SPEAKER_00 0:02

Hello, everybody. This is John Katz. I'm a Fairfax DWI and criminal defense lawyer here in Northern Virginia. This is Beat the Prosecution. I am delighted with today's guest. This is the first time I'm meeting her. Her name is Sandra Babcock. How did I learn about her? Well, with this Krista Pike uh fiasco with her botched uh execution effort, I was looking for a guest, and uh one of the people I came across was uh through this uh organization called Death Penalty Worldwide. I contacted a previous uh guest, Joe Margulis, who's been on my show twice, said, Well, you know, do you know uh who I can contact at the death penalty worldwide? He said, Yes, my wife, Sandra Babcock. She she runs that program. It's a small world, and I'm not gonna go into it on and on because I've already covered it with Joe twice, but I can't mention Joe Margulis without at least mentioning also the first Margulis I knew in the family was Sandra's uh late father-in-law, Irv Margulis, a great guy and a law partner at my first law firm. Uh we're gonna talk to Sandra about uh fighting the death penalty domestically and worldwide, and also about fighting prosecutorial bias and any other uh courtroom bias against women, both in the capital and non-capital setting. Sandra, please introduce yourself and please tell me if I got any of that wrong and if we should be discussing anything else as well.

SPEAKER_01 1:32

You got it right. Um, I am a lifelong indigent defense lawyer, former public defender, uh, and clinical teacher. I am a professor at Cornell Law School where I teach an international human rights clinic. Uh, and before that, I taught at Northwestern. And before that, I was in private practice doing indigent defense. Uh and I'm happy to be on the show today.

SPEAKER_00 2:01

Now, what led you to doing criminal defense and capital uh defense and doing uh the other work you've been doing?

SPEAKER_01 2:12

Well, I came into capital defense work because when I was in law school, I had the great fortune to hear Brian Stevenson speak. And at the time he was probably, I mean he's only six years older than I am, but he seemed far more wise and um and inspiring than his years would have, you know, allowed. And he um inspired me enough that I decided that I wanted to graduate law school and do death penalty defense work, just like Brian. So that's what got me into capital work. And um, and I'd always been interested in being a trial lawyer as well. So I did capital work a few years in Texas doing post-conviction representation of people facing the death penalty at a time when the death penalty was really close to its zenith. Um, and then moved up to Minnesota and was a public defender for five years. Um and it really enjoyed being in court. And then I went into private practice and did more criminal defense work, um, sort of more at a national level.

SPEAKER_00 3:22

Where was this that you were in private practice doing criminal defense work?

SPEAKER_01 3:27

I was also in Minnesota. So I I lived in Minneapolis for 11 years uh and uh was in private practice for oh gosh, about six years or so um before I took a teaching job doing clinical teaching.

SPEAKER_00 3:46

Was that as a solo practitioner?

SPEAKER_01 3:48

Yes.

SPEAKER_00 3:49

I see on your resume, Mexican Capital Legal Assistance Program. Was that a full-time gig that you were doing?

SPEAKER_01 3:57

So I, as a, when I was in private practice, I was approached by the government of Mexico to be the inaugural director of a program that was set up by Mexico to defend Mexican nationals facing the death penalty in the US. That was um shortly after I entered private practice. And I was happy to do that, and um, that program grew every year until Mexico was pretty much my only client. It was a pretty big client. Um, and it was a great program, and the program actually is still going strong. And I still do represent Mexico in some cases involving Mexican nationals.

SPEAKER_00 4:43

So, how does that work? Does that involve people actually doing the frontline criminal defense or support work?

SPEAKER_01 4:50

What I did as the director of the program was to make sure that Mexican nationals had quality legal representation. So we had a group of lawyers. At first, it was a very small group, but experienced capital litigators who, when they learned about cases, either post-conviction or pretrial, would reach out to counsel and see if people needed any assistance, talk to them about some of the special issues that arise in these cases, some of the cultural issues, language, linguistic issues. Um, and you know, there's a lot of really mitigation in these cases that is very different from the kinds of mitigation that you see in somebody who grew up in the US. So we would also educate lawyers about how to do that kind of investigation in Mexico, uh, what kind of things to be on the lookout for, like exposure to toxic pesticides and chemicals and things like that. Um, so it was a lot of training and litigation support, essentially.

SPEAKER_00 5:54

So, where were you finding these lawyers? Were you finding lawyers that were uh already experienced doing capital defense and uh adding the advice to them?

SPEAKER_01 6:03

A lot of, yeah. So what there were a lot of the lawyers, I looked for people who had some Spanish language skills. Um there was hard to find at that time. Um experienced capital litigators who were also bilingual, but I really looked hard for bilingual capital lawyers and mitigation specialists so that they could bring, you know, so that they could fully understand um some of the cultural and linguistic issues that arise in these cases. Um, and then we just did a lot of training and and learning as we went. We learned a lot from um our clients and from our, I mean, our clients, meaning the government of Mexico, but also um the men, mostly men on who were facing capital trials, who we spoke to over the years. I probably met, I don't know, a hundred different people who were Mexican of Mexican origin, who were either already on death row or um facing capital trials and you know, spending time in jails. So those folks educated me a lot about what it takes to represent somebody who grew up in a country like Mexico.

SPEAKER_00 7:15

For this program currently, does Mexico actually uh make uh money available for the for the lawyers doing the frontline representation, or is this more uh for for advice to to these folks, lawyers?

SPEAKER_01 7:28

They do sometimes, uh, but most often it's one of those programs where they try to maximize their impact and reach as many pro, you know, reach as many cases as possible. Um and as you know, capital case representation is extremely expensive for a variety of reasons. So a lot of times what Mexico will do is they'll provide resources for experts. Um, sometimes it's hard for people to um to get the funds that they need for the right kinds of experts in these cases, or they'll help fund investigations in Mexico. Um, so they'll provide not as much legal fees because typically people are either appointed or they're public defenders in these cases. So they're paid by the state, but oftentimes they don't have an adequate budget to do the kind of um investigation that they need or expert consultation to mount uh an adequate defense.

SPEAKER_00 8:24

Is this unique to Mexico or are there other countries that also support their nationals uh facing uh capital prosecutions in the U.S.?

SPEAKER_01 8:33

This one is pretty unique to Mexico. Mexico is uh extraordinary in its commitment to the defense of Mexicans facing the death penalty.

SPEAKER_00 8:43

So, what motivated this? Were there some woolly-headed liberals in Mexico or just level-headed folks opposed to the death penalty?

SPEAKER_01 8:50

One of the people who was behind this at its at its inception was someone who I had worked with when I was a capital litigator in Texas, um, on the case of a Mexican national who'd been wrongly convicted and sentenced to death for a crime he didn't commit. Um, that case was very high profile in Mexico. Um, there was a movie made about the case in Mexico. Um, he was, his name was Ricardo Aldape Guerra. He was eventually exonerated and liberated and went back to Mexico. Um, and one of the Mexican officials who was involved in that case as a as a consular officer in the Mexican consulate in Houston became convinced that it was it was important to make sure that all Mexican nationals received competent legal representation because of the risk that innocent people could be wrongly convicted. So that was the sort of the origin story of this program. And over time, um, and you know, in in my experience, sort of bears out that uh before this program existed, Mexican nationals routinely got substandard legal representation in part because most lawyers didn't have that sort of bicultural understanding and they lacked the language skills to communicate with clients whose first language was Spanish. Um, so a lot in a lot of these cases, you had people who had intellectual disability that was never uncovered. Um, we had people who were actually innocent, both capital and non-capital cases that I got involved in when I was in that program. Um and a lot of times it's just that people were um they got railroaded essentially through a combination of inefficient or inadequate lawyering, but also um racism. Um, there was a lot of anti-Latino, anti-Mexican bias in a lot of these cases. Uh, that was the case in the in the in the one that I handled of Ricardo Aldape Guerra, the Klu Klux Klan, demonstrated outside the courthouse during his trial because he had um been charged with killing a police officer, which he had not done. Um, so you know, these cases were were really compelling. And um, but there were a lot of reasons why Mexican nationals were and remain particularly vulnerable. You know, you can imagine in the current client, in the current climate, the risk of um bias infecting the proceedings is is very high.

SPEAKER_00 11:37

How widespread is the language barrier uh right now between lawyers and their clients for both capital and non-capital cases in the US?

SPEAKER_01 11:48

You know, I can't say um I I don't have any statistics on that. Um my guess is that it's still a problem. Uh, but I believe that there are a lot more trained bilingual mitigation specialists and investigators than there used to be. Uh, and there are more lawyers who are bilingual, but it's still a minority. Um, and there's no guarantee that somebody who's bilingual is going to be appointed to one of these cases. So, you know, my guess is that it's a bit better than it was, but it's still a problem.

SPEAKER_00 12:22

I see you graduated from law school two years after I did. You graduated in 1991 from Harvard. What was the climate like at Harvard uh among students who wanted to go into public interest, however you uh define that, and people want to be public defenders because I gagged when I saw uh something, I think, on the Harvard Law School website, uh telling people that uh the law school would help show people how to do a good application to become an assistant U.S. attorney.

SPEAKER_01 12:52

Yeah, well, it's funny because I just had my 35th law school reunion um at Harvard, and um a lot of prosecutors and former prosecutors in the room. Um actually, Harvard was for me, um I didn't know anything about the law when I went to law school, but the first thing that I did is I found somebody who told me that I should work at this prison legal assistance project, which was a student-run clinic, um, providing pro bono assistance to prisoners in the state of Massachusetts. And that became my home in law school. Uh, that was my introduction to criminal defense work. Um, I loved working with prisoners. Um, I loved the people that I, the other students who were involved in that work. Um, they were progressive. We were all involved in activism on campus, protesting the lack of faculty diversity. One of my classmates was Barack Obama. Another one was Neil Gorsuch. So there were, you know, plenty of, you know, illustrious people in my class, but the people that I hung out with were the people who really cared about justice. Um, and many of them I'm still in touch with. Um, and we were, you know, we were devoted to our clients, and we were, you know, we thought of ourselves as being sort of on the vanguard of social of a social justice movement. So it was not a bad place to be, even though I feel like the majority of my classmates didn't follow the same path that I did into the law.

SPEAKER_00 14:29

Was Jane Kelly one of your classmates, the Sixth Circuit Federal Judge?

SPEAKER_01 14:35

That's a good question. Her name does not sound familiar to me, but you never know. It's a huge class, over 500 people.

SPEAKER_00 14:42

She was in my section of the National Criminal Defense College uh Trial Practice Institute.

SPEAKER_01 14:47

Oh, that's a great program.

SPEAKER_00 14:49

Yes. I went in 1994. Um, so you're the you're the uh director of the Cornell Center on Death Penalty Worldwide. What is that center uh and what do they do?

SPEAKER_01 15:03

The center um was I set it up to provide a couple of different things. Um, first of all, there was no way back when we started this, um, and we started doing the work that you know created the the sort of the foundation for the center back in 2011. And at the time, there was no way to find out what every country's practice was with respect to the death penalty. There was no, um, there were a few published sources, but they weren't publicly accessible. There was nothing online. Um, and a lot of times you would find that there was disagreement between published sources about, you know, what the law was in, let's say, Kuwait or Iraq or, you know, Nigeria with respect to the application of the death penalty. And that made it hard to come up with um, you know, to do research and to find out, you know, where we were at with respect to abolition globally. So our goal first of all, first of all, was to create a publicly accessible database that journalists and scholars and lawyers could use to find out, you know, what were the trends, um, you know, what was going on globally and to make our sources transparent so that everybody could check our work if they, you know, if they mistrusted a data point. They always knew where we got that data. Um, so that was the first thing that we did. The second thing that we did was to identify gaps in knowledge about the death penalty globally. So there were some things in the United States, there are some things in the United States that we do very, very well, I think, as a community, you know, when I'm talking about the death penalty, the community of practitioners who do death penalty work. And one of the things that I think we do quite well is looking at mental health and how mental health affects decision making, how it can affect impulse control, how it can affect and uh determine to a certain extent the life choices that people make in ways that mitigate their culpability. That is something that is very novel in many countries. In many countries, there is no room in the criminal law for anything other than the insanity defense or competency to stand trial. But there's nothing that goes beyond those two very narrow legal inquiries, which as we know are not, those are not clinical assessments. You know, psychologists and psychiatrists, they don't, in their day-to-day practice, they don't determine whether somebody is meets a legal definition. They determine whether somebody meets a clinical definition of a of a mental health um, you know, what's considered to be, you know, a mental health disorder, a mental health illness, a mental illness. And so one of the things that we tried to do very early on was to educate practitioners around the world about the spectrum of mental health issues that affect people who are caught up in the legal system and how that affects their behavior in ways that are relevant both to culpability for the crime and that are relevant to what we would call their moral culpability or mitigation and how that should affect the sentence that they receive. So that was one of the things we got involved in very early. Another thing that we got involved in is looking at women. Um, and that came out of work that I was doing at the time in Malawi, where I had been taking students for about 10 years and working with prisoners who were facing the death penalty in Malawi. Uh, and some of my prison of the people that I represented were women. In the United States, I had never had a woman client facing the death penalty. And all the time I've been doing death penalty work, I had never had a woman, this was in, I guess, in 2000 by 2007, um, never represented a woman, um, apart from when I was a public defender. So it was novel for me to represent women who were on death row. And their cases taught me very, very quickly that women's cases are very different from men's. It might sound pretty obvious, but it's something that I had never really thought about. Never been trained, you know, never gone in all the trainings that I'd gone to, I'd never gotten a training on how to defend women. And that um sparked an interest in um looking at how women's cases were being handled, how many women were on death row, and I found that nobody had been tracking that data. Nobody knew how many women were on death row around the world, nobody had ever paid attention. It was this huge blind spot in the abolitionist community. And then during the pandemic, when I couldn't travel, I started to look at the cases of women in the US. And it was the same thing. Um, we found that, you know, women as a whole, even though we knew how many women there were on death row, nobody had ever really taken a systematic look at those cases to figure out what were some of the characteristics that were that shaped the lives of these women, what were some of the patterns that we could discern in the kinds of crimes that they were being charged with, in the kinds of evidence that was being introduced against them, and some of the prosecutorial tactics. That was research that had just never been done on a on a on a wide-scale basis. So that was sort of the intro into defending women, advocating for women, and doing research to try to fill that gap in our knowledge about um gender bias and the death penalty.

SPEAKER_00 21:25

Yes, you've written several important articles about disgusting uh gender bias to s to start with or bias against women uh by prosecutors. Please address that. And and how can that uh uh th those bias violations be used uh to to get uh some relief for these these women in court?

SPEAKER_01 21:48

Well, when it comes to gender bias, one of the things that was uh uh really shocking, um even though I I kind of expected to see it because of the cases that I had worked on, but The level uh the extent to which women on on trial are sexualized and are um scrutinized and criticized for their appearance is something that um on on one level I expected to see it. On another level, I was utterly shocked at how extreme the the prosecute, especially the prosecutors' tactics were in trying to um denigrate women by reference to the number of consensual, intimate relationships they'd had, um, by reference to the type of clothing they wore. Uh we found cases, and this is, you know, I looked at a data set that comprised all women who are currently on death row, uh, 48 women total. And we looked at all, we read all the trial transcripts and looked in particular at the closing arguments at both the guilt and penalty phase by prosecutors and defense lawyers to try to see, you know, whether women were being described in terms that we would that would invoke gender stereotypes. So that was the baseline question. And one of the things that emerged very quickly is that women are are, as I said, they're sexualized to a degree. They prosecutors in one case introduced um sex toys that a woman had used in her private life. They have zero relationship to the crime. I mean, this is evidence that has zero relationship. There's zero relevance to this to this evidence. They would introduce, they bring in witnesses just to testify that she had worn a low-cut top to a bar. Um the most uh agree, one of the most egregious cases is that of Brenda Andrew, who's actually in front of the Supreme Court right now, where the prosecution, in the in the in their guilt phase closing argument, uh displayed a pair of her thong underwear and said, This is not the kind of underwear that a grieving widow would wear. And that just blew my mind. And you need only think about, you know, the the how ludicrous it would be for them to, you know, to raise a pair of men's jockeys in front of the jury and say, you know, this is not the kind of underwear that a grieving man would wear. I mean, it was so deeply gendered, it was, you know, and it just hearkened back to all of these things that we know have happened to women over the course of history, you know, going back to the witch trials, um, where women's sexuality was scrutinized as evidence of guilt, of moral transgressions. And that is happening, it's happening now. I mean, this is not something that was just happening, you know, 100 years ago. And so I read these trial transcripts and it just blew me away. Um so we we published uh a paper that looked at that, and now we're looking at the cases of men to try to prove that these are not tactics that are used in men's cases. And sure enough, I mean, our initial findings are that this never happens. Like men, for example, their appearance is never scrutinized. You know, that when you look at evidence in argument in men's cases, prosecutors never say, oh, you know, look at this low-cut top that he wore, you know, to the bar. It just, yeah, you laugh. I mean, it just, of course, it never happens. Um, they never talk about or compare their appearance in court to their appearance unless it's, you know, talking about their weight or it's an identification issue. Um, you know, if somebody raises an ID question, then of course there's discussion of someone's appearance, but it's never sexualized the way that it is in women's cases. So that was just, and then, you know, then you get into things like parenting and the way that that prosecutors and defense attorneys too characterize women's role as parents in ways that are so laden with gender stereotypes, uh, in ways, again, that do not happen in men's cases. So, so all of these things um are, you know, uh, like I said, they just kind of went under the radar. Nobody ever realized that this was something that was happening systematically in cases involving women in the criminal legal system.

SPEAKER_00 26:39

How many women are on uh federal death row and have been on there? Because I think there was at least one or two executions last few years. And how many, how many in federal court uh face that bias as well?

SPEAKER_01 26:52

So there was there are no women on federal death row now. Lisa Montgomery was on death row. She was the only woman on death row. She was executed by the first Trump administration. Um, her clemency hearing was held the day on January 6th, which people will remember. Um, literally, as her lawyers were making their clemency presentation, um, people were storming the Capitol. Uh Lisa was somebody there was an egregious gender bias in her case, um, as well as uh just a horrific account of her, you know, history of child sex trafficking and rape, repeated rape. Uh Lisa was horribly sexually abused. And that's the other thing that we find in these cases is that women, 96% of women on death row have experienced one or more forms of gender-based violence before their incarceration. And this was true of Lisa as well. Um, that didn't matter, the president. He, you know, the Justice Department plucked her out of uh, she was not the next in line to be executed. They literally plucked her out of a group and set her execution date, um, even though if they had gone in chronological order, they would not have picked her. And they were completely on indifferent to the evidence of of gender bias and and trauma that affected the quality of justice that she received. Um, and and she was executed. But that was so she was the last person, the last woman on federal death row.

SPEAKER_00 28:31

Was she plucked out to uh make an example of her that uh the women aren't safe from the death penalty?

SPEAKER_01 28:38

You know, it's we we really debated that because of course nobody really knows, right? We're not privy to the conversations that were held in the Justice Department between the people who had that power. Um it was a brutal time where they were trying, you know, was there was this like frenzy of violence, you know, right before the end of the first Trump administration. Um and so there were, I can't really seven people who were scheduled to be executed in you know, December and January, right before Biden took office. Um, and most of those people were in fact executed. And we just, we didn't know, and it was one of those cases I thought Lisa would never be executed because her case was so powerful. And what made it hard, uh, particularly hard, is that if she had, you know, if we had been able to get her a stay of execution, you know, she would have had her sentence commuted by Biden, because he commuted the entire row with, you know, a couple of exceptions. Uh, but but we couldn't. So I don't know. It was um, I think that, you know, this this president is more um enthusiastic about the death penalty than any president in recent memory, and you know, including this, you know, uh since uh reversed, you know, decision that they were gonna publicize and live stream an execution like this, you know, he is he is, you know, the death penalty, a lot of people say is is a is a expression of state power. So, you know, in many ways, the death penalty is more about state power than it is about punishing an individual. So if you follow that logic, then it makes sense that in an authoritarian regime, or at least a regime that has a very, very strong leaning toward authoritarianism, that there would be a very strong inclination to increase use of the death penalty, because it shows that the state is willing to do anything, including use lethal force to um achieve its ends. Right. So why they choose a woman to make that? Because it is the, you know, it is a sign that they won't be deterred by anything, that they will go after the weakest, they will go after the strongest, um, they will make an example of whoever they want because, you know, they're tough.

SPEAKER_00 31:16

Do you have any um data about where the bias was uh uh most commonly exerted in court? Of course, I guess probably in the South, because I guess the South and Texas is where the death penalty is most active. Uh, and as well, uh, do you have examples of the criminal defense lawyers just not objecting when they were supposed when they should have been objecting to the bias going on in the courtroom?

SPEAKER_01 31:41

So surprisingly, a lot of the worst examples are in California.

SPEAKER_00 31:45

Okay. Not okay.

SPEAKER_01 31:47

No, yeah, I mean, it's it's it's it's true. I mean, it's it's all over the place. Ohio had a terror, there's a terrible case there. Um, same thing where they talked at length about the color of the defendant's underwear, about, you know, trists in hotel rooms. Um, you know, so this is happening all over the country. There's, you know, there's really no pattern that we've been able to discern. Brenda Andrews case is out of Oklahoma. Um, there's a really bad case out of Arizona, but really there's there, they are all over the country. So I, you know, like I said, there's there's no real pattern, and it it is pretty um, it seems to be a you know, a pretty common prosecutorial tactic. Not just men pro male prosecutors either. There are some women prosecutors um that are engaged in these tactics as well.

SPEAKER_00 32:44

And do you have examples of the criminal defense lawyers not objecting when they're supposed to object and seeking other relief like motions and Lemina and anything else?

SPEAKER_01 32:53

They never file motions and lemonade. So again, think about it. Like, I don't know about you as a criminal defense lawyer, but you know, when I was a public defender, the, you know, 95% of my clients were men. I never ever got training in how to defend a woman. Um, it never even, you know, I knew about racism in the criminal legal system. I knew about, um, and I knew to the, you know, to think about racism and jury selection. I knew to think about racial bias in terry stops and in, you know, the way that people were targeted for prosecution. I never ever thought once about how my client could face bias because of her gender or her gender and her race together, because we also know that women of color face different kinds of bias than white women. And so I just didn't know. Um, and I suspect that that's the case for most defense attorneys. So we never ever saw in any of the cases, there might have been one case where there was a motion in lemon A to prevent certain kinds of evidence from being introduced that was, you know, sort of salacious evidence about a previous relationship. In the great majority of these cases, there was no objection, um, no motion in lemon A. And the evidence came in um, and there were no instructions, no request for corrective instructions, and it just went to the jury, you know, unfiltered.

SPEAKER_00 34:27

So the name of the case that's in the uh U.S. Supreme Court right now is called Andrews?

SPEAKER_01 34:33

Andrew.

SPEAKER_00 34:34

Andrew. And what is the uh when is that going to be argued or has that been argued already?

SPEAKER_01 34:39

Well, it's up on CERT. So it's the second time it's been before the Supreme Court. Uh, it was a landmark case because uh in 2025, when it was first up in the Supreme Court, they uh reversed and remanded to the 10th Circuit Court of Appeals and held that the 10th Circuit needed to assess whether the the evidence in this case, the prosecutor, prosecutorial um misconduct in this case, was so extreme that it undermined Brenda Andrews' due process rights, um, and that it was fundamentally unfair. That was the question that they remanded the to the 10th circuit to determine. The 10th Circuit then uh looked at the evidence and said, no, we think this is fine. Uh we do not find that this was unduly prejudicial, that it did not render her trial fundamentally unfair. Um, and they sent it back to um, I mean, they they dismiss they dismissed her habeas petition. So that decision is now going back to the Supreme Court. Um, there are six amicus briefs, I think, that have been filed in support of Brenda Andrew, including one by gender justice organizations, um, pointing out the, you know, that this was just a, you know, unjust a flat out, you know, a flat-out wrong decision by the 10th circuit, um, a panel of three men, I should probably say, that determined that this evidence was not prejudicial and did not undermine her fair trial rights. Um, it's it's really hard for me to even entertain the idea that people could think that this was not prejudicial.

SPEAKER_00 36:37

And what was the prejudicial um activity?

SPEAKER_01 36:41

Well, so it was, you know, I gave I gave you the example that they held up her underwear and said that was the case.

SPEAKER_00 36:49

Okay.

SPEAKER_01 36:49

This is the case. But it wasn't just that. I mean, there was it was a steady drumbeat of evidence that was introduced, both at the, you know, at the guilt and then at the penalty stages of trial, that was um, pointing out the kind of clothing that she wore, that she flirted in the grocery store with someone while her kids were with her. And so that was also taken as evidence of not only that she was somebody who was promiscuous, but somebody who was a bad mom because she flirted with somebody in front of her children. Um there were there was a uh witness who came in and talked about um that she had dyed her hair a certain color. There was another who came in and talked about uh consensual sexual relationship that they had had. There was evidence about her sexual relationships going back two decades, two decades before the crime. Um, so you know, when you take all of that together and when you think about especially the question at the penalty phase of a trial, is to determine whether this is somebody whose life is worth sparing. Um, and you throw all that evidence of, you know, what many jurors would, and this is an Oklahoma jury, what what many people might think of being raised in that culture as evidence of moral depravity. And then there's no there's no judicial instruction that tells them how to consider that and whether it's appropriate to consider that in deciding whether or not she should live or die. Um how can you possibly say that that there's not a substantial likelihood that that affected the juror's consideration of whether or not she should live or die? You just it it it it is to in my to my mind, it is is absolutely it is mind-boggling. Right. The other thing to know is that this was not an extremely aggravated homicide. It's not like a lot of other death penalty cases, in that um this is not a case that involved um, you know, allegations of torture. There were not multiple victims. Um, the victim was her her husband. They were estranged at the time, but it was her husband who was shot and and killed. And that is, you know, as you know, as a criminal defense lawyer, that is a all homicides are terrible. I'm not, you know, justifying homicide. I'm not trying to make light of the consequences to um to the victim's family. But if you do death penalty work, you know that most capital cases are far more aggravated than that. Um, this one was not. And so when you look at that as well, um it also matters um when you introduce all of this evidence that this is a person whose whose morality is in the gutter. Um, and you don't tell the jury that that's something that they that they shouldn't take into account.

SPEAKER_00 39:53

So the cert position has not been decided upon yet?

SPEAKER_01 39:56

No, it's it's been up there just for a few weeks. Um the state just submitted its brief in opposition, so it should probably be conferenced in January.

SPEAKER_00 40:07

And to what extent are there transgendered people who are being prosecuted for uh capital, um uh for capital cases and on death throw, and and and to what extent are they dealing with uh all sorts of bias uh as well they they shouldn't be experiencing?

SPEAKER_01 40:23

So um so my research mostly focuses focuses on cis women, and that's because um my research is looking at people who presented as women at the time of trial. Um there are six uh people, six trans women that I know of who are on death row right away. All of them transitioned uh after trial. So they're they didn't present as women at the time of their trial. That having been said, uh, when it comes, there's a big case right now, for example, involving a group of people, uh, some of whom are trans. And I think that one of the big questions in the current political climate is how you can have a fair jury to determine questions of not only guilt or innocence, but again, sort of the um eligibility for the death penalty, when for the last you know, few years there has been such a public campaign uh to demonize trans people. Um, it just came out the other day that the Trump administration is looking for people to conduct research that connects trans identity with violence. You know, yeah, to try to demonstrate that trans people are intrinsically more violent. So it's um so like I said, I don't I don't have data, but I think that the question that I would have in any of these cases is the fairness of of of the jury pool and and whether you can find a jury that is really going to give folks who are trans a fair shake. Um and you know, I think that's really, really hard in so in some parts of the country.

SPEAKER_00 42:18

Krista Pike, have you still been following what's going on with her case? And is it enough uh that she was so uh uh tortured that uh there could be an argument that um at some point your body and mind get so tortured that you're not fit to be executed again? Or to be to be an execution victim again.

SPEAKER_01 42:39

Yeah. Um yeah, so I I'm I'm still part of her team, and you know uh that is another case that is just uh it's almost hard to find the words to talk about it because what happened to her has never happened to anybody before. I know you had Corinna Lane on a few weeks ago um who spoke about that case, and nobody has ever survived uh an attempt at lethal injection, um, where the, you know, two doses of, you know, two lethal doses of poison were injected into Krista's body and she survived. Uh that is uh in my mind, that is pretty much the strongest Eighth Amendment claim that I have ever, you know, that I could ever imagine. Uh it's a case that I I fully expect that Tennessee will still try to execute her, unless the governor grants clemency. And if Tennessee does try to execute her again, then this is something that I think will go up to the Supreme Court because, you know, it's an unprecedented case. There is no other case like Krista's. There is no other person who has been subjected to the kind of torture that she did, that she experienced during the botched lethal. Injection. She is still recovering. She is, you know, she's she's speaking, she's eating, she's breathing, she's, but she is still badly injured, um, both psychologically and physically, and nobody really knows whether she'll fully recover.

SPEAKER_00 44:20

I didn't know you were on her team. What is your role in Krista Pike's team?

SPEAKER_01 44:25

So I've been representing Krista for about six years now. Um, I filed a petition on her behalf with the Inter-American Commission on Human Rights in 2020, um, arguing that her rights had been violated under international human rights law and asking the commission to issue a decision uh on the merits that would find the United States was in breach of its international legal obligations for the due process violations in her case, um, as well as violations of her right to be treated humanely. Uh, we also asked the commission to issue what are called precautionary measures calling on the state not to carry out her execution. The commission ultimately did that and found that the state had violated her rights to due process and her rights to be treated um humanely. Um, and in the course of that litigation, I also began to work closely with her defense team in Tennessee. So I was involved in the efforts to um to get her a stay of execution before September 30th. And um, and I'm still involved in working with her team.

SPEAKER_00 45:45

Do you know anything more that uh is disclosable by you than is already in the press about the communications that have been made by Krista uh now that she's able to uh talk? I mean, I I heard her you know say that she's very frustrated for she said she's angry. I take it you're not able to add to it.

SPEAKER_01 46:05

No, I mean she issued a statement um just last week, and the you know, I I think that angry is not really, you know, you can imagine surviving an attempt on your on your life, right? I mean, you she the state attempted to kill her. She attempt she survived an attempted homicide um that was very, very badly bungled, that left her with lasting injuries and extreme pain. So you can imagine, you know, imagine just being somebody who is completely healthy, both mentally and physically, and enduring that, um, and what that would do to your psyche. Now imagine a person who suffers from post-traumatic stress disorder because of her history of repeated rape and abuse, as well as bipolar disorder for which she receives medication. Um, you know, somebody who lives with complex trauma, and then put her through that and imagine what that does to her mental health and her ability to perceive the world around her. She is going through something that I think none of us can fully appreciate. And the degree of confusion when she was told that she was going to die and she had to say goodbye to all of her loved ones. And she wakes up in a hospital bed with burns on her arms and swollen limbs and on a ventilator. I mean, I I can't even venture, even knowing the things that Krista has said and knowing about her case, it is impossible really to describe the horror that she has lived through, and you know, that I think will continue to affect her perhaps for the rest of her life.

SPEAKER_00 48:05

Are you able to say whether you've ever um uh met with Krista in person? I have. And uh so my understanding is uh on death row, she was very isolated. I guess she was the only woman on death row over in Tennessee.

SPEAKER_01 48:24

She was. And for many decades she was, um, and she was held in extreme isolation. Um that, and it's important to note that she received worse treatment as a woman than men on death row did in Tennessee because she was the only woman. So men on death row in Tennessee, when I'm not suggesting that they've got it easy by any means, but they weren't held in extreme isolation like she was. Um, she was not only in isolation, her cell was adjacent to the ward where they keep people who either are having behavioral issues or who are extremely experiencing extreme mental health crises. So she would she would hear people screaming all the time, um, you know, people being tear gassed, people who were um deeply troubled. And meanwhile, then that's all basically, that's all she can hear. She has very, very little contact with the outside world. So that was an experience that in and of itself uh is considered torture under international human rights law and should be considered torture under the US Constitution, but it's not. Um so she is, you know, having said that, you know, she is she is somebody who is extraordinarily um resilient, and she is somebody who has she is a survivor. I mean, Krista, the amount of trauma that she has endured and survived, uh is amazing. And and you might have heard that when she went to her death, what she thought was going to be her death, you know, she was reciting the loving-kindness prayer that I mean it's a prayer. Yeah. So if you know, anybody who meditates and is interested in um sort of Buddhist meditation will be familiar with the loving-kindness prayer. And so she was reciting that and she had embraced that, and she really did try to live a life that was guided by compassion and love. And there were a lot of people in prison who uh talked about that and who wrote to the governor to talk about how she had affected their life and changed their lives. I when I met her, she was um very warm, very loving, kind, um, gave me a big hug, um was, you know, I mean, she's somebody who is, you know, she's she's damaged by what she has gone through, but she's also somebody who is capable of love, just like any human being. Um, she's capable of great love and compassion. So she's somebody who I think um, you know, there's a there's, you know, for people who look for religious significance and things like this, you know, it it's so um so extraordinary what she lived through. And I think you know, the the tendency is to want to seek meaning in that. I think for me, the the takeaway, even before Krista went through this Bosch execution, is that she is somebody who has a lot to give. And she is somebody who, if she were allowed to live her life in prison, which is what she's been asking for, uh she would do and could do a lot of good. Um, and I hope that the governor gives her that chance.

SPEAKER_00 52:01

So um what efforts were made to uh get her uh prison conditions to be better than what they were?

SPEAKER_01 52:10

She has a team of lawyers at a law firm in Nashville that filed a lawsuit on her behalf uh a couple of years, maybe five years ago now, uh, and they were able to get a settlement agreement with the state to move her out of that extreme isolation. I mean, she'd already been there over two decades, but they did finally move her out. Um, and she did better. She improved a lot. She had more interaction uh with other women on death row. She uh was able to um be in, you know, have some activities, some structured activities that are available for women. Uh that was taken away when she got her execution date. And since she survived the botched execution, she's also been held in solitary in the infirmary. So her lawyers have just recently filed a motion to have her arguing that the state has violated the terms of the settlement agreement by holding her again in extreme isolation and asking that she be moved back into um a part of the prison where she can have contact with other women.

SPEAKER_00 53:23

Are any of Krista's Laura's permitted contact visits with her now?

SPEAKER_01 53:27

They are. Yes, they are.

SPEAKER_00 53:31

So now, in these last three minutes, what has been in your involvement for abolishing the death penalty worldwide or in any corners of the world?

SPEAKER_01 53:42

Um, you know, the death penalty is, you know, is it's on its way out. It is an archaic punishment. There are so few countries that retain the death penalty, a tiny handful. And even those that retain it, most of them don't execute. So the United States is such an outlier. Um, you know, it's the United States, Saudi Arabia, China, Iraq, Iran, Yemen. Those are the top executors. Um, sometimes Somalia, sometimes Sudan. Um, but really that's it. You know, South America, Europe, most of Africa, they're all abolitionist continents. Um, Pacifica, Australia, New Zealand, abolitionist.

SPEAKER_00 54:28

Um Cuba doesn't have the death penalty anymore.

SPEAKER_01 54:31

Sorry?

SPEAKER_00 54:32

Does Cuba have the death penalty?

SPEAKER_01 54:34

Cuba actually might have abolished. Um, Cuba had like two people on death row. They haven't carried out an execution in decades. Um, so they're they're de facto what we would call de facto abolitionists if they haven't legally abolished. There's been no executions in the Western Hemisphere apart from the United States in decades.

SPEAKER_00 54:53

Japan's still executing, right?

SPEAKER_01 54:56

One person every couple of years, typically, like India. So very, very few executions, but they yeah, they do still have the death penalty.

SPEAKER_00 55:05

And have you uh been on any teams that have uh convinced any governments to de facto or duhre, uh de jure, however you pronounce it, eliminate the death penalty?

SPEAKER_01 55:18

My I've done a lot of work in Malawi with people who are in government there. Um I've trained a lot of capital litigators around the world who are remarkable people, who have then sort of ascended the ranks and have become attorneys general, um, or who have assumed positions in government and who are abolitionists. So, you know, that you know, that could have an effect too. We have high hopes for Botswana that they will abolish.

SPEAKER_00 55:47

Now at 459, and I said we're gonna have five. This is called beat the prosecution here. Now, know that it people other than criminal defense lawyers and criminal defendants listen. Do you have any tips for us, criminal defense lawyers and criminal defendants for getting justice for the criminal defendants? Other than being as great as you can be.

SPEAKER_01 56:08

Listen to your clients. That's the best advice, right? We have to listen to our clients. Our clients know their lives. And um, you know, when we deeply listen and and you know, sort of resist the cynicism that can come with this work after you've been doing it a long time, um, that's when we serve our clients the best.

SPEAKER_00 56:29

Absolutely. Listen to your clients. Sandra Babcock, that's B-A-B-C-O-C-K. Please tell us anything you want to say that you haven't said or anything you wanted to uh emphasize. And if you want to give us any URLs or say about any books you've written, I'm not aware of any books you've written. Uh this is your your last word.

SPEAKER_01 56:48

Um go to the mercyforkrista.org, uh, just as it sounds, and sign the petition asking the governor to commute her sentence.

SPEAKER_00 56:57

Excellent. Well, thank you so much. Anything else? That's it. Thank you so much for joining us, Sandra. You've heard from Sandra Babcock. Doing great work. And go to uh mercyforkrista.com or dot org.org.org and sign that petition. Thank you so much, Sandra. This is John Katz. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. This is beat the prosecution because there really is no other way. Stand by, Sandra.