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Would You Render Ineffective Counsel to Spare Your Client From Death?

With a growing number of capital cases overturned for ineffective assistance of counsel, might criminal defense lawyers be inclined to intentionally render poor service to spare their clients' lives? That's what 6th Circuit Chief Judge Danny Boggs suggested in his concurrence in Poindexter v. Mitchell (tagged here at How Appealing).

In Poindexter, the 6th Circuit reversed the lower court's decision that the defendant was deprived of effective assistance of counsel during his trial. However, the 6th Circuit affirmed the lower court's finding that the defendant's lawyers failed to represent him effectively at the sentencing stage. Among other things, the lawyers did not adequately investigate the defendant's troubled childhood, speak with family members or consult with experts, all of which might have produced mitigating evidence that might would have spared the defendant from the death penalty.   

Boggs concurred in the decision because it was consistent with "the current state of the law." But he expressed concern that defense lawyers might intentionally render ineffective assistance to spare their clients. Consider these excerpts from Boggs' decision that appear in this article, "Lawyers Could Be Tempted to Mess Up Trials" (Louisville Courier Journal, 7/25/06):

Prisoners who receive ineffective assistance are likely to be spared, "certainly for many years, and frequently forever," wrote Chief Judge Danny Boggs of the 6th U.S. Circuit Court of Appeals. "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," Boggs wrote.

Boggs' colleague, Judge Martha Craig Daughtrey, wrote a separate opinion to express her dismay with Boggs' "unjustified attack" on defense lawyers:

"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," she wrote.

I agree that Boggs' ruling is insulting. But it also poses some interesting quandaries for defense attorneys. If it's true that many death penalty convictions are likely to be vacated based on ineffective assistance of counsel, would a defense attorney be ethically obligated to provide an inadequate defense if that 's what it took to save his client's life?

Posted by Carolyn Elefant on July 25, 2006 at 05:27 PM | Permalink | Comments (1)


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