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Why Capital Defense Costs More Than It Needs To

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Marc Lacey reports in the NYT:

Jared L. Loughner's grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.
And who is paying for that?  You are, if you pay US federal taxes.

Why?  Family history of mental illness is, of course, a risk factor.  But the probative value of such a history in diagnosis is minimal compared to direct observation and testing and the person's history of behavior.  Why do we pay for such extensive and expensive investigation of material with such limited probative value?

The defendant has a right to effective assistance, but he does not have a right to a blank check.  We need some reasonable limits on defense expenditures.  This is way beyond any reasonable limit.

Thanks to SL&P for the link.

2 Comments

I think I know the answer but Kent's post compels me to raise the issue anyway.

Why can't extraordinary defense expenditures be submitted to the Judge for his review and approval or modification. The jurist has the authority to make many decisions regarding what evidence is presented in the first instance. This would be a pro-active extension of that authority.

No one is looking out for the taxpayer in the current system. Much like doctors must practice defensive medicine for fear of being sued, capital trial attorneys feel compelled to pursue every possibility to forstall a later ineffective assistance of counsel claim.

Defensive medicine practices have been a major reason we can not bend the medical spending curb downwards. We have an analogous situation with capital trial defense.

Of course there is the simplest and most obvious answer of all: adopt SB 490 and save the justice system the headaches, and the taxpayers the cost, of a system that primarily serves to reward a handful of ambitious politicians, prosecutors, and lawyers funded by movement conservative organizations like the Koch, Scaife and Bradley Foundations--organizations like CJLF.

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