Teresa L. Brake (1952-2002)
| Publication year | 2015 |
| Pages | 35 |
Teresa L. Brake (1952-2002)
By Kathryn Stimson, J.
About the Author
Kate Stimson practices criminal defense and civil rights at Stimson Glover LLC. She was a public defender in both the state and federal public defender systems and has defended people facing the death penalty—ks@stimsonglover. com.
In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. U.S. Supreme Court Justice Thurgood Marshall, Furman v. Georgia[1]
Not a lot of people know that one of the best death penalty defense lawyers in history practiced here in Colorado at the State Public Defender's Office. Not a lot of people know that she was one of the first women death penalty defenders in the nation, or that none of her clients was put to death. Her name wasTerri Brake. She was a trailblazer, an inspiration, and a legend. Indeed, she was a phenomenal lawyer, with incredible tenacity and fierce intellect. In a field where a lawyer is typically either a strong trial lawyer or a strong appellate lawyer, she was both. But she was so much more than that.
An Inspiration to Others
Terri Brake had those intangible qualities that make a person someone others are drawn to and want to emulate. She was tough yet vulnerable, with a generous heart, a beautiful soul, and a fearlessness that surpassed all others. Kathleen Lord described her as a "human highlighter":
She highlighted life—whether she was doing adrenaline junkie things she loved to do and encouraging others to take part or whether she was just talking with friends over a glass of red wine. Life was highlighted by her intelligence, kindness and humor.[2]
Colleague Mike Heher wrote, "Her insanely good spirits always irritated me, but she made up for it by being devious and smart. ... It seems unlikely we'll see the likes of her again."[3]
Terri Brake believed in redemption, always able to find the good in everyone. She brought all of these qualities to the courtroom to defend her clients, and she lived by them every day. David Kaplan, the former Colorado State Public Defender, said that when he interviewed people for new public defender positions, he would look for something that reminded him of Terri Brake.[4] Defense lawyer Jim Castle said, "Those who knew her were fortunate to experience her greatness."[5]
It is those qualities that keep her spirit alive among those in the criminal defense bar. Stories about the way Terri handled clients, cases, and difficult judges are regularly drawn on as teaching moments. Unfortunately, I never had the opportunity to meet her; she passed away while I was in law school. However, as a former state public defender, federal public defender, and death penalty defense lawyer, I have frequently heard about Terri during the ten years since I began practicing law. Her legacy has been an inspiration to me and those before me, and will undoubtedly inspire generations to come.
Defender of Human Rights
Prosecutors, defense attorneys, and judges can all agree that our system works best when there is g ood advocacy in the courtroom. This is perhaps most true when it comes to the death penalty. In fact, the U.S. Supreme Court requires a heightened level of due process in death penalty cases and has stated that "[d]eath is different."[6] In the 1970s, the U.S. Supreme Court held the death penalty to be unconstitutional. Six years later, the Court changed course and reaffirmed the constitutionality of the death penalty.[7]
During the two decades that followed the reinstatement of the death penalty in the United States, there was a surge of death penalty prosecutions in Colorado—the most the state has ever seen. The public defenders ultimately won every time; none of their clients was executed.[8] As a death penalty defense lawyer, I am biased. I recognize that not everyone is against the death penalty. Nonetheless, it is exceptional that at the time when the state prosecutors were zealously seeking the death penalty, the public defenders, led by then-chief trial deputies Terri Brake and David Wymore, traveled across the state, defending the most notorious criminals, fighting an uphill battle every time, standing on the principles of basic human dignity against the powers of the state—and they were winning.
Guardian of the Constitution
Prosecutors and defense attorneys agree that working on a death penalty case changes you. To say it is difficult does not begin to describe the emotional toll it can take. The lawyers give up years of their lives, living and breathing the case, knowing just how high the stakes are. If you are the defender, it goes without saying that your client committed at least one heinous, unimaginable act—probably many more. It is easy for anyone to label such a person as cold-blooded and somehow less than human, even deserving to die.
But Terri Brake believed strongly in the words etched on the outside of the Supreme Court, "Equal Justice Under Law," and the Eighth Amendment to our Constitution prohibiting cruel and unusual punishment. She believed that a person should not be judged by the worst thing he or she has done—that those words etched in stone and our Eighth Amendment apply to everyone, including people who have done horrific things.
For the death penalty to be imposed, twelve unanimous jurors must find that death is the only appropriate punishment. The law allows jurors to consider mercy, and on the basis of mercy alone can spare someone lethal injection.[9]
Terri Brake's role as a death penalty defense lawyer included meeting with the most notorious criminals in the history of Colorado, forming close relationships with them, and understanding them. She then sought to convey their life story and circumstances and convince at least one juror why this person deserved mercy or why this person did not deserve to die. At the same time, she needed to deal with the system that was always stacked against her, fighting the constitutionality of the process at a time in our history when the jurisprudence was ever-changing. She was the best.
An Architect of the Colorado Method of Capital Voir Dire
In the 1980s, in response to the surge in death penalty prosecutions, and death-biased jury pools, David Wymore, Terri Brake and several other lawyers began to develop a specific and methodic way of selecting juries in capital cases. To be considered to serve on a jury in a capital case, all individuals who are against the...
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