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Inside the Tribe - Death Penalty Lawyers
By Jeffrey Anderson
Daily Journal

Criminal defense lawyer Daniel Horowitzis all muscle and pluck, not afraid of physical violence and destined to represent those who commit such acts. He's one of the many whose job is to save clients from the justice system's ultimate penalty -

        Vernell Crittendon lowers his voice to a whisper as he spots two visitors departing through the gates of San Quentin State Prison, home to the state's 622 death row inmates.
        The prison spokesman has seen these two women come and go before. An African-American and a Latino. Heavyset. Heads down. Both taking the long slow walk back to their cars.
        "I don't like talking about the death penalty around visitors with loved ones on the row," Crittendon explains.
        He is a smooth talker. He knows the ins and outs of the correctional system, "including the execution ritual," he says.
        He also knows how people on both sides of the bars feel about that other system, the one that feeds the big house: the criminal justice system.
        He hears what death row inmates say about their lawyers. Not the appellate ones but public defenders and court-appointed lawyers. The ones whose clients are sitting inside.
        "Because of their economic status, guys on the row feel they got substandard representation," Crittendon says. "Gotta figure the really good lawyers are in the big city representing rich people or corporations.
        "Just look at O.J. Simpson. He had Johnnie Cochran. 'If the glove does not fit, you must acquit.'"
        The trial of the century. Criminal defense lawyers in the trenches are still muttering about that one. They call it celebrity justice. Makes the poor man's justice look like none at all, they say.
        Hell, the lawyering wasn't even that good in O.J., some of the lawyers who do the daily grind contend. And it wasn't even a death penalty case.
        Those are the really tough ones.
        Los Angeles veteran Public Defender Charles Gessler says the public's fascination with such trials is a result of the "us versus them" phenomenon. The unfortunates see themselves as "us," Gessler says, and people like O.J. as "them," and "the 'uses' naturally want what the 'thems' have," he says.
        "You have a case, and it's representative of 1,000 other cases, except they don't involve society or money or sex," Gessler says. "The same case could happen in Compton, and no one gives a damn. It's hypocritical."
        The public extends its hypocrisy with a lowly view of defense lawyers - particularly the ones that do death penalty trials, Gessler and others say.
        As if a capital defendant can't get solid representation through the public defender's office.
        As if a court-appointed lawyer isn't good enough for Scott Peterson.
        Michael Burt, formerly of the public defender's office in San Francisco, knows it all too well.
        "There's a problem in the public's perception, and our clients are part of the public," Burt says. "Clients come in with that idea, 'What kind of lawyer can he be, he's not on "Larry King Live."
        Thank Hollywood for all of that.
        But what about those men and women in the trenches? The ones who've devoted themselves to fighting for reviled killers who the state wants to execute? The ones who can't sleep, or grind their teeth, or have wrecked marriages, or cannot give up the bottle?
        Revelations about inmates who were wrongly convicted and other flaws in the criminal justice system have put a spotlight on the system itself - and the lawyers who fuel it, who mostly had escaped notice.
        The media rarely nose around for the scoop on the nameless, faceless, underpaid and overworked defender who walks into prison and says, "I'm your lawyer." Even if he gets the conviction reversed.
        But if you turn off Larry King for a minute and listen to the quiet voices within the walls, you might learn a thing or two about how society values human life.
        And you might learn about the toll it takes on those who can get it together to fight that apathy, that us versus them. Many of them have endured too much. The pressure. The frustration. The low self-esteem. They want the hell out.
        Some never should have been in. Then there are the unscrupulous, the incompetent opportunists, the hacks that see publicly funded capital trial work as a good way to make a buck.
        This is where it gets messy.
        Principled death penalty lawyers see what's happening. Eventually, it all sticks to them, or with them, or in them. DNA evidence. Reversals. Commutations. Moratoriums. Just confirming what death row inmates assumed all along: because they are poor, they got the bottom of the barrel.
        The same hard-boiled defenders who render this grim diagnosis get crabby when asked too many questions about what they do and why they do it. Though one can empathize with their reticence, it may not help their public image.
        Doesn't matter. They live underground, where respect is hard-won and scrutiny and criticism are part of the game.
        Except it's not a game. It's life or death. And while some are not up to the battle, a few are.
        
        Daniel Horowitz is driving toward the Richmond-San Rafael Bridge in Marin County on a sunny Friday afternoon in April.
        San Quentin looms in the distance.
        Tucked into his sporty Honda with the top down - his midlife crisis car - the Oakland defense lawyer is describing the subculture he inhabits, which he calls The Tribe: lawyers who do death penalty work.
        "Remember that line in 'Little Big Man,' when the chief says, 'We are the humans,'" Horowitz says. "That's who we are."
        Though some of Horowitz's clients are locked up in San Quentin, none of them is on death row. In nine death penalty cases, he has gotten nine life verdicts for his clients.
        "I know that, with the same amount of skill or work, my record [in capital cases] could be much worse," he says. "I understand that [keeping score] is kind of bullshit, but, hey, it's something to get the juices going. Competition is very important. Pure ego-based competition - whatever it takes."
        Horowitz is 5 feet 7 inches tall, has thinning brown hair and wears oversized rectangular glasses. At age 48, after 20 years of criminal defense work, he still is in fighting shape, mentally and physically. All muscle and pluck. A street fighter from Maspeth, in Queens, N.Y. Where "Fitzy," a kid from the neighborhood, would punch him in the face every day and call him "Jew Nose." He learned early to never break.
        He lives in a mobile home on a mountain overlooking Walnut Creek. He's been married, divorced and remarried, and he is just getting around to building a real house.
        He came West for law school and decided to stay. In the early 1980s, Horowitz did plaintiffs' work. He advertised his services shamelessly - for which the State Bar tried to disbar him.
        "There's nothing wrong with taking long walks with your dog in the middle of the day and calling in to the office to see how much money you just made," he says. "But it wasn't me."
        He shut down his civil practice in record time and devoted himself to Alameda County's panel of court-appointed lawyers. He started at the bottom. Misdemeanors.
        He worked his way up the food chain, landing his first death penalty case in the early 1990s. Now, he's getting calls from David A. Westerfield, the San Diego man sentenced to death for killing Danielle van Dam, asking Horowitz to handle his appeal.
        "I think my activist roots got the better of me," he says, reflecting on his switch from moneymaker to criminal defender.
        It probably was preordained.
         He recalls his youth.
         "I used to walk through doors marked 'Colored Only' until black people started holding the door for me," he says. "I organized against the Vietnam War when I was 15. Someone's parents had a printing press. We published our own newspaper.
        "They must have been Communists. Who has a printing press in their home?"
        Horowitz brought the lessons of New York City's streets to his law practice and to life, he says. When asked whether his clients' actions ever make it difficult to defend them, he replies that he has no fear of physical violence. He is not shocked.
        A client once took a poke at him, he says, and found out just how quick Horowitz's hands are.
        His view of the world is not complicated, but it is not without contradictions. He believes there is good in every person. He believes killing is wrong. That includes the death penalty. Yet if someone were to hurt him or his family, he insists that he would take matters into his own hands.
        Horowitz is not the most well-known or highly regarded criminal defender in the state, much less Alameda County, colleagues say. But few are as tenacious, thorough or resourceful, they say.
        And, his friends point out, he is not shy about recovering fees or attracting publicity. He has not been on "Larry King Live."
        Horowitz's most valued colleagues are public defenders and private attorneys who represent the indigent clients referred by the court. Some are his best friends and mentors. Within The Tribe, reputation is important, he says.
        Death penalty lawyers are critical of themselves and each other, he explains. The stakes are high. Plus, they live with criticism from clients, prosecutors, newspapers, judges and the public - not to mention appellate lawyers.
        While Horowitz loves his work, defending the U.S. Constitution is not his immediate concern. Some death penalty lawyers don't appreciate that kind of attitude. They find it lacking in sophistication. The whole street fighter thing. It gives pause to some. Big-picture types. Worried about the system. Worried about unity within The Tribe.
        But Horowitz is something of a deconstructionist. He just wants to keep his client alive. And he's willing to tear into every taboo subject and painful truth that comes with the turf, whether it relates directly to him or not.
        Fear. Struggle. Alcoholism. Burnout. Divorce. These are the byproducts and the stumbling blocks endemic to the world he inhabits. The same, but more brutal, for his clients, he observes.
        "We're all animals," he says.
        As he pays the bridge toll, Horowitz looks left to the hills of Richmond. The sun reflects off his rectangular, tinted glasses, and his wispy brown hair blows in the afternoon breeze as it comes off the outer reaches of San Francisco Bay.
        Driving along, he talks about one of his clients, who was convicted of a brutal rape and murder of 25-year-old Francia Young in a park there in 1992. Henry Glover, one of two defendants in the case, is serving a life sentence without parole.
        Horowitz wonders out loud what Young, a San Francisco market analyst was thinking, as she was being sodomized before she was shot in the head with an AK-47.
        "Contrast the intense beauty of this area with the horror of what went on there," he says. "I wonder if that thought occurred to her."
        The state tried two times to kill Glover, who suffered brain damage at an early age from lead poisoning. Nothing doing.
        "Henry Glover does not deserve to die," Horowitz told the jury.
         They listened to him.
        Yet it's never that simple.
        Along with James Giller, the lead attorney in the case, Horowitz spent hours in that park, he says, retracing the victim's and Glover's steps.
        "You need to visit the crime scene right away," he says. "Every piece of evidence is going to stick in your brain. You have to have it fresh and clear to start with."
        Horowitz spent even more time on the life of Glover. That's where he excels. Digging. Excavating. Horowitz is a miner of the human soul. Which requires affording the accused and the guilty the same humanity that easily is bestowed on victims and their families.
        Some people have a problem with that concept, Horowitz says, but he's been able to get juries to embrace it.
        One of his clients wants to fix his life through psychotherapy, he says. He bought the guy a book on psychotherapy. Another wrote a letter apologizing to the family whose little girl he sexually assaulted and murdered.
        "Have you ever heard of that?" Horowitz says. "It's beyond comprehension. This man is truly devastated over what he has done. "
        "They don't see themselves as monsters," Horowitz continues, reflecting on dozens of interviews he's had with robbers, rapists and murderers. "Why should we?"
        One time, when his stepdaughter was 16, Horowitz asked her to come to court, where he introduced her to his client, a rapist.
        "He was a nice-looking and a very polite guy," Horowitz says. "My daughter knew why I did that. She thanks me to this day."
        "Most of my clients see their lives as normal, with dramatic episodes," he says. "When they're being judged for life or death, they think, 'Hey, this was just a few days of my life when this stuff went down.'
        "They say, 'If that guy hadn't come to my house and called my wife a whore, and yeah, I got angry, and I put the gun on him, and I had to shoot him because he picked up the knife, and the lawyer never found the knife, the fucking lawyer never found the knife, and now ... whatever ... here I am.'"
        Take Willie Green, Horowitz says. Green was found guilty of murder and is serving a life term.
        "Here's a man with 50 arrests and 12 assaults on police officers and a prior homicide," Horowitz says. "He's a drug dealer and a thug.
        "But when you look at his life, he did a lot of good things, and the jury didn't have a problem seeing that. And it wasn't like they were fooled or stupid or duped. They're not just these 12 little people. I asked them to follow the law, not their common sense, and they did.
        "You can trust them. It kind of makes you like people sometimes."
        
        In upholding Georgia's death penalty statute in the case of convicted murderer Troy Gregg, on July 2, 1976, the majority of justices of the U.S. Supreme Court had to know that they had inexorably altered the criminal justice system, not to mention the social, political and moral landscape, for decades to come.
        In a sense, the criminal defense bar always had grappled with the death penalty. In 1622, the Colony of Virginia conducted the first criminal execution on U.S. soil. During the heyday of the death penalty, from 1930 to 1967, the states executed 3,859 people, including 32 women, a rate of 104 per year.
        However, in 1967, states began introducing moratoriums on executions, ushering in hope for opponents of the death penalty. In 1972, the Supreme Court declared that Georgia's death penalty statute was applied arbitrarily to William Furman, who was convicted of the 1967 shooting murder of William Micke, of Savannah, Ga.
        The high court ruled that the Georgia law lacked specific criteria to distinguish capital murder from murder warranting a lesser punishment and that it was "freakishly" applied from county to county. Furman v. Georgia, 408 U.S. 153 (1972). Furman later was paroled, in 1984.
        More than 600 inmates who had been sentenced to death between 1967 and 1972 had their sentences lifted.
        The reprieve was short-lived. States began to revise their death penalty laws. In the Gregg decision, the justices ruled the revised Georgia law constitutional, as it sufficiently defined the crimes for which individuals were death eligible. Gregg v. Georgia, 428 U.S. 153 (1976).
        (Gregg escaped from death row July 28, 1980, along with four other death row inmates, and was killed later that night in a bar in North Carolina.)
        In upholding Gregg's conviction, the court also ruled that capital juries were to be given specific guidelines to determine whether death was appropriate for any given individual. This requirement could best be met through a bifurcated trial structure, the court said, consisting of a guilt phase followed by a sentencing phase, during which the jury weighs aggravating and mitigating factors related to the defendant's life and culpability.
        Most states, including California, had provided no second phase, no formal guidelines for evaluating a defendant's life for sentencing purposes.
        In 1977, California passed a law to comply with Gregg. Then, on Nov. 8, 1978, the voters approved a new law that allowed the state to seek death under specified circumstances including robbery, rape or arson.
        Known as the Briggs Initiative, the law also required that special circumstances, or aggravating factors, must outweigh any mitigating factors such as remorse or duress to warrant death.
        The Legislature later would expand to 33 the number of categories of special circumstances that allow the state to seek death in a murder case.
        For defenders, Gregg presented both an opportunity and a new set of challenges, giving rise to what is known as the unified theory of defense.
        "What the bifurcated trial structure did," says Elisabeth Semel, a nationally known death penalty lawyer and director of the Boalt Hall Death Penalty Clinic, "was to require a level of consistency and competency through the guilt phase of trial but with an understanding that the sentencing phase was more likely than not to occur."
        The upside, according to Semel, was defenders began to realize that a deep investigation into a defendant's life - with the expectation that evidence of child abuse, mental illness or moral character would be essential at a sentencing hearing - also could be keys to a successful defense at the guilt phase.
        The downside was that the bifurcation also gave defenders more room to screw up by not paying enough attention to the subjective aspect of a death penalty trial, in which the jury is asked to have mercy on the defendant.
        For attorneys rising through the ranks of public defenders' offices throughout the country in the late 1970s, the post-Gregg era was an exhilarating time.
        "Most of us were born with Gregg," says Semel, who worked for the San Diego public defender from 1975 to 1980. "It instilled in us an inner drive for justice that became very personal. The pay was low, the hours were long and the commitment was unconditional."
        For some, it was more of a rebirth. Many, who would become the vanguard of the defense bar, had cut their teeth in the 1960s as social activists. Death penalty opposition was an offshoot of the civil rights movement, according to some veteran defenders.
        Others found themselves being mentored by a generation of lawyers closer to their parents' age. The professional environment was more conservative and less ideological yet equally principled, according to veteran Los Angeles defender Morton Borenstein.
        "We all came up through the public defender's offices, which were full of guys who had tried major death penalty cases back in the 1950s," Borenstein, co-chair of L.A. County's court-appointed panel for capital cases, says.
        "We had the support of our bosses and the support of our peers, and we all had the freedom to try cases within our own style," he says. "But even though many of us came from a left-wing perspective, we were taught to try individual cases, not causes."
        A sense of pride, camaraderie and self-identity evolved throughout the defense community, says Borenstein, who tried his first capital case in 1986 and since has tried six others.
        "You had to work up to it, start with misdemeanors, do some felony trials - rape, robbery, murder - before you took a capital case," he says. "It's brain surgery. It's bomb disposal. You've got to be sure-footed. It takes energy and stamina to do it and do it right.
        "That first capital case, you get a chill in the back of your neck. You think, 'My God, they want to kill this guy.' You don't sleep the night before. Your legs shake on the way to court and on the way home.
        "It affects your health and your personal life."
        Not to mention the psyche. Yet hardened death penalty lawyers can be tight-lipped on the subject of emotional reactions to their work.
        "I've tried death penalty cases at every level, and I've watched the state execute a human being," says one defense attorney who insists on anonymity. "I'm not going to compromise my ethics or my clients or my profession by talking about my personal feelings."
        "It's a mistake to assume that this kind of work is not battering and debilitating," Semel explains. "We've all known death or illness or family crisis or drug and alcohol abuse.
        "But to come out too publicly risks exploiting something personal that could be perceived by victims' families that we somehow belong on equal footing. None of us wants to engage in a moral competition. It's disrespectful. And it's an invasion of privacy.
        "It may look like stoicism, but to act otherwise would diminish the power of personal experience."
        Horowitz suffers no such inhibitions.
        "I think people who do what we do for a living have a hard time with the way other people see us, so they protect their self-image to avoid being misjudged," he says, downshifting the Honda as he turns up a steep grade toward his mountaintop perch. "The person we see in the mirror is not always the person society sees.
        "I don't worry about how society sees me. I've been ugly my whole life."
        But that's Horowitz, letting it all hang out. Others prefer the safe haven of The Tribe, where people don't ask each other about the breakdowns or the breakups. They all know. They've all been there.
        
        Ask defenders about another moment that defines their experience and you're likely to hear about David Washington.
        In 1976, Washington, a Florida man, went on a brutal spree of robbery and murder. He subsequently confessed, and against the advice of counsel, he pleaded guilty and waived his right to a jury trial for sentencing.
        At sentencing, Washington's lawyer argued to the judge that Washington had cooperated with law enforcers, expressed remorse, was mentally and emotionally disturbed as a result of economic duress and was generally a good person.
        The lawyer did not, however, introduce any psychiatric testimony to back up his claims and failed to present any of the 14 character witnesses who said they would have testified on Washington's behalf.
        After the judge sentenced him to death, Washington appealed on the grounds that his lawyer gave him ineffective representation.
        In 1984, the Supreme Court ruled that counsel is ineffective when a lawyer's performance is deficient and prejudices the defendant, depriving him or her of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984).
        Washington did not suffer such prejudice, the court ruled, but according to defense experts, the ruling established a precedent that would be the basis for hundreds of appeals of capital convictions for the next 20 years.
        Washington was executed by electrocution in Florida on July 13, 1984.
        Strickland called attention to the dangers of a poorly funded public defender system, particularly in the South, but it also implicated a brand of anti-defender that had emerged: unprincipled or well-meaning but deficient attorneys who botched capital trials.
        The offending attorneys came largely from the private sector. They were family practitioners who thought they'd give it a shot in the big leagues or small-time criminal lawyers looking to make a buck, death penalty experts say.
        Defenders are tormented by the shortcomings of their own brethren. It's just reality that stellar, committed lawyers inhabit the same universe as marginal, lazy ones. Plus, everyone loses a case sometime.
        "I'm sure I committed what amounted to malpractice in my first capital trial 20 years ago," says John Philipsborn, a San Francisco defense lawyer and head of the policy branch of California Attorneys for Criminal Justice. "And I'm sure I never made the same mistake again. But that doesn't mean I won't make a different mistake in my next one.
        "I just don't think everyone is conscientious about these lessons. There are a group of bright, talented lawyers. And there are plodders. And there are others who do this work cavalierly, which I find shocking."
        Philipsborn believes the stigma of the lesser breed of lawyer attaches to the entire defense community and the criminal justice system.
        "We've talked ourselves into this savior role, but what's really interesting is to see how others outside our community perceive us," he says. "Death penalty work tells us about the best and the worst of the court system, including how we as a society feel about people, and how we go about treating them with fairness.
        "Now, there appears to be a disconnect between the notion of a fair system and the public's notion that the truth is supposed to come out of that system and that the truth is supposed to be in the evidence.
        "Which is a stark realization, as we discover more and more people who have been condemned to death, but who didn't commit the crimes for which they were sentenced."
        The skeletons are still falling out of the closet. In 2002, Death Penalty Focus, an advocacy group, reported 70 death sentences being reversed in California since 1977. Ineffective assistance of counsel is among the top three reasons for reversal, the group reports.
        Improper jury instructions and prosecutorial misconduct are the other top reasons.
        Innocence projects, newfound DNA technology and revelations in Illinois that led to a moratorium on executions cry out for the public to notice, Philipsborn says, but the signs have been there all along that the system and its defense community are flawed.
        Death penalty lawyers increasingly bear the brunt of these revelations.
        Estimating that the average appeal of a capital sentence in California lasts 19 years and costs $1 million, a 2002 Mercury News study found the following:
• California spends more money on capital trials than any other state, but since 1987, it has had more sentences reversed because of trials marred by ineffective assistance of counsel than states such as Texas and Alabama, which spend less on capital trials.
• Two-thirds of reversals pertain to the death penalty phase of trial, not the guilt phase.
• The standards for lawyer qualification are inconsistent from county to county, and some counties have no minimum standards.
        The defense community has never hesitated to look inward for answers. The Tribe meets annually in Monterey and offers a mentoring college for rookies to review cases in progress. But they can do only so much, given the state's institutional limitations.
        "The public defender has always been resource-driven," Burt says, referring to a 1978 state law that provided $1 million per year to reimburse counties for indigent defense costs in capital cases. "In the early 1980s, there was a feeling that these cases could be won, and there was funding to back that up."
        In 1991, however, after the Legislature upped the total to $13 million per year, Gov. George Deukmejian vetoed the bill and redlined the existing funding out of the state budget, Burt says, leaving the burden of trial costs on California's 58 county courts.
        "Local budget functionaries came into the picture, and funding tightened considerably after that," Burt says. "There developed a pessimism [in the public defenders' offices] about the chances of doing these cases properly and successfully."
        As public and political support for the death penalty peaked in the 1990s, Burt says, lawyers following in the footsteps of the post-Gregg generation began to see the job as thankless.
        
        "They couldn't see it leading to anything good," he says.
        Perhaps more troubling, qualified people in public defenders' offices have been unwilling to do capital trials.
        "A lot of people do one capital case and never do another," Burt says. "One-timers. They restrict the pool of good lawyers."
        Worse, says Mark Zavidow, with the Los Angeles Alternate Public Defenders Office, is when public defenders' offices allow people to try capital cases without the proper experience.
        "There's a grading system, and some people are getting to the grade level where you can take a capital case, but they have nowhere near enough experience to try a case," Zavidow says.
        Terri Towery, a deputy public defender in Los Angeles, says that meeting the minimum qualifications to be appointed to a capital case does not guarantee that a lawyer has the interest or motivation to do one right.
        "Some qualified lawyers couldn't do a capital case on their best day," Towery says.
        And, veterans note, death penalty work has always been 99 percent perspiration and 1 percent inspiration.
        Which is yet another problem, given what some Tribal elders see as a certain sloth developing in public defenders' offices.
        "People didn't go to law school to study the psychological ramifications of being starved as a kid like a dog or being beaten by their dad every day," says one veteran Northern California defender. "They want to cross-examine witnesses. They think they can just walk guys away from murder charges. There's a sense of ego that has more to do with them than their client."
        James McWilliams, head of the homicide division of the Alameda County public defender's office, says he notices younger attorneys placing a higher premium on lifestyle and family.
         "When I started in this office, in 1970, it was a six-day-a-week job at the minimum," McWilliams says. "Sundays were optional in theory, but most people worked anyway."
        "People get burned out, feel abused or decide they've had enough," Semel says. "There's either an emotional deterrent to this kind of work or they become financially unwilling.
        "I'm concerned every time I call a public defender's office after 5 p.m. or on a weekend and can't get anybody."
        Kimberly Kupferer recently left the Alameda County public defender's office. Kupferer, 41, was the youngest member of the homicide division when she tried her first capital case, in 1994. She subsequently tried three others. Former colleagues speak highly of her, but she says she wanted to pursue a general criminal law practice in the private sector.
        "[Death penalty cases] can take over your life," Kupferer says. "The work is profoundly difficult. It's you and one other person against all the resources the state can muster. It's easy to get sucked in."
        Over time, whether because they lacked financial or human resources, public defenders' offices have been forced to refer more death penalty cases out to the private bar, defenders say.
        Court-appointed panels of private attorneys present similar yet different complications, says Burt, who retired from the San Francisco public defender's office in January and is a private consultant for the Federal Death Penalty Resource Project and the Mexican National Death Penalty Resource Project.
        Quality control and opportunism are two of the chief problems, according to Burt. For starters, some counties have grandfathered local members of the private bar with seniority onto the panels. The results have been mixed.
        Some private attorneys just see capital trials as a good flow of money, Burt says, which is not actually the case.
        Fees for trying a capital case vary county to county and can be either hourly rates or flat fees, defenders say. Hourly rates in California range from $75 to $125 per hour, with flat fees ranging between $60,000 and $200,000.
        "It's good money, if you do a case improperly," Burt says. "If you do a case properly, it can become an economic nightmare."
        Some fear the courts are providing a risky incentive by encouraging private lawyers to bid on capital trial work in some counties, which has led to friction with the public defenders.
        "There's already an institutional reality for the public defender to do 'HMO law,'" says one veteran Los Angeles public defender. "But if the work is too expensive in the public defender's office, private counsel will come along, do it cheaper and do it worse."
        Semel says the battle over court funding is "becoming an epidemic," a county-to-county scourge that threatens the cohesiveness of the defense bar and the quality of representation.
        "The court-appointed panel is supposed to be an ally, not a competitor," she says.
        Aware yet undeterred by the bigger issues, Horowitz says, "If I have a question or need some help, I just walk over to the PD's office and ask someone.
        "These are my people."
        
        It's 5 a.m., and the sun is just coming up over Walnut Creek. There's a nasty chill, and the fog is settled in the canyons below Horowitz's mobile home, which, today at least, does not smell of septic system.
        Time to meet members of The Tribe.
        Horowitz is already jacked up on Peet's coffee. He is bouncing from one laptop to another in his carpeted living room eating instant oatmeal.
        No wonder they call him "The Hurricane."
        Like his office, a wood-paneled hovel above a gay bar and Mexican restaurant in downtown Oakland, his home computer system is networked to the hilt.
        "I know lots of people," he says, sending out e-mails to members of The Tribe. "They'll tell you what it's like."
        Does he ever get tired?
        "How I feel doesn't matter," The Hurricane says, his New York accent still thick after all these years. "Tired is not an option."
        Fifteen minutes to play with his dogs, Amber and Shana, a quick check of the foundation and the wall framing of his home in progress, and Horowitz is changing his clothes to go into the city.
        "People don't want to smell my ranch," he says, slipping on a pair of Dockers and gray shirt.
        On the way to the Bay Area Rapid Transit station in Lafayette, Horowitz recommends a call to William DuBois, another Oakland attorney who tries death penalty cases referred by the court.
        "DuBois will be up," Horowitz says. "I don't think that guy ever sleeps."
        DuBois answers his cell on the second ring and offers a succinct analogy.
        "Doing death penalty trials is like table stakes poker, only the stakes are life and death," he says with a coarse laugh. "The state is betting they can kill your client, and your job is to call. It is a game in which you cannot fold."
        According to DuBois, who has 30 years' experience as a criminal lawyer, including several as a prosecutor, defending a man charged with capital murder creates an unfathomable sort of energy.
        "Fear and excitement can do amazing things," he says.
        As for the criminal justice system, that's a more complicated picture, he concedes.
        "In Illinois, they let all those guys go, but what kind of defense lawyers did they have?" DuBois says. "If things were getting out of control like that here, I'd have to be physically restrained."
        Horowitz is delighted by DuBois' candor. He enters the BART station and takes the subway into San Francisco.
        He emerges from the Civic Center station and enters the federal courthouse for a meeting with a group of lawyers collaborating on a wiretap case.
        Up on the 18th floor, in the attorney's lounge, Marin defender Kim Kruglick says death penalty lawyers have a duty to their client, the justice system and society.
        "There's a reason why someone finds themselves committing a crime and facing the death penalty instead of getting ready for their senior year at Stanford," says Kruglick, who colleagues say is on the cutting edge of using technology to preserve and analyze forensic evidence.
        "Our job is to find that reason, so society can see where it went wrong," Kruglick says.
         Like Horowitz and many of their colleagues, Kruglick says he was shaped by the civil rights movement. He moved to the legal side in 1974, when the humanity of his client accused of armed robbery suddenly seemed more compelling than the political campaign he was managing.
        Since then, he's had clients name their kids after him.
        "I'm like the old-time family doctor," says Kruglick, who has tried 20 murder cases, including 17 death penalty cases. "It's a weighty responsibility. Society doesn't trust them, and they have no one to trust but me. They 're going to rely on what's in my mind and my heart, and they're going to act on it.
        "We meet their wives and their families. We visit their homes. We eat dinner with them. We engender their trust."
        Horowitz meets with Kruglick for an hour and is back on the street, walking at a brisk pace with Thomas Jefferson Broome, a veteran defender he ran into on the way out of the courthouse.
        "I asked Tom for a moment of his time, and without a word, he started loosening his tie to give to me," Horowitz says. "What did I tell you about these guys?"
        Broome and Horowitz stride down the escalator of the Civic Center station, where they board the BART to Oakland. Riding the rails in his gray suit, red tie and matching handkerchief, Broome attracts attention with his tall, senatorial presence.
        Horowitz looks on with admiration as Broome describes, "back in the day," trying cases on behalf of the state as a probation officer in juvenile court.
        "But being one of those guys from the other side of the tracks, I never had any intention of doing anything other than criminal defense," says Broome, unfazed by the screeching sounds as the train descends below San Francisco Bay.
        Like Horowitz, Broome doesn't see his clients as monsters.
         On the contrary, he says, "I know lawyers who've gotten emotionally attached. That's a major problem."
        He also acknowledges that overall the quality of representation is lacking.
        "There are people out there who are suspect with their ethics as well as their qualifications," Broome says. "I don't care what you say, these [defendants] have a right to an adequate defense. That cannot be some guy with his head in the sand.
        "And even then, you need to get up to speed, so we have to give people a chance to stumble through a few cases to get their feet underneath them.
        "Then, you have to watch for qualified people falling off. Some have a distaste for capital work; others feel there isn't enough pay in it. The pay is limited."
        Horowitz and Broome jump off at the Oakland BART station. Several minutes later, Kathy Chavez, an appellate lawyer in Berkeley, pulls to the curb at the North Berkeley BART station in a beat-up Toyota.
        Chavez has reddish bangs and is dressed casually in floral print pants and a wool coat. Too bohemian looking to be a soccer mom, she has the look of someone who spends plenty of time at home, detached from the hurly-burly of trial work.
        "Our work involves more writing and reading," Chavez says, with a slight Midwest accent. "The work is solitary. You sit there with a phone and a computer. You feel the emotion of a trial even as you read a cold record, but then it is an intellectual exercise.
        "Appellate lawyers like it that way, but we like to complain about it, too."
        The job can be thankless.
        "Even when you win on appeal, say you got a sentence of 67 years down to 25, the client is mad, and I don't blame him," Chavez says. "It's hard to see your own successes."
        Chavez walks a fine line between the interests of the client and the reactions from trial attorneys who feel second-guessed, she says.
        "Some trial attorneys are sensitive that we are judging them from our ivory towers," she says. "I try to talk to them, not just to find out what they were thinking but to assure them that the focus is the client, not them."
        With hindsight's benefit, Chavez has developed a sense of what distinguishes good or adequate trial attorneys from great ones, she says.
        "There is a subtle moral strength in some attorneys, who embody that strength and communicate to the jury, 'Let the killing stop here,'" she says.
        "An equally competent or well-intentioned lawyer is not always able to convey that same moral authority," she says. "Which is too bad, because that's a terrible reason for one person to die and another person not to."
        Chavez sees how the gravity of the work can wear defense lawyers down.
        "I used to jokingly say I didn't want that kind of intensity," she says, "that it was OK to have it in my personal life but not in my working life."
        "But there are times when you can't turn it off," Chavez says. "I notice the difference in how people deal with the pressure. The drinking, the working out. It just depends on how they deal with it.
        "Appellate attorneys can be manic, too, but not with the same flamboyance."
        
        Back at his ranch, Horowitz is sneaking in a quick workout before meeting his wife for dinner.
        The afternoon sun is fading, and the wind is blowing through the open windows of a small barn his friends built for him, which he has turned into a customized minigym.
        "I don't know how other people deal with the pressure," he says, grunting as he leg presses a sizable rack of free weights. "I just play ball. That's all I've ever really done. I'm just a ball player from Queens."
        Horowitz is proud of the home he is building, and he suggests a short tour, stopping to point out the native wildflowers he planted throughout the hills on his property.
        He enters what will be the foyer and climbs a staircase that abruptly stops with no floor to step onto.
        "If I didn't get remarried, I'd probably just live in my mobile home forever, maybe build it out a little," he says, taking in the view of the valley below.
        Horowitz' wife, Pamela Vitale, a former hi-tech marketing executive, has joined her husband's law practice, in charge of database creation and management, he says. Vitale is still getting used to the constant shoptalk, she says, but has been affected by the notion that what they are doing affects the highest level of people's lives.
        "Danny is a genius, but he's starting to listen to me," she says over a plate of veal and prosciutto later that night. "We both can be pretty strong-willed."
        The two talk of family - Horowitz helped raise Vitale's two children from her previous marriage. They talk about the high rate of divorce among members of The Tribe.
        Horowitz's parents, who now live in New York City, wish he would do something "meaningful" with his law degree, he says, like First Amendment law.
        "They're not thrilled that I defend people who do horrible things," he says.
        But there's something about the adrenaline rush of fighting for someone's life, he says. Plus, he needs to make enough money to get that house built - no small motivating factor in Horowitz's or Vitale's eyes.
        "I'm told I relate to people," Horowitz says. "But I don't perceive myself as being warm or kind. I see myself as an aggressive, self-interested, competitive, goal-oriented guy."
        He recognizes those are qualities exhibited by people in his profession who are wealthier and more famous. And it bothers him, sometimes, when he thinks about all the money he could have made.
        Of all the members of The Tribe, "I'm probably the most mercenary," he says.
         "But they let me be that way. Some of them, I don't think they even care about money," he says.
        There's something larger that binds The Tribe, he says. Something that dwells in human instincts.
        Some relish the challenge. Some are just rebels. But others, maybe a majority of them, he says, feel as if there's no other place they can be.
        They belong underground, Horowitz says. In shabby offices. On the subway. Visiting prisons. Where the notion of good versus evil doesn't come close to the way life really is. Doesn't begin to respect the meshing of ideals with reality in a world gone slightly mad.
        "Lookit, I deal with people who express themselves in violence," Horowitz says. "And I come from a world of violence.
        "But I don't relate to my clients as people. I feel them as people. I know how to work with them on their level, and in some cases have helped them to lead better lives."
        Yet, at the same time, Horowitz doesn't see blue-collar credentials or even empathy as being what qualifies someone as a member of The Tribe.
        "See, it doesn't matter," he says. "The point is, we all transformed to the same place."



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