You have had an amazing legal career! You've worked with the Illinois State Appellate Defender, the Capital Habeas Unit of the Federal Defender of the Western District of Pennsylvania, and as a MAACS roster attorney. And you recently joined the Juvenile Lifer Unit at SADO. How does your previous work inform the work you are doing now, at SADO?

Nothing could have better prepared me. My 20-plus years of death penalty experience was entirely in post-conviction and habeas litigation. The bread and butter of this work is investigating and presenting claims of ineffective assistance of trial counsel at the sentencing phase which requires, among other things, scorched-earth mitigation investigation and a thorough analysis of trial counsel’s preparation and strategy. Such claims are successful only if you have done more than the previous attorneys, and that elevates the standard of practice substantially.

Death penalty teams strictly adhere to the standards set forth in the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the 2008 ABA Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. Juvenile lifer teams increasingly rely on these same treatises and for good reason: because Miller and its progeny are applied retroactively, many of our clients, like death-sentenced clients, were convicted long before the likely destruction of important social history records. Hunting for the originals or copies of such critical documents is key to developing a strong mitigation case. This takes commitment, skill, creativity, and teamwork. When I left death penalty practice in 2017, my goal was to represent clients serving LWOP and offer them the same standards of practice. I quickly learned that developing a strong team is extremely difficult for a sole practitioner, and I was delighted that I was able to join SADO’s juvenile lifer unit last fall.

Do you have any advice for state-practice criminal defense attorneys, so that they can best protect their clients' cases for federal habeas corpus review?

I’ll start with the obvious, which is preserving and constitutionalizing alleged errors at every stage of litigation. But unless every claim you intend to raise in federal court is record-based, preservation is hard work. Most injustices are not apparent from the trial court record, and your challenge is to convince the federal court that you were denied a fair opportunity to litigate a potentially meritorious claim in state court. The state court record is likely to be all you have for federal habeas because your options for expanding the record in federal court are extremely limited. If you fail to develop relevant evidence in state court, you need to make a record in state court of your diligent efforts to do so. You should consider every discovery tool that is permitted in your jurisdiction. You’ll find that there is a tension between what you want the State to know about your investigation and the need to create a strong state court record of your due diligence. So you need to be creative and consider filing ex parte motions to acquire relevant evidence. And if MIDC funding is available, take full advantage of it.

In that vein, do you have any advice for state-sentenced prisoners, to help them navigate the federal habeas process?

Sadly, the only advice I can give at this moment in history is to win in state court. Federal habeas law is bad for petitioners and gets worse all the time. It is also considered one of the most complex areas of law, yet there is no right to counsel for indigent petitioners except for those under sentence of death or in the rare cases where the district court orders an evidentiary hearing. The pool of private attorneys with sufficient skill to handle these cases is very small. If you can’t afford one, you can attempt to convince the federal district court to exercise its discretion to appoint counsel, but that is a very hard sell. I am sorry to be the purveyor of such bad news, but there you go.

From your experience, what could the Michigan criminal legal system “learn” from the criminal legal systems in Illinois and Pennsylvania? And are there things that Illinois and Pennsylvania could learn from us?

Interesting question. What distinguishes Michigan’s appellate system from most others is the ability to expand the record on direct appeal when there is a right to counsel. As a result, there is a potential for much greater success in post-judgment proceedings than in most other states where indigent post-conviction petitioners in non-death-cases have no right to counsel without an initial threshold showing of potential merit. However, in death penalty states where expansion of the record takes place on collateral review, the law and practice seem far more developed than in Michigan. With the availability of funding from the MIDC, Michigan has an opportunity to devote much greater resources to post-trial record development. I would suggest that all practitioners study the 2003 ABA Death Penalty Guidelines for new ideas and strategies.

We are currently seeing changes in terms of the way the Michigan courts view life sentencing of young people – examples include the decisions in People v Stovall (2022) and People v Poole (2024). Do you think this is part of a national trend? Is Michigan ahead or the curve, in the middle, or something else?

I don’t have a national perspective, but as to the states I’m familiar with, Michigan is ahead of the curve as to age expansion. However, other states are ahead on “de facto life” expansion. One promising sign in Pennsylvania is that its Supreme Court recently granted leave to appeal to address whether mandatory LWOP for felony murder is unconstitutional as to defendants of any age.

Tell us about one of your interesting cases.

Just one? That’s tough. I’d prefer to list the variety of subjects I’ve had the privilege to investigate and research: adolescent alcoholism, Munchhausen’s by proxy (now known as factitious disorder), homicide masquerading as SIDS, childhood lead poisoning, judicial corruption, and fair cross section violations. I’ve also found countless needles in haystacks hiding in exotic places, including the only existing copy of the transcript of my client’s Chicago trial testimony in a filthy basement storage room in Phoenix, Arizona; connections between the Cook County judiciary and the Chicago mob in files at the U.S. Attorney’s office; the tiny symbol µg/dL scrawled at the bottom of an elementary school record, which prompted research into my client’s lead poisoning; the explanation for my client’s attorney being MIA on the date of the capital sentencing hearing in the attorney’s discipline file. Finding such nuggets are the great reward of scorched-earth document investigation.

What changes would you make to the criminal legal system?

Here are my pipe dreams:

1. provide the right to well-resourced counsel to every defendant at every stage of litigation;
2. systematically examine the process of jury venire composition in every jurisdiction;
3. abolish the felony murder rule;
4. abolish LWOP; and last but not least,
5. abolish the death penalty and redirect its costs to non-capital indigent defense.

The common reasons offered for abolition is that the death penalty is not a deterrent, it’s immoral, random, racist, and reserved for the poor. But less often mentioned is that it sucks resources from the rest of the criminal legal system, state and federal, in a grossly disproportionate manner. Both thumbs up to my home state of Michigan which was the first English-speaking jurisdiction in the world to abolish it!

Kathy Swedlow
CDRC Manager and Editor

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