Sunday, December 05, 2004

Laws, Lawyers and the Lawless

The New York Times recently published an extensive piece regarding some cases that the Supreme Court of the United States has rebuked (or might reverse) from the State of Texas. By some accounts recent reversals are supposed to send a message to the Fifth Circuit Court, that they need to focus on the principals of appellate law or previous Supreme Court decisions.

One of the arguments being made in the Supreme Court involves some Texas cases where white jurists and black defendants may have been involved in some sort of unfairness. What’s being implied (but not said, in as many words) is that some form of bias is the reason is why juries agreed on a death sentence, instead of life without parole. If these claims can be substantiated with proof of bias, that remains to been seen. On the surface, it looks like some defense attorneys think it is unreasonable to believe that a mostly white jury is capable of an impartial and objective decision for as long as the victim or defendant are not also white. How convenient?

Arguments are that these death sentences couldn’t have been a result of a jury’s impartial assessment of guilt or a defendant’s confirmed and established behaviors based on evidence, testimony, logic and facts, which were presented in court. Not when you ask a defense attorney, that’s for sure. I don’t usually read claims of unfairness aloud in a nasal tone for entertainment. Please excuse my sarcasm and disbelief. This doesn’t mean that claims of prejudice should be dismissed without due consideration or that they are considered flippantly.

One should not be surprised if some (or most) of these claims are just another series of weak boilerplate arguments that defense attorneys made on behalf of their clients . In many cases the racial bias claims are false ones. If bias does exist in an individual cases and jurists really have based their decisions on some prejudice, it should be argued, but with some kind of proof or witness testimony, not supposition. The courts should not be burdened with guesses or arguments that are made for the sake of arguing. Frivolous claims should result in some kind of disciplinary action but unfortunately, that’s not usually the case when baseless claims are made.

The purpose of playing the “racial card” is to shift blame for a verdict to other persons when juries decide that an execution is appropriate. The more desperate the client or the defense, the more likely there will be an attack on the courts. To some extent, trial lawyers are sometimes “professionally suicidal” when they sabotage their clients defense in some way (as drunken or sleepy lawyers) or are revealed to have used some arguably ineffective strategy. Another defense tactic is to attack the credibility of witnesses or jurists or other officers of the courts (judges or prosecutors).

A tendency for defense attorneys or media persons (or Hollywood actors) sensitive to the interests of death row inmates to reduce court arguments to “politics” (or ideology) is often observed as well. When prosecutors serve in higher (appellate) courts, it’s perceived to be an injustice to persons who are convicted by defense attorneys or advocates for the condemned. These justices serve at the pleasure of the public. When confidence in these persons is lost, they can be (and often are) replaced. If there are faults with decisions made in appellate courts, the Supreme Court of the United States has proven itself (repeatedly) capable of reversing decisions or admonishing inferior court decisions when they see error. For some reason, these persons who represent the condemned who find fault with appellate courts don’t find fault with public defenders that seek employment with private firms. Is that fair, or objective?

Oftentimes, the goal of the defense team is to reverse or re-try a case until a more satisfactory (for the accused) sentence or verdict (not guilty?) is reached. The defense’s first obligation is to their client or what they believe to be in the best interests of their client. That’s their perception of justice. It’s a necessary part of the judicial process and how adversarial parties achieve what some persons call “fairness”. If a criminal is wrongfully released because of an error, that is not "their problem" either. Really!

Part of the problem (undermined confidence in our courts) is founded in myth or ignorance. For instance, if all a person knew about trial lawyers or the courts was what they read in certain papers or anti-death penalty websites, justice could never be trusted. Contrary to popular belief, the requirements for passing State Bar exams or for becoming a lawyer don’t include alcohol related problems or some condition that makes a person a complete dolt or morally bankrupt. Rarely do advocates for the condemned describe their peers as professional or even remotely competent.

Reality is not TV; most trial lawyers (defense, prosecutors or judges) look and sound like normal persons. They are not actors or actresses who recite from scripts written by Hollywood’s best scriptwriters. In fact, many court proceedings are quite boring to most citizens.

Some cases are just made less boring. The media often “spins” cases in such a way that they can stimulate fear or uncertainty in even the most blatantly one-sided trials or decisions. When they (media) create doubt, it sure doesn’t hurt ratings (or revenue). The media is quick to point out that when prosecutors withhold evidence (even unintentionally), or when defense attorneys might have made a mistake. They remind the public that they should be wary. Yet, the media regularly withholds information about some murderers that makes many murder cases less controversial (offender infraction records during incarceration, prior offenses or convictions etc). Lies of omission are played for all they are worth, sometimes.

The goal of these persons who are advocating for condemned murderers is to undermine the faith that others (media, officers of the court, or the public) have in executions. The race card argument has nothing to do with the actual guilt or innocence of the client, and claim concerning prejudice are in many cases, nothing but a digression. Lawyers are using racial arguments as justification for postponements, these lawyers are engaging in “delay tactics”. These arguments are intended to avoid “the inevitable”, (delay and deny) for as long as possible. It should come as no surprise that many who represent indigent clients are compensated by the number of hours that they put into a case. So it should be even less of a shock when it’s made clear that many of the best arguments made on a clients behalf aren’t made until the last minute or until after an execution is actually scheduled.

Using racially charged arguments serves another purpose for defense attorneys. “Promotion of their client” is the politically correct term by these lawyers. When claims of racial bias are made without justification, reasonable persons have to wonder if they are also motivated by a desired to engage in a very public form of self-promotion (for the benefit of the trial lawyer, not the accused). In such cases the accused is reduced to a prop. In other cases, lawyers have actually "bonded" in some way with their clients. In one case in North Carolina, a death row inmate professed his love for one of his attorneys shortly before his execution. If arguments for a condemned murderer become too personal or failure to save a client more heartbreaking than usual, its possible that an attorney got too close to a client or involved in a case.

Now that states such as Texas have executed many of the offenders who were more violent, had cases that were more easily proven or those that were less defendable, it should come as no surprise that a number of cases have been rebuked or reversed because of some technicality. Should that encourage doubts in persons who support executions or encourage persons who oppose capital punishment to become more vocal? I don’t think so.

I think we should encourage the courts to focus on making quality decisions and enforcing the will of juries. Implementing and abiding known best practices actually works in everyone’s best interests. If some of us know enough to complain about the judicial system, we should challenge ourselves to propose tangible and reasonable solutions that can be implemented by sensible people. We shouldn't whine or encourage whining. We certainly shouldn’t limit ourselves to a defense attorney’s definition of the word “fair” when it comes to capital punishment. Such a thing probably won’t happen in Texas. Some prosecutors could argue at length that those on death row, even in Texas, aren’t any closer to dying than the average citizen. Especially in states like California or New York.

One thing is for sure, for as long as the courts tolerate frivolous claims, frivolous claims will be made. Part of determining the merit of these claims (specious or real) is hearing them in court. So don’t hold your breath waiting for things to change. When our courts or advocates for the condemned go “above and beyond the call of duty, to circumvent the will of a jury”, I think it should be done sparingly and with care (within the limits of the law). If problems with individual cases exist, they should be addressed one by one with quality arguments or evidence, not personal attacks or supposition. Just because a court affirms a sentence or a claim is determined to be unverified or an error is determined to be harmless, this doesn’t mean that the defense is entitled to retry case in the media. If we are not going to abide the will of our juries and enforce the sanctions they recommend, why do we have courts or laws? Isn’t that just another form of lawlessness (with a false perception of due process)?