VA & ID: volunteering for DP a "fatal attraction"

From the Charlottesville Daily Progress, June 21:

Death request raises ethical, legal questions

Somewhere in the Charlottesville Office of the Commonwealth’s Attorney sits a plea agreement that could lead to the execution of a city man accused of killing an 11-year-old boy. One of Waverly “Eddie” Whitlock’s defense attorney has said in court that his client wants to sign the agreement, which would request the death penalty as punishment for a capital murder conviction...

The act of volunteering for the death penalty, although uncommon, has raised legal, ethical and moral issues for others involved in capital cases... Following a client’s wishes can be more difficult if he wants to die.

August “Gus” Cahill, the chief deputy of the Ada County Public Defender’s Office in Idaho, represented death penalty volunteer Keith Eugene Wells in the early 1990s. Wells, who was killed by lethal injection in 1994 at age 31, was the first and only person to be executed in Idaho since the death penalty was reinstated in 1976...

After a judge sentenced Wells to death, Cahill said the case was reviewed and affirmed by the Idaho Supreme Court. Once the post-conviction process began, Cahill said Wells asked to drop any further appeals and fired the lawyers appointed after his sentencing. “He wasn’t suicidal,” Cahill said. “He didn’t want to be dead so much as go through a process that he thought would ultimately be fruitless...”

But see the Charlottesville Daily Progress, June 25:

Defender files motion to quit Whitlock capital murder case

A Richmond-based capital defender may no longer represent a Charlottesville man accused of killing an 11-year-old boy last summer.

Defense attorney David Baugh filed a motion late last week in Charlottesville Circuit Court to withdraw himself and the Office of the Capital Defender as counsel for Waverly “Eddie” Whitlock.

“In support of the motion for leave to withdraw, counsel would assert that there has arisen a conflict of interest between the defendant and his defense attorneys which ethically compels withdrawal,” the motion said...

UT: 60.4% chance of pissing off the DP jury pool

The story's less inflammatory than the headline, but still, an interesting way to start picking a "jury for life," from the Ogden Standard-Examiner:

Homicide defense motion excludes LDS jury members

The defense has filed a motion seeking to keep off Riqo Perea's jury any members of The Church of Jesus Christ of Latter-day Saints who adhere to the church's past teachings of blood atonement.

Such jurors would be much more likely to vote for an execution, according to the motion filed in 2nd District Court, where Perea faces the death penalty in a 2007 gang homicide. "Utah's population contains a significant percentage of members of one religion ... members of the LDS Church make up an estimated 60.4 percent of the state's population," reads the motion...

Just guessing here that the percentage of Mormons who adhere to anything close to blood atonement is more than a bit south of 60%. Also guessing that the Colorado Method hasn't spread to Weber County. Oh, and yes, this issue has come up in Idaho before.

Volunteers

From the AP:

Ethics dilemma for lawyers when inmates seek death

John Delaney faced the toughest moment of his legal career - his condemned client wanted to drop his appeals and die by injection, an act Delaney opposed and had been trained to try to prevent. "What do you say?" asked Delaney, a public defender in northern Kentucky who represented Marco Allen Chapman.

It's a question that has arisen 131 times since states resumed executions in 1977, and each time it leaves defense lawyers struggling against their training to act in the best interest of their clients and justice...

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law. "Their hands are pretty well tied," Mello said. "These are the cases that haunt you. This is the most hideous of cases."

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994. "I really liked Keith," said Cahill, a public defender in Boise. "You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do...'"

I knew Gus from my Ada County p.d. time, and look up to him still. Keith Wells' choice had to have put him in a horrible bind.

I wish John Delaney well. Marco Allen Chapman is set to die this Friday night.

Bearing witness

Something remarkable and sad from The Urban Monk:

Why I Watch People Die

I cannot escape the fact that not far away a man is being taken into a room, strapped down and killed. And he may deserve it or he may not, but he is there not for the lives he took, but because he was the wrong person in the wrong place at the wrong time. And I know that, and it terrifies me, and it will not leave me alone...

ID: hellbent defendant, carwreck ahead

At this point, I just want to turn away for a while from the unfolding Joseph Duncan death penalty pro se debacle. If you're interested, Betsy Z. Russell of the Spokesman-Review's Eye on Boise blog has your best running coverage.

Archaeologists of human souls

From the Lehigh Valley Morning Call:

New specialists delve deep to keep convicts off death row - Mitigating circumstances: Experts in showing why killers should live are now crucial in capital cases

Mitigation experts, who can be social workers, educators, psychologists or anthropologists, are becoming crucial as state appellate courts and the U.S. Supreme Court continue to demand more of lawyers mounting a defense in capital murder cases...

The specialists are archaeologists of sorts who dig and sift through decades of a defendant's life to unearth clues to his personality and behavior. Was he sexually or physically abused as a child? Did his mother have a complicated pregnancy? Did he suffer brain damage? Was his father an alcoholic?

The answers might convince a jury that a defendant's life should be saved...

Here is the mitigation specialist I hired back then on my only DP case. Couldn't have done it without her.

(Via StandDown Texas)

VA: rubber chickens, rats and bricks

In this profile of Central Virginia capital defender - to - be David Baugh, could somebody in the comments please explain to me what this is supposed to mean:

“You can be a rat and a public defender and God’s going to give you a good seat up front near the floor show with Mother Teresa and Martin Luther King...”

I mean, is one of us supposed to be the rat in this scenario? Perhaps it's a fine thing to be compared to, but where I work, it's not a nice thing to be called. Then again, I come from a state where each year the lawyer with the most jury trials gets the coveted Cockroach Award.

ID: Mark Lankford suits up for 2nd trial, 23 years after 1st

From the Idaho Statesman:

N. Idaho jury selected for Lankford trial

Jurors have been selected for the new trial of a man previously convicted and sentenced to death in the slaying of a couple vacationing in northern Idaho in 1983. Second District Judge John Bradbury told the jurors on Monday that Mark H. Lankford was granted a new trial last year because of an error in jury instructions during his 1984 trial...

At least some of the jurors in Shoshone County did not recognize Lankford, who appeared in court in a suit and tie. "I'll be honest, I thought he was a lawyer," one juror told defense attorney Charles Kovis...

ID: "inconvenience and cost do not trump the constitutional right to an impartial jury"

From the Idaho County Free Press:

Publicity prompts Lankford trial move

Concern that press coverage has tainted the limited local jury pool was the motivating factor in last month's decision to hold the Mark Lankford murder trial in northern Idaho... District Judge John Bradbury cited several factors in this case that could affect the ability to seat an impartial jury from Idaho County.

Bradbury noted a particularly inflammatory article by the Lewiston Tribune quoting from an affidavit by Lankford's brother, Robert, stating his belief Mark may have killed six other people in Texas. Another concern lies with letters to the editor. "If they reflect popular opinion" Bradbury noted, "many think it is fair to put more stock in the verdict at the time of the jury trial than in a 'technicality' or 'loophole' found in the jury instructions by a federal appellate court in San Francisco 23 years after the verdict..."

I truly hope that the judge was doing the air quotation marks thing with his fingers when he said 'technicality' and 'loophole':

"I can't believe I've got a case before the Supreme Court and I'm not even 30 years old"

I know you've all seen this about David Barron, front-runner for 2008 Criminal Defense Lawyer of the Year:

Public Defender Builds Injection Case

I just wanted to mention that this mentor of his...

"It's an uphill battle," said Ernie Lewis, head of the Kentucky Department of Public Advocacy. "We can't provide an O.J. defense."

...was one of my NCDC instructors, just like 2007's Criminal Defense Lawyer of the Year, David Terrell.

UT: DP defense counsel, better watch your back

From the Salt Lake Tribune:

Utah Supreme Court: Did prosecutors harass defense in death penalty case?

Defense attorneys told the Utah Supreme Court on Monday that prosecutors are "waging a war" of harassment and intimidation against lawyers representing capital murder defendants.

Death penalty cases bring out the worst in prosecutors, said federal defender Kent Hart, speaking on behalf of the Utah Association of Criminal Defense Lawyers. There is "a willingness to engage in conduct they otherwise would not," he said...

IL: when a p.d.'s contorted with hate

Interesting stuff from Eric Zorn's Chicago Tribune blog, Change of Subject:

Standing up for rights isn't always pretty

Here’s a startling passage from author Kevin Davis’ new book “Defending the Damned ---- Inside Chicago’s Cook County Public Defender’s Office.”

“When I’m on trial and we’re in a truly adversarial proceeding, I hate the mother of the victim. I hate the father of the victim, I hate the children of the victim. I hate every part of it. It’s actually a terrible thing, but I can literally hate them when I’m fighting. I have to.”

The speaker is Assistant Public Defender Marijane Placek...

Uh, about that self-justifying "you have to" ...

I have known literally dozens of defense attorneys and have never met one who felt this way. Hate the lawyers on the other side of the aisle? Occasionally. But hate the victim? Never.

And more from the comments:

* Ms. Placek's "hate the victim" view is not the standard attitude for members of the defense bar...

* (G)ive Placek credit for, at the very least, being honest about how she does her job. We need hardworking public defenders, but I don't believe we need them "hating" the children and wives of murdered police (or murdered anyone). I wonder if she reflects on the damage her words cause to a family that's already suffered a loss that no one should experience, or if that's just part of the game she enjoys so much...

* Yes, EVERY litigant--even a guilty defendant--deserves vigorous representation. But they are not entitled to my soul, my conscience, my values. By "hating" the victim's family, the system is compromised. It does not improve representation, it diminishes the attorney, the system and society. All of us are a little bit less when winning becomes so important that one person, one attorney, is willing to hate and revictimize innocent victims...

I'm starting a manslaughter trial on Monday, and somehow I don't feel any hate toward the victim's family at all. I hope you all can still respect me as a p.d.

ID: Ninth Circuit to Idaho County - release or retry death row inmate

Via Sean Serrine at Objective Justice, this news from the home state:

Retrial or release ordered for Idaho death row inmate - Federal court says his attorney was ineffective

Court rules in case of Conroe man on Idaho death row

A Texas man sentenced to death for the 1983 slayings of a young Texas couple camped in the Idaho wilderness must be released or retried, the 9th U.S. Circuit Court of Appeals ruled today. Mark Henry Lankford has been on Idaho's death row for more than two decades... The appeals court ruled that Lankford received ineffective assistance from his attorney, and that the state must "retry Mark Lankford within a reasonable time or release him..."

Lankford and his brother, Bryan Lankford, were arrested, but each blamed the other for the crime. Prosecutors offered Bryan Lankford life in prison in exchange for his testimony against his brother...

Mark Lankford's attorney, Gregory FitzMaurice, told the jury they could consider Bryan Lankford's testimony even though it was uncorroborated, the appellate court found. Though federal law allows uncorroborated testimony, Idaho law forbids it, the 9th Circuit found, so FitzMaurice's instruction prejudiced the jury against Mark Lankford and effectively denied him his right to effective counsel...

"There was ample evidence that either one or both of the Lankfords killed the Bravences, but there was no evidence that Mark attacked and killed the Bravences other than Bryan's testimony," the 9th Circuit noted in its ruling...

FitzMaurice was a part-time public defender whose only felony case experience before the Lankford trial involved cattle rustling... "FitzMaurice simply overlooked important differences between Idaho law and federal law," the court wrote. "FitzMaurice's error is perhaps understandable, given his limited experience and resources, but it is constitutionally inexcusable..."

Today's Ninth Circuit opinion in Lankford v. Arave is here (PDF file).

LA: SOS

Will the last public defender leaving New Orleans please turn out the courtroom lights? From the Times - Picayune, via Lexis One and The Legal Reader:

Trapped in the courtroom - As indigent defense lawyers vanish, one attorney is left

The Orleans Parish public defender situation is beyond crisis. And it is far past time that the Louisiana Supreme Court intervened.

This summer, changes at the public defender's office resulted in the resignation of a number of attorneys, including two of the three remaining attorneys who handled death penalty cases. Five lawyers had been handling 27 capital cases pre-Katrina... that insufferable caseload then devolved upon the remaining three.

Of the three remaining attorneys, one resigned... Another was reassigned to non-death-penalty cases. That left me...

Abolitionist straight talk

From the annual conference of the Texas Coalition to Abolish the Death Penalty, here are the astute comments of David Dow, "one of the smartest lawyers among those who represent people on death row.":

Number 1: Do not attempt to appropriate the mantle of innocence.

If the death penalty is immoral, as I believe it is, either in theory or in practice, it has nothing to do with the issue of innocence... [W]e do not want to have a contest with a death penalty supporter over whose list of innocent victims is longer, because we lose that contest seven days a week...

I do not think my clients should be executed, but those of them that have committed murder are not morally equal to their innocent victims. By representing death row inmates, I am not saying that they are.

In saying this, I think I am saying what many in the abolitionist community already say, and so I am not proposing a radical idea. What I am suggesting is that this truth be loudly acknowledged. I think this truth was embraced in Helen Prejean’s first book, Dead Man Walking, and even more so in the film adaptation of the book. But in recent years, the abolitionist movement has, for tactical reasons, begun calling attention to innocent people on death row, and to innocent people who might have been executed.

There has undoubtedly been some political value in this emphasis. But most people on death row are not innocent, and the excessive attention that this issue has received has crowded out the moral question of whether the state ought to kill. It has crowded out the fact that we have a system that favors the rich over the poor, and the white over the black and brown. It has crowded out the fact that constitutional violations mar virtually every case. The excessive focus on innocence has allowed some people to say that if we can just tweak the system to protect against error, then the machinery of death will have been repaired.

Executing someone who is innocent is wrong, but it is no more wrong that executing someone because of his skin color or the thickness of his wallet or the mistakes of his lawyers. I believe that we as a community have not succeeded in making that point...

We must say as a community that we know that murder is wrong; and we must say, simultaneously and just as loudly, that our death penalty regime is unjust, and that it is wrong for us, for our nation and our state, to kill.

Like the Abolish the Death Penalty blog says, "wow."

DP P.D. turns teacher

A good man leaves the ranks to teach Latin:

Robert Lominack became a defense attorney to help people. But starting this year, he’s trying to help before they end up in a lawyer’s office.

The 32-year-old lawyer traded the courtroom for the classroom — along with about a 50 percent pay cut. He teaches Latin..., far away from his work on high-profile death-penalty cases in South Carolina.

“I just got burned out,” Lominack said. "It’s a tough job. It’s one that if you can’t put 100 percent into it, you’ll do more harm than good."

The towering workload wasn’t the problem."It was emotionally draining because your clients were in such a terrible place in their lives," he said.

"I know that feeling, and when you're trying to defend somebody from the death penalty who has committed a horrible crime, part of that job requires a painstaking re-creation of that person's life,"” (David) Bruck said. "And you often see a point when things could have turned out differently if someone had cared about them a little more."

"That weighed heavily on Robert,"” Bruck said. "“I think he thought that person could be him."

Indeed, Lominack said his clients' childhoods made a huge impact on him.

Lominack found that one of his clients was homeless as a child. Teachers learned of the situation and provided him with clothing, bedding and food.

"“They were nice to him when nobody else was,"” Lominack said.

The same could be said of this good servant. Ave atque vale.

Link via Capital Defense Weekly.

Andrea Lyon for life

CrimProf Hodnicki of CrimProf Blog today features the Clarence Darrow Death Penalty Defense College and its director, Andrea Lyon, who forthrightly says that the college is

"not about innocence. It’s about saving people’s lives."

I can vouch for both the college and the director.

Death Penalty for Mickel

Tonight the jury which took a half-hour finding former Evergreen State College student Andre Mickel guilty of murdering a California police officer took a full hour to find that he should be executed.

“Killing is no beautiful thing — it’s disgusting, it’s abhorrent. But when liberty is on the line, it’s necessary,” said the 26-year-old from Olympia, Wash.

“I think it’s very clear my son was murdered by an incoherent psychopath,” said the victim’s father, Richard Mobilio, after the jury returned its recommendation.

“He didn’t give any pity to Mobilio, and we didn’t give him any,” said jury foreman Chantelle Estess.

Raskolnikov

Thanks to Jon DKLN for this link from the Washington Post about Andy Mickel, a young cop killer who passed this way.

In November 2002, Officer David Mobilio was shot outside Red Bluff, CA. Six days later, this post appeared on various indy-media sites:

"Hello Everyone, my name's Andy. I killed a Police Officer in Red Bluff, California in a motion to bring attention to, and halt, the police-state tactics that have come to be used throughout our country. Now I'm coming forward, to explain that this killing was also an action against corporate irresponsibility."

Now he's in a death penalty trial, representing himself with the same mixture of delusion and conceit:

In his opening statement to the jury, the Associated Press reported that Mickel said, "I want to tell you that I did ambush and kill David Mobilio." The police officer's widow was weeping in the courtroom. Mickel did not express remorse. He has pled not guilty. He promised to provide his side during the trial. Mickel is scheduled to begin his defense on Tuesday. "I'm going to have to tell you that stuff later," he told the jury. "I don't have a sound-bite defense."

Whatever he thought his defense might have been - maybe the necessity defense of "I had to shoot the father of a toddler three times, twice in the back and once in the head, in order to prevent a greater evil" or the general defense of "Just let me tell you my side of the story," it appears that the judge shut him down on Friday. Now he will present no defense at all.

Closing arguments are today. Those in my line of work will be interested in reading about the laissez-faire job Mickel's "advisory counsel" is doing. Remember, this is a cop-killer case, death penalty eligible.

On his way to becoming a murderous little creep, Mickel went to The Evergreen State College, here in the South Sound. My neighbors have been following his case in The Olympian since it started. It was good to see the WaPo article giving a little snapshot of Oly and TESC life as background, while not taking the easy "Evergreen made him a killer" route. That boy wasn't right long before he came out West. It's an intriguing article, capped by an interview with Mickel. The author ventures:

It is as if Mickel, in his thinking, had gone so far to the fringe left that he started to look a lot like the fringe right.

Fine as far as that goes, but I don't think these high-level threateners of lawful authority are on the "fringe" of the right. Man, these are sad days for fans of the rule of law, left, right, or center.

Update: Prosecutor closes with dramatic re-enactment of ambush

Update: Mickel guilty.
After deliberating the charges against defendant Andrew Mickel for 30 minutes a jury of six men and six woman returned Tuesday afternoon with a verdict of guilty and found a special allegation of murdering a police officer to be true.

Update 4/6/05:
Convicted cop-killer Andrew Mickel told a jury in the penalty phase of his trial today that he killed Red Bluff Police Officer David Mobilio out of “patriotism” and said the action was necessary and justified.

Bonus equal-opportunity (non-DeLay) scoundrel links: Seattle Independent Media Center posts and comments about Mickel here and here, and coincidentally, here's the latest from seattle.indymedia.org:

Kristian Williams, author of the book "Our Enemies in Blue" and a member of Rose City Cop Watch in Portland, will be speaking at Western Washington University Monday, April 11th...
“Well-concieved , well-researched, and well-written,
Our Enemies in Blue deserves a truly wide
and deep readership.” - Mumia Abu-Jamal

(Yes, the same Mumia whose taped voice was featured in that graduation happening / publicity stunt at Evergreen a few years back.)

Justice and honor

One of my heroes, Sister Helen Prejean has a timely and astrigent reminder in the New York Review of Books about George W. Bush, Alberto Gonzales, the death penalty, and the quality of mercy:

I already knew the substance of Bush's position toward Karla Faye, but I had never heard the last sentence of his press statement: "May God bless Karla Faye Tucker and may God bless her victims and their families."

Immediately after the statement, King turned to me for a response. When I heard Bush say, "God bless Karla Faye Tucker," I had to struggle to keep a vow I made to reverence every person, even those with whom I disagree most vehemently. Inside my soul I raged at Bush's hypocrisy, but the broadcast was live and global. With not much time to rein myself in, I took a quick breath, said a fierce prayer, looked into the camera, and said, "It's interesting to see that Governor Bush is now invoking God, asking God to bless Karla Faye Tucker, when he certainly didn't use the power in his own hands to bless her. He just had her killed."

I've never comprehended how the man can just mouth the words "Lord, Lord," and millions of good people will think he's godly. From Ricky Ray Rector to Karla Faye Tucker, W is no more moral than Clinton. I prize my autographed copy of "Dead Man Walking, and you can't just dismiss Sister Helen as a "liberal." Read her article.

In Idaho, by contrast, at the time the current president was living in Texas, we had a Republican governor with integrity and honor. In 1996, Phil Batt, to his eternal credit, and over the objections of the prosecutors and A.G., commuted the death sentence of Donald Paradis, a man who'd been wrongly convicted in 1981. But then, Phil was never seeking higher office.

(Bonus links to guitarist Bill Frisell and "Justice and Honor.")