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The Unwilling Petitioner

Yesterday, Howard Mintz of the San Jose Mercury-News reported on the case of David Allen Raley, one of the 15 California death row inmates who have completed all the usual reviews of their cases.  "Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision."

Today, Mintz reports it is not Raley making the claim after all.  It is the lawyers appointed to represent Raley, over his vehement objection.

Death row inmate David Allen Raley on Monday asked a Santa Clara County judge to fire the court-appointed lawyers arguing that he should be spared execution because he is mentally retarded.

But it appears Raley's defense team will be allowed to press forward with the legal argument, whether the condemned killer likes it or not.

After clearing the courtroom to hear from Raley, Superior Court Judge Linda Clark, without commenting on the representation issue, moved forward with a special hearing to determine if Raley should be given a reprieve under a 2002 U.S. Supreme Court ruling that bars the execution of the mentally retarded.
The situation here is a bit murky.  We don't know what happened in chambers between the judge and Raley.  We don't know if this is the first time he raised his objection.  We don't know if his lawyers gave him notice of the claim they were making on his behalf so as to enable him to object earlier.

If a mentally competent inmate wants to fire his lawyers and dismiss his petition, he should be allowed to do so.  If this motion is made for the first time at the last minute, though, it may be just as well to proceed with the hearing, given that the preparation has been done, and the testimony will shed light on whether Raley is indeed competent to make the decision. 

If the day Raley was brought from Big Q for the hearing was the first day he knew that his lawyers were claiming he is retarded, they have some explaining to do.


This is the problem with Atkins. It proclaims that executing retarded people is per se cruel and unusual punishment, therefore if Raley is retarded then it doesn't matter whether he thinks he is retarded or not. In fact, one could argue that the fact he thinks he isn't retarded, is in of itself evidence of him being retarded i.e. only a retard would fail to see the utility of this defense.

I think there is a small kernel of truth that it might be easier for a retarded person to be the fall guy - i.e "shoot this guy, it won't hurt him" , "drive us to the bank, so we can make a deposit" [as the rest of the crew gets out with AK-47s and ski masks] ; "take this body and bury it. Don't worry we found him dead" and so forth - however these are issues as to mental state in the liability phase - if the jury or whoever determines that some guy like Raley knew what he was doing would cause the harm it did, then it doesn't matter whether he is retarded or not, he should get the same penalty.

Likewise if the jury determined that a defendant was retarded and didn't know that whatever it was he did was wrong, then there should be less liability, especially in some of my previous quasi ridiculous scenarios.

That's my two cents.

Didn't I used to hear that it was unethical for a lawyer to fail zealously to try to advance his client's agenda?

Oh, wait. That doesn't include when the client's agenda is inconsistent with lawyer's abolitionist ideology. Then the client can take a back seat, and the lawyer can zealously represent HIS OWN agenda.

OK. Now I got my mind right.

Bill, you are missing the point - since our putative retard is too dumb to realize he is too dumb, his lawyer is picking up the slack (**sarcasm**).

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