Wednesday, July 26, 2006

Death Penalty Conundrum

Posted by Jabawacefti

Via Volokh, a Sixth Circuit case points to the difficulties of applying to law to death penalty cases:

Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:

To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that “ineffective” counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever.



At 3:22 PM, Blogger Jabawacefti said...

Hate to post the first comment on my own post, but just wanted to note that I loved the rejoined of Judge Daughtrey: How dare you accuse lawyers of behaving unethically!

What an idiot.

Why would a lawyer not intentionally act ineffectively if he truly wanted to get his client off? Wouldn't it almost be unethical not to try if it's the best chance your client has?

At 4:16 PM, Blogger codemorse said...

I'm not sure I "get it," honestly.

COuld you translate out of legalese and explain what he's saying here?

At 4:23 PM, Blogger Jabawacefti said...

By "he," I assume you mean, Judge Boggs.

The Court struck the death penalty for a prisoner because the lawyer who defended him during the penalty phase of the trial was "ineffective." Boggs agreed that was the right call.

Here's the problem, according to Boggs:

Let's say you (not you fine people personally) are convicted of first degree murder and are subject to the death penalty. Yet, you don't want to die. What do you do?

Well, if the Court can reverse decisions to impose the death penalty based on the ineffective assistance of counsel, one might think (so says Boggs), that your best bet would to have your attorney intentionally be ineffective, leaving your death penalty sentence open to an easy attack to be overturned.

He is merely saying that overturning death penalty sentences for inneffective assistance of counsel can provide perverse incentives.

The implication being that the most "effective" thing a lawyer can do in such a situation is to be "ineffective."

It's only an academic exercise, but an interesting one at that.

At 4:30 PM, Blogger codemorse said...

Well, now that you've dumbed it down for the "special" class, I agree.

It is interesting.

Has this come up before?

At 4:40 PM, Blogger Jabawacefti said...

Well, it's come up before in that ineffective assistance of counsel will generally void a death sentence (from what I understand). What hasn't been done, I don't think, is a judge's rumination on the probably effects of such a ruling.

At 5:01 PM, Blogger codemorse said...

That's amazing to me.

Surely "worse" insanity cases have been brought before the courts?

Yet another example of how our system continues to play catch-up.

At 5:02 PM, Blogger codemorse said...

And that rejoinder is AWESOME in a "I can't believe he's saying it" kind of way.

How dare he accuse Judges of behaving unethically? Dude, where have you BEEN?


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