At the High Court, Sometimes

It's Personal

Tony Mauro
07-09-2007

The timbre of Donald Verrilli Jr.'s voice changes when he argues a pro bono case to the U.S. Supreme Court. For his paying clients at Jenner & Block, Verrilli, always soft-spoken and measured, is a master at gently steering the justices toward supporting his arguments in telecommunications and intellectual property disputes. His successful defense of music industry copyrights in MGM v. Grokster in 2005 secured his place in the top tier of high court advocates.

But when he argues on behalf of a death row inmate, mainly on issues of ineffective assistance of counsel, Verrilli's careful voice seems to drop a half-octave. It transmits deep disappointment about the inadequate representation his client got in courts below, as well as a measure of disbelief that others might not view it as he does.

For the mild-mannered Verrilli, that's another way of saying that he brings passion to his pro bono work. Like only a handful of top Supreme Court advocates in private practice - WilmerHale's Seth Waxman and Akin Gump Strauss Hauer & Feld's Thomas Goldstein are others - Verrilli routinely leavens his corporate work with pro bono representation for criminal defendants. Among the 10 cases Verrilli has argued at the high court, three were pro bono. He has won two of those, as well as four for paying clients, for a 6-4 won-loss record.

Verrilli, 49, at first resists the notion that his criminal work affects him differently, insisting that he brings as much zeal to his paid cases: "Every case in which I get a chance to argue at the Supreme Court is a thrilling experience, whether it's for NextWave [the mobile telecom company] or whoever." But when asked what would happen if Jenner & Block told him that he could no longer do pro bono work, he reacts as if he'd been told he'd have to write briefs in Chinese from now on. "Inconceivable," he says. Pro bono, he says, "contributes a lot to my professional satisfaction. It's a very important part of my life."

After a while he acknowledges that arguing the criminal cases is different: "I try very hard to make it as dispassionate and law-focused as I can. . . . But I do want the justices to understand that when I say it, I really believe it. I believe that the inadequacy of the representation [the defendents] got is as shockingly bad as I am telling them it is." As a result, he continues, "these cases are more emotional" than most business cases: "In part it's what I bring to it, but also what the justices bring. It's emotionally charged on both ends."

MIXING IT UP

Case in point: Verrilli's arguments in Wiggins v. Smith in 2003. Verrilli and Justice Antonin Scalia got into a dispute about the factual record. Deep knowledge of the record is one of Verrilli's strongest talents, so three times he said, "With all due respect" to get a word in edgewise as Scalia argued with him on the facts. "No two voices at the same time," then-Chief Justice William Rehnquist finally scolded. "Justice Scalia is asking you a question." Verrilli backed off. "Excuse me," he said. His daughter, then 9, told him later that his face "got redder and redder" during the exchange. Never mind that she was sitting behind him and could not see his face. Kids know when Dad is upset.

But Verrilli eventually made his point about the depth and importance of the trial lawyer's shortcomings. He won the case, 7-2. Even Rehnquist was on his side, but predictably, Scalia - joined by Justice Clarence Thomas - dissented. The Court ruled that defense lawyers must meet professional standards by reasonably investigating mitigating evidence to present for sentencing.

Verrilli learned about high standards growing up in Wilton, Conn. His father, Donald Sr., was an in-house lawyer for New York banks, and in his practice "he was a consummate professional," his son says. The younger Verrilli learned about bad lawyering, oddly enough, while clerking for Justice William Brennan Jr., in 1984-85. The pace of executions was picking up at the time, so Verrilli spent late nights digging into last-minute death row appeals. "I was struck by how poor the representation is for these individuals," he says. "I thought, this is something I could do something about in my practice."

He went to the right firm to pursue that interest. Jenner & Block is consistently rated among the top firms for encouraging pro bono work. This year the firm ranks third on The American Lawyer's list of firms with the highest pro bono scores, with more than 82 percent of Jenner lawyers doing more than 20 hours of pro bono annually. David DeBruin, who heads the pro bono program in Jenner's D.C. office, says, "Don had a huge commitment to this work from the day he started practicing here. He has a true passion for it." With the aid of a strong team of Jenner lawyers, Verrilli says he devotes at least 10 percent of his time to pro bono work, which DeBruin says is on the high end of the range typical for the firm.

DEATH IS DIFFERENT

Verrilli began representing Kevin Wiggins in 1992, at the earliest stage of post-conviction appeals. Wiggins had been found guilty of drowning a 77-year-old Maryland woman in her bathtub during a robbery, and was sentenced to death. "I got to know him very well - a strong emotional connection," Verrilli says. In spite of the crime, "he was the most sympathetic" of the defendants he has represented: "He had no prior criminal record, he had not engaged in preying on others."

At sentencing, the only mitigating factor that Wiggins' public defender lawyers presented to the jury was his clean criminal record - ignoring his bleak life history of physical and sexual abuse. Verrilli took Wiggins through unsuccessful state and federal appeals. The U.S. Court of Appeals for the 4th Circuit ruled that Wiggins' trial lawyers had made "an informed strategic choice" not to raise mitigating factors. The Supreme Court reversed.

Verrilli's work for Wiggins did not end there: "We really dug in to present a first-class mitigation case" before Maryland courts, documenting his childhood. The state finally offered a deal, moving Wiggins off death row.

This year he handled a sequel of sorts. When the high court granted review in Schriro v. Landrigan, Verrilli casually e-mailed the Arizona public defenders who represented death row inmate Jeff Landrigan. In this case, like Wiggins', the trial lawyers failed to investigate mitigating factors - but this time it was because Landrigan, the client, instructed them not to. Landrigan told the judge there was no mitigating evidence, and he said of the death penalty, "Just bring it right on." Landrigan had murdered before, and after escaping from prison in Oklahoma he strangled a man with an electric cord in Phoenix.

Arizona defender Dale Baich talked with several firms interested in representing Landrigan, but had no trouble picking Verrilli. "There's that feeling you get when you meet certain people," Baich says. "He cared. He really cared."

At argument in January, Verrilli was more deferential toward Scalia, but still the voice was low and serious. Scalia - this time joined by Chief Justice John Roberts Jr. - challenged Verrilli at every turn on background facts and his legal arguments. Finally, thanks to a friendlier question from Justice Ruth Bader Ginsburg, Verrilli was able to make his assertion that because of the lawyers' failure to investigate, Landrigan's "bring it on" behavior did not amount to a knowing waiver of his right to present mitigating evidence. Verrilli came away hopeful.

But May 14 the ruling came down. It was 5-4 against Landrigan. Given what Landrigan had said about mitigating evidence, the Court said, the judge had not acted improperly in refusing him a hearing. "Don took it hard," DeBruin said soon after the decision.

A few days later, Verrilli was still upset, feeling that the Court had not come to grips with the central issue in the case. "Because the lawyer hadn't done the work properly, the client did not make an informed judgment," Verrilli says, adding a maxim that could also stand as a personal credo: "The entire legitimacy of the system depends on the lawyer discharging his duty."