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A Peek Into Who's Honest In Capital Defense

It will come as no surprise to readers that I continue to have doubts about the "ethical standards" of the legal profession, and particularly criminal defense.  I've discussed this at length before.  For present purposes, it can be summarized by saying that resolute honesty is not what you can expect, and not what you're going to get, when professional "ethics" always put the client first and everything else  -- like truthfulness  --  somewhere toward the back of the lawyering bus.

An entry on Sentencing Law and Policy today served as a reminder.  The gist of it is that one of the most vile criminals in decades, Dylann Roof, appeared to be more honest about how to present his case than his lawyers.
The entry quotes a local story and starts as follows:

Calling his attorneys "the sneakiest group of people I have ever met," Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.

Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."

"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."

I am well aware that counsel must put forth a full, unstinting effort to represent the client.  But in what sense can it be called "representation" for the lawyers to attempt to paint the client as crazy  --  when in fact he isn't, doesn't want to be humiliated by being portrayed in that way, and instead wants to present himself to the world (and to the court) as what he actually is: Not defective but merely hateful  --  and as, shall we say, a man of action.

I have my doubts that his lawyers told Roof he "had no say" in his defense, but no doubt at all that they wanted to put him on display as a mental cripple even though, so far as any known evidence shows or even suggests, such a display would have been, as Roof says, fraudulent.

What we have here is a glimpse into the real contours of capital counsel's world.  It's an ideological business, as everyone familiar with it knows. The client becomes a reductionist cipher for the lawyer's unyielding opposition to the death penalty.  The client's dignity and autonomy make good talking points  --  and Lord knows that get talked about endlessly at capital sentencings  --  but talking points is all they are.

Defense lawyers of course have the same right as everyone else to have opinions about the death penalty.  But when the canons of "ethics" enable (and, truth be told, encourage) them to concoct a "fake news" mental state defense, and try to foist it on a client who'd prefer to go down fighting for a repulsive "principle," I respectfully submit that the canons need changing.  We could start by nudging the legal profession toward more truth-orientation.


We need to reinforce the ethical principle that the client decides the goals of representation and the lawyer decides only how to best achieve the client's goals, not his own. We also need to make unmistakably clear that death is not different in this regard.

I have letters from death row inmates who are very unhappy with their lawyers, and at least from how they tell it justifiably so. They want their cases expedited, but the lawyers say to delay is to win. If they can drag out the case so long that the client dies of natural causes, they have "won" an effective commutation to life in prison and can count it as a victory. If the client doesn't see it that way, too damn bad.

Some death row inmates tell their lawyers they want them to focus on the guilt verdict, and the lawyers ignore them and focus on the penalty. That is unethical in my view, and the rules should expressly say so.

Ours is not the only profession with this ethical goals/means distinction, BTW. Mental health professionals have the same rule, unless the patient is so far gone as to be incapable of deciding.

I think many lawyers rationalize that clients who want to speed things up, "volunteer" by calling off their appeals altogether, or focus exclusively on guilt and not challenge the penalty are necessarily mentally ill. But that is not their call to make. If the client is truly insane a conservator can be appointed, but otherwise the "goals" decisions are the client's to make, whatever the lawyer thinks of them.

I agree with everything you note here, and would add only two things.

First, it is not just bloody miscreants like Roof, but noble people throughout history, who have put their vision of how the world should be before their own lives. This may seem crazy to some, but it has not traditionally been viewed as crazy. The fact that Roof accompanied his "ideals" with notions about how white supremacy is going to take over and make him a hero does not make him crazy. Indeed, the much-lionized-by-academia Black Lives Matter movement ALSO thinks white supremacy is going to take over. This doesn't make them crazy, either. It just makes them really, really wrong.

Second, by any normal accounting of what makes a person mentally incapable of assisting his defense or committing murder, Roof is nowhere close. His letter, for example, is pretty articulate, if not cogent, given his views about race.

What defense counsel proposed was to paint their client as a pitiful halfwit. Their client is many things, but pitiful and a halfwit are not among them. The proposed story was a fabrication. Roof hates black people, wanted to kill them, lay in wait, and carried out his plan. That is only crazy in the way Eichmann was crazy, and the two of them deserve (and I strongly suspect will get) the same fate.

Someone will have to tell Judge Chatigny . . . .

Otis: "That is only crazy in the way Eichmann was crazy"
There you go, the typical anti-Semitic, Holocaust-denying Trumpist!

As our vicariously offended leader and moral concience said,
"While Jewish families across America celebrate Passover, the chief
spokesman of this [Website] is downplaying the horror of the Holocaust.
[Bill Otis] must be fired"

Otis: "That is only crazy in the way Eichmann was crazy"

There you go, the typical anti-Semitic, Holocaust-denying Trumpist!

As our vicariously offended leader and moral concience said,
"While Jewish families across America celebrate Passover,
the chief spokesman of this [Website] is downplaying the
horror of the Holocaust.
[Bill Otis] must be fired"

There's a typo in the heading. S/b "Peek"

I'll try to get back to you after I find that darn afikomen. I think I hid it just over here.......

Thanks for the correction. I should have said, "Is This the Peak of Honesty?"

Ha ha!!!

I hope everyone got the reference to Judge Chatigny . . . .

Obama tried to elevate that guy to the Second Circuit--why should his judgment on any judge be trusted?

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