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Are Defense Errors in Capital Cases Intentional?

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The Presiding Judge of the Sixth Circuit Federal Court of Appeals thinks that capital defense attorneys may intentionally make mistakes at trial to assure extended post-conviction review of ineffective assitance claims and delay executions. Assuming that the judge might be correct, should states be able to recover the money paid to defense attorneys later found to be ineffective? The Judge's views are discussed in Associated Press story by by Terry Kinny. The opinion in Poindexter v. Mitchell is here.

4 Comments

Boggs wrote a dissent a while back in which he discusses the possibility of a sandbag by the defense.

I, of course, refuse to believe that any member of the defense bar would ever stoop to such a thing. Snark.

It's not enough that we now have a judiciary that is trending decidedly conservative and that, due to AEDPA, we've significantly scaled back habeas appeals, a development that will increase wrongful executions and lengthy incarcerations. Now we have to engage in ad hominem attacks on the defense bar?

Right on, man! The State should get back the whole fifty bucks it spent.

Of course to date no one has been able to name a case where the defense attorney has intentionally sandbagged the penalty phase. Any attorney who was smart enough to do this as a fall back defense would be smart enough to know that the AEDPA has virtually eviscerated meaningful habeas review in all but a handful of western states.

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