Defending a person who is facing the death penalty occupies a particular niche in the legal profession. The stakes are never higher.
The University of Iowa College of Law hosts one of the leading conferences each year on how best to defend clients who are facing execution—and it’s not just for lawyers, said Emily Hughes, the professor who runs the conference.
“Bring every member of your team,” said Hughes, Iowa College of Law’s senior associate dean for academic affairs and Edward F. Howrey Professor. “It’s very hands on. The idea is for you to roll up your sleeves and work on your case while you’re there. It’s a very skills-based conference.”
Because the legal system wants to make certain that innocent people don’t get executed, each defendant typically receives representation from a team that often includes at least two attorneys, an investigator, and a mitigation specialist—someone who can gather information about a defendant’s circumstances, such as their mental health history, in an effort to persuade a jury or a judge to spare their life.
Capital defense attorneys, mitigation specialists, and investigators from across the country come to Iowa City each May for the Clarence Darrow/David Baldus Death Penalty College. Some present the latest research and techniques for capital defense, while others are there to learn.
The conference is named in part for acclaimed Iowa Law professor David Baldus, who died in 2011. Baldus conducted groundbreaking research, cited in a U.S. Supreme Court decision, about racial inequities in the application of the death penalty.
Baldus had a major influence on Hughes’ career, mentoring her when she worked as an Iowa City public defender. They overlapped briefly as colleagues at Iowa College of Law, and Baldus inspired her to pay forward that commitment to indigent criminal defendants.
“This conference is trying to make sure that people who face the death penalty receive excellent representation,” Hughes said.
“A Big Win”
Public defenders have an ingrained commitment to help the underdog, the indigent, the person against whom police and prosecutors are bringing down the hammer. They have come to see clients in all their humanity, with all the struggles they face in their lives.
Kush Govani (15JD), who grew up in a family of doctors, first caught the public defender bug in Hughes’ class, and then became hooked the next semester when he enrolled in her public defense clinic. The experience taught Govani the value of always seeing things from the client’s point of view and never giving up hope.
“I learned that you can get a positive result in almost any case,” he said, “as long as you approach it the right way.”
Since graduating law school, Govani has been a federal public defender in Arizona, working on death penalty appeals, and recently returned to Maricopa County as a public defender. “I think I can make more of a difference doing trial work than habeas work,” he said. “I went back to the state to be on the front lines of capital litigation.”
Govani had a big impact during his last job, winning a habeas case, in which he argued that his client on death row did not receive adequate representation at trial years before. Although the client had a long history of head injuries, the trial attorneys had never investigated evidence of brain damage, Govani said. His client had been sentenced to death row as a teenager in 1994.
Through a long round of appeals, and armed with new rulings from the U.S. Supreme Court, as well as neurological exams revealing the extent of his client’s problems, Govani persuaded a judge to order a new trial in 2020. “The judge ruled that if this evidence had been presented to the court in 1994, there’s a reasonable probability that the judge would have sentenced the client to life in prison, as opposed to death,” Govani said. “That was a big win.”
It’s All About Context
When Govani attended the conference in 2022, he learned a wealth of information about how to assess a client’s intellectual disability, and how it might have influenced the criminal charge.
One lesson he learned at the conference: Issues of mental capacity are never black and white. “Someone might think, ‘this person has an IQ that barely crosses the threshold. The person is not intellectually disabled,’” Govani said. “But this conference is
invaluable in helping us understand that it’s always about context. It’s not just about IQ. It’s about what we call adaptive functioning—you have to understand all the different components of someone’s social behavior, work behavior, and emotional state.”
“There are thousands of different roads to go down when investigating that,” Govani said. “I’m sure if I went to the conference every year, there’s always something to gain from it. You can’t go too many times.”
Hughes says the conference typically runs for five days, and that instructors bond with participants and often continue advising them long after everyone leaves Iowa. This year’s conference attracted 93 participants from across the United States.
Andrea Lyon started the conference as a law professor at the University of Michigan, then moved it to Chicago, where she worked at Valparaiso University Law School’s Center for Justice in Capital Cases. Hughes worked on the conference when she took a job at the center; ultimately, Lyon became Valparaiso’s dean, and Hughes returned home to Iowa, bringing the conference with her in 2015.
Bias and the Death Penalty
Lyon named the conference for the legendary Clarence Darrow, and Hughes added Baldus’ name. “It’s about extending and honoring the legacy of David Baldus, who committed his scholarship, his teaching, and his work to analyzing and addressing discrimination in the administration of the death penalty,” Hughes said.
Baldus’s widow, Joyce Carman-Baldus, recalled how devoted her husband was to his work. “He was working night and day,” she said, adding that his dedication inspired “a huge cadre of students” to help him collect data for his ambitious research projects.
Baldus’ most noteworthy study was published in 1983, analyzing more than 2,000 murder cases from Georgia in the 1970s, and was cited in the Supreme Court decision McCleskey v. Kemp (1987). Baldus and his colleagues examined the race of the accused and the victims in each murder and saw a disparate application of justice.
According to the Supreme Court’s summary of the case, “Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”
Yet despite that evidence, the court held that it didn’t apply in McCleskey’s
case, and it upheld his death sentence. Years later, Justice Lewis Powell, who wrote the 5-4 opinion, said it was his biggest regret from his time on the court.
Surmounting New Hurdles
Iowa is one of 23 states that don’t employ the harshest possible punishment, according to the Death Penalty Information Center. Yet Hughes notes the federal government can bring a capital case in any of those states.
“There’s a lot of work to be done,” she said. “Many states are trying death penalty cases.”
And new hurdles arise as the law develops, says Govani, citing a 2022 case, Shinn v. Ramirez, that would block the sort of habeas appeal Govani won in 2020. “The U.S. Supreme Court made it extremely difficult in 2022 to present this new evidence,” Govani said.
Yet one theme that pervades death penalty work is to stay positive.
“I’ve been lucky [in winning that appeal],” Govani said. “I’m definitely aware that it’s not something that happens all the time. But it’s important to always think that it can happen. You always have to be optimistic.”
Often the odds can seem stacked against a criminal defendant. It’s not popular work in a society in which many politicians and judges want to appear tough on crime.
“A lot of people in public defense can get fed up with the system,” Govani said, “so it’s always important to think positively. And from that mindset, good things can happen.