THE STATE'S DEATH PENALT Y
STATE v. GREGORY:
THE CASE THATINVALIDATED
First-person accounts from counsel for
appellant on preparing to argue the case that
ended the death penalty in Washington
BY LILA SILVERSTEIN
Preparing to argue Gregory was different from preparing for a typical Supreme Court oral argument. Instead of speaking for 20 minutes, I would be speaking for over an hour—the first
45 minutes of the day and the last 20. I would need to
explain why the death penalty as administered was
unconstitutional in light of the regression analyses and
other new evidence. This new evidence statistically
validated what had long been empirically apparent:
that the death penalty is imposed in an arbitrary and
racially biased manner.
Instead of beginning preparations a few days
before argument, I began a few weeks out. I met with
my wonderful co-counsel Neil Fox and outstanding
amicus counsel Jeff Robinson, and also prepped with
my Washington Appellate Project colleagues, with
Drs. Beckett and Evans, and with attorneys from other
offices. Then I took time to think alone and work on
my other cases.
Two days before argument Neil asked, “So how have
you been preparing?” I laughed as I told him about
my efforts to narrow the information into manageable
pieces. I usually have a list of potential questions with
potential answers, but for this case the list I’d created
was overwhelming. So I created a new, smaller list
called “Key Questions.” But that list was also too much,
so I created an even shorter one called “Super Key
It was fun to laugh with Neil, and I reflected on
how lucky I was to work with him—we complemented
each other well, got along great, and each made critical
contributions that would not have occurred if either
of us had been on the case alone. We didn’t know it at
the time, but three weeks later the court would order
“special proceedings” to evaluate the statistical study.
Thank goodness Neil and I had each other—along
with a couple of especially supportive colleagues—as
we navigated those grueling proceedings with the
statistical experts over the next two years.
But two days ahead of argument, we were blissfully
ignorant of what was to come. Jeff called, and we
shared how we were nervous for the usual reasons.
We knew a lot of people would be watching the next
day, including the brilliant amicus brief authors,
Mr. Gregory’s family, our colleagues, friends, family,
students, interested citizens, and lawyers who worked
on similar issues for decades.
I attempted to calm myself with the standard
platitudes—“It’s an opportunity, not a burden;” “The
pressure is a privilege”—but my nerves rolled their
eyes and remained.
Still, we forged ahead and the court ultimately
invalidated Washington’s capital punishment scheme
because the death penalty is imposed in an arbitrary
and racially biased manner. I am grateful for the
court’s courage in issuing this important decision, and
for the opportunity to work with amazing advocates
on the case.
LILA SILVERSTEIN is an appellate public defender with the Washington Appellate Project where she represents indigent clients
appealing criminal convictions, civil commitments, and terminations of parental rights. She is passionate about protecting
the constitutional rights of individuals, ensuring equal access
to justice for all, and promoting systemic reform. In addition
to Gregory, her significant Supreme Court cases include State
v. E.J.J. (reversing conviction for obstruction of justice and
reaffirming First Amendment right to criticize police); State v.
Saintcalle (recognizing pervasive problem of race discrimination in jury selection); and State v. Snapp (holding Washington
Constitution provides greater privacy protection than federal
Constitution in context of car searches). Silverstein also wrote
and promoted significant subsections of new General Rule 37,
which aims to reduce discrimination in the exercise of peremptory challenges.