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One Line as a Window on the World of Capital Defense


Every now and again, a single line from a news story serves as both a wake-up call and a window of revelation.  I just read such a line in the story about the sentencing of Anthony Sowell.


Acting on the jury's recommendation, an Ohio judge sentenced Sowell to death for kidnapping and murdering 11 women over a two year period starting in 2007.  The defendant's apparent reason for kidnapping the women was to rape them; their corpses were found nude from the waist down.  The story continues (emphasis added):

Sowell, 51, never looked at victims' relatives as they spoke during the sentencing hearing. He also ignored the judge when asked if he wanted to speak....Sowell's defense team, John Parker and Rufus Sims, rested without calling witnesses and instead focused on sparing his life with sympathetic testimony about his troubled childhood, his Marine Corps service, and good behavior while serving 15 years for attempted rape.

In academic debates, we hear various, frequently abstract reasons for ending capital punishment.  Here, by contrast, we have a specific case and a specific killer.  What we get are no witnesses, combined with the notion that a serial rapist-killer should be spared because  --  all together now  --  he refrained from slugging the prison guards while serving his prior 15 year sentence for attempted rape.

Do these people even hear themselves?


What else were these guys supposed to do? The law allows, nay, requires capital defense attorneys to throw things at the wall to see what sticks. It is that nonsense which leads to spectacles like this one.

...and the fear of a bogus ineffective assistance of counsel claim from his next court-appointed attorney.

Bill, of course, is 100% right. The unreality of someone saying that a person was a good prisoner after he's just been convicted of 11 murders is hard to fathom.

Future dangerousness is a big part of capital sentencing. A jury has to think about how dangerous a defendant will be in prison if he is imprisoned for life without parole. The answer to this for Sowell appears to be "not very" or perhaps "not at all." Specific deterrence isn't going to be served any better for this guy by a death sentence than by a life sentence.

True enough, the ability to follow prison rules has been held to be a mitigating factor--but the surrealness of the presentation (which was one of Bill's points) is self-evident. Most normal people don't think that the idea that a guy followed prison rules is really all that relevant in fixing blameworthiness.


The irony is that counsel's argument is so bad that it too risks an IAOC claim. Indeed, drag-it-out-at-any-cost DP litigation has now come to the point that counsel's assistance will be condemned no matter what it is, just to keep the clock and the meter running.


"Surreal" is exactly the word. I would just rather beg for mercy than make an "argument" that my client been well behaved, as these things go, while serving his prior lengthy sentence for attempted rape. An argument like that risks reminding the jury that the client has spent a good deal of his life trying to hand in his membership card in the human race, even though he only recently fully succeeded.


Specific deterence is hardly everything. The prior question is whether the grotesqueness of the murders, standing alone, has ALREADY earned the DP, no matter how non-dangerous we guess the killer will be in the future.

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