I talked to David Lida at his Mexico City apartment about mitigation, fiction, and the death penalty.
SIMON SCHATZBERG: Your profession is rather unusual. Do you ever find it difficult to respond when people ask what you do?
DAVID LIDA: Most people, when you ask what they do for a living, they can answer in two or three words. But if you want to tell people what a mitigation specialist is, you have to take a deep breath. It’s not something that’s easily explained. Sometimes I say I’m a writer, if I don’t feel like getting into it, and sometimes I say I’m an investigator, who works for lawyers, in the United States, who defend Mexicans who are in big trouble. And I let people imagine whatever that means. But sometimes, if it’s somebody with whom I want to have a real conversation, I just have to take a deep breath and explain in a whole paragraph.
It’s interesting that you sometimes say that you are a writer. I remember one scene from the novel, when Richard is hanging out with writers and he emphatically describes himself as “not a writer.” You, of course, are a writer, but I’m wondering about the writing that you do as part of mitigation, which is basically telling true stories. How do you see the relationship between that writing and the writing that goes into your books and articles?
The most important part of mitigation is telling a story. You’re telling the story to the defense lawyer, so they can use that story to convince the prosecutor to take death off the table, or convince a judge or a jury not to kill the client. Most people who are mitigation specialists have backgrounds in psychology, social work, or law. And when they write a memo, it reads very differently from a writer’s memo. There’s also a certain number of ex-journalists who do this job, and the lawyers who work with us tend to like us because we know how to tell the story in a dramatic and emotionally affecting way. That might be more useful than the way a social worker tells it. Once, someone asked me, “Since you write fiction, do you make the story up?” And I can’t do that. I have to stick to the stories that the clients and their families and the people around them tell me. But I’m sure I emphasize things in a very different way from how a prosecutor would. The prosecutor tells this really reductive version of the story, painting the client to be this monster, a murderer, who should be killed or locked up for life. I feel that in the defense teams we have to tell a more nuanced story, with more detail about the client’s whole life experience that got them to the point where they are today. And you can’t make anything up. If you do, you could ruin the whole defense, and you would probably never work again. But I can use the techniques of a fiction writer, in terms of telling the story in a way that will emotionally affect the person who’s reading it to feel sympathy for the client.
The memos that I write for the defense team are more along the lines of a crónica, a nonfiction story, than a novel or a short story. But there are techniques that you use in any form of writing — you want to move the reader, you want the reader to feel something when you write. So I try to employ those techniques when I write my memos. I try to emphasize the points in the story that would make even a tough prosecutor, a tough judge, or a tough jury sympathetic to the person who’s facing the criminal justice system.
So you use a novelist’s techniques to write mitigation memos. Did you also use a mitigation specialist’s techniques when writing One Life?
As a writer, I wanted to be both Esperanza’s mitigator and Richard’s mitigator. I wanted to tell the stories of these two people and how they got to where they are at the point we find them in the novel. I wanted Richard to be a not entirely sympathetic character. He drinks too much, he’s promiscuous, there’s a scene where he uses his job to try to get into bed with a woman. So I thought that it would be interesting to tell a mitigation story of Richard, as well as a mitigation story of Esperanza. To say, well, maybe he’s not so sympathetic, but this is how he got where he is.
When I started to mitigate, I was going to these places — agricultural villages, small towns, and deserted cities in Mexico — that nobody would travel to unless they had to. I would come back to Mexico City and talk to my Mexican friends about these places, and I would realize that even they didn’t know anything about them. And then I would see the communities on the outskirts of towns and cities where the undocumented live in the United States, and how they were trying to survive in the shadows without the rights and privileges of citizens. And I just started taking notes. I didn’t know what book I wanted to write, and it took me a long time to figure that out. I don’t know how I would have approached a memoir, because the information about my cases is privileged. So I thought I could write a novel, and get to an even larger truth than just sticking to the facts of the particular cases I had worked on.
I wanted to have a mitigator character because, I thought, that’s a really interesting job, and what he has to do to survive would be interesting. But, in a lot of ways, Richard is not like me. Really important ways. Richard does a lot of things that I wouldn’t do, or hope I wouldn’t do — I hope I’m smarter that that. But his voice is mine. That’s important. His voice is my voice. The irony. The way of looking at very serious situations with a kind of jaundiced sense of humor, that’s very much me.
In Richard’s voice, there’s a tension between that jaundiced sense of humor that marks most of his narration and a real sense of earnestness and sincerity when he talks about injustice and the death penalty. When did the death penalty become important to you?
I have always been against the death penalty, but I never took it on as a personal issue until I started doing this job. And I do think one of the great things about this job is that I can look at myself in the mirror in the morning and feel like I’m on the right side of a fight. And I’m really happy that, up to this point, not a single one of my cases has gone to death.
I didn’t really have such clear ideas about the death penalty before I started doing this work. But when I started mitigating I started to read a lot about it, about the history and the politics. I’ve read a lot of books about the criminal justice system, a lot of books about the death penalty, books about Texas. It is a big part of my reading. And I have not read anything in favor of the death penalty that makes sense to me.
If you read certain books, such as Discipline and Punish by Michel Foucault, and you look at the history of punishment and the penal system, I believe that the bottom line is that the death penalty is about vengeance, and that it’s about a biblical form of vengeance — an eye for an eye and a tooth for a tooth. It’s not a rational form of vengeance. There’s nothing I’ve read that convinces me there’s any rational reason to have the death penalty. A death sentence is supposed to bring closure to the families of the victim of a murder, when in fact it doesn’t. You talk to these families afterward, and it doesn’t bring their lost family member back.
And also, these cases drag on for decades, with appeals. So the argument people give in favor of the death penalty, that it saves money, just isn’t true. There’s also no evidence that the death penalty is a deterrent. In Texas, where the death penalty is applied more than anywhere else, every year there are more and more murders. So, evidently, it’s not stopping anyone from committing murder. None of the arguments in favor of the death penalty make sense to me.
Executions are on the decline in the United States. Do you ever worry you might lose your job?
Like a lot of other people, I thought Hillary was going to win, and that she would appoint a justice to the Supreme Court. Right now, of the eight members of the Supreme Court, four are in favor of the death penalty, and four are against it. And I thought Clinton would have chosen a judge that would be against the death penalty, and in two or three years, they would get a case positing that the death penalty was cruel and unusual punishment, and I would be out of a job. And I started to think about Plan B. Obviously if you lose your job, you need to scramble and figure out what’s next, but I would have been a very happy unemployed person.
I think that one of the reasons that there are fewer and fewer death penalty prosecutions, and certainly executions, each year, is that there are some very smart, hard-working, committed people in the death penalty defense field. And they have convinced some of the states, some of the prosecutors, that it’s really not worth their while. The prosecutors spend enormous amounts of the state’s money on a death penalty prosecution, and, at the end of the day, they might not get the death penalty. The jury chooses to give them life without parole, or some other sentence. So prosecutors are seeking death less than they used to.
One Life is not just a novel about the death penalty — it’s about death in general. How can the death penalty, this kind of extreme, exceptional experience of death, help us understand death itself?
That was important to me. I didn’t want this to be a book about the death penalty, I wanted it to be a book about life and death. Life and death, and Mexico and the United States, and love. But particularly life and death. The death penalty is a very extreme form of considering life and death, but it’s not the only way. I will say that, in my own case, my mother was in fact a Holocaust survivor, though she was very different from the mother in the book. So you could say that I’ve been imbued with the consciousness of death from childhood, if not from the womb. And my sense of justice, and the sense that life can be a very unjust affair or enterprise, that too has always been with me. So I don’t think it’s a coincidence that I ended up with this job, looking for justice, trying to save some people’s lives.