I am a frequent fan of Judge Cochran on the Court of Criminal Appeals. Her opinions are often the best and final word on many topics. She also has a fine way with words and can distill complex legal issues into quotable English.

This last week, however, I read her concurring opinion in Ex parte Gonzales, reversing a death penalty for ineffective assistance of counsel. Seems the court concluded that the defense attorney erred by taking the defendant at his word when he said he didn't have a bad childhood. Years later, while on death row, we discover someone claims he was abused as a child.

OK. I can swallow that, even though it is absurd to give the defendant the benefit of his lie to his lawyer. What I can't swallow is the sanctimonious list provided as an example of what an "effective" lawyer should ask of his client:

* Childhood accidents and injuries [does this include every boo-boo?];

* Trips to the emergency room [presumably this would include those trips for overdosing on illegal substances];

* Serious illnesses at any time [including any STD's?];

* Physical abuse to the defendant or any other member of the family;

* Any sexual abuse to the defendant or any other member of the family [presumably the defendant must tell his lawyer about the time he raped his stepdaughter];

* Size of the immediate family, and a history of the physical, educational, and emotional background of each member [what the heck does this have to do with anything?];

* The defendant's relationship with and attitudes toward every member of the family [I love them each and every one];

* Drug or alcohol use or abuse by himself and any or all members of the family;

* Any mental health treatment of any member of the family, including the defendant;

* The cohesiveness of the family [this assumes the defendant understand the word "cohesiveness"];

* The family's standard of living and living conditions;

* Any and all available school records;

* Any record of learning disabilities;

* Childhood and adult social relationships with members of the same and opposite sex;

* Any marriage, divorce, children, step-children, or surrogate family relationships, and their positive or negative influence upon the defendant;

* Any and all awards, honors, or special accomplishments, as well as any and all convictions, arrests, expulsions or suspensions from school, job firings, etc. [this should take a while -- "I killed him because I was fired from a job back in '76"];

* Any and all traumatic experiences [up to and including that little capital murder?];

* Any and all especially proud moments [this list I would like to see];

* Membership in religious, social, educational, charitable organizations [this won't take long];

* The client's five best and worst memories [just five?].


This list, as endorsed by Judge Cochran, comes from the 9th Circuit federal appellate court, a court notorious for its liberal bias against the death penalty and criminal law in general.

Anyway, I was wondering what other important questions you were thinking defense attorneys should be asking their clients?

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I was wondering what other important questions you were thinking defense attorneys should be asking their clients?

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"Now, are you SURE your cousin said he could pay me for a trial before announcements?"

"Tell me about all the small furry animals you have killed, and how. Then tell me why you thought they deserved to die."

"What will Bubba DeWayne Jones tell the State about your conversations with him when you were cellmates at Leavenworth?"

Is this from The Onion, JB?

I wish it were. Think for a minute how this list simply disposes of the concept of personal responsibility. Your henious crime is not your fault. Simply look deep within yourself and find something to blame. Yes, you, too, can mitigate with past injuries, relationships and bad memories.

And, you are not limited to things that happened to you. Dig deep and tell the jury about your family, too.

Social drivel.

It also disposes of the concept of an independent and thinking defense attorney. Don't you know that every capital seminar will now say that you simply must have the Cochran list of mitigation questions or your are incompetent?

Every capital writ lawyer will ask the trial lawyer if they used the list. If they didn't, don't you know they will be inclined to roll over, play dead and announce themselves as incompetent?

You know, we constantly criticize judges that "legislate" from the bench. By that we mean judges who move away from simply deciding the case before them and, instead, paint with a broad brush to accomplish some social agenda. Well, that's what this opinion feels like: a piece of legislation describing one judge's opinion on how an investigation should be handled in a capital murder case. But that is not the job of a judge.

As a prosecutor, I am saddened by this concurring opinion. As a defense attorney, I would be enraged, that my ability to think and develop a case using my own research and instincts has been reduced to a ridiculous list that pronounces itself as the last word on effective assistance.

[This message was edited by JB on 10-22-06 at .]

Opinions like this one could very well have the unintended consequence of forcing otherwise ethical defense lawyers to press and probe on these "mitigation" issues to the extent that the defendants and their families receive a not-so-subtle message that there had darn well better be evidence of childhood abuse, traumatic injury/loss, learining diability, brain injury, mental illness, depression or what have you.

Worse yet, the attorney hires a "mitigation expert" (the must have witness du jour in death cases) who is willing to do whatever it takes to produce what he has been hired to produce - evidence of the defendant's pitiful life, whether true, exaggerated or fabricated. The attorney then is generally "covered" and is a step removed from the ground work preparation of the mitigation case and is perforce ignorant of or insulated from things that come out in the process that might create skepticism in the mind of an ethical practicioner.

One purpose of opinions it to give guidance to lawyers and judges for future cases. I would much rather have this list published for guidance than deal with a future reversal because a defense lawyer did not do something on the list. I applaud Judge Cochran for giving such guidance.

In my experience, bad lawyers don't get better because someone has written a checklist for them. Bad lawyers are bad because they are lazy or incompetent.

How hard is it to think of relevant questions to ask a client who faces the death penalty? Do we really think the list provided by Judge Cochran could not have come from the mind of nearly any defense attorney with half an interest in his/her case?

Having said that, the list provided by Judge Cochran is a rather muddy list. Last 5 best and worst memories? That sounds like something Dr. Phil would ask Oprah.

Cohesiveness of your family? I don't even begin to know what the heck that is supposed to mean.

I'm not against lists. I'm in favor of raising standards for capital lawyers. But, no judge was elected to provide his or her own personal opinions on what list of questions satisfies the minimum constitutional standards for effective assistance of counsel.

Judges are elected to decide the case before them and nothing more. It is a slippery slope to say a judge can legislate under the guise of providing guidance. I suspect that is why Judge Cochran's opinion is simply dicta in a concurring opinion, rather than a majority opinion.

For another point of view, read Judge Keller's dissenting opinion.

[This message was edited by JB on 10-23-06 at .]

[This message was edited by JB on 10-23-06 at .]

[This message was edited by JB on 10-23-06 at .]

NEW YORK TIMES

DESPITE FLAWED DEFENSE, A DEATH SENTENCE STANDS
Defense lawyers in capital cases are often criticized for conducting superficial investigations of their clients� backgrounds, but Ferdinand Radolovich�s performance in a Kentucky case, one that ended in a death sentence, may have set a new standard.

�Apparently,� a federal judge wrote in 2001, �neither attorney Radolovich nor the prosecution knew of petitioner�s actual identity until his case had been affirmed on appeal.�

When he was later challenged about the quality of his work on the case, Mr. Radolovich testified that he was an accomplished death penalty lawyer at the time, having tried four capital cases. The real number was zero, the federal judge, Jennifer B. Coffman, found, and Mr. Radolovich has been indicted for perjury for his statement.

But none of this has helped the inmate in question, who was sent to death row as James Slaughter but whose real name is Jeffrey Leonard.

Yesterday in Cincinnati, splitting 7 to 7, the United States Court of Appeals for the Sixth Circuit declined to rehear the case. A dissenting judge, R. Guy Cole Jr., said the decision to allow Mr. Leonard to be executed even though the jury did not even know his real name, much less his background, opens a �new chapter in our death penalty history.�

The case is not one of mistaken identity, and there is substantial evidence that Mr. Leonard is guilty of murder. But Mr. Leonard�s current lawyers say a competent investigation of his background would have yielded a trove of evidence that might well have persuaded the jury to spare his life. He is, for instance, apparently brain damaged, and he endured a brutal childhood.

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Why isn't the D responsible for his lies?

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Because D was brain damaged and abused as a child so he didn't know better than to lie about his name. And because hardly anyone seems to believe in individual accountability anymore. Whenever anything bad happens, it's always someone else's fault, and it makes me want to puke. It detracts from the legitimate victims out there who actually rise above the *&@#$ that happens to them and still live their lives with integrity.

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And because hardly anyone seems to believe in individual accountability anymore. Whenever anything bad happens, it's always someone else's fault, and it makes me want to puke.

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Me, too (among many other sociologic pathogens in our society). But there are many who believe in individual accountability. Yours as a prosecutor. And they stand ready to remind you of it on some asinine TV drama with pretty people playing sanctimonious defenders of the faith against prosecutorial skullduggery, or in some journalistic 95 Theses outlining the decadence of law enforcement. Or in some impassioned plea to the courts or legislature that cops and prosecutors routinely single out the innocent and the "disabled" to be defenselessly crushed beneath the indiscriminately-driven steamroller of justice.

Not that I'm cynical or biased.

In all seriousness (well, mostly serious), you're correct that the angle du jour is to absolve the defendant charged with a crime of any seriousness of his/her personal responsibility for his/her behavior through any rationale that can be supported by some expert's opinion. Sadly, until society finds within itself the moral rectitude to explicitly reclaim as a uniform moral principle the simple idea that a member of society bears responsibility for that which he/she does, regardless of his/her past, the symptom will persist.

The real fault lies with some judges who appoint marginal lawyers to handle death penalty cases. If qualified lawyers were appointed, there might be less death verdicts, but there would be less problems on subsequent writs.

With all due respect to Judge Cochran, who I also greatly admire, here are a few good questions that I'm sure never get asked:

1. Did you do it?
2. Did you do it by yourself?
3. Were your actions of your own free will?
4. Did you think about what you were doing before you did it?
5. Do you accept responsibility for your actions?
6. Do you feel that you should be punished?
7. Are you truly sorry for what you did?
8. Are you willing to sincerely apologize to those who've been hurt or wronged as a result of your actions?

I can't decide if it is a good thing or a bad thing that you always read about ineffective defense counsel and over zealous prosecutors, but never the other way around.

I will not make this a political debate, but every elected who has drawn an opponent once he took office has had to be asked about being ineffective as a prosecutor.

I have worked in three counties and seen it in all three.

And I think the defense attorneys that are hugging their clients and always want to be on a first name basis with them in court (no matter what evidence exists of guilt) might qualify as overzealous to most people.

But in lawyer land that is just "offering effective assistance."

Is there a way I can move out of lawyer land?

I hate that this opinion give credence to the idea that we're supposed to care that the defendant had a crummy childhood, or that having a bad childhood somehow excuses a capital murder. Someone is supposed to not get the death penalty for a horrendous crime because they didn't have a cohesive family, or because their sister was raped, or because they didn't have enough proud moments?