
Jon Amarilio: Yeah, it’s going to be, it’s going to be. And thank you for ending things on a lighter note.
Andrea Lyon: Okay.
Jon Amarilio: That’s going to be our show for today. I want to thank our guests Andrea Lyon of Lyon Law for this arresting and thought-provoking conversation.
I also want to thank everyone here at the CBA who makes this machine run including my co-host Nykoel Kahn, our executive producer Jen Byrne, Ricardo Islas on sound, and everyone at the Legal Talk Network family.
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