Good Intentions, Bad Outcomes For Capital Defendants

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5 Responses

  1. Another view says:

    One more reason: there is little or no possible glory in those trials. So many of the defendants are guilty that the “public interest” aspect is less apparent and certainly less glamorous. Imagine explaining to summer associates how your most recent pro bono case involved a trial that you lost representing a murderer. Let’s face it: would-be pro bono lawyers in big firms are unwilling to do such work. They are willing to come in later and play David and Goliath, but they are unwilling to practice in the trenches. After all, they could have been in the trenches all along.

  2. Paul Horwitz says:

    Dan, good post — and you’re to be commended for setting up the clinic. I wrote my own take on this issue a while back, and I think there’s some overlap in our views: it’s here — I also wonder, although I don’t think my post mentions it, whether the big firm involvement at the collateral stage was ultimately detrimental to the extent that such high-profile involvement, rather than work at the trial level, might have encouraged the passage of legislation like AEDPA.

    One more reason, besides the good ones you suggest, why firms might be reluctant to be involved at the trial level, even at the less intensive, good-is-better-than-nothing level you suggest: Why subject yourself, and your firm’s valuable name, to the prospect of an ineffective assistance of counsel claim down the line?

  3. Ed Burke says:

    Great post.

    Isn’t the problem what they used to call “limousine liberalism”? Actually representing a criminal defendant at trial is icky: the client is a bad person, and there is a real dead body and everything. On the other hand, doing death penalty appeals is rather romantic and pure. For a biglaw associate who feels guilty that he’s not trying to help the world, doing death penalty appeals is about fighting evil by trying to “stop the death penalty.”

  4. BDG says:

    Dan, is the Alabama judicial override in favor of a death verdict still in practice? I’m no crim guy, but I thought it was obvious after Ring that such a statute would be unconstitutional. No?

  5. Dan Filler says:

    BDG, alas Ring has not ended judicial override in most cases. All the Supreme Court has held is that a jury must find any fact essential to a particular sentence. Most of the aggravators in Alabama are embedded in the charge itself and are proved beyond a reasonable doubt at conviction. Thus far, neither the Supreme Court nor the Alabama courts have held that the act of balancing aggs versus mitigators must also be done by a jury.