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Respecting the Client's Choice in Capital Cases

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There is a well-established rule of professional responsibility that the client decides the goals of representation, and the lawyer decides the means of achieving the goals.  There are exceptions for persons not capable of decision, such as the mentally incompetent.

Some capital defense lawyers seem to think that there is a "death is different" exception for capital cases.  There is not.  If the client directs his attorney not to offer mitigating evidence in the penalty phase, he has no ineffective assistance claim if the attorney follows his direction.  See Schriro v. Landrigan, 550 U.S. 465, 475 (2007).  (See also CJLF's brief in that case.)

Yet they never give up.  As noted in today's News Scan, the California Supreme Court today affirmed the conviction and death sentence of Steven Brown for the sodomy and murder of 11-year-old April Holley.  Brown decided he would rather be sentenced to death than life in prison and instructed his lawyer to present no mitigating evidence.  His lawyer and the trial judge made sure this was a competent decision.  No, that is not ineffective assistance.  Quoting earlier decisions, "an attorney‟s duty of loyalty to the client means the attorney should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ."

Now, California Supreme Court, it is high time to recognize that what is true at trial is equally true on appeal.  Sometimes death row clients say, "Get my appeal done promptly; don't stall" or "Only challenge the guilt verdict, not penalty; 'give me liberty or give me death' " or "Don't challenge the judgment at all; I'm good with it."  If the client is mentally competent, the lawyer can advise against these decisions, but if push comes to shove, it is the client's decision to make.  And, no, the lawyer cannot decide on his own that the client is incompetent to make the decision.  Only a judge can appoint a conservator to make these decisions for an incompetent client.

I have letters from death row inmates whose lawyers have ignored their instructions, and the California Supreme Court ignores their protests.  That's not right, for the reasons you just said.

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