pageok
pageok
pageok
More Death Penalty Dissension on the Sixth Circuit:

The disagreements over death penalty litigation continue on the U.S. Court of Appeals for the Sixth Circuit. The latest round comes from the case of Poindexter v. Mitchell, in which a three-judge panel unanimously upheld a capital defendant's claim that he received ineffective assistance of counsel during the sentencing phase, but in the process produced four opinions.

In 1985, Dewaine Poindexter was convicted of two counts of aggravated murder, among other crimes, and sentenced to death. After years of litigation, Poindexter filed a federal habeas claim. Among other things, Poindexter alleged ineffective assistance of counsel during the sentencing phase becase his counsel failed to conduct an adequate investigation of potentially mitigating evidence. On Monday, the Sixth Circuit upheld this claim, vacating Poindexter's death sentence pending a new sentencing proceeding in a unanimous opinion authored by Judge Suhrheinrich.

The disagreement among the judges was not over whether Poindexter should prevail. All three judges on the panel -- Suhrheinrich, Daughtrey, and Boggs -- agreed that existing precedent was clear. They disagreed over whether it was wise -- and how existing precedents might influence strategic choices made by defense attorneys in capital cases.

Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:

To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that "ineffective" counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever. [citations omitted]
Boggs further noted that whether "mitigating evidence" will reduce the likelihood that a capital defendant receives the death penalty is wholly speculative. The end result is that defense attorneys face a "moral hazard" in which any "sensible attorney" would be likely to reason as follows:
If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the "troubled childhood" variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.
Boggs made clear that he was not accusing the attorneys in this (or any other) case of making such a judgment, "consciously or unconsciously." Nonetheless, he noted, "our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."

Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so she penned one of her own "in order to express my dismay at Judge Boggs's unjustified attack directly on both the cpiatal defense bar and indirectly on the members of this court." Daughtrey continued:

For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.
According to Dughtrey, if there are problems with finality in death penalty litigationk it is more likely due to the fact that "those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both."

Not to be left out, Judge Suhrheinrich also wrote his own brief concurrence, though only to agree with Chief Judge Boggs.

I agree with Judge boggs. I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase. I do not share Judge Daughtrey's views of defense counsel in these types of case as my experiences have been different. [citations omitted]
This is not certainly not the last episode of Sixth Circuit dissension in death penalty cases, so stay tuned for the next chapter.

Houston Lawyer:
I think it has been clear for some time that for some defendants the best defense attorney is an incompetent one. Boggs hit the nail on the head.
7.26.2006 4:10pm
Mahan Atma (mail):
Is Boggs serious???

I'm sorry, but I've spent a lot of time working closely with death penalty defenders, and his remarks are a slap in the face.

What a display of ignorance and venom...
7.26.2006 4:13pm
Mahan Atma (mail):
"Boggs hit the nail on the head."

Can you, or Boggs, or anyone provide a single real-world example of a death penalty attorney who was deliberately ineffective in the hopes that the defendant would win on appeal???

It's ludicrous to think defense attorneys would behave this way.
7.26.2006 4:15pm
Steve P. (mail):
Can you, or Boggs, or anyone provide a single real-world example of a death penalty attorney who was deliberately ineffective in the hopes that the defendant would win on appeal???

If the attorney was incompetent during the penalty phase, but the court found that the incompetence was staged as a plan to help his client, then it would probably be ruled effective assistance (albeit unusual means). Of course, that would be nigh impossible to prove, and as Boggs notes, there's no hard proof that mitigation testimony actually reduces the sentence for the average criminal.

Unless I'm missing something, Judge Boggs isn't saying that any defense attorneys are pretending to be incompetent. To quote:
"While I do not asserty that the counsel in this or any other case made such a judgement, either consciously or unconsciously, I do note that our jurispridence has made such a line of reasoning virtually inevitable for any defense attorney."

Basically, it's something to think about. Where's the ignorance or venom?
7.26.2006 4:28pm
Jeff R.:
Clearly there's an open market niche for a firm that can provide patently incompetent defense attournies for capital defendants. And surely our law schools are producing a fairly continuous stream of graduates who can just barely pass the bar but are unfit for other legal careers. The business plan practically writes itself...
7.26.2006 4:28pm
Steve:
There wouldn't be such a substantial body of law relating to ineffective assistance of counsel if the legal system had not, in fact, provided so many defendants with unqualified or incompetent counsel over the years. The remedy is simply to stop doing that.
7.26.2006 4:38pm
Realist Liberal (mail):
There is one very important thing that Judge Boggs is missing. If an appeals court finds that counsel has been ineffective, the attorney is subject to sanctions from the state bar and can be sued for legal malpractice. Very few attorneys that I know would be willing to play the sort of game that Chief Judge Boggs is talking about when it could mean their livelihood is at stake.
7.26.2006 4:49pm
Hattio (mail):
Steve P.,
Actually trial strategy decisions are up to the attorney, and are only incompetent if no reasonable attorney would adopt a similar strategy. Assuming the state could prove that incompetence was staged, I'd imagine the State's first citation would be Judge Bogg's assertion any sentient attorney would think about it. Therefore, not incompetent. But I agree with Steve (no P). The best strategy for a State looking to reduce death penalty incompetence is to provide competent attorneys. Of course, doing away with the death penalty would work too.
7.26.2006 4:58pm
Steve P. (mail):
Realist-
To prove a legal malpractice claim, doesn't the defendant have to show that the attorney's incompetent actions did him some sort of injury? In the hypothetical Judge Boggs is proposing, the injury would actually be lessened by ineffective assistance, and so he wouldn't be liable of legal malpractice (at least, at first blush).

That said, sanctions (whether from the state bar or another source) would seem to be the appropriate remedy already in place.
7.26.2006 5:02pm
Stuart Buck (mail):
Note that the final version of Boggs' concurrence doesn't use the phrase "any mildly-sentient defense attorney." Daughtrey must be responding to a prior draft.
7.26.2006 5:16pm
statfan (mail):
There is one very important thing that Judge Boggs is missing. If an appeals court finds that counsel has been ineffective, the attorney is subject to sanctions from the state bar and can be sued for legal malpractice. Very few attorneys that I know would be willing to play the sort of game that Chief Judge Boggs is talking about when it could mean their livelihood is at stake.

What is one's livelihood compared to the life of a client?
7.26.2006 5:22pm
Colin (mail):
Stuart,

That's an interesting observation, especially since Boggs' concurrence, immediately after the phrase that presumably changed between drafts, invites the reader to compare the separate opinions and decide if Daughtrey's characterization is accurate. (Personally, I think that it is.) It would be interesting to find out, as I'm sure we never shall, where the back-and-forth cut off.
7.26.2006 5:36pm
fishbane (mail):
What is one's livelihood compared to the life of a client?

Note that in the game-theoreticals we're looking at, this would of course cause more churn in DP defenders, thus making the lot of them less competent over time.
7.26.2006 6:26pm
markm (mail):
Steve (not P) cut to the heart of the matter. Defense counsel should be qualified, competent, and adequately paid, with a large enough investigative budget. However, in some states (Virginia for one), the court-appointed defender gets paid from a few hundred dollars for lesser felonies to a few thousand for capital cases. This means that the attorney who puts on anything approaching an adequate defense has not only put in unpaid hours, but probably isn't even getting paid enough to cover office overhead expenses.
7.26.2006 6:49pm
Dave Hardy (mail) (www):
Here in southern AZ, there were some pretty slipshod public defenders. Then two of the best criminal defense guys in town took jobs as chief PD and deputy. They figured they'd made their fortunes, and now it was time to do a job for the public. They've really cleaned things up.
My former law partner practiced for a time in VA and confirmed Markm's comments. The pay for appointed defenders was so low that incredible. Here the non-PD defenses are handled by contract, ranging from $25,000 to several hundred thousand (the last for attys who take several death penalty cases a year).
With regard Judge Bogg's comments -- I think he was saying, not that this manner of thing is done, but that under the caselaw, the most effective defense might be an ineffective one, and effective defenses might work only to increase odds of the defendant being executed. I have little doubt his math would be correct. Odds of swaying a jury, in the typically nasty death-eligible case, with "he had an abused childhood" don't seem too high.
7.26.2006 7:24pm
Kovarsky (mail):
To prove a legal malpractice claim, doesn't the defendant have to show that the attorney's incompetent actions did him some sort of injury? In the hypothetical Judge Boggs is proposing, the injury would actually be lessened by ineffective assistance, and so he wouldn't be liable of legal malpractice (at least, at first blush)

This is not a civil malpractice claim. It's an ineffective assistance claim, and someone upthread correctly indicated that the governing standard is "no reasonable attorney" as applied to trial strategy.

Boggs' claim is particularly befuddling because, among other things, everyone knows that ineffective assistance claims almost always fail. As several people, Boggs is in space on the incentives facing a rational defense attorney. The likelihood of successfully pressing an ineffective assistance claim is such a tertiary variable in selecting strategy, Boggs' poing is a little like arguing that people don't go to baseball games for fear of getting hit with a foul ball.

But Boggs' himself doesn't really believe his own logic, which is why he retreats from the idea that the "payoff" would take the form of a successful claim, and instead suggests that at least an offender will be spared execution for many years (presumably, while the ineffective assistance claim is litigated). This is, of course, premised on the assumption that sub-optimal trial strategy would lead to longer postconviction litigation than optimal trial strategy. That assertion is utterly without empirical support.

In sum, this is just a disguised complaint against the result of cases like Strickland and Wiggins, and it does not represent a serious knock on ineffective assistance rules.
7.26.2006 7:32pm
Lev:
I also don't see the problem with Boggs' comments.


If an appeals court finds that counsel has been ineffective, the attorney is subject to sanctions from the state bar and can be sued for legal malpractice.


Assuming that is actually true,

1. in how many cases where appeals courts found that the atty had rendered ineffective assistance and reversed either or both of the original conviction or the death sentence, did the atty actually receive any discipline for it, and what was the discipline, disbarment, private reproval, take the ethics test...

2. what client whose murder conviction and/or death sentence have been reversed some 10-15 years down the road, facing retrial or resentencing or both with witnesses having died, memories faded etc., is going to sue the lawyer who made that reversal possible for malpractice?

The duty, and the incentive, for the anti-death penalty atty is to get the accused perp off, by any means necessary.
7.26.2006 7:34pm
Mark K. (mail):
Could someone please explain to me what Judge Daughtrey, and some commenters, find offensive or venomous in Judge Boggs's opinion? In what way is an argument that capital defense lawyers, under existing law, face an unpalatable choice (put on a competent sentencing-phase defense, or put on an incompetent sentencing-phase defense that on balance probably will serve the client's interests better) an attack on those lawyers?

I think Judge Boggs is probably wrong in his critique of the substantive law . . . but it sure would have been nice if the response had been an analytical debate, not a judicial hissy fit.
7.26.2006 7:45pm
Kovarsky (mail):
Lev,

Even if the ineffective assistance rule provides a slight incentive for sub-optimal trial strategy, that incentive is, by orders of magnitude, absolutely dwarfed by every other incentive (on both guilt and sentencing) to provide optimal assistance. And the cost of abandoning an ineffective assistance rule (or ratcheting up the standard) is that innocent people will be executed or guilty ones will nonetheless fail to receive an adequate sixth amendment guarantee. So who cares about the even more peripheral variable of how often sanctions are enforced against deliberately ineffective counsel. It just doesn't matter in the course of trial strategy. This is navel gazing, and it doesn't reflect any understanding of the thought process that defense attorneys go through.

Also, even assuming counterfactually that subsequent enforcement of deliberately ineffective assistance is a meaningful variable, you're incorrectly assuming that such enforcement would take the form of a malpractice lawsuit. That is incorrect. It would probably be a disciplinary action by the state bar.
7.26.2006 7:49pm
Bobbie:
I took a class on the death penalty in Texas from a professor who had worked on a large number of death penalty trials. He stated that, in his experience, *very* few juries will sentence someone to the death penalty if there has been an effort to put forth a good sentencing defense -- i.e., there's competent defense counsel and the defendant himself doesn't hamstring the defense by, for example, refusing to allow family members to testify on his behalf. Typically, even when there has been a horrible murder, jurors will be swayed by the "he had a horrible childhood" defense. Thus, I wonder whether Boggs is empirically correct.
7.26.2006 9:11pm
John Herbison (mail):

Can you, or Boggs, or anyone provide a single real-world example of a death penalty attorney who was deliberately ineffective in the hopes that the defendant would win on appeal?


Whether it was or was not deliberate is a matter of conjecture, but Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn. 1994), aff'd sub. nom 131 F.3d 1150 (6th Cir. 1997), cert. denied 523 U.S. 1133 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998), comes close. The federal courts' opinions demonstrate an egregious example of ineffectiveness in a death case. In affirming the federal district court's granting of habeas corpus relief, the Sixth Circuit opined that trial counsel "went so far as to express personal sympathy for the prosecution and shame for representing Rickman." 131 F.3d at 1160. The Sixth Circuit declined to reach any question of subjective bad faith on the part of trial counsel:


"If [trial counsel] had been attempting to characterize Rickman as a hapless loser, or as someone who had suffered hard knocks through life, he might arguably have been pursuing a legitimate strategy. But his own testimony makes clear that [counsel] had no such aim in mind: he simply wished to portray his client as vicious and abnormal. This is simply not a legitimate defense. Further, it is a portrayal that could only have encouraged the jury to put aside any doubts and convict speedily. The effect [counsel] created was not one of pity for a pathetic Rickman, but one of hostility toward the hated and violent freak. Thus, while there may be a gray area where an attorney simply is unsuccessful at depicting his client in a sympathetic light, this case plainly falls way outside those boundaries. And it is impossible to read [counsel's] statements and think that this was simply an inadvertent accident, a strategy gone awry. We obviously cannot read [trial counsel's] mind, but his performance was so outrageous that it is not necessary for us to decide whether we can impute actual bad faith to him. If the effect he created was unintentional, it matters not to Rickman, who has been convicted and sentenced to death; it was just as fatal."


On retrial, Mr. Rickman and his codefendant (who had also been granted habeas corpus relief) were sentenced by the jury to life imprisonment.

That having been said, Judge Boggs' suggestion that able and conscientious defense attorneys in capital cases would risk their clients' lives by engaging in cynical calculation as to the speculative possibility of some reviewing court later granting relief is unfounded and reprehensible.
7.26.2006 9:17pm
Mahan Atma (mail):
Boggs' statement is insulting because it implies defense attorneys would be willing to ignore their duties under the law and perpetuate a fraud on the court.

He may as well have pointed out that defense counsel can gain a strategic advantage by lying, subborning perjury, intimidating witnesses, and destroying evidence. And if he doesn't think anybody would actually do that, then what's the point of his argument?

Second, it is ignorant because it displays a complete lack of knowledge about how competent capital defense attorneys actually think. As Judge Daughtrey points out, nobody plays stupid games with their client's lives like this. Even assuming they were so disingenuous, it would be a patently stupid strategy to pursue.

Think about it: Boggs' math is demonstrably faulty. Why do so many IAC claims win? Because counsel is so often genuinely ineffective -- usually because they don't have the resources and experience to try a death penalty case.

If you wanted to test Boggs' premise with statistics, you'd have to compare the success of IAC claims where counsel actually had the wherewithal to put on a competent defense (but chose not to do so) with those cases where a truly competent defense was put on and IAC claims were denied.

This comparison would be a very different one, because no truly competent and well-funded attorney could fool an appellate court in the manner Boggs seems to think possible.
7.26.2006 9:27pm
Mahan Atma (mail):
Whether it was or was not deliberate is a matter of conjecture...

Then I don't see the point of the example. There's no indication that the attorney made a strategic choice not to provide an effective defense in the hopes his client would win on appeal.

There are many examples or attorneys put on a truly incompetent case, and even hurting the client deliberately. But that doesn't demonstrate any strategic choice to do so -- only that the attorney was ineffective.
7.26.2006 9:33pm
Mahan Atma (mail):
"Boggs' statement is insulting because it implies defense attorneys would be willing to ignore their duties under the law and perpetuate a fraud on the court."

That should be "otherwise competent defense attorneys." I have no doubt there are plenty of appointed counsel who are willing to ignore their duties under the law, but these aren't lawyers who would otherwise be effective counsel.
7.26.2006 9:59pm
Just another critic:
I noticed that Judge Daughtrey's dissent also criticzes the State's "rush to execution." But the opinion also shows that this guy murdered someone in 1985, and his direct appeal was done in 1988. So this has been 21 years in the making, including 18 years of collateral review. Some "rush." I suppose that 30 years is standard, and a case that's a "tad slow" would take 40??
7.26.2006 10:11pm
Kovarsky (mail):
Just another critic,

You may have also noticed that federal petition was granted. In other words, all three judges agreed that the ineffective assistance claim was meritorious. So, yes, it was a "rush" to execution in that the execution was not constitutional. Would have executed him in spite of a his meritorious claim?
7.26.2006 11:20pm
karl:
John:

I would invite you to sit in a felony court room on any given calendar call in an urban county. Look around at the attorneys. Listen to them. Some are remarkably good, some are so god awful bad you wouldn't want them defending a traffic ticket nonetheless defending your life. The bad part is criminal defense attorneys don't come with ratings so consumers know what their getting. Unfortunately, too, in many cases these walking definitions of IAC end-up in dp cases.

Indeed, by way of example, about 5% of those currently under death sentence are without counsel because counsel can not be located to represent these inmates. Recruiting counsel to take a case at trial is no easier. Sometimes the only ones that can be recruited are the walking Sixth Amendment violations.

With that said, most of the people I know doing full time capital work (at this point in my career dozens) gave up the opportunity to work in more lucrative areas of the law for a mere fraction of their earning potential, graduated at the top or near the top of their class, and are obsessed with giving the best defense possible to a client that the entire world hates. If they suspected a trial attorney intentionally rendered IAC they would report the attorney, and/or, more likely, blacklist them so they would never get work again.

- karl
7.26.2006 11:54pm
Lev:
Kovarsky


you're incorrectly assuming that such enforcement would take the form of a malpractice lawsuit. That is incorrect. It would probably be a disciplinary action by the state bar.


Someone else may be assuming that, but not me. I am saying, and I said, the likelihood of a malpractice suit is nil, and the likelihood of bar discipline is only slightly higher than nil.


Even if the ineffective assistance rule provides a slight incentive for sub-optimal trial strategy, that incentive is, by orders of magnitude, absolutely dwarfed by every other incentive (on both guilt and sentencing) to provide optimal assistance.


Those are assumptions on your part.
7.27.2006 1:25am
Mahan Atma (mail):
It's evident that there are a lot of commenters here (and at least one judge) who have never actually spent one day of their legal careers doing capital defense.

You can see that because a lot of these people are simply divorced from reality. They're about as qualified to speak about death penalty jurisprudence as I am to speak about insurance defense...
7.27.2006 2:05am
Kovarsky (mail):
the fact is that the single best predictor for an execution is a conviction. without a conviction, the expected penalty is 0. Try it this way

D = optimal defense
d = sub-optimal defense
say that P = conviction and death sentence.

then the cost of the malign scenario is going to be (D-d)*P, or the demin. that equation, (D-d) = change(P); in other words, changing from D to d increases the P, the likelihood of getting a death penalty on trial.

now assume that for a 50% decrease in d, you increase the likeliehood of IE by 5%. but by decreasing d by 50%, you increase the likelihood of a death sentence imposed at trial by 50%. but if a 50%d only translates to a 5% I.E., what rational lawyer would do that. what rational lawyer would accept a 50 percent drop in the likelihood of winning his case in order to secure a 5% likelihoo that he could create an ineffective assistance claim.

this does not happen. much of the material i've ssen on this thread involves testimony of lawyers that subsequently testify to their ineffectiveness in order to help their client, but that is a an attempt to do anything to help the client; it does not reflect what some think to be an admission that earlier tactics were deliberately ineffective.
7.27.2006 3:28am
David M. Nieporent (www):
Kovarsky, your argument is flawed because you don't understand that a conviction and death sentence come in two separate phases. You can give a fully optimal defense in the guilt phase (thereby keeping the risk of a conviction as low as possible) while giving a sub-optimal defense in the penalty phase (thereby increasing the chance of winning on IE grounds).
7.27.2006 7:04am
David M. Nieporent (www):
I'm sorry, but I've spent a lot of time working closely with death penalty defenders, and his remarks are a slap in the face.
Perhaps you have. But like Judge Daughtrey, you haven't spent a lot of time reading what Judge Boggs wrote. He did not say that any death penalty defense attorney had done this; he said that under current death penalty jurisprudence, they should. He's criticizing the current line of precedent, not the death penalty bar.

He might be wrong -- I've tended to agree with him for a long time, given what passes for findings of ineffective assistance (see, for instance, last term's beyond-ludicrous Rompilla case), and given the fact that the items generally cited as potentially "mitigating" in these cases generally seem aggravating to me -- but demonstrating that requires, you know, demonstrating that. With evidence. Not feigning outrage about claims that were never made. ("Slap in the face"? Puh-lease. If your sensibilities are that easily offended, I would suggest less law, and more Sesame Street.)


Think about it: Boggs' math is demonstrably faulty. Why do so many IAC claims win?
Well, the obvious answer would be because anti-capital punishment judges are desperate to find any excuse, no matter how ridiculous, to overturn a death sentence, even when there's not the slightest shred of doubt as to guilt. See, for instance, this month's DiFrisco decision by the NJ Supreme Court, in which the court found that a 4-3 vote to uphold the death sentence in one hearing, plus a 5-2 vote to uphold the death sentence in another hearing, added up to a 4-3 vote against a death sentence. (I am not saying this is an IAC case; I am just illustrating what lengths anti-DP judges will go to.)
7.27.2006 7:14am
David M. Nieporent (www):
So-called "realist" liberal:
There is one very important thing that Judge Boggs is missing. If an appeals court finds that counsel has been ineffective, the attorney is subject to sanctions from the state bar and can be sued for legal malpractice.
And meanwhile, back on this planet, no, he isn't/can't.

Even assuming a death row inmate made a sympathetic complainant, state bars do not sanction attorneys for mere errors; sanctions are only forthcoming for willful misconduct. (And severe sanctions come only for theft of client funds.) And as for malpractice, good luck finding an attorney to take that one. Among other problems, what are the damages?
7.27.2006 7:18am
Mahan Atma (mail):
"He did not say that any death penalty defense attorney had done this; he said that under current death penalty jurisprudence, they should."

I read what he wrote, and it's disingenuous. If he doesn't think anbody will actually act this way, then what difference does it make? Why bother to mention it? How does it imply there's something wrong with the jurisprudence?

"He might be wrong [...] but demonstrating that requires, you know, demonstrating that. With evidence. "

Seems to me he's the one who ought to demonstrate it with evidence. It's his assertion, written into his opinion. Why would you assume he's right and shift the burden to me to prove him wrong?
7.27.2006 10:21am
Colin (mail):
Well, the obvious answer would be because anti-capital punishment judges are desperate to find any excuse, no matter how ridiculous, to overturn a death sentence, even when there's not the slightest shred of doubt as to guilt.

No matter what the ill, sooner or later, someone will always blame it on activist judges.
7.27.2006 12:28pm
Kovarsky (mail):
David,

Kovarsky, your argument is flawed because you don't understand that a conviction and death sentence come in two separate phases. You can give a fully optimal defense in the guilt phase (thereby keeping the risk of a conviction as low as possible) while giving a sub-optimal defense in the penalty phase (thereby increasing the chance of winning on IE grounds).

I'm not going to get trapped in this "aha - but this is my job" gotcha stuff, but rest assured that I understand the difference between guilt and sentencing phases of a capital proceeding. And IE claims can go to either one. An my math would apply with equal force even if your incorrect assumption - that this dynamic is stronger in the punishment phase - were true. In fact, one of the more frequent IE claims is failure to investigate ballistics or forensics properly on the guilt/innocence phase.
7.27.2006 12:33pm
Kovarsky (mail):
somebody should check boggs' opinions on waht he thinks about qualified immunity. maybe he laments the incentives this sets up for government officials to engage in civil rights abuses. or maybe he laments 28 u.s.c. 2254 (ha!), because a rational state will provide the minimal procedural safeguards and substantive rules of decision to avoid being "unreasonably" constitutional.

boggs' opinion is infuriating because it is so obviously disingenuous.
7.27.2006 12:55pm
David M. Nieporent (www):
or maybe he laments 28 u.s.c. 2254 (ha!), because a rational state will provide the minimal procedural safeguards and substantive rules of decision to avoid being "unreasonably" constitutional.
That doesn't make any sense. What he's arguing is that the current caselaw provides perverse incentives. Whatever one thinks about the wisdom of various provisions in 28 USC 2254, they don't.

Ditto for qualified immunity. It may be wise or unwise, but it doesn't create an incentive for government officials to misbehave. It merely potentially fails to provide a disincentive.


An my math would apply with equal force even if your incorrect assumption - that this dynamic is stronger in the punishment phase - were true.
Not in the least. Your math was based upon the (probably correct) assumption that the potential gain is outweighed by the huge risk, because (as you state) "the fact is that the single best predictor for an execution is a conviction." The risk isn't the same at the sentencing phase.
7.27.2006 2:02pm