Rick:

Hello, and welcome to Northwest Philly Neighbors.

I'm Rick Mohr, and my guest is Tracy Ulstad, who works as a Federal Public Defender for death row inmates.

She takes us into a world that most of us never see, full of awful challenges, but also surprises and hope.

I learned a lot, and I invite you to listen in.

Also note that there's some talk of sexual abuse, so it's not the best episode for children.

So you work as a public defender in the Capital Habeus Unit.

For people who aren't in that world, could you talk about what that means and what you do?

Tracy Ulstad:

Sure.

So I work actually in the Federal Public Defender's Office, and it's the Capital Habeus Unit is a unit that works solely on capital appeals in federal court, which is the final level of appeal.

So you're looking at the past, what has happened with the case, how the person ended up on death row, was their case mishandled by their prior attorneys?

Were there errors that happened by the court system, the judge throughout that somebody hasn't already caught and presented?

In most places, you can only get the death penalty for murder in the first degree, premeditated with malice.

And so both phases of the trial, we look at the guilt, innocence phase and the penalty phase.

And the goal of the work is to find some sort of error that would have made a difference in the person's case.

Rick:

So a lot of it is looking at the procedure of how the case went and not so much the facts.

Tracy Ulstad:

Not necessarily.

I would-

Rick:

If both?

Tracy Ulstad:

Yeah, it's definitely both.

And I think the facts are actually what often drive you.

So the state court has made two decisions affirming this conviction and this death sentence.

And then we get the case at a stage where we're now in federal court and every case ultimately has to comport with the federal constitution.

So we try and say, this state court took these claims and misinterpreted them and misapplied the constitution, the federal constitution.

So it's a very procedural morass, is what I like to call it, to get there.

But the courts, I have found, in my experience, will go around that procedural mass and step aside it, or find the exceptions that are there if you have a compelling case.

So it really always does come back to the facts.

Often the cases are clients' life stories and their histories are not presented from the perspective of someone who understands how poverty and racism and drugs and alcohol or mental illness, whether it's in the family or in the person themselves, how that can impact on everything in their world.

And so it's really trying to recast their story and not to excuse what they've done, but to explain.

You know, sometimes hurt you, but I find on the whole, if you can pull on people's heartstrings as far as just explaining your client's life and their story, that they're willing to see a legal error because there's so much, you know, discretion in deciding any legal issue really, because the facts are always different for every case, so.

Rick:

So it must be that in order to do that, you have to learn a lot about the person's background and their story yourself.

Tracy Ulstad:

That's probably the number one thing that we do in our job is, you know, we obviously look for legal errors upfront, but the large percentage of where we see results are in re-investigating the defendant's life and their family and their environment and everything about them.

Rick:

So do you talk to them a lot to learn that or how do you learn that?

Tracy Ulstad:

Well, we talk to them for sure.

That's always a starting place.

But for most people, myself included, it is hard to have introspection on your own self.

So we rely a whole lot on people, family, friends, third grade teachers, you know.

Rick:

So you will seek out those people.

Tracy Ulstad:

We seek out everybody who's ever had any contact.

We have witness lists that are like, you know, it was shocking when I first started working there, but now I'm used to it, but we really do delve into turn over every stone there is.

Every...

Rick:

A lot of your day is on the phone or walking around to people or?

Tracy Ulstad:

Yes, it's mostly done in person.

A lot of our clients don't want their story presented.

I mean, we'll meet with a defendant's mother like 15 times, you know, because you're asking things that, you know, no mother wants to admit they hit their kid or they smoked while they were pregnant or there was sexual abuse from the uncle, you know?

Like nobody wants to admit these things, but if you can get that story out there, it's oftentimes really...

Yeah, I mean, really, there's like particularly with the sexual assault cases, you know, the homicides that have a sexual angle to them.

You know, you can really see it's the cycle and you can see it.

Or if you have a young man that is raised in a home with an abusive father who, you know, raped and physically and emotionally and in every way, demeaned and abused his wife, you can almost see that play out in the defendants themselves in some of the crimes that they do.

And so I think kind of putting that in context makes them not seem like, you know, this is a guy who is just evil from birth.

It's more like, you know, if you put this child into a different world that was nurturing and supportive, it's highly unlikely that they would be in the situation they are now or do what they've done.

So it's kind of trying to help people understand how awful crimes happen and how, you know, people can do those things, other than the fact that they're just born evil.

Rick:

Yeah.

Tracy Ulstad:

Which is a pet peeve of mine, so.

Rick:

Right.

Well, it takes a lot of resources to investigate that.

And it seems like an unusual case where the government is making, actually making those resources available.

Tracy Ulstad:

So these offices did not exist at all times.

They were death penalty resource centers initially, and these organizations were in maybe three or four states in the nation, and they were totally privately funded.

Their goal was to show the courts and the system that was providing the funds, would be possibly providing the funds, that look, we are efficient.

We have a team of people who are skilled at this.

Like, and not only are we efficient, you know that in the end, this conviction has integrity, and this sentence has integrity if we have not been able to uncover something.

Like, give this guy his due process, basically.

You're trying to kill him.

Let's give him his due process.

So, and that's how they started.

They started very small, and few of them, and they proved themselves to be like a self-contained, efficient, that knows this particular area of law, which is very difficult for any attorney to learn, and you can't just dabble in it.

You have to do it.

So I think they proved themselves, and then that's exactly what happened with our office.

Our office formed, and then we started, got funding from the court, which is who funds us, because the judges are the ones who see these cases, and they get frustrated when cases are presented in a shoddy fashion, or haven't been fully investigated, or it's frustrating for them.

So I think they sleep better at night knowing that we're on a case, and they appreciate it.

Although we do our due diligence too, so we create work for the court system as well.

So there's a give and take.

We're a little more accepted in federal court and in state court when we end up doing certain things there, which we do at times, we often get pushback, but it's part of what you expect in any political system.

Rick:

So about how many clients have you represented, would you say, just roughly?

Tracy Ulstad:

Oh gosh, 25, I think, but I've had them from the get-go since I've been there.

So they don't really go away unless they get executed, die, you know.

So they become almost like family.

So I was a Philadelphia Public Defender for a number of eight years before that.

And that was like, I can't even count.

Well, then they come and go.

You know, your clients come and go and you try the case and that's the end of it.

So it's like, it's inherently finite.

Whereas this is, you know, is much more extensive.

And if it's not, we're doing something wrong because that's the goal.

Rick:

Could you talk about a client that stands out among those 25?

Tracy Ulstad:

Yeah, I could.

So I have a client and he's not in Pennsylvania, but that's, we have cases from other states as well because the courts have realized, you know, that we're helpful and so they want to test us out.

So we go in there, we do a case, and then we try and argue to them, look, you too should fund one of these offices.

So that's how we ended up doing other states.

But so it's in another state, a very conservative state and where people are executed.

And I refused to talk about his crime without first telling his story.

He was born to a woman who was born and raised in an incestuous family.

She was obese, she had every health problem that came with that.

She eventually died when he was 10 months old.

She smoked two packs of cigarettes a day when she was pregnant with him.

She had other children and there was sexual things going on there with the other children.

And so it was a very unhealthy and very poor environment.

And his father was never really around, but also was an abuser sexually and physically of the other kids.

So there's speculation according to the siblings that my client was also a victim of that before he was even one.

But then he kind of was out of the picture.

And then once my client's mother died at 10 months, her brother, so his uncle, adopted him.

And he too sexually abused my client from the age of three to six.

And actually he ended up owning up to it.

So my client had problems emotionally, behaviorally.

He seemed like the problem.

He was having aggressive instances in school.

So he was in therapy since he was four.

And part of the therapy was bringing the parents in.

And the father actually finally, at the age of six, finally said, admitted.

And then he ended up going to jail.

And of course, when he hit the age of 13, he then started acting out sexually, did so with a cousin of his, and another cousin on his adoptive mother's side.

And so ended up in the juvenile justice system for that.

And ended up in a sexual abuse facility where he stayed until he was a week before his 18th birthday.

They kept him in there.

He wasn't really ready to leave.

And he went back home to his adoptive mother and then tried to get in contact with his adoptive father who was out of prison at that time.

And just very difficult time there.

Was still acting out in a rage like fashion at times and very emotional lability like all over the place up and down.

And the adoptive mother did not believe the abuse when he first, even when it took the father saying it, even then it was like took her a while to come around.

And she's just not ever been emotionally there for him.

I think she just feels like she was saddled with him as a result of being married.

So she has been only a negative really to him.

So he met some woman online in the state that he ended up moving to.

Her and her family lived in this trailer and it was a bipolar chat room he met this woman in.

And then she said, oh, come live with me.

And the mother bought him a one-way ticket.

The adoptive mother sent him off and he went down and lived with this woman and her family in this trailer.

He soon got a girlfriend who moved in with him and was reminiscent of his own mother with the drinking and the just overall health issues as well.

And within, I don't know, three months of dating her, she was pregnant and they're all living in this trailer.

And he has moments where he feels the urge to sexually assault again, but he's been in a facility for years.

So he has some skills and his skills are he runs away and he leaves, he removes himself.

And when he was in the facility, they had a quiet room where they would send him to.

So this one night, his baby mama says, will you go get me some cigarettes?

You know, she's in the trailer with the infant.

And he says, okay.

And then he takes this other young girl, nine-year-old girl that's living in the house with him.

She wants to get some candy.

And he almost assaults her.

He starts to, she starts crying.

And then he stops.

And then he's in his car banging his head.

He's all having, I can't believe I've done this.

You know, what have I done?

Goes back to the trailer, takes the girl back home, is so upset with himself for having done that, thinks, you know, I've just ruined this whole situation.

I'm living here.

So he tells his baby mama, I've got to go.

I've got to get away and pull myself together.

And she thinks he's not going to come back.

He has gone in the past and had some male, older male figures in his life who have basically he prostitutes himself to survive.

So they've kind of given him a place to live in exchange for sexual favors.

So she thinks he's going to run off to that world again.

So she makes him take the baby.

And so he leaves with the baby.

He's in this state.

And the end result is the child ends up assaulted and dead.

And that is his capital crime.

And the child is three months old.

And it's, you know, becomes a huge, you know, as it should when a three month old baby is killed and assaulted.

It became a big press issue.

And then he ended up fleeing and ends up turning himself into the Roundhouse, which is here in Philly and gives a full confession.

And then he gets convicted and put on death row.

And so he is now constantly throughout the process.

He's been saying, I do not want to proceed with these.

I want to fire you.

I do not want you to represent me or your office.

I do not want to further appeal this.

I just want to be executed.

I don't want to live in these circumstances.

And so he is bipolar.

He is borderline.

He goes up and down on these swings of emotional swings.

And he has waved and unwaived, waived meaning I'm not going forward with my appeals, revoked that six times since his conviction and twice since I've been representing him.

And this last time, we really thought it was it.

And so, you know, three months after you wave and you're found competent to do so, that's the end of it.

But he was like, I'm just going to go in and tell the court, you know, who I am and let the judge decide.

And so he wouldn't see anyone we tried to send up to assess him.

So we thought it was really going to be over with.

But he came in and he was in a full on depression and crying and it was strange.

I'd never seen him like that.

So we're back litigating.

So there's a whole emotional tailspin for the clients that happens when living in the conditions they live on death row too.

So and for this man, everything that I explained about his life was presented but in a record based format.

Like here's the records for this and never called anyone that treated him to tell the jury what he was like.

And it's a hard sell legally to win a case like that when the information is before the jury.

But it's not been presented in the way that's compelling.

So it's a tough case.

But for the state he's in, it could have gone much differently if we weren't representing him.

So it's good that he has a big office with resources who's backing him.

But he's probably the most unbecoming crime of a client, so maybe not a good example to explain.

But I find his mitigation story extremely compelling.

Rick:

So you really have two big sides of skills that you deploy.

I mean, you have all this technical knowledge and legal experience, and you have also this kind of social work and investigative and kind of heart-centered, story-based approach.

Tracy Ulstad:

Yeah, it's a great job, I have to say.

It's like I personally have my masters in social work at my JD, and my undergrad was in psychiatry.

It's perfect.

It's perfect for me, I feel.

Although I personally don't enjoy to the level other people in my office do some of the procedural hurdles and that sort of legal game-playing.

But I think it definitely involves both skills.

And our office has people who can do both, people who can do one, people who can do the other, and we all pulled together to get it done.

We have investigators, we have mitigation specialists, and then we have attorneys and paralegals, and that forms a team, that group.

So there's always more than one attorney on a team.

I think that just makes sense in capital work.

You don't spread out the emotional impact of it.

Rick:

Well, yes, because the world you're in is such a sad, hard world.

I mean, what's it like for you personally to be spending so much of your time faced with those things?

Tracy Ulstad:

Yeah, I mean, I love it when I'm in it and I hate it when I'm in it.

So it's hard to explain.

It ebbs and flows, which is the good thing about the work.

I couldn't handle it.

I don't think if it were constantly at that intensity pace that I just explained for this client that I had.

But it ebbs and flows.

There will be times where your cases will sit for a year, and you're waiting on the court to decide and write their opinion.

So you get moments where cases are forgotten about in the system, and there's oftentimes no incentive to remind the system.

Other times, there are.

I mean, I have a client I think is innocent, and I've had another innocent client who got out.

So there's that side of the work.

And those cases are different and treated differently.

But I think any way you slice it, it's riveting, but it can be overwhelming too.

And the travel and the emotional intensity of it all, particularly dealing with the clients who really become family, because it's hard to stay, keep a healthy focus with your clients at times.

I mean, there tends to be a negativity and a way of dealing with it that's like, you know, almost like that guy's such an asshole, you know?

And yes, he's an asshole, but he's a mentally ill asshole.

And once you start taking it personally, I think, you know, the way your client is treating you, I think you have to take a step back.

And it happens to all of us.

So the clients are particularly lovely, they can be.

And the resilience of a human being who can like live in solitary confinement with no human contact and like is amazing to me.

So I've had a few clients who just have, thrived isn't the proper word, but given those circumstances thrived.

And it's amazing.

It's amazing.

Reading, learning, bettering themselves, doing yoga, just wonderful things.

And then I've had some that you just see what you would expect to see, which is just total disintegration.

And it usually starts physically because the conditions are, the food's awful.

And you know, that's a whole nother side.

But dealing with the clients is something that you just have to do.

And if you can do it right, or you can make things harder for yourself, and you live and learn, you know?

Rick:

So these men mostly are on death row for decades.

I mean, what's that like psychologically?

Tracy Ulstad:

It really is so dependent on the person and the skills they came in with.

And it's amazing the resilience of some of these guys.

I mean, it's amazing.

But even the most resilient ones, there is an impact.

So they live in a cell that I don't know the exact size, eight by, you know, it's not much bigger than the bed that's in there.

There's a bed, a bathroom, and they have one box they can store their legal stuff in.

In, you know, Texas, they have a slit that their food tray, their food tray comes through a slit for all of them.

They eat in their cells.

They get one usually, sometimes two hours a day out of their cell in a cage with a top on it where they, so it's like a dog run with like a cage.

So you can't even see the sky clearly because you have a fenced in thing over your head.

That horrifies me for some reason.

And so you can't really run.

I mean, you can run back and forth if you're a runner or hoping to get your energy out there.

But that's it.

You know, in Texas, they get no phones, they get no phone calls, they get no TVs, they get radios that sometimes work and don't work if they can buy them.

The medical care is horrendous.

The food, they, you know, I don't even know, more than half, three quarters end up with diabetes.

So those physical conditions can make the mental health so much worse too.

The physical health issues can just really spiral.

But, you know, so it's just, there are ways that they can communicate with one another through the cells, they can screen through the vents, like so they can talk that way.

They're allowed to go to law library, you know, like once a week, and they can pick a partner to do that with.

So, you know, they can't be, I'm sure that resulted from a lawsuit at some point.

And, yeah, it's this whole debacle now with their mail coming in and out, getting photocopied.

I mean, it's just humiliating the way they get treated and their, the medical care, it could go on and on and on.

So, and that becomes a very big issue for the aging population who have been there for decades on death row.

And the prison can't handle it.

They don't know what to do with it.

And there's always, like, a security code.

Like, someone could be having a heart attack in their cell, but they could be faking the heart attack.

So we got to get, like, five security people, and there's no, like, nobody's just going to open the cell, you know?

So it's interesting, and it's very difficult for them.

Depression is huge.

And just, you know, from my most resilient guy, his spirit rides with the wave of his litigation and the hopes.

So it's difficult, because you don't want to lie to your clients, but you want to cast things in a hopeful light.

And I wouldn't give someone false hope, but I, you know, you don't...

They have to have hope, most of them.

Some have family that come see them, most do not.

That's a whole nother mental health issue.

People lose, you know.

You get a friend that moves away.

I've lost touch with my friends that move away, and this is like...

But you got to go through to get in there.

You got to get on the list.

You got to get approved.

They search you.

So if you are strong enough as a person to want to go through that, to go visit your family member, and then you get in there, for death row people, it's no contact.

There's a glass between them.

You cannot hug your family.

Nothing.

Like you're talking on a phone through a glass window.

And that just falls by the wayside over the years.

You know, people stop coming as often, or people say they will, and then there's that whole crushed feeling.

So I remember my one client that got out, I thought my biggest fear for him was he had so much anger towards his friends and family, with the exception of his mom, that I thought this is going to be awful, you know?

He's like, but he bounced back and dealt with, he's a super resilient guy, but he, you know, it was hard, and it comes up now and then, but he, you know, he has dealt with it.

And they all, even the healthiest of them, just declined just because of the circumstances, anybody would.

I mean, they sleep on a cement slab.

My client, who I say is so resilient, but suffers with this depression, he has hip problems.

I'm like, go figure, you know?

So it's just really not set up.

You know, people think, oh, they have it so cushy.

It's like they don't.

It really is set up to make someone crazy.

But in Pennsylvania, they do get TVs, and if they can afford to buy them and repair them and everything else that's involved.

But it's definitely not conducive to the isolation alone.

I'm surprised every single one of them isn't that shit crazy.

And they're not, you know?

I mean, so...

Rick:

So you grew up in a conservative family.

Tracy Ulstad:

I did.

Rick:

Was there a moment when you realized that you had a different outlook and wanted to follow a different path?

Tracy Ulstad:

To take a step back, I think my parents fostered what they saw in me.

So I have to give them a lot.

They raised me, which I know is no easy feat, trying to do it myself.

But they gave me opportunities.

Things I expressed an interest in, they facilitated.

I was a child life worker, and when I was in high school, I was in the terminal ward for kids in the Cleveland clinics.

And I think, frankly, a lot of it came, ironically, out of my Catholic school education.

I think I was always wanting to be a do-gooder, and the nuns were like the pinnacle.

They were our teachers, and they were horrible and mean, and some of them physically hit us.

But still, to me, I think I took some of the religious, treat others as you would have them treat you.

I think I just always had that kind of in me.

I was always sympathetic to the guy or girl or whoever that was having it hard.

Rick:

Well, there's a strong tradition of service and charity in the conservative world.

Maybe you work pretty well in line with the things around you.

Tracy Ulstad:

Yeah, my parents were not doing that, but they allowed me to when I expressed an interest, and they sent me to a school that exposed me to some of that.

And then, I don't know, I just kind of, I think when I went away to college, I kind of just took it on my own way.

I was away from home, and then I just, you know, made some choices along the way.

Like I did the Peace Corps, you know, and certain experiences I've had in life, like that child life job, like these things I feel like just distilled for me more and more that I wanted to go down kind of some helping attempt to help profession.

I didn't have strong opinions politically.

And then when I went to college, they became strong once I was kind of on my own.

Rick:

And your town and your college were what?

Tracy Ulstad:

University of Michigan is where I went to college.

And I was born and raised outside Cleveland, kind of on the country suburbs.

Rick:

And what does your family think about your career choice?

Tracy Ulstad:

It's a mix of, you know, we'll brag about her when it feels good to brag about her.

But they're not.

I think there's an educational gap too.

So my family gave me opportunities education-wise that they didn't have.

So I don't think they fully understand the level of what our office does.

And that's fine.

That's fine.

They are supportive.

They met my one client that I got out of prison.

And they were happy for that.

So they're happy for my victories and my professional success, I guess, is how they see it.

But I definitely think it's...

I don't think they are proud to announce that I am anti-death penalty.

All my clients are on death row.

But yeah, so they're fine.

Yeah.

Rick:

Well, and you have a family of your own with two little boys.

How do you share your work with...

To what extent do you share your work with them?

Tracy Ulstad:

Probably too much.

I know my husband does the same work, and I think he's a little bit more cautious about it.

But we've been through some executions, and there were, you know, and mainly, you know, Tim was not around, for he was working all hours, and he would get angry.

What is more important than me, you know?

And why is daddy not coming home now for, you know, however many nights?

And so I just had a moment one night where I just told them that, look, this is the situation, you know?

They're trying to kill daddy, they're trying to kill daddy's client.

And I questioned whether it was appropriate, but he's very cerebral, so he just took it in and kind of shrugged and asked a few questions.

But I make it clear that, you know, what he did was not glorious either that got him in his situation, but it doesn't mean because someone punches you, you punch them back.

So I kind of tried to turn it into a lesson like that.

But they know our clients are in prison because we spend a lot of time traveling to visit our clients.

So that's where you going is often, it leads to that as well.

But yeah, there's some level we explain to them.

I explain, I don't know how much Tim does.

I think he's a little, like I said, a little more cautious about it.

Rick:

I read that we are the only Western country that still applies the death penalty.

Why do you think they don't and why do you think we do?

Tracy Ulstad:

Yeah, I do not know the answer to that.

Why is socialism seen as a bad thing here and not there, you know, not the rest of the Western world.

You should talk to Tim about this, who just did a historical research into the beginning of the death penalty for a brief that's up before the court right now.

Rick:

Could you tell us a little bit about what's going on in Pennsylvania right now?

Tracy Ulstad:

Yeah, it's fascinating.

So the governor declared a moratorium on the death penalty a while ago, and there was a...

Rick:

2013 or so?

Tracy Ulstad:

Yeah, yeah.

So things have kind of been sitting there, and just no death warrants are being issued.

The prison secretary, the prison is issuing them, but in the end, they go nowhere.

So he was waiting.

He said, I'll have this moratorium until this death penalty report comes out that there was a body, a legislative body that was looking into it.

Rick:

Very thoroughly.

Tracy Ulstad:

Yeah, it took years, and he looked into every aspect of it, how it was applied geographically within Pennsylvania, race-wise, race of victim, race of defendant, I mean, very thoroughly across the board, what the attorneys are paid, compensated for, who take these cases.

Yeah, I mean, it was extensive.

And so they did that.

They issued that report, which is like, you know, a 300-page report, and found all these problems, you know, with, I mentioned earlier, the mitigators and aggravators that the jury weighs.

So even down to that, like they, there's...

Rick:

What does that mean exactly?

Mitigators and aggravators?

Tracy Ulstad:

You know, things that make the crime worse than the average homicide.

Rick:

I see, that's an aggravator.

Tracy Ulstad:

Yes.

So killing someone under the age of, you know, 10.

Killing an elderly person.

And then there's mitigators, which are, you know, things that we try and show that the, there was some mental health factor that at the time of the crime, that somehow diminishes responsibility.

Rick:

So, so you have a murder case and you're supposed to evaluate the aggravators, which are things that make it worse, and the mitigators, which make it not so bad.

Tracy Ulstad:

Exactly.

Rick:

And the commission found that those were very inconsistently analyzed and applied across the state.

Tracy Ulstad:

And some were so broad, they could cover everything.

Some weren't broad enough.

That's just one of millions of things they found wrong.

The most striking thing to me was the racial findings.

And it's the race of the victim.

You know, when it's a black victim, people don't seek the death penalty as common.

And also, geographically, it just really depends on where you live.

The same crimes in one county can warrant a death sentence, and in another, the county could never afford to seek a death sentence, you know?

And it really depends on the DA.

It depends on so many political factors involved.

And it just, you know, it shouldn't be that way.

It should be fair across the board.

And it's hard to get that.

There are human beings that make up the system.

So this report came out, and he said, you know, moratoriums still play until I'm satisfied that these things are fixed.

So everyone started filing things that were applicable to their cases.

So they would take something in the report, and they would say, well, that applies to my guy.

They say this aggravator is too broad.

That aggravator was found in my case.

I'm going to say, plead something, a filing with the court, and say, hey, you know, my guy, his sentence should get another look because of this, or the racial issues, or whatever it was, the county.

So people started filing things.

And then Tim came up with this idea that was quickly backed by other folks in the office that was like, why don't we just go straight to the Supreme Court of Pennsylvania and say, look, you know, these cases are all going to end up before you eventually, like rather than having all these different lower court judges rule on them, and you have to deal with that on appeal, why don't you just take this right off the bat?

And under this extraordinary jurisdiction, they have the power to do this, King's Bench jurisdiction.

And they took it.

And no one really thought they would.

They were like, go ahead, Tim, do your thing.

We're supportive.

But no one thought the court would take it, and they took it.

And they have asked for a briefing and oral argument.

And end of summer, early fall, maybe, there will be a decision.

But it could be the end of the death penalty.

It could be like the death penalty is unconstitutional for these reasons.

But it's an argument under Pennsylvania's particular cruel and unusual section of the Constitution, because under the Federal Constitution, it's been declared to not be cruel and unusual.

So it's all looking at the language of Pennsylvania's Constitution, Article 1, Section 8, reading that differently than the Federal and saying, look, state, you have the power to always give more protection than the Federal Government.

But they're the floor, the Federal Government.

But you can give more, and they do, they do.

They give broader protections in Pennsylvania for search and seizure, for Fourth Amendment stuff.

So it's possible.

Rick:

And do you have a hunch which way it's going to go?

Tracy Ulstad:

Well, it's a strong argument, I have to say.

But then again, I'm, you know, find the writing was just extremely compelling.

I think given they took it, it says a lot.

But I don't want to make a prediction.

I mean, I've thought I didn't think they would ever say we're going to exercise this jurisdiction to look at this.

Yeah, we'll see.

I mean, it would, it wouldn't, it wouldn't decrease their workload a lot.

They wouldn't have to deal with all the capital appeals.

And, and it just, you know, the alternative to death sentence is life in prison.

It's like, you know, I mean, it's no picnic.

Rick:

Well, and, you know, to hear you describe the report, it almost seems like there's no way it realistically, realistically could be consistently applied across the state.

Tracy Ulstad:

Yeah.

It's really whether it's cruel and unusual because of the way it's being applied and the disparity in the application.

And so I do think it'd be hard to get it ever to be 100%.

But when you have factors like race that are playing such a strong role, it seems a shame and poverty, you know.

You don't see, you know, wealthy people kill people, you know, you just don't see even the thought to go after a death sentence.

And then the geographic disparity, I think, is very telling, too.

It's so we'll see.

Rick:

So do you personally think that the death penalty should be eliminated?

Tracy Ulstad:

Yeah, yes, I do.

I mean, for various reasons, for all the host of reasons that the death penalty report.

For me personally, I don't think, I just, it's just straight up moral, but that doesn't get you anywhere in my world.

So I would probably not ever admit that.

I don't think it teaches anybody anything.

I think the, you know, the largest group, one of the largest groups of people out there who are opposed to the death penalty are victims' families.

And if you really break it down and you really give the opportunity, which we've done in some of our cases, to do some victim outreach to the families.

And there's some that they just want to come in there and have a conversation with the defendant or air out their feelings.

And there are ways that you can do it that are a lot healthier.

I just don't see going and witnessing the execution of someone else as being a cathartic experience for making someone whole again for the loss of their family member.

What they did is awful.

So why are we now doing it in a more controlled, calculated way?

So that for me is really the number one, but close behind it is just I've had cases in other states where I'm horrified that it's a capital case.

It's like a liquor store robbery gone bad, and the clerk happened to have a disability that wasn't visible and that appeared like he was reaching for a gun, and he ended up shot.

And it's like for a 19-year-old kid, you know?

And I'm like, really?

How is that a capital crime in the projects of Wilmington, Delaware?

I don't know.

It's just not to belittle the victim and the loss to his family and him, but I just don't see that.

And then in Texas, their statute is, you know, is the person a future danger to society?

It's like, well, who really can...

I mean, that is psychological quackery, and there's a whole group of psychologists who get up and testify to that based on these factors, boom, boom, boom.

And it's just, I don't know.

I'm more of a believer in redemption, I guess, and giving someone an opportunity and yes, punishing them, but within reasons.

Rick:

Yeah.

It's striking the level of resources that are expended on this too.

Tracy Ulstad:

Which would all go by the wayside if they'd just get rid of it.

I'd be out of a jig where I wouldn't have a salary.

It'd be great.

I mean, really, I mean, that's one of the strongest arguments, frankly.

It's like, you know, go for it.

Get rid of it.

I'd be happy.

Our office would be happy to shut down.

You know, I don't think there's a person in there who would say otherwise.

So it is.

It's a huge expenditure of resources to get to this point where you feel everybody feels comfortable enough putting another human being to death in this calculated fashion.

And it's like, you know, that wouldn't need to be the case.

And frankly, you get a life sentence, you know, your entitlement to representation is non-existent come federal court.

So it's not like you're guaranteed us or a lawyer of some sort if it's a capital case throughout the process.

Rick:

Gosh, so if you're actually innocent, you might hope for the death penalty.

Tracy Ulstad:

Yes, I had two clients who I have said to them, it is unfortunately, I know you don't even want to hear it, it sounds sick, but it is the best thing that happened to you that you got the death penalty because the courts look at the cases different.

Rick:

Because the story we hear so much, because it's true, is that there just aren't the resources to provide defense for people who have committed crimes.

And yeah.

Tracy Ulstad:

Yeah, that's been a focus of the current DA trying to make a difference here in Philly.

Rick:

Right, if you stop locking up minor drug offenders, what could you do with all that money to help the basic problems?

Tracy Ulstad:

Those changes that could be made could really free up a ton of money.

Rick:

And there's the question of whether they would actually use that money to help those people.

Tracy Ulstad:

But there's no doubt that money is spent in the field, and I think that's what gets a lot of people on the more conservative side, is like, why are we spending all this?

You know, it's like, I don't know.

To me, it's like the ultimate punishment, and we should determine that every stone should be unturned before we get there.

Because too often, you find that at the last minute, you know, a witness comes forward or a document, the government's hiding stuff that could have, you know, been relevant into the defense in that case and just was not provided.

And then you get years away from it.

You get the attorney who initially prosecuted the case is long gone, and things get lost, and we ask, oh, can we get a copy of Discovery or whatever?

And you'd be amazed.

The hidden information that is in the prosecutor's files is like the number two way that we end up successfully getting people new trials.

You need that time in order to even ever make that possible.

You know?

I mean, there's 17 years, 27 years, this guy's, you know?

And the lead witness against him, you know, in a totally unrelated litigation I had, I'm going, out comes an immunity agreement for the witness who testified against him, you know, giving him immunity from prosecution.

I'm like, what?

And I've been moaning about this for years because I just had a hunch that something was out there.

It just didn't make sense that this guy would just get up there.

And anyways, so you just never know.

And given that goes on, because law is a competitive field and people want to win and, you know, prosecutors and defense attorneys alike, but the prosecutors have a different role.

They are, you know, should turn everything over.

And so when you find something at the last minute like that, after 27 years of litigation or whatever, you...

it's like, you know, that's the flip side to the argument, you know?

If we didn't have all these resources and this energy and this time, this guy would be dead 10 years ago, and we wouldn't ever have found this, you know?

So that's always...

and DNA has come to such a point.

I mean, when you...

that's the other compelling argument.

I mean, you have clients who, you know, when DNA comes back and shows that they're not the person, and there they sat on death row, and they will never be the same person again due to the circumstances they've been living in, to me, that's unacceptable.

When the error, the possibility for error is there, and now we know it's there because the DNA's gotten to a point, that's really horrifying.

And you only hope there's DNA in your cases, but there isn't always, you know, because evidence has been mishandled over the years, so don't get me started on that.

Rick:

Well, I learned a lot from this.

Thank you so much for...

Tracy Ulstad:

Thank you for letting me talk.

Rick:

For more about Tracy Ulstad and the Capital Habeus Unit, see the show notes or go to our website, nwphillypodcast.net, where you can also suggest a guest when you run into someone in Northwest Philly with good stories to tell.

If you like the show, please tell your friends, share on social media, and give us a rating if you listen on Apple Podcasts.

I'm Rick Mohr.

Thanks for listening.

See you next time for more stories from Northwest Philly Neighbors.