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February 1, 2012

"Poll Shows Oregonians Still Support Capital Punishment"

020112_deathpenalty_poll_smallThe title of this post is the headline of this local article from the Beaver State.  The piece starts and ends this way:

Governor John Kitzhaber raised the issue of Oregon's death penalty this winter, when he placed a moratorium on executions for the rest of his tenure. He urged Oregonians to "find a better solution."

But now, a new poll by OPB and DHM Research shows that most Oregonians favor the death penalty.... The poll found that 57 percent favor the death penalty for some crimes; 39 percent oppose it. Four percent say the don't know.

Su Midghall, lead pollster for DHM Research, says those numbers haven't moved in a while. "Historically, Oregonians haven't changed a lot in their support for the death penalty. It was high 10 years ago, meaning over a majority then, it's still over a majority today."

The telephone survey polled 500 people throughout Oregon. It was conducted last week, and has a margin of error of plus-or-minus 4.4 percent.

The poll found you could make some predictions about who supports and who opposes executions. "More men and more Republicans favor the death penalty and they do tend to be outside of the urban core.  Let's look at it from the other angle though, the ones who are most opposed.  They're college educated female Democrats," according to Midghall.

Those two groups make up the people who say they "strongly" favor or oppose the death penalty.  But Midghall says there's an important group of people in the middle. "We have 60 percent almost of Oregonians who support the death penalty for certain crimes.  Half of that, so about 30 percent are soft in their support, meaning with additional information they could be persuaded to look at things differently."...

A discussion is just what Governor Kitzhaber asked for when he issued a temporary reprieve in November, stopping the execution of murderer, Gary Haugen.  In an interview that will run on OPB's Think Out Loud Wednesday Kitzhaber reacted to the OPB DHM poll that shows a majority of Oregonians support capital punishment.

The governor explainied his actions, "I didn't abolish the death penalty. I didn't commute the sentences of everyone on death row to life in prison, which I could have done.  I simply stayed the execution of Mr. Haugen and made it clear that I'm not going to carry out that sentence during my term in office.  With the hope of fostering a discussion about the death penalty.  A, whether we still want it.   And B, if we do want it, whether the way the death penalty is set up in Oregon is really what people thought they were voting for back in 1984."  That's when Oregonians reinstated capital punishment.

February 1, 2012 at 12:57 PM | Permalink

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Comments

"I didn't abolish the death penalty. I didn't commute the sentences of everyone on death row"

At least Gov. Kitzhaber is not an unmitigated despot.

"I simply stayed the execution…I'm not going to carry out that sentence during my term in office. With the hope of fostering a discussion about the death penalty."

That's how one -+-fosters-+-a-+-discussion? How undemocratic!
How strange: "How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!" S. Adams

Posted by: Adamakis | Feb 1, 2012 2:08:14 PM

Kitzhaber's judgmentalism and dogmatism make Barbour and Chafee pale in comparison,
though maybe Spitzer, Ryan, Blogojevich, and others may match him.

1.) Kitz: declared Oregon's death penalty "broken" and a "perversion of justice", though
2.) "[N]o survey suggests Oregonians are prepared to reverse their 1984 vote reinstating capital punishment," and
3.) "The people of Oregon put the death penalty into their constitution," and
4.) "block[ing] release of many emails" over the execution stay as "Kitzhaber's legal counsel says the emails need to be kept secret" hardly "foster[s] a discussion".

"But those who heaped praise on Kitzhaber…ought to think about the precedent of cheering on
an elected official who declares that he finds something written into the constitution "immoral"
and simply can't abide it. Suppose some day the issue is abortion or gay marriage. Would they still
think a chief executive who overrode a law voters put into the constitution "courageous" and
"bold"?"
--The Oregonian Editorial Board 12/11/11

Posted by: Adamakis | Feb 1, 2012 2:37:03 PM

Adamakis --

"block[ing] release of many emails" over the execution stay as "Kitzhaber's legal counsel says the emails need to be kept secret"

If a Republican governor insisted on keeping secret the e-mails precedeing his decsion to REFUSE to postpone a death sentence, half the board would go ballistic.

Posted by: Bill Otis | Feb 1, 2012 3:20:04 PM

A majority of Oregonians would oppose the death penalty if they knew one fact: Obtaining and enforcing a death judgment is vastly more expensive than obtaining and enforcing an LWOP sentence.

Posted by: Calif. Capital Defense Counsel | Feb 1, 2012 5:11:16 PM

'Politics is the gentle art of getting votes from the poor and
campaign funds from the rich, by promising to protect each from the
other.' ~Oscar Ameringer

Posted by: synopsis | Feb 1, 2012 5:18:39 PM

CCDC --

"A majority of Oregonians would oppose the death penalty if they knew one fact: Obtaining and enforcing a death judgment is vastly more expensive than obtaining and enforcing an LWOP sentence."

Interesting. What this means is that it's more important than ever to place a reasonably generous, but definite, statutory cap on DP litigation costs. This would be in line with the many comments seen here urging cutbacks in the money allotted to the criminal justice system. If we can no longer afford to milk the taxpayers for money to fund prisons, we can no longer afford to milk them for every harebrained claim a capital defendant wants to lob into court.

Posted by: Bill Otis | Feb 1, 2012 8:28:24 PM

Synopsis w/Ameringer:

Would that it were as simple as that taught to me at University, i.e. ‘motives are all monetary, everything is politics, sensationalism sells’…Bits of truth no doubt, but ideology oft-looms largest.

Is Kitzhaber even running for reelection? Is he paying back some constituency or supporter(s)?
Or does the autocrat just feel so strongly that he’ll go this far, as did Al Sharpton regarding Tawana Brawley, and Dan Rather respecting President G.W. Bush?

Why did Spielberg produce Schindler’s List?
Could one have paid Mother Theresa enough to convince her to assist in an abortion?
Some people do things because of their values—Machiavellian though they may be--not because of money or politics as my profs. proffered..

Posted by: Adamakis | Feb 1, 2012 9:06:22 PM

I've been paid hundreds of thousands of dollars by the State of California to represent capital appellants.

Abolition of the death penalty is not in my economic interest. Yet, I advocate abolition of the death penalty. I do so because I consider it immoral and wrong for government officials to strap defenseless individuals down, and with premeditation, to inject poison into their bodies until they die.

Further, I consider it immoral and wrong for state officials to actively conceal from juries in capital cases that enforcement of death judgments is much more expensive than enforcement of LWOP sentences.

How much of the taxpayers' money do you think states should spend to enforce a death judgment? Do you think $60 million for one death judgment is too much? How about $1 billion?

Abolish the death penalty, and taxpayers won't be forced to pay people like me to file 300-page briefs.

By the way, take a look at an average Cal. Supreme Court decision in a capital case. The court finds a number of errors during the guilt and penalty phases, but then magically declares them all harmless. Issues are not frivolous when they involve errors that occured in the trial court, but are deemed harmless by the California Suoreme Court.

At least in California, the attorneys representing capital appellants are experienced lawyers with extensive experience, who satisfy a a number of enumerated qualifications. They are assisted by CAP (the California Apoellate Project), which is staffed by very good lawyers. The briefs produced by attorneys representing capital appellants in Calif. are generally good quality work.

All of this work, and the expenses incurred in producing the work, would be unnecessary if financially unmanageable death penalty schemes were simply jettisoned.

Posted by: Calif. Capital Defense Counsel | Feb 1, 2012 9:12:27 PM

CCDC --

Does your clients' sadistic, violent and lethal behavior bother you in the least? I haven't seen a shred of evidence that it does, but I wanted to ask rather than just assume.

Posted by: Bill Otis | Feb 1, 2012 10:42:21 PM

123D.Solves the problem of errors, of innocence. And, protects the public through the attrition of all violent repeat offenders. Start the count at adulthood, age 14, and none makes it to 18, when the peak of the criminal career begins.

To get to these offenders, the lawyer hierarchy immunizing and protecting them must also be arrested, tried for an hour's fair trial, and summarily executed, on an emergency basis, to save our nation. There is no difference between lawyers based on political affiliation. All of them are rent seekers. The criminal, however, cruel and inhuman, is a valuable commodity providing a comfortable living to the prosecution, the defense, and the judges on the bench. All get together after cases, and drink toasts to the stupidity of the public.

Posted by: Supremacy Claus | Feb 1, 2012 11:24:09 PM

I wonder if CCDC would want juries to be informed in the event that death sentences were actually cheaper than life-without-parole sentences--as they likely are in Virginia.

Posted by: alpino | Feb 2, 2012 2:44:33 AM

alpino --

Good question, and good luck on ever getting an answer.

Posted by: Bill Otis | Feb 2, 2012 2:57:17 AM

It's not a good question, because it is grounded in fiction. As numerous studies and articles posted on this site have revealed, death sentences are much more expensive to obtain and enforce than LWOP sentences.

Bill - My death penalty clients have committed horrible crimes. They have committed senseless acts of violence that have resulted in the unjustifiable taking of life. But, unlike you, I do not think that circumstance means that my clients should be denied their rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, or that those who provide a defense to those most in need of being defended should be demonized for providing that defense. Unlike you, I don't believe death judgments should be upheld when, notwithstanding the defendant's guilt, the prosecution team suppresses material evidence during the trial, or the trial judge improperly removes a hold-out juror during deliberations, or when the state otherwise does not play by its own rules.

Bill - Why won't you answer this simple question I have repeatedly put to you: What is the maximum amount of taxpayer money you believe should be spent to enforce a single death judgment? I think I know why you are studiously avoiding a response.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 9:41:05 AM

CCDC,

I agree that the cost of the DP is far too expensive. However, I would propose a statutory cap on all DP defenses that are paid for by the taxpayers. Perhaps $1 million, which will be far less than the average LWOP sentence. For the life of me, I cannot figure out why it would cost you more than that to lie for, I mean defend, a killer.

You stated: "All of this work, and the expenses incurred in producing the work, would be unnecessary if financially unmanageable death penalty schemes were simply jettisoned."

You may be able to sell that one to my 6 year old (although I am not sure because he is really bright) but you will not sell that garbage to me. Everyone here knows that the elimination of the DP will not end all of these high court costs. They will just be transferred to the even LARGER pool of LWOP inmates, who you will tag as being victims of the same fake syndromes, the same racial injustice, and the same death by government (in slow motion).

Now, I am from Kentucky which makes me a little slow compared to you California types. However, even I see that one coming a mile away.

Posted by: TarlsQtr | Feb 2, 2012 9:41:21 AM

CCDC stated: "But, unlike you, I do not think that circumstance means that my clients should be denied their rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, or that those who provide a defense to those most in need of being defended should be demonized for providing that defense."

And if the DP were ever abolished, you would use the same above statement to justify the next target of your agenda, LWOP.

Sorry, CCDC. In spite of all the education and experience telling fibs that you have, America is on to you.

Posted by: TarlsQtr | Feb 2, 2012 11:22:33 AM

How can you put a "statutory cap on all DP defenses that are paid for by the taxpayers"?

If counsel's compensation reaches the cap half-way through the appeal, does all of counsel's work just cease? Counsel files no more briefs, doesn't attend oral argument, and doesn't communicate with his/her client once the cap is reached? Or, would you and Bill Otis just have all capital appellate counsel work pro bono all the time? (Did Bill work for free when he was putting non-violent drug offenders in cages, or did he take money from the taxpayers to do that vile deed?)

Honestly, do you guys believe in summary executions? Do you guys believe capital appellants should be entitled to any of the safeguards afforded by the Fifth, Sixth, Eighth, and Fourteenth Amendments? Do you guys believe habeas rights should not be extended to the condemned?

Are you guys able to get past the visceral, raw emotions you have in capital cases? If you could, you might be able to present positions based on rationality rather than emotion.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 11:31:12 AM

CCDC stated: "If counsel's compensation reaches the cap half-way through the appeal, does all of counsel's work just cease? Counsel files no more briefs, doesn't attend oral argument, and doesn't communicate with his/her client once the cap is reached?"

Nope, I believe in priorities and budgeting. Let's put away the fake lawyerspeak and speak the truth. We both know that many appeals and motions are jokes intended to do two things: 1) Extract as many billable hours as possible. 2) Delay and game the system in hope for a miracle (e.g. some governor decides to commute sentences). Make a choice. Get paid for what may be a valid appeal/motion or pay some pyschiatrist to testify that the defendant's actions are not his fault because of the newest mental illness du jour.

In the end, you want a bottomless pocketbook so that you can claim how expensive it is. It is disingenuous.

Posted by: TarlsQtr | Feb 2, 2012 11:42:59 AM

interesting bill!

"Interesting. What this means is that it's more important than ever to place a reasonably generous, but definite, statutory cap on DP litigation costs. This would be in line with the many comments seen here urging cutbacks in the money allotted to the criminal justice system. If we can no longer afford to milk the taxpayers for money to fund prisons, we can no longer afford to milk them for every harebrained claim a capital defendant wants to lob into court.

Posted by: Bill Otis | Feb 1, 2012 8:28:24 PM"

like i've said before i think a cap is a good ideal. BUT it should in fact be a matcing fund. Whatever the STATE spent on it's investigation and prosectuion should be what the defense get's to rebut it. Fair and EQUAL!

Posted by: rodsmith | Feb 2, 2012 12:20:51 PM

CCDC --

"Why won't you answer this simple question I have repeatedly put to you[?]"

Because you have consistently dodged and refused to answer earlier questions I (and now alpino) put to you. It's not a one-way street. I have spent days asking you whether, if the DP cost less than LWOP, and the prosecutor wanted to argue that to the sentencing jury in a capital case, would you object?

You have refused to answer.

You can spend all the time you want turning your back on others' questions while simultaneously demanding that yours get answered, but you will find it a vain enterprise. When I see direct, yes or no answers to questions that have been on the table for days, you will too. Not before.

Posted by: Bill Otis | Feb 2, 2012 2:09:07 PM

rodsmith --

As happens so often, you come up with a common sense, no-BS solution -- a cap with the same amount for both sides.

Posted by: Bill Otis | Feb 2, 2012 2:15:23 PM

CCDC --

I now see that, on another thread, you have answered the question about whether you would object to the prosecutor's arguing cost as a basis for imposing the DP. And your answer is the truth: You would object. Your rationale is a dodge, however.

The sound rationale for your objecting to such an argument by the prosecutor is that life or death decisions in the criminal justice system should be made based on what's just, not on what's cheap. Your objection would therefore be sustained.

I will now answer your question: "What is the maximum amount of taxpayer money you believe should be spent to enforce a single death judgment?"

I don't know, since my qualifications do not extend in that direction. But my sense of it parallels TarlsQtr's. Government spending is out of control, and there is not going to be, and should not be, unlimited sending anymore. Entitlements are the main culprit by far, but all areas are going to get cut back. That includes prisons, and it includes you. There is no language in the Constitution that requires limitless indulgence of any and all spending by taxpayer-funded defense counsel.

I can tell you this for sure: Whatever Congress or the state legislatures decide the cap should be, it's not going to be anywhere close to the more than $13 million spent on McVeigh's defense. It was a national scandal, not to mention the waste of a huge amount of money, to indulge such nonsense.

Ordinary citizens, the military, welfare recipients and everyone from A to Z is going to have to get used to the reality that we've been overspending and it has to stop. Prosecutors are no exception -- and neither are capital defendants and their lawyers.

Posted by: Bill Otis | Feb 2, 2012 3:06:09 PM

Bill - I have repeatedly answered your question. Once again, I would object to your proposed argument, because it is based on sheer fiction; obtaining and enforcing the death penalty costs much, much more than obtaining and enforcing an LWOP sentence; have you been able to read and comprehend the numerous studies and articles that have been posted on this site concerning this empirical reality?

Any cap on defense spending in a capital appeal would run into a little problem: the United States Constitution.

Bill - How much is the maximum you would be willing to have the state pay for an execution? (I have asked you this question probably a dozen times now. You haven't answered. Why?)

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 3:07:06 PM

CCDC --

"Any cap on defense spending in a capital appeal would run into a little problem: the United States Constitution."

Here's what you know about the Constitution: According to you, the DP itself is unconstitutional. But the SCOTUS disagrees (see Greeg, Baze). Indeed, now that Stevens retired, you've got zero votes on the Court for your "learned" view that the DP is unconstitutional. And if it were possible, you'd have fewer than zero for your money-grubbbing and even more bizzare view that no limit can be placed on defense counsel spending. Give me the citation to one single federal case that says any such thing.

P.S. And yes. it has to be to a case, not to a website like ProsecutorsAreNazis.com or any of your other favorites.

Posted by: Bill Otis | Feb 2, 2012 3:17:15 PM

CCDC stated: "Any cap on defense spending in a capital appeal would run into a little problem: the United States Constitution."

This is a strawman as it relates to my comment. I never proposed a "cap on defense spending." I proposed a cap on the taxpayer funding of a capital defense.

If such a cap is unconstitutional, it is only so in the "We make up new constitutional rights as we go along" sense, not in the actual text of the document.

Posted by: TarlsQtr | Feb 2, 2012 3:43:24 PM

TarlsQtr --

If a cap on taxpayer funding of capital defense spending were unconstitutional, there might be, ummm, some case CCDC would cite saying so. Judges have been limiting the amounts indigent defense counsel can spend for about 50 years. If there's authority saying they can't do what they've been doing all that time, or that counsel for indigent capital defendants must be funded to any extent they demand, I'd like CCDC to produce it (and asked him to).

Instead, he's on another thread talking about pot.

Posted by: Bill Otis | Feb 2, 2012 4:07:37 PM

TarlsQtr --

Just to clarify, I am talking about a cap on taxpayer funding for indigent defense, which is what almost all defense in capital cases is. Since everyone knows this, I thought it would be assumed, but lest there be any confusion: Any killer can spend any amount of his own money he cares to on his defense. But nothing in the Constitution requires limitless funding BY THE TAXPAYERS.

Posted by: Bill Otis | Feb 2, 2012 4:31:39 PM

Are you guys familiar with the Sixth Amendment, Gideon, Strickland, and the right to effective assistance of counsel?

How much do you think it costs the State to conduct a typical Atkins hearing, concerning mental retardation / intellectual disability, with multiple experts on both sides getting paid $300 per hour?

In California, capital appellate attorneys get paid $145 per hour. They often have to read and index trial transcripts that are 30,000 to 40,000 pages long. The standard is 40 pages per hour. Do the math. Then, capital appellate counsel, who may practice in San Francisco or Sacramento, travels down to Los Angeles (assuming an L.A. conviction) 6 or 7 times for protracted record correction proceedings. Counsel then writes a 300 or 400 page brief, involving 20 or 30 issues. Staff attorneys at CAP (the tax-payer funded California Appellate Project) review all briefing prepared by appointed counsel. Oral argument doesn't take place until 5 or 6 years after the filing of the opening brief. (In one of my cases, I filed the opening brief two years ago. The State AG still has not filed its responsive brief.) After the California Supreme Court shoots us down -- finding numerous errors, all of which are declared harmless -- we file petitions for rehearing, and then seek cert. in the Supreme Court.

After all that, habeas proceedings commence. First state habeas. Then, federal habeas. During federal habeas, there are frequent trips back to state court to deal with issues of exhaustion, procedural default, etc.

New attorneys typically take over the case in collateral proceedings. They get paid by the taxpayers to review all the transcripts anew, and to often challenge the competence of the attorneys who handled proceedings on direct review.

The process takes decades. The costs are enormous.

The system is unwieldy and unmanageable, as the new Chief Justice of the California Supreme Court recently observed.

However, I assume you are aware that the courts have held that appellants are entitled, under the Constitution, to effective representation on appeal. And, I assume you are aware of the constitutional provisions concerning habeas.

By the way, shady defense attorneys are not the only ones being paid by taxpayers in these cases. Prosecutors, judges, investigators, and court staff are all paid by the taxpayers for the work they put into these cases.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 6:00:45 PM

Virginia's seems to work just fine. As for questions youve never answered--CCDC, you've never evaluated the morality of Kitzhaber yanking the rug out from under victims' families.

Plus, CCDC, we know you don't care about costs--else you would have supported the execution of Haugen, as he wouldn't be soaking up any resources now.

And yeah, we've heard of Strickland, and seen it metastasize into flyspecking capital cases. We're not going to give in.

You never examine the morality of your support for the endless ridiculous reviews of capital sentences. Those resources could be better spend for improving the accuracy of the guilt/innocence phase. You would harm the innocent for the sake of murderers.

Posted by: federalist | Feb 2, 2012 6:40:52 PM

CCDC --

You're long on outrage but short on law.

You have made it plain that, in your view, no limit can be placed on the amount of taxpayer money that must be given to counsel for the defense of an indigent client. Please furnish the citation to one single case that adopts your position.


Posted by: Bill Otis | Feb 2, 2012 7:59:07 PM

Thanks, Bill. That was exactly my point. I suggest a cap on taxpayer funding, not on limiting someone from spending his own or donated money.

CCDC,

Sure, let's do the math. If you spend your entire work week doing nothing but reading the 40,000 page transcript, it will take you 6 months. Have you ever spent 6 months straight doing nothing but reading a transcript? Or, is it more likely that para-legals making significantly less than $145 per hour read and summarize it for you?

Posted by: TarlsQtr | Feb 2, 2012 8:17:14 PM

Federalist -

The effect of the Oregon governor's decision is partial morality. It prevents the state, for at least a little while, from carrying out premeditated murders against defenseless individuals. There is nothing moral about the enforcement of the death penalty. I presume you know, and grudgingly acknowledge that many family members of murder victims do not support the death penalty. They do not all share your apparently insatiable blood lust.

The point you raise about costs is too nonsensical to merit a response.

Fighting a death sentence to the very end is the quintessence of morality. Your advocacy of state-sponsored homicides is immoral and creepy.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 10:00:17 PM

CCDC --

Immoral, creepy, bloodlusty, dada, dada, dada.

We can all throw adjectives around. Your refusal to acknowledge the legitimacy of the other (and majority) side of the issue is unfortunate but not surprising in this age of liberal McCarthyism.

Now if we could turn back to law for a moment: You have made it plain that, in your view, no limit can be placed on the amount of taxpayer money that must be given to counsel for the defense of an indigent client. Please furnish the citation to one single case that adopts your position.


Posted by: Bill Otis | Feb 2, 2012 11:07:04 PM

TarlsQtr --

Calif. Capital Defense Counsel writes, "Fighting a death sentence to the very end is the quintessence of morality."

The guy just elects himself Pope.

You see something new on this site every day.

Posted by: Bill Otis | Feb 2, 2012 11:11:23 PM

Bill -

I have cited Gideon, Strickland, the Sixth Amendment, and the constitutional provisions establishing habeas rights.

Do you need me to explain the holdings in those cases to you, and do you need me to explain the meaning of those constitutional provisions to you?

Cite me to a single case that says funding for a capital case litigant can be cut off in the face of a showing by the capital litigant that he/she needs to receive the funding in order to adequately present the claims he/she is entitled to present.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 11:48:42 PM

Bill -

What legitimacy is there in the process of strapping a defenseless individual down, and, with premeditation, injecting poison into the individual's body until he or she dies?

Isn't that first degree murder?

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 11:50:44 PM

The sole proper defense argument in a DP appeal is factual innocence. All others are pretextual plundering of the taxpayer. I advocate sweeping away the members of this racket with the death penalty itself. Round up the judges, the prosecutors, and the appellate lawyers, present their legal utterances as the sole evidence of an hour's fair trial, and not any collateral corruption. Then execute them in the court basement. Do the same with the entire lawyer hierarchy, around 15,000 people. They enable and maintain, are fully responsible for the 20 million FBI Index felonies a eyar, including the 5 million violent ones. Once gone, finish off all repeat violent offenders, and end crime by attrition. The main principal is that he deceased have a low recidivism rate.

The lie that the main client of the appellate lawyer is the constitution, makes all their work and weasel arguments solely in bad faith. The judges allowing these arguments are 10 time more culpable, and morally disgusting. These are morally disgusting thieves of the taxpayer money, especially the judges and legislators writing the rules thwarting the justice supported by the majority of the public. I would like to see direct action groups of the families of murder victims visit these morally reprehensible rent seekers in self-help. To deter.

Posted by: Supremacy Claus | Feb 2, 2012 11:58:07 PM

thanks bill! i call em like i see it. if the state can get a 90% conviction rate with what a bunch of 50k a year lawyers why can't the defense!


i'm guessing at that 50K thing i've been out of the loop way too many years i have no clue what the average page for a lawyer in the doj is these days.

Posted by: rodsmith | Feb 2, 2012 11:59:45 PM

"...quintessence of morality."

No. Of rent seeking, a synonym for armed robbery. Morally disgusting. These lawyers and their biased judges should be boycotted by all service and product providers, by their families and churches, neighbors, friends. They protect and immunize murder. They are a major factor in the high crime rate of the United States. I would support their executions as accomplices to their clients, except they make good salaries off murder. So murder is for profit for them. The families of the victims should hunt them down, since there is no legal recourse. They have dealt themselves absolute immunity, including from liability for wrongful and foreseeable deaths of the future murder victims of their clients.

Posted by: Supremacy Claus | Feb 3, 2012 12:12:20 AM

"Your advocacy of state-sponsored homicides is immoral and creepy."

Although subhuman, profiting from murder, morally disgusting, and fit only for kneecapping by the families of murder victims, I do appreciate its not using the word, "icky."

Posted by: Supremacy Claus | Feb 3, 2012 12:17:46 AM

CCDC --

"I have cited Gideon, Strickland, the Sixth Amendment, and the constitutional provisions establishing habeas rights."

You can cite Marbury v. Madison, too. What it has in common with your other citations is that none of them state or imply what you cite them for, to wit, that a capital defendant is entitled to LIMITLESS taxpayer funding.

"Do you need me to explain the holdings in those cases to you, and do you need me to explain the meaning of those constitutional provisions to you?"

No, I need for you to give it a rest and quit pretending that your exotic views are accepted law. Think you can do that?

"Cite me to a single case that says funding for a capital case litigant can be cut off in the face of a showing by the capital litigant that he/she needs to receive the funding in order to adequately present the claims he/she is entitled to present."

The right of the court to cut off funding short of infinity is so utterly accepted it's never even been been litigated.

"What legitimacy is there in the process of strapping a defenseless individual down, and, with premeditation, injecting poison into the individual's body until he or she dies? Isn't that first degree murder?"

You want to be high-handed with me about your "need" to "explain" the Constitution to me, but you don't even know the definition of murder.

Yikes.

Is every Justice of the Supreme Court guilty of being an accessory to first degree murder because all of them voted to deny further review to the cop killer Troy Davis?

Do tell!

Posted by: Bill Otis | Feb 3, 2012 3:03:44 AM

"Isn't that first degree murder?"

It is lawful incapacitation of an ultra-violent predator that killed already. It is a privilege granted our government in the constitution, and by statutes enacted by elected officials. It has the moral validation of war. To defend the citizen from violent people, to take care of security by the government so the public may do what it has to at work, and wants to in leisure, in peace. Wasn't the question of justifiable homicide explained to you at the start of Crim Law I, during 1L?

"Defenseless individual"

What? There are more murders by prisoners in prison than legal executions. If guards have to suit up with armor before entering someone's cell, that is hardly a defenseless individual.

Let us pray, now. May this appellate lawyer get a taste, and be assaulted by a client for looking at him wrong, or saying something offensive. Melt his cold heart that devalues the murder victim to zero.

Posted by: Supremacy Claus | Feb 3, 2012 8:39:37 AM

Ah, our old "friend" CCDC again with his "I'm trying to SAVE the taxpayers" fraud. Your "authorities" entitle any defendant (DP or otherwise) to EFFECTIVE assistance of counsel. That is a a standard determined by the COURTS-- NOT counsel themselves. Even the Gideon court recognized that it would be folly to have rabid ideologues decide for themselves how much they should be paid, which is the position you advocate: "I make $145 an hour, and I will decide how much is the right amount to bill." Claptrap.

As for your notion that prosecutors, judges, etc. get paid for their work on these cases, again you simply speak falsely. None of those individuals make an extra dime for any extra work put into a DP case vs. any other. The only ones who do? The CCDCs of the world.

How much max to spend? There is no number you can ever place on bringing such murderers to justice, or preventing even a single future murder from occurring. So your prized "question" is a frivolous rhetorical device. We could as well ask you how much you would charge to make you shut up and go away (since obviously the going rate is $145/hour), but then where's the entertainment value to come from?

Posted by: Rich Mantei | Feb 3, 2012 8:44:22 AM

CCDC stated: "What legitimacy is there in the process of strapping a defenseless individual down, and, with premeditation, injecting poison into the individual's body until he or she dies?

Isn't that first degree murder?"

I am not even a lawyer and I can answer this one.

The government is given certain rights by the people that the people do not hold as individuals.

I cannot raise an army and go to war. The government can.

I cannot strap a gun on, pull someone off the street, and incarcerate them, even if I have good reason. The government can.

I cannot seize the property of other citizens who I feel do not financially support the local community enough. The government can.

Are you claiming that raising a military, police/prison system, and taxation are illegitmate acts as well? Even Ron Paul would laugh at you.

Seriously? Someone will pay you $145 per hour for this kind of "logic?"

Posted by: TarlsQtr | Feb 3, 2012 9:00:33 AM

TarlsQtr --

That the government ALREADY shells out $145 an hour to an indigent defense counsel in capital cases who does not know the definition of murder is reason enough all by itself to support a cap on spending of that kind.

It's the Solyndra of defense lawyering: Costs a bundle and can't get anywhere.

Posted by: Bill Otis | Feb 3, 2012 12:13:43 PM

Hi Bill,

Your post just turned on the lightbulb in my head. The joke is on us, not CCDC. It is OUR tax money paying him $145/hour for his version of "logic."

Now I am depressed... ;-)

Posted by: TarlsQtr | Feb 3, 2012 1:34:21 PM

well tarls! you have now joined 80% of the public ...we feel that way every day after we see what our govt is up to most of the time!

Posted by: rodsmith | Feb 3, 2012 2:35:27 PM

How much did Bill get paid by taxpayers for destroying lives and ripping families apart by putting non-violent drug offenders in cages for decades?

Are all members of the death-penatly-supporting crowd impervious to facts and laws, such as the following: In order to carry out the death penalty, state actors kill a person. They do so by strapping that person down and injecting lethal doses of drugs into the person's body. The killing is accomplished with a great deal of planning, and is typically carried out at a designated time. The person who is killed is unable to defend against the lethal action being taken against him/her, because he/she is strapped down. The act is a homicide, i.e., the taking of a human life. Not only is it an intentional act, but it is carried out with express premeditation and deliberation. The act is not carried out in a manner that would qualify anywhere as self defense or defense of others. Do death penalty supporters understand that this is what happens in an execution?

Do death penalty supporters think that only prosecutors and cops should be paid by taxpayers in death penalty case litigation, and that defense attorneys and their investigators should only work pro bono? Do death penalty supporters advocate overturning Gideon and Strickland, together with repeal of the Sixth and Fourteenth Amendments?

Are all death penalty supporters honorary members of the State Bar of Alabama?

Posted by: Calif. Capital Defense Counsel | Feb 3, 2012 4:57:15 PM

Yeah, CCDC, we understand that an execution is a homicide, and a deliberate one at that--we also understand that it ain't murder.

As for your analysis of the morality of yanking the rug out from victims' families . . . . well it leaves a lot to be desired. The bottom line, and you refuse to deal with this, is that certain victims' families are being harmed by these stays/reprieves. What is the source of moral authority to elevate a killer's interest over theirs? They didn't choose to be a family member of a murder victim, and they certainly have an interest in the enforcement of a lawful sentence. The killer, on the other hand, chose to create the situation.

Posted by: federalist | Feb 3, 2012 5:25:46 PM

Why isn't it murder, Einstein? Because you, a drug warrior, and some other thugs say so?

Posted by: Calif. Capital Defense Counsel | Feb 3, 2012 6:15:05 PM

No, CCDC, because the people, through their elected representatives, say so.

Looks like I got under your skin. A thug, moi? Say it isn't so. I used to box when I was younger--does that qualify?

I know it kills you--but I totally clowned you on your fanciful legal argument about "you have to tell jurors about the cost of DP." And you can't seem to deal with the moral issue I raised. I may be a thug, but I am cleaning your clock in here.

Posted by: federalist | Feb 3, 2012 7:22:29 PM

I don't advocate overturning Strickland. I do advocate getting it back to its original meaning though---where counsel had to essentially be no counsel. Flyspecking counsel's performance at death sentencing hearings is Strickland on steroids.

As for Gideon--it's wrongly decided, but in light of the modern criminal justice system, necessary. My guess is that we'd be there legislatively already. I do think this, career criminals should have no entitlement to free legal assistance via Gideon. They are responsible for their own indigency and therefore they, not the state, should have to bear the cost.

Posted by: federalist | Feb 3, 2012 7:27:41 PM

CCDC --

"How much did Bill get paid by taxpayers for destroying lives and ripping families apart by putting non-violent drug offenders in cages for decades?"

I forget exactly. It wasn't close to the $145 per hour you say you make for attempting to put your killer clients back on the street to do it again.

BTW, selling meth to an eager (indeed addicted) 16 year-old is a "non-violent drug offense." Would you say it deserves no prison time?

Posted by: Bill Otis | Feb 4, 2012 1:01:31 AM

federalist --

"I may be a thug, but I am cleaning your clock in here."

I think the people CCDC is referring to as "thugs" are members of the Supreme Court. I asked him whether the Justices, all of whom refused to intercede in Troy Davis's last request for review, thereby made themselves accessories to "murder." As usual, he refuses to respond.

The guy is just an extremist and solipsist who thinks that the warped contents of his head define language for the rest of the world. This is the primary reason he insists on defining "murder" to be something the entire board knows it's not.

Most of the abbies won't argue with you because they don't have the wattage. CCDC won't argue with you because he doesn't think argument is necessary. If he says a court-ordered execution is murder, that's it. He stomped his foot, therefore he is right.

Posted by: Bill Otis | Feb 4, 2012 1:16:52 AM

It really is amazing. These guys, so full of their supposed moral superiority, resort to name-calling instead of argument. (I don't mind a little name-calling--I just wish there were an argument somewhere.)

Bill, as usual, hits the nail on the head.

Posted by: federalist | Feb 4, 2012 9:15:46 AM

CCDC is defending a personal economic interest. He is likely not even an abolitionist. The Supreme Court could end the death penalty. He would lose his job. They walk a perfect rent seeking line. They continued the death penalty, just added complications to gnerate massive government paid make work for lawyers.

Posted by: Supremacy Claus | Feb 4, 2012 9:41:42 PM

Otis: What this means is that it's more important than ever to place a reasonably generous, but definite, statutory cap on DP litigation costs.

Response: From D'Ambrosio v. Bagley, 688 F.Supp.2d 709, 735 (N.D.Ohio 2010):

"For 20 years, the State held D'Ambrosio on death row, despite wrongfully withholding evidence that “would have substantially increased a reasonable juror's doubt of D'Ambrosio's guilt.” Despite being ordered to do so by this Court during the extensive habeas proceedings before it, the State still failed to turn over all relevant and material evidence relating to the crime of which D'Ambrosio was convicted. Then, once it was ordered to provide D'Ambrosio a constitutional trial or release him within 180 days, the State did neither. During those 180 days, the State engaged in substantial inequitable conduct, wrongfully retaining and delaying the production of yet more potentially exculpatory evidence. And, as the 180–day deadline approached, certain of the State's counsel baselessly attacked the state trial judge, came before this Court and supplied testimony that, charitably, only can be described as “strain [ing] credulity,” and showed startling indifference to D'Ambrosio's rights. Because the state failed to retry D'Ambrosio within 180 days, moreover, the critical State's witness—the man around whom the entire theory of the State's case revolved—is no longer available for trial, a fact the State knew but withheld from D'Ambrosio, the state court, and this Court. To fail to bar retrial in such extraordinary circumstances surely would fail to serve the interests of justice."

In this case, prosecutors were withholding exculpatory evidence from the defendant over 20 years after the original 1988 conviction, despite rulings dating to 2001 that they had violated Brady.

Apparently, there already exists incentives in the system encouraging the State to hide exculpatory evidence, even though Brady v. Maryland expressly forbids it. The last thing the system needs is an additional incentive in the form of a cap on defense expenditures. In this case, the State surely could have easily run out the money clock on D'Ambrosio over the 20 year period the prosecutors (more than one) concealed exculpatory evidence (including the death of a key witness) from him.

Posted by: C | Feb 5, 2012 4:22:16 PM

C --

As many posts and comments have noted, there is a money crunch in the criminal justice system, as there is in every aspect of government spending. What this means is that spending will have to be contained, not expanded, much less expanded to infinity.

Cutbacks mean there will be more injustice. Sorry, that's the way scarcity works. The principal form of injustice, I am sorry to say, will be that crime which, in a more prosperous time would have been prosecuted, will go unprosecuted, and those who committed it will remain free to do it again. Prisoners who have been rightly convicted and lawfully sentenced will be released before their terms have elapsed (cf. Plata).

It is simply partisan huckstering -- not to mention a departure from reality -- to say that, yes indeed, the things you don't like in the criminal justice system should be cut back, but the things you like should have an unlimited draw on the taxpayers' pocketbook.

NEWSFLASH: The unlimited draw is out. Substantial and unwelcome fiscal restraint is in.

Adults learn to live with scarcity, and with the hardships scarcity entails. The notion that occasional prosecutorial misconduct is an excuse to demand infinite money for the defense is absurd. We don't have infinite money, and no court has adopted your position, including, conspicuously, the Bagley district court you cite.

Posted by: Bill Otis | Feb 5, 2012 5:42:04 PM

Mr. Otis, I think you know that did not make the case for the defense getting infinite money to conduct its defense. You have presented a red herring.

Second, if the people within a jurisdiction choose to cut police forces, cut prosecutors and decline to build prisons, that is that jurisdiction's business. Law enforcement has no general duty to protect citizens - perhaps you are familiar with the case DeShaney v. Winnebago County Department of Social Services. The amount and quality of law enforcement is generally a political question - if voters are not satisfied with the level of police protection provided to them, they have their remedy at the polls.

However, I can't see how it could be found constitutional to arbitrarily deny counsel to those the State chooses to prosecute. If there just money isn't there, the State can choose not to prosecute, or to cut a deal.

Finally, I am not engaging in partisan huckstering because I am not suggesting that anything in the criminal justice system be cut to the point where either public safety or constitutional guarantees are compromised. Providing for public safety is government's core function to be exercised according to the voter's understanding of it. Adhering to its constitutional obligations is government's inalienable duty.

Posted by: C | Feb 5, 2012 6:36:33 PM

C --

"I think you know that did not make the case for the defense getting infinite money to conduct its defense."

You didn't in haec verba, that true. But that seems to me to be the logical endpoint of your argument.

If I'm wrong about that, could you specify the limit the public should spend on the defense of a murder case? McVeigh, who was stone-cold guilty, got a staggering $13.8 million to put on a laughable (and phony) defense, see http://www.nytimes.com/2001/06/30/us/national-briefing-rockies-colorado-mcveigh-s-defense-cost-millions.html

I regard that amount of money given over to a slew of (very happy) defense lawyers to be a scandal. Do you?

Posted by: Bill Otis | Feb 5, 2012 8:37:20 PM

Regarding McVeigh, I have no idea what that money went - on its face it seems like an awful lot of money to me. The amount of defense work required, at least at trial, is first a function of the scope of the investigation made. I suspect that the investigation into the Oklahoma City bombings were quite extensive and generated more than its fair share, but I don't know that for a fact. Some cases can be tried inexpensively, others are a perfect storm that requires more money be spent on both sides.

I cannot see how the logical end point of my argument requires providing defense counsel with a blank check. One just does not logically flow from the other.

Posted by: C | Feb 5, 2012 9:04:39 PM

C --

I'm having trouble understanding your exact position, so let me just start with the basics.

Do you think a cap on taxpayer-provided money for the defense would be unconstitutional?

Posted by: Bill Otis | Feb 5, 2012 10:08:21 PM

There already are caps on defense costs, but these cap are necessarily and appropriately case-specific. Attorneys are entitled to receive a fee necessary to provide compensation adequate to ensure effective assistance of counsel, but that compensates only for work reasonably and necessarily incurred. There is a subjective element here, and reasonable minds can and do disagree, but the hard cap you seem to be proposing would be contrary to this requirement.

Posted by: C | Feb 6, 2012 9:00:49 AM

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