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\title{The Mitigator}
\date{May 2, 2011}
\author{Jeffrey Toobin}
\subtitle{Danalynn Recer’s Texas death-row defense strategies have won over juries and prosecutors alike.}






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The death penalty is withering, even in Texas. In the nineteen-nineties, juries in the United States handed down about three hundred death sentences per year; in 2010 there were only a hundred and fourteen. There were ninety-eight executions in 1999 and only forty-six last year. Earlier this year, Illinois became the sixteenth state to ban executions. The change has been especially striking in Houston, which has long reigned as the death-penalty capital of the nation. If Harris County, which includes Houston and its nearby suburbs, were a state, it would trail only the rest of Texas for the number of people executed. But last year prosecutors in Harris County sent only two people to death row.


Explanations for the change vary. Crime is down everywhere, and fewer murders means fewer potential death-penalty cases reaching the courts. Widely publicized exonerations of convicted prisoners, based on DNA evidence, may have given some jurors second thoughts about imposing the death penalty. Since 2005, jurors in capital cases in Texas have been given the option of imposing a sentence of life without the possibility of parole (known as \emph{lwop}), which appears to be viewed by many jurors as a satisfactory alternative. The cost of death-penalty prosecutions, which are longer and more complicated than other cases, has also brought the numbers down in recent years. A 2008 Maryland study by the Urban Institute estimates that the total costs of death-penalty cases are about three times as much as life-in-prison cases. Another explanation for the decline in death sentences has been the increasing use of mitigation, a strategy that aims to tell the defendant’s life story.


In Texas, the most prominent mitigation strategist is a lawyer named Danalynn Recer, the executive director of the Gulf Region Advocacy Center. Based in Houston, \emph{grace} has represented defendants in death-penalty cases since 2002. “The idea was to improve the way capital trials were done in Texas, to start an office that would bring the best practices from other places and put them to work here,” Recer said recently. “This is not some unknowable thing. This is not curing cancer. We know how to do this. It is possible to persuade a jury to value someone’s life.”


The organization’s finances have always been precarious; at first, Recer ran it out of the attic of her house, in a slowly gentrifying neighborhood on the outskirts of downtown Houston. “Just now, the crackhead-to-architect ratio is inverting,” she told me recently. Over the years, \emph{grace} has managed to buy four adjacent houses a few blocks from Recer’s own place, and the staff, a few paid employees and a rotating cast of about a half-dozen interns, works out of them. The houses, built around the turn of the last century, are tiny—each just a few rooms on a single floor—and decrepit, with peeling paint and sagging floorboards. The staff calls them “the compound.”


At forty-seven, Recer still looks like a graduate student. Most days, she dresses to match her surroundings at \emph{grace}, in a tank top and flip-flops, even in February, with her Labrador, Ollie, trailing her. Her manner, though, is more that of a professor than that of a pupil; she speaks in staccato bursts of evangelical certainty. Recer is a better boss than colleague. Saving people from execution is her life’s work. She believes she knows how to do it, and she is never reluctant to tell anyone precisely how it should be done.


At the compound, most of the interns are supplied by a London prisoners’ rights organization called Reprieve, and at the weekly staff meeting British and Australian accents predominate. The Jesuit order of the Catholic Church also sponsors an intern. Currently, the staff is nearly all women, and they spend their days on the phone and online, following a carefully scripted procedure to research the lives of GRACE’s clients. Technically, it’s not legal work, and none of the interns are American lawyers. The task is summed up in the single word that defines the heart of \emph{grace}’s mission in death-penalty cases: mitigation.


Recer’s strategy was born largely of necessity. For about a decade, the annual Gallup poll has shown that approximately two-thirds of Americans support executions. “There is zero evidence that support for the death penalty has gone down,” Dudley Sharp, a prominent victims’-rights advocate and death-penalty supporter in Houston, said. “The law on the death penalty has pretty much reached a consensus, too,” he continued. “There are arguments around the edges, but the Supreme Court has made pretty clear what the rules are. No one can seriously argue at this point that the death penalty is unconstitutional.”


When the Supreme Court allowed executions to resume, in 1976, after a four-year hiatus, the Justices mandated a two-phase structure for death-penalty trials that has become familiar in subsequent decades. The “guilt phase” would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the “penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentenced to death. To make that determination, the Court sought to insure that jurors follow a rational process, rather than make a snap judgment about whether a defendant should live or die. This system, which became known as “guided discretion,” required jurors to weigh “aggravating factors” and “mitigating factors.”



\bigskip


In passing death-penalty statutes, states were required to define their aggravating factors with some precision. Common aggravating factors are especially cruel or heinous murders, murder of a law-enforcement officer or of a child, and murder for hire. Mitigating factors generally include a defendant’s mental illness, or the absence of a prior criminal record, but the Court also made sure that defendants could come up with their own mitigating factors to present to jurors. For a long time, defense lawyers didn’t know how to use this option to their advantage, and many largely ignored the penalty phase. “Most lawyers didn’t put mitigating evidence on at all,” Recer said. “A lot of them worried that they’d wind up offending the jury more by trying to excuse the conduct. Maybe they would stick the defendant’s mom on the stand to cry and say, ‘He’s a good boy, please don’t kill him.’ It wasn’t very effective, obviously.”



\bigskip


In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist.


“As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking,” Scharlette Holdman, a pioneer in the field, said. (One of her clients was Ted Kaczynski, the Unabomber.) “That narrative is not there for the asking,” she continued. “It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.” Since the lives of death-penalty defendants often feature a tangle of pathologies, including drug addiction and sexual abuse (sometimes by family members), it’s not easy to draw out those stories, much less present them in court. “The fact that someone tells you that story in their living room is a long, long way from getting them to tell you that story in a public courtroom,” Holdman said. Trained as an anthropologist, and now based in New Orleans, Holdman is known for her devotion to her clients. After Kaczynski avoided the death penalty and was sentenced to life without parole, he wanted her to have the shack he had occupied in Montana. (The government said no.)



\bigskip


At first, the work of Holdman and other mitigation specialists simply passed in a kind of oral tradition among the close-knit world of death-penalty defense practitioners. But in recent years the practice has been refined and systematized.


Recer grew up on the outskirts of Houston, where her father, a reporter, covered the space program for the Associated Press. Her mother died when Danalynn was fourteen. Danalynn moved with her father north to Washington, where he worked at \emph{U.S. News \& World Report}, and she later enrolled at a community college in Virginia, to study restaurant management. “I had a professor there who saw that I had something on the ball,” Recer said, “and he asked me, ‘What the hell are you doing here?’ ” She soon transferred to the University of Texas at Austin.


Like many a Texas liberal, Recer found a home in Austin. While taking a course in African-American studies, she became interested in the subject of lynchings, which had been more prevalent and brutal in Texas than in any other state. She got a master’s in history, enrolled in law school, and was also working on a Ph.D. in history, with plans for a dissertation on lynchings, when she heard that some local death-penalty lawyers might be interested in her work on the history of racial violence in the state. She started working with them as a volunteer in 1991. “I realized my heart was in work with real people,” Recer said. “I never looked back. Still, the Ph.D. people only gave up on me about two years ago.”


The early nineties were busy days for death-penalty lawyers. The Clinton Administration, as part of its first big crime bill, proposed an expansion of the federal death penalty while funding a number of statewide resource centers to provide high-quality defense in capital cases. Shortly after the Republicans took control of Congress in 1994, however, federal money for the resource centers was eliminated, and most went out of business. Veterans of their brief existence still dominate the death-penalty field. When Recer was in law school, she worked as a mitigation specialist with the Texas Resource Center, in Austin, and developed the tools that she continues to use today.


She and her colleagues carefully researched the backgrounds of inmates awaiting execution. “We were trying to show what could have been done at the trial in terms of presenting evidence of mitigation, but none of it had been put in the record,” she said. In a series of cases, the courts weighed the question of whether non-record evidence—that is, evidence that had never been presented to the jury, even in the penalty phase—could be brought in as basis for relief in the post-conviction process. In the end, the courts said no. “It was just a heartbreaking time,” Recer said. “You’d present the compelling story of their lives, and then the courts would say, ‘So what?,’ because it wasn’t presented at trial. And there was no way to say that their lawyers were ineffective for failing to present it, because no one did it in those days. So they all got executed. Happened again and again and again. We got very attached to people. They would kill them anyway. When you are young, you think, Surely the courts will listen to someone’s life story before killing them. Well, they didn’t.”


After Recer graduated from law school, she went to work for the organization now known as the Louisiana Capital Assistance Center, in New Orleans. Clive Stafford Smith, a British lawyer who had also been trained in the States, had founded the group to provide effective capital defense in a chronically underserved region. (Stafford Smith has since returned to London, where he now runs Reprieve.) “She showed up here with a punk haircut, with a rattail down her back,” he recalled. “And for our first trial together she went out and bought the kind of dress you’d wear to Sunday school. I don’t think she ever had one before. She planned to take it back to the store after the trial. She tucked the rattail away so the jury couldn’t see it, and she wound up keeping the dress. She knew there would be more trials.” While working for Stafford Smith, Recer met Morris Moon, another death-penalty lawyer, who is now her husband.


Recer’s first case with Stafford Smith set a template that she has followed ever since. For one thing, the crime was horrific, and a defense of innocence was implausible. At around 4 \emph{a.m.} on September 1, 1993, a construction worker named Scott Thibodeaux entered the trailer where Nancy Melton, his on-and-off girlfriend, sometimes lived with Sadie Landreneau and Landreneau’s nine-year-old daughter. The little girl awoke to see Thibodeaux naked and her mother covered with blood. He was holding Landreneau against a wall and saying, “You’re dead, you’re dead.” Neighbors called the police, who arrived as Thibodeaux fled. Inside, the officers found both Landreneau and Melton dead. In the words of the appellate court opinion, “One was lying on the kitchen floor with numerous stab wounds, and the other was lying on a bed in a bedroom where she had also been stabbed to death. Her body had been mutilated; her breasts were amputated with one stuffed in her mouth and the other in her vaginal canal.” Thibodeaux was discovered hiding in a shed nearby. Seven years earlier, he had been convicted of sexually molesting three young girls.


In the period leading up to the trial, Recer spent many hours at the Louisiana State Penitentiary, in Angola, talking to a prisoner named Louis Bellard, who was serving a life sentence for murder. Bellard was Thibodeaux’s step-uncle and a frequent babysitter during his childhood. After many sessions with Recer, Bellard agreed to testify that he had started molesting Thibodeaux when he was about five, and continued until he was about fourteen. Under Recer’s questioning during the penalty phase, Bellard admitted the abuse and said, “I feel that I’m partially to blame for the crime he committed—you know, that maybe affected him some kind of way.”


Stafford Smith and Recer used the rest of the penalty phase to create a complex portrait of a haunted and troubled defendant. According to the witnesses, Thibodeaux was both an alcoholic and a churchgoer, a criminal and a valued employee, a violent man and a gentle soul. In all, Stafford Smith and Recer called eighteen witnesses, including other relatives who knew of the molestation and noted that Thibodeaux had been given beer starting at the age of six. There were various employers who found Thibodeaux industrious and reliable, and fellow church members noted that he helped maintain the building and tithed his support. John Riley, a minister, testified, “I feel like I let Scott down, because Scotty was doing so good. He was in church. He was playing music. He was receiving good counsel.” Riley subsequently moved to Mississippi. “I left, and I think—and I’m not trying to blow me up—I just think I was a link with Scotty to the Lord. I believe I was a link to help him keep going, and I’ve asked his forgiveness.” Recer also persuaded Thibodeaux’s niece, who was one of his molestation victims, to testify that she forgave him. “I support him no matter what happens,” she said on the stand.


“In mitigation, the jury has to feel both sympathy and empathy,” Stafford Smith said. “The testimony about the abuse that Scott suffered was about sympathy, but that alone wasn’t enough. They had to see that his victim forgave him; they had to see that Scotty tried to do right. He failed, but he tried.” After less than an hour of deliberation, the jury in the Thibodeaux case rejected the death penalty and imposed a sentence of life in prison without the possibility of parole.


Recer always wanted to return to Texas from Louisiana, but her plans accelerated when she became involved in one of the most notorious and long-lasting cases in the history of the death penalty.


After a six-day trial, in Houston, Calvin Burdine had been convicted and sentenced to death for the stabbing of his roommate and lover, W. T. (Dub) Wise, in 1983. The trial’s notoriety stemmed from the fact that Burdine’s defense lawyer had frequently fallen asleep during the trial.


A decision in the federal appeals court held that Burdine’s right to legal counsel had not been violated. But in 2001 the court overturned that ruling, and Burdine was returned to Harris County for a new trial. A squadron of defense lawyers became involved in the case, and Recer was recruited as a member of the team. Ultimately, Burdine’s lawyers negotiated a plea bargain to a life sentence.


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The national embarrassment of the sleeping-lawyer case prompted a successful push for reform in Texas. In 2001, the legislature passed the Texas Fair Defense Act, which set certain basic standards for lawyers appointed to represent indigent defendants. Likewise, the Texas Defender Service, a nonprofit founded in 1995, built on the momentum generated by the Burdine case to become a significant force for training and assisting death-penalty lawyers.



\bigskip


Most important, perhaps, there have been changes in the way prosecutors in Texas use the death penalty, especially in Harris County. For three decades, the district attorney’s office was run by two of the most zealous death-penalty supporters in the nation. It was largely because of Johnny Holmes, who served from 1979 to 2000, and Chuck Rosenthal, who succeeded Holmes, that Harris County earned its reputation as the death-penalty capital of the country. After his retirement, Holmes wrote in \emph{Texas Monthly}, “When one of the national television news programs was pushing me about why we sent so many people to death row, I told the anchor that it’s nobody’s business but Texans’. I said, ‘I don’t give a flip how you all feel about it.’ ”


In 2008, Rosenthal was found to have sent and received a series of sexist and racist e-mails from his government computer. One included a photograph of a black man lying on the ground next to watermelon slices and a fried-chicken bucket; it was labelled “Fatal Overdose.” In a letter to the media after his resignation, Rosenthal wrote, “Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment.”


After a wide-open election, the new district attorney was Patricia Lykos, who had served as a trial judge in Houston for almost twenty years. Like her predecessors, Lykos is a Republican and no one’s idea of a softie. As a judge, she was best known for presiding over the trial of Karla Faye Tucker, the pickaxe murderer who became a born-again Christian and was the first woman executed in Texas since the Civil War. Still, in 2010 Lykos’s office sought the death penalty in only two out of twenty-eight capital cases. The office won death sentences in both. At a meeting in a conference room on the sixth floor of the sprawling Harris County Criminal Courts building, Lykos told me, “In the vast majority of cases, we don’t seek the death penalty.”


In some respects, Texas has become chastened about capital sentences. DNA exonerations, many of them uncovered by the Innocence Project, continue to embarrass prosecutors. (Nationwide, the Innocence Project has helped win the release of seventeen prisoners from death row.) The situation was especially bad in Houston, where the local crime lab spent much of the last decade enmeshed in scandals caused by incompetence. As a result, both Lykos and Craig Watkins, her counterpart in Dallas County, have started their own internal investigations, to ferret out wrongfully convicted defendants. “Prosecutors don’t want to make mistakes,” Lykos said. “And jurors don’t want to make a mistake, either. That preys heavily on everyone’s mind. What jurors have seen causes concern. Is science in ten or fifteen years going to show that we made a mistake in a case? We worry about that. We make sure everything is tested before we go to trial.”


Lykos encourages defense lawyers to produce mitigation evidence before she has to decide whether to approve the invocation of the death penalty. “We beg the defense to give us their mitigation evidence, and many of them turn a cold shoulder to us,” Lykos said. “That’s not how they’re used to doing business.” As a general rule, defense lawyers prefer not to provide any evidence to the prosecution until the last possible minute. The worry, of course, is that the prosecutors will figure out a way to use that evidence against the defendant. Recer presents as much mitigation evidence as possible to the prosecutor before the charging decision is made. “The best way to avoid the death penalty is never to have it charged in the first place,” she told me.


One example of the changed environment in the Harris County D.A.’s office is Lykos’s hiring of James Leitner as one of her top deputies. In the course of a long legal career in Houston, Leitner spent many years as a defense lawyer, including work in death-penalty cases, and so has a special understanding of the complexities of the field. On his desk is a leather nameplate carved by a former client named Leo Jenkins, who was executed in 1996. “People like Danalynn will openly give you their mitigation evidence as soon as they have it,” he told me. “And it has caused us to look at these cases harder. They do a great service to their clients by doing it. We are never going to focus on that stuff, their medical histories, their MRIs, unless they show it to us first. We then go to our experts and ask them, ‘What does it really mean?’ We listen to those things. Ultimately, Danalynn will never agree with us, because she can’t. Sometimes, we will agree with her, because we can.”


Leitner has watched perceptions about Recer change within the D.A.’s office. “When Danalynn started off, the belief around here was that she and her people are bleeding-heart liberals and they can’t really think straight,” he said. “But people in that office work hard, and nobody works harder or cares more than Danalynn. It’s hard to convince people generally that when someone has done something ghastly he deserves anything other than being treated the same way. But, if anyone can do it, Danalynn can.”


On September 20, 2006, Officer Rodney Johnson, a decorated veteran of the Houston police force, spotted a man named Juan Quintero driving fifty miles per hour in a thirty-mile zone near Hobby Airport. Johnson pulled Quintero’s car to the side of the road, and arrested him when he could not produce identification. Quintero’s two daughters were in the car, as well as a friend of his, and the officer let them walk away. He frisked Quintero, handcuffed him, and put him in the back seat of his patrol car.


This was not Quintero’s first contact with American law enforcement. He had come to the United States from Mexico in 1994, when he was seventeen, and five years later he pleaded guilty to indecency with a twelve-year-old girl. He was deported, but he returned to Texas illegally. That was why he had no papers to show Officer Johnson during the traffic stop.


When Johnson frisked Quintero, he missed a 9-mm. pistol wedged in the waistband of Quintero’s pants. Shortly after Johnson called for a tow truck to remove Quintero’s car, Quintero worked the gun free and, with his hands cuffed behind his back, managed to point it at Johnson in the front seat. He shot Johnson seven times, killing him. Quintero was still handcuffed and in the car when backup units arrived and took him into custody.


Recer assigned Matt Silverman, an experienced mitigation specialist on her staff, to lead the investigation of Quintero’s background. After spending many hours with him in the Harris County jail, Silverman began assembling the paper trail of Quintero’s life—documentation of his dealings with the police, education, and medical bureaucracies, among others. At \emph{grace}, all records are scanned, digested, and indexed. In the Quintero case, a “players list” of everyone mentioned in the documents ran to more than eight hundred names.


The most important part of the mitigation investigation took place in Celaya, a small city north of Mexico City where Quintero grew up. It turned out that he came from an intact family; one sister was a nun, and a brother was an engineer. Silverman learned that when Quintero was six he fell from the roof of his house, was knocked unconscious, and had to be rushed to the hospital. After that, Quintero had what are known as “absence seizures,” when he would just stare off into space. His friends called him \emph{nopal}, or “cactus.” The research in Mexico prompted Recer to obtain a brain scan and ultimately to build a defense of insanity, caused, at least partially, by the brain injury from the fall.


For the Quintero case, Recer had been retained by the Mexican Capital Legal Assistance Program, through which the Mexican government helps fund the defense of its citizens charged in the United States. That meant that Recer had the resources to hire David Lane, a Denver lawyer and a veteran of many death-penalty cases, to join the defense team. Death-penalty lawyers have developed their own systems for jury selection. Lane is an exponent of what has become known as the Colorado method, which was developed by David Wymore, a former public defender in the state.


The Colorado method is another important factor in the decline of the death penalty nationwide. In jury selection, the members of the defense team rate each prospective juror from one to seven, from best to worst for the defense. The defense goes with the jurors with the lowest scores. In the Colorado method, attitude toward the death penalty trumps every other factor usually associated with jury selection—race, ethnicity, occupation, education. In the Quintero case, the defense gave the jurors what Lane called a juror’s bill of rights. “You tell the jurors that mercy is a perfectly appropriate reason to give a life sentence to someone; that they are never required to impose a death penalty; that they never even have to articulate a reason why they vote for life. No one else has to agree with you,” Lane said. “You don’t have to be able to write it down. You don’t have to defend it to others. You can do it for any reason or no reason. We empower the jurors to know their right to show mercy.”


The insanity defense failed in the guilt phase, but it complemented the argument that the defense put forward in the penalty phase. As in the Thibodeaux case, Recer presented a complex portrait of Quintero, calling eighteen witnesses, thirteen of them from Mexico. In her summation, Recer pulled all the strands together, noting first that “life without parole means just what it sounds like. . . . So the only question remaining is whether he’s going to die by the hand of God or by the hand of man, and that’s the bottom-line question we’re considering here today.”


The shooting of the officer was “a freak circumstance,” not part of any pattern in Quintero’s life, Recer said. His brain injury, along with alcoholism, the fact that he suffered abuse at the hands of his father, and his history of depression and anxiety had all combined to cause him to snap in a way that he never would again. “The State wants you to think he is the bad guy that shot Officer Johnson or he’s someone who has a deep faith and is a great brother and is a great husband, father—but it has to be one or the other. And that’s not the case. We know from human nature that’s not the case,” Recer said. Quintero was both. “Someone who is a beloved brother and husband and father and son can also commit a terrible act. Those two things are not mutually exclusive. It’s not the way human nature works. And that could be a reason to spare his life.” Only one juror needed to object to prevent a sentence of death, but at least ten jurors on the Quintero panel voted for life in prison without parole.


“Danalynn did a fabulous job of bringing in family members and experts to talk about Juan’s demonstrable organic brain damage,” Lane said. “Juan also has extraordinarily good people who are his family members. The jury had mercy on them, as much as on Juan. I give Danalynn full credit for finding those witnesses and bringing them in. She did what all defense lawyers should be doing.”


Exhaustive preparation of mitigation evidence is not, of course, a guarantee that jurors will reject the death penalty in every case. Earlier this year, defense lawyers for Shawna Forde, an anti-immigration zealot who was convicted of participating in the murder of a nine-year-old girl and her father near Tucson, put forth a compelling case that their client had suffered extensive abuse as a child and had suffered from mental illness as an adult. The jury voted that she be executed. Late last year, after the conviction of Steven J. Hayes in the home-invasion murder of a mother and two daughters in Cheshire, Connecticut, defense lawyers made a detailed argument that Hayes’s co-defendant (who would be tried later) was the primary culprit; the jury still sentenced Hayes to die.


It’s not clear how much Recer herself will benefit from her success as a mitigation pioneer. Recer and Lane were barely on speaking terms by the time the Quintero trial ended. “When we spoke to the jury afterward, they asked us why Danalynn was yelling at me so much during the trial,” Lane told me. (Recer denies this.) “Danalynn is difficult,” Lane said. Shortly after Recer’s victory in the Quintero case, Greg Kuykendall, the lawyer in Tucson who runs the Mexican Capital Legal Assistance Program, removed \emph{grace}—and Recer—from its list of contractors. Kuykendall told me that in the course of several cases she had been “very difficult” to work with. “So I asked her to stop working for us. I felt like I could get better representation of my interests by working with a different group of lawyers.” He said he paid \emph{grace} what he considered an excessive amount for its representation of Juan Quintero. (Recer denies charging excessive fees.)


Recer’s peremptory manner and abundant self-confidence are familiar traits among entrepreneurs, and they are generally more often forgiven in men than in women. She is a self-described control freak, but her management of \emph{grace} might charitably be described as ad hoc. She accepts some cases pro bono; in some she is appointed by a local court, usually just to conduct the mitigation investigation. Payments for these cases are modest and slow in coming. The loss of the Mexican contract, which paid her something like what a private lawyer might earn, has been a financial blow.


Last October 14th, Recer sent out an e-mail to her supporters, saying, “We have had a very bad year. . . . Today, it all comes to a head. We are \$6,800 short in meeting our payroll for tomorrow.” (The entire budget for \emph{grace} is about seven hundred and fifty thousand dollars; Recer makes thirty-eight thousand as director.) Responses to the e-mail, and a grant from the Atlantic Philanthropies, have kept \emph{grace} afloat for the time being. Recer’s exhaustive mitigation investigations are expensive. Her team made eight trips to Mexico on the Quintero case.


The financial distress at \emph{grace} has been compounded, for Recer, by medical problems. She missed six months of work in 2010 because of treatments for breast cancer. She’s now cancer-free, but recently she had surgery for an unrelated problem. While Recer was in the hospital earlier this year, \emph{grace} became the focus of a brief media tempest in Houston. As a fund-raising gimmick, \emph{grace} sold T-shirts bearing a drawing by Quintero. A lawyer for Officer Johnson’s widow said that her client was “aghast” that \emph{grace} would seek to profit from the handiwork of the man who killed her husband. For a few days, TV trucks parked outside the compound. Recer, characteristically, was unbowed. “I know what lawyers are supposed to say in a situation like this—‘We’re not endorsing our clients, we’re just protecting the Constitution and making the system work.’ People want us to apologize for the company we keep, but I don’t buy it,” she told me. “I don’t apologize for saying I love my clients in all their complexity. We insist on seeing their humanity, despite what they’ve done. That’s what mitigation is all about. I’m not motivated just to make the system fair. I’m motivated to help these broken and despised people. I’m in it to stand up for them.”


So \emph{grace} limps along on small grants and contributions from local lawyers, and its future in Texas is less certain than its impact there. “It’s not just the cases that Danalynn has done—she changed the level of practice for everyone in Harris County,” Clive Stafford Smith said. “When local lawyers used to file no motions in death-penalty cases, she filed a hundred motions. That changes the standard. There were lawyers who would do death-penalty cases and do no mitigation investigation at all. She’s changed that standard. There wasn’t anyone who was doing that work before her. When she went back to Houston, it was the death-penalty capital of the world. She can take a lot of credit for the fact that it isn’t anymore.”


\emph{Jeffrey Toobin, the chief legal analyst for CNN, was a staff writer at The New Yorker from 1993 to 2020.}









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Jeffrey Toobin

The Mitigator

Danalynn Recer’s Texas death-row defense strategies have won over juries and prosecutors alike.

May 2, 2011


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Published in the print edition of The New Yorker, May 9, 2011, issue. In the Annals of Law section. Photograph by Dan Winters.
   

       

       

       

       

       

       

   



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