Althouse: "Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again?"

October 14, 2009

"Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again?"

Justice Antonin Scalia, at oral argument, yesterday.

"What would you have done? It makes sense logically to say he has the worst defendant he has ever seen. He's murdered lots of people in cold blood. He gets up on the stand and says, 'I'm going to kill a lot more.' He sounds totally bonkers."

Said Justice Stephen Breyer.

Is it possible to be constitutionally ineffective when you've got such a bad client?

Justice Ruth Bader Ginsburg tried to help: ""What's remarkable about it is at no point did counsel say, 'Give him a life sentence.' He said that either one would be acceptable: either death or life would be acceptable."

So did Justice Sonia Sotomayor, remarking on the lawyer's strategy of using the crimes themselves as evidence of mental illness": "At some point you can have a strategy and execute it so poorly, so incompetently, that you're providing ineffective assistance of counsel."

33 comments:

JohnAnnArbor said...: In Europe he'd get a "life" sentence and walk out in about ten years, with the Guardian worried about the harshness of the penalty.

A lawyer can't stop his client from being stupid. I mean, what was the defense lawyer supposed to do? Forcibly shave his mustache and give him a few Valiums before hearings?; 10/14/09, 3:54 PM
traditionalguy said...: The defense attorney set up a classic ineffective assistance of counsel appeal. Damn good job. By the time he is re-tried the witnesses may have lost touch or their certain memeories, and the DA may batgain for a plead out for time served.; 10/14/09, 4:01 PM
JohnAnnArbor said...: The defense attorney set up a classic ineffective assistance of counsel appeal. Damn good job.

Hang on. You're saying that the defense lawyer, knowing the death penalty was all but inevitable for his client, intentionally did an incompetent job so that some other lawyers could later point to that on appeal?

Slimy and dishonest.; 10/14/09, 4:05 PM
Eric said...: This has always bothered me. In theory we don't execute crazy people, and the more heinous the crime the more likely people are to consider the perpetrator crazy. So to get the needle you have to do something bad but not too bad?

Seems like an incentive to go all in if you're gonna commit a capital crime.; 10/14/09, 4:06 PM
traditionalguy said...: John in Ann Arbor...When there is no defense that is noble, then you win baby, just win, with the available tools. I take it that the River Boat Gambler is not your style.; 10/14/09, 4:22 PM
JohnAnnArbor said...: I guess I'm too honest to be a lawyer, then. If the guy fries despite your best honest effort, the guy fries.; 10/14/09, 4:24 PM
Synova said...: I suppose it depends on if you feel that the constitution requires that you get him "off" or if the requirement is that you make certain that he has a fair trial and the prosecution actually proves the case.

I had to laugh at my 20 year high school reunion when the class valedictorian, who'd gone on to be a lawyer and who's first job was as a public defender followed that statement with an immediate, "All my clients were hardened criminals who are all now safely behind bars."

Oh, I know that mostly it was a reaction to the general assumption by people (from watching television) that criminal defenders wanted the bad guys back out on the streets and she wanted to head off that conversation, but really, the general assumption is that criminal defenders want the bad guys back out on the streets.; 10/14/09, 4:32 PM
Wince said...: The defense attorney set up a classic ineffective assistance of counsel appeal. Damn good job.

I've always thought that the best lawyer you could have if you are provably guilty of a capital crime is a narcoleptic alcoholic.

It always seems in most successful ineffective counsel cases they always say either the lawyer dozed off or was drunk.; 10/14/09, 4:48 PM
traditionalguy said...: Defense Attorneys do draw the line at getting molesters and Murderers of young children off. The rest is covered under the adversarial way of life we live. The movie Gladiator is as close to an insight into the Defense attorney's soul as you can come without doing it yourself. If you want to see a good movie on the subject, rent "Anatomy of a Murder" from netflix. Jimmy Stewart does it right, in Michigan of all places.; 10/14/09, 4:53 PM
hombre said...: When there is no defense that is noble, then you win baby, just win, with the available tools.

Yeah. The old defense attorney song and dance. "It's easy to get an innocent defendant off. The real trick is to get a guilty one acquitted."

And prosecutors say: "Anybody can convict a guilty guy, the real trick is to ...."

Well, no. Actually we didn't say that because prosecutors are held to high standards and defense attorneys have no standards.

(That's not to say that prosecutors always meet high standards, but if they don't, there are consequences.); 10/14/09, 4:59 PM
hombre said...: Defense Attorneys do draw the line at getting molesters and Murderers of young children off.

You're kidding, right? Maybe you meant to say, "There are a few defense attorneys who draw the line ...."; 10/14/09, 5:03 PM
Richard Dolan said...: From the description of the argument, I doubt that the defense attorney was intentionally trying to set up an ineffectiveness defense. It's not that a very clever defense attorney couldn't have something like that in the back of his mind. But it's a very risky approach, and the objective is always to win with the jury. The chances of obtaining relief on habeas are very low, making a defense supposedly aiming at showing ineffectiveness of counsel a very poor percentage shot. Also, habeas is an equitable remedy, and if the court ever got the sense that the defense counsel was inviting error in some way, the petition would be a non-starter.

My sense is that this defense attorney had no idea how to control a defendant who seemed determined to convince the jury that he plainly deserved the death penalty. In making a closing argument, the defense attorney had to gauge how he thought the jury reacted to the defendant's unbelievable display, in order to frame the (underwhelming) argument for leniency he was left with in the most persuasive terms possible.

As for those who are complaining about dishonesty by defense counsel, you need to remember that in a criminal case, the burden is always on the prosecution to prove every element of the offense, and the factors claimed to merit the death penalty, beyond a reasonable doubt. The defense attorney doesn't have to prove anything. That's why an acquittal is not a finding of innocence. It's just a determination that the prosecution failed to meet its burden of proving guilt beyond a reasonable doubt.; 10/14/09, 5:57 PM
ricpic said...: I see the wise latina continues to mouth watered down versions of whatever the old white male says.; 10/14/09, 6:20 PM
hombre said...: As for those who are complaining about dishonesty by defense counsel, you need to remember that in a criminal case, the burden is always on the prosecution to prove every element of the offense, and the factors claimed to merit the death penalty, beyond a reasonable doubt.

I'm not sure anyone is complaining about the dishonesty of defense counsel. If they were, how is this a response?; 10/14/09, 6:26 PM
traditionalguy said...: All is conjecture as to this attorneys motives, but it does seem deliberate sabotage to me. Remember that the present rule is that defendant must recieve an effective attorney for free, OR YOU CANNOT CONVICT HIM. So there are cases where the only hope is to pull a stunt like this... and they cannot convict him. You better bet that on re-trial this attorney is not appointed to defend him, and a cooperative young man/woman gets to walk him thru the system to his certain conviction. There is a old thought from amature wrestling, that I now hear Bill Russell of the Celtics also had written on the Celtics wall, " If you're going to all the pain and trouble of playing this game, why not win?" That is the thought that a competitor lives by. There is No Fun in losing, even when it's expected of you. Passionate Judges probably come from passionate attorneys.; 10/14/09, 6:30 PM
Skipper50 said...: Does this mean losing is per se incompetence?; 10/14/09, 6:34 PM
Anonymous said...: "ineffective assistance of counsel?"

If that's the opinion of a "Wise Latina" I'd hate to see what a blithering idiot would say.; 10/14/09, 6:38 PM
traditionalguy said...: Skipper...Say what you want, but ineffective assistance of counsel is an appeal point in all Death Sentence cases. Faking that would be a strategy. The question is how to rule on this tactic. Since you are not a blithering idiot, how would you rule? Can the prosecution take advantage of a old timer attorney with no memory, or a novice with no experience to appoint to the cases they really want to win? Why not? My advice is to just take the guilty ones outside and shoot them. Then the Defense attorneys would not have to take on these losing cases for the system to work as it now does.There, all solved with no Latino input.; 10/14/09, 6:50 PM
Methadras said...: Well, at least now we get to the heart of the matter on why an insanity pleas are used in death penalty cases. Talk about built in sabotage.; 10/14/09, 6:53 PM
traditionalguy said...: Skipper...Sorry, I was saying that to datechguy. Old attorneys sometimes provide ineffective comments.; 10/14/09, 6:59 PM
hombre said...: The movie Gladiator is as close to an insight into the Defense attorney's soul as you can come without doing it yourself.

O-M-G! Every accused is entitled to a competent lawyer and a great deal more, but there is nothing particularly noble or admirable about defense work. Virtually all defendants are guilty and are convicted -- 90+% by guilty plea. Most are predatory repetitive offenders.

They aren't Maximus Decimus Meridius and neither are their lawyers.

Gladiator? Insight into a defense attorney's soul? Good grief!; 10/14/09, 7:03 PM
Penny said...: This is just the kind of case that had some states eliminate the death penalty for the amount of money they end up spending on appeal.

Does this seem logical to you, or are we just kicking this moss covered stone further down the road?; 10/14/09, 7:04 PM
Donna B. said...: I know there are more than a few lawyers commenting here, but how many past jurors are there?

Though not a criminal case, the jury I served on heard a very complicated civil case involving multiple parties.

The one thing I can tell you is that while we might not have fully agreed on what the outcome should be, we were in full agreement as to which lawyers (4 in all) were competent and incompetent.

Frankly, the incompetent lawyer(s) pissed off the jury for trying to play us for fools and wasting our time. One of the competent lawyers came very close to doing that also, but it was quite apparent that his client insisted on the presentation of an obviously lying "witness".

My point here is that it is really quite difficult to fool a reasonable jury. There are exceptions, of course.

I tried my best to get off this jury. I had a financial relationship with one of the parties (an insurance co.), I had a personal background that might color my judgement (relative of someone who suffered a severe head injury), I had worked for the spouse of a court employee...

It seemed that each of the parties thought my "prejudices" would swing their way.

While it was one of the most interesting 2 1/2 weeks I've spent, it's one I do NOT want to repeat.

The main thing I learned is that the jury belongs to the judge. He/She is the only person (through the bailiff) that the jury can communicate with. There is nothing like a juror's badge to notify everyone else you are a pariah not to be spoken to.

My point is that where a jury is concerned, there is absolutely nothing any lawyer could do to mitigate such testimony from a defendant... except to ask why he was allowed to testify.

Does a lawyer have the power to refuse his client his moment on the stand?; 10/14/09, 7:26 PM
traditionalguy said...: El Hombre...The trial of an accused criminal is supported by a system like the Roman Emperor's with police detectives and officers, and Crime Lab High Experts, and DA's investigators and young assistant trial lawyers and the experienced old timer, all planning to re-enact the defeat of Carthage in a public show trial. The defendant has one attorney with an inferior group of experts and no Detectives. To win the trial the Empire's system has to crush the leader of the defense along with the Defendant. Defense attorneys can either be meek and by the numbers and lose as an extra in the grand drama, or they can be difficult and strike at the overconfident prosecutions weak points like Maximus did. Then after the defendant is acquitted by the jury, Prosecutors will even re-indict him for perjury for testifying that he did not do what he was accused of and acquitted of in his trial. Yes, the Empire will do that.; 10/14/09, 7:35 PM
David said...: "My sense is that this defense attorney had no idea how to control a defendant who seemed determined to convince the jury that he plainly deserved the death penalty."

The guy is uncontrollable. What could the attorney have done, other than try to keep him off the stand? If the guy is a loose cannon and wants to testify, can the attorney stop him? I think not.; 10/14/09, 8:04 PM
Methadras said...: Penny said...

This is just the kind of case that had some states eliminate the death penalty for the amount of money they end up spending on appeal.

Does this seem logical to you, or are we just kicking this moss covered stone further down the road?

It is offensive and yet understandable why some states would do this. Offensive in that to think that prosecuting an alleged murder will rest on the amount of money spent on said prosecution and understandable because in theory the state is beholden to the tax payer and how much it spends on murder prosecutions with revenues nationwide down being a reality to fund things like court appointed lawyers, cost for court rooms, judges, jury's, etc. etc.; 10/14/09, 8:49 PM
Ofc. Krupke said...: The way to solve this is simple.

Just ensure that attorneys who are found to be incompetent face professional consequences for it. After all, if a lawyer is shown to be SO grossly incompetent that it harms his client's chance for a fair trial, the court should be liable if they ever let him near a courtroom again, right?

You wouldn't see "planted incompetence" as a defense strategy if it cost the lawyer to do it.

WV: intel. :); 10/14/09, 9:12 PM
traditionalguy said...: ofc Krupke...It's a perfect catch 22. The State cannot convict unless the attorney they fournish makes all the right moves. But the complexities are overwhelming like the UN's Climate Models for strategies that will or wont work. It is always back up for review. And telling the Defense attorney what to argue is catch 22 that kills the conviction. This dude needs a medal.; 10/14/09, 9:19 PM
hombre said...: ofc Krupke wrote: You wouldn't see "planted incompetence" as a defense strategy if it cost the lawyer to do it.

That's exactly right.; 10/14/09, 9:46 PM
traditionalguy said...: You guys are not seeing the dilemma...The defense lawyer is supposed to lose while looking adequate but not brilliant. How are the Harleem Globe trotters going to penalyze the Washinton Capitals for losing too easily? The only firing offense is to beat the Globetrotters in the touring show.But now you say to discipline the Defense Attorney for losing too easily to the extent that he commited the real offense by winning a conviction reversal on appeal. I still say you guys will only be happy when they just take the criminals out and shoot them, and leave the poor window dressing attorneys out of the Death by Trial.; 10/14/09, 10:01 PM
hombre said...: @traditionalguy: I know the rationale behind your Gladiator analogy. I've heard dozens of variations on the theme.

My point was, it's delusional. I can appreciate the need defense attorneys have to glamorize the work, but it's just not glamorous.

You also said: Then after the defendant is acquitted by the jury, Prosecutors will even re-indict him for perjury for testifying that he did not do what he was accused of and acquitted of in his trial. Yes, the Empire will do that.

Where do you practice? If prosecutors couldn't convict of the substantive charge, how could they convict of the perjury? And given most prosecutor's caseloads, why would they waste the time?; 10/14/09, 10:20 PM
hombre said...: You guys are not seeing the dilemma...

Of course we see the dilemma. It's just that we see it as an ethical issue. You apparently think it's just a practical issue.; 10/14/09, 10:24 PM
traditionalguy said...: El Hombre...Those were days gone by 30 years ago when young lawyers took appointed cases in the Atlanta suburbs. The perjury ploy for re indictment and trial was done as a tactic by the DA's Office to close out its investigation into the Police Officers that the Judge had ordered tha DA to investigate for a perjury charge after the jury refused to believe the officer's eye witness testimony.Yes, he was acquited again, with his new court appointed defense attorney. If he had been convicted the second time, then Double Jeopardy reversal on appeal was probable.; 10/15/09, 7:22 AM