Question:

Take a look at this order in Ex parte Lane. In this case, the defendant was retarded, but was convicted and sentenced to death pre-Atkins. He filed his writ application after his appeal was concluded. After the Supreme Court ruled that retarded defendants could not be executed, he filed a second writ based on Atkins. With the agreement of the state in response to that, the governor commuted Lane's sentence to life in prison.

Lane then files a non-suit on the original writ, stating that it is moot. The CCA says, no it is not, because some of the issues raised were about the guilt finding, not just the death penalty. Fair enough, but here's the interesting part: the Court wants a finding as to "whether applicant knowingly and voluntarily intended to waive his claims pertaining to the guilt phase or whether he still wants to pursue those claims as allowed by law. In light of the finding that applicant is mentally retarded, the [trial] court shall also determine whether applicant is able to knowingly and voluntarily waive the claims at issue."

Clearly, if the defendant k+v waived his issues, then they are waived, the end. So the question is this: if defendant did not waive the issues, and defendant is not capable of k+v doing so, then what is the effect of that? Who is supposed to make the decision for the applicant? If it is his attorney, then why not simply grant the attorney's non-suit? If it is not his attorney, then who is it?

A death row warden one time told me that Lane was the only person on DR that the warden believed to be MR. His picture (on the TDCJ website) speaks a thousand words.

Anyway, it seems to me that if he's not competent to waive those claims, the safest thing to do is have the trial court address them and make findings. OTherwise, you're denying a MR defendant the right to challenge his guilt in a habeas writ. The defense lawyer, in all honesty, shouldn't have given up those claims to begin with just because he got a windfall on an Atkins claim.

This case is a great example of what often motivates defense lawyers who do death penalty habeas litigation. They are motivated primarily by their own desire to be part of the fight to eliminate the DP--the defendant's desires be damned. (Yes, some defendants DON'T want the "help" and it is forced upon them).

I don't know the lawyer in this case, but it is a classic response: since the DP is now off the table, the case doesn't look so interesting to his lawyer anymore. If it doesn't get him/her front page exposure in the fight against the DP, it's not worth taking.

And they say prosecutors are media-hungry. (Insert mental link to prior thread about GW's Professor Jonathan Turley)

I know the lawyer in this case, and I don't think he is motivated as you suggest. His primary goal was certainly to get Lane off death row, but I don't think he's simply trying to cut him loose because the glamour is gone or the media has lost interest.

Regardless, the order of the court raises the issue: assuming the attorney wants to drop the case and the defendant cannot rationally choose for himself what he wants, then who else makes the decision? If the court can force the case to go forwards without the consent of the parties, then can they also review the case and raise more issues that the defendant did not knowingly and voluntarily exclude from his application? After all, what's the difference between dropping and issue and failing to raise it in the first place?