Texas inmate Daniel Lee Lopez got his wish Wednesday when he was executed for striking and killing a police lieutenant with an SUV during a chase more than six years ago.

The lethal injection was carried out after the U.S. Supreme Court rejected appeals from his attorneys who disregarded both his desire to die and lower court rulings that Lopez was competent to make that decision.

In April, the Fifth Circuit noted, while dismissing the appeal:

Lopez is as resolute that Texas should carry out his capital sentence as he is that no counsel deprive him of that choice. The district court, after ascertaining competency, nonetheless granted Lopez's "motion to dismiss counsel, effective on the conclusion of any appeal." (Emphasis added). This court does not address, because the State did not raise, the appropriateness of our considering this appeal by counsel who were appointed for petitioner by the district court against his will, and who have filed this appeal despite his wishes and despite the court's resolution of the Rees v. Payton, 384 U.S. 312 (1966) issue. Cf. Sanchez-Velasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).

The general rule is that the client sets the goals of representation and the lawyer makes the tactical decisions on how to achieve them.  Can a lawyer ethically decide on his own that the client is mentally incompetent and take it upon himself to set the goals of representation?  I don't think so, but it's an issue that needs to be settled.

I also do not think that the court can pass on the issue merely because the state did not raise it.  Does a court have jurisdiction to overturn, or even stay, a judgment that neither party to the original case wants disturbed?  No one else has standing, the Supreme Court has said, and standing is a jurisdictional requirement. 

It seems to me that unless and until a court has determined that the inmate is mentally incapable of making the decisions that belong to the client in the attorney-client relationship, and appointed someone to make them on his behalf, nobody including the lawyer can legally take it upon himself to make those decisions.