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July 20, 2012

Largest mass shooting in US history surely to become a capital case

Though I am sure hard-core death penalty abolitionists feel differently, I cannot help but find some comfort in the fact that the state which just experienced the worst mass shooting in US history still has capital punishment.  Here are the awful basics via this ABC News account:

Twelve people were killed and 59 were injured in Aurora, Colo., during a sold-out midnight premier of the new Batman movie "The Dark Knight Rises" when 24-year-old James Holmes allegedly unloaded four weapons' full of ammunition into the unsuspecting crowd.  The number of casualties makes the incident the largest mass shooting in U.S. history.

Holmes, an honors student and Ph.D candidate at a nearby college with a clean arrest record, allegedly entered the movie auditorium wearing a ballistics helmet, bullet-proof vest, bullet-proof leggings, gas mask and gloves.  He detonated multiple smoke bombs, and then began firing at viewers in the sold-out auditorium, police said today.

Bullets from the spree tore through the theater and into adjoining theaters, where at least one other person was struck and injured.  Ten members of "The Dark Knight Rises" audience were killed in theater, while two others died later at area hospitals.  Numerous patrons were in critical condition at six local hospitals, the Aurora police said this afternoon....

Holmes was apprehended within minutes of the 12:39 a.m. shooting at his car behind the theater, where police found him in full riot gear and carrying three weapons, including a AR-15 assault rifle, which can hold upwards of 100 rounds, a Remington 12 gauge shot gun, and a .40 Glock handgun.  A fourth handgun was found in the vehicle.  Agents from the federal bureau of Alcohol, Tobacco, and Firearms are tracing the weapons.  ABC news confirmed that they were all purchased legally.

According to police sources, Holmes told the officers arresting him that he was "The Joker," referring to the villain in the second installment of the Batman movie trilogy, "The Dark Knight."  He also warned police that he had booby-trapped his apartment, leading officers to evacuate the Aurora apartment building.

Police Chief Dan Oates said today that police, bomb squads, and the ATF have found a large number of explosive devices and trip wires at Holmes' apartment and have not yet decided how to proceed without setting off explosions.  "The pictures we have from inside the apartment are pretty disturbing considering how elaborate the apartment is booby trapped," police said outside of the apartment complex today.  The "flammable and explosive" materials could have blown up Holmes' apartment building and the ones near it, police said....

Witnesses in the movie theater said they saw smoke and heard gunshots that they thought were part of the movie until they saw Holmes standing in front of the screen, after entering from an emergency exit.  Holmes methodically stalked the aisles of the theater, shooting people at random, as panicked movie-watchers in the packed auditorium tried to escape, witnesses said.

At one point the shooter exited the theater only to wait outside the doors and pick off patrons as they tried to exit, witness Jennifer Seeger told "Good Afternoon America." "You just smelled smoke and you just kept hearing it, you just heard bam bam bam, non-stop. The gunman never had to reload. Shots just kept going, kept going, kept going," one witness told ABC News....

The suspected shooter will face his first court appearance next week, according to district attorney Carol Chambers.  Holmes, originally of San Diego, moved to Aurora to pursue his Ph.D. at the University of Colorado medical center, living just blocks from the hospital in an apartment that police say is now laced with explosives and being searched by HazMat teams.

Federal law enforcement sources tell ABC News that Holmes bought a ticket to the movie, slipped out of the theater once it began and propped open the emergency exit before gathering his weapons and gear and coming back into the theater.  Once inside, he opened fire.

In the immediate aftermath of these sorts of horrific mass killings, I find it so very hard to react with my head without also listening to my heart.  And in these kind of awful cases, my heart (or is it my gut) often suggests to me that ultimate punishment of death is the only one which feels fitting.  I suspect Colorado prosecutors (and perhaps also federal prosecutors) will have similar feelings.

July 20, 2012 at 07:52 PM | Permalink

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Comments

Ah, a rare disagreement with my former advisor . . . . I am a defense attorney (but also a former prosecutor and judicial clerk) and am against the death penalty for myriad reasons, though I would not describe myself as a "hard-core death penalty abolitionist." That said (and presumption of innocence aside), I think even death penalty advocates would want/need more information before deciding that death is the only penalty fit for Mr. Holmes. Given the information we have so far, I cannot help but think that Mr. Holmes suffers from a serious and debilitating mental illness. There is no question that what he did was horrific and, even if my armchair diagnosis is correct, inexcusable. That said, I think we need a professional determination of whether or not Mr Holmes was able to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law before we call him "evil" (as I have heard him described more than once today including, sadly, by the President) and condemn him to death by government.

Posted by: Denean Hill | Jul 20, 2012 8:24:19 PM

Denean Hill --

The evidence so far is that this guy was very bright, fully functional, had no prior mental health or criminal law encounters, and planned this meticulously. Obviously, he doesn't see the same world you and I do, but the idea that he couldn't tell right from wrong or conform his conduct to the requirements of law (when he had done so for 24 years) is at best undocumented and at worst grossly implausible.

A society unable or unwilling to recognize this man as having earned a trip out of this world is a society that no longer cares about the basic rules of civilized life (or its own safety, for that matter).

I just hope the defense bar can clean it up long enough to avoid cooking up the usual phony shrink-sponsored tales, but I doubt it.

Posted by: Bill Otis | Jul 20, 2012 8:51:07 PM

Bill--

It is also being reported that Mr. Holmes told officers he was The Joker. In all fairness, a lack of a history of criminal behavior or mental illness is hardly documented evidence of a lack of such behavior or illness. People fly under the radar. People sometimes have mental breaks; people also sometimes slip through the cracks, so to speak. I'm not saying he falls into any of these (or any other) categories; I'm saying that no one can possibly know at this point if he does or does not, and that he should be assessed by someone qualified to make such a determination--a psychiatrist, not defense attorney--before the appropriate penalty for him is determined.

As for the defense bar, I am sorry that you feel about it the way you do. If there is anything I can do to change your mind, please let me know.

Denean

Posted by: Denean Hill | Jul 20, 2012 9:18:05 PM

None of us know anywhere close to enough about Holmes to judge whether he is insane, troubled but sane or as sane as any mass murderer can be. 24 hours after the Tuscon shooting no one knew Loughner was so crazy that a year and a half of the Feds forcibly medicating him with every drug at their disposal would be unable to make him competent to stand trial. Instead there was widespread speculation Loughner was a right-winger committing a politically motivated shooting (which turned out to be completely wrong).

Holmes could be another Loughner, or he could be as sane or saner than Timothy McVeigh. We don't know yet. Since Colorado will be trying to kill him eventually everything there is to know about his mental health will be made public. Until then our opinions are all uninformed.

Posted by: Paul | Jul 20, 2012 9:50:04 PM

100% Paul...I am convinced that some merely think they have
something to say.

Posted by: shurnuff | Jul 20, 2012 10:25:39 PM

The shooter will likely be found to have paranoid schizophrenia. Thank the lawyer enemy for protecting him and preventing his treatment. Now he qualifies for involuntary treatment.

His defense lawyer should be beaten and driven out of town. The defense lawyer is an enemy. As this enemy gives no quarter so no quarter should be shown to the lawyer enemy. The Supreme Court is fully responsible for this death toll, by preventing psychiatry from forcibly treating people until after they have hurt themselves and others.

All law abiding citizens should be required to carry a weapon and to have a duty to discharge that weapon when an attack begins. Kill the shooter or face a $100 fine. Any one who protected this shooter should be hunted down. Night riders should tie them to a tree in front of the courthouse and give them 50 lashes. To deter the lawyer enemy coming to work in the morning.

There is no forgiving the lawyer enemy for this shooting. I would like to see assault on the lawyer hierarchy, with 100 to 1. If the shooter has killed 12 people. Then 1200 lawyers and judges should be killed by crowds. Hunt them, capture them, torture them, and kill them. To deter.

Posted by: Supremacy Claus | Jul 20, 2012 10:27:54 PM

I'm still convinced that some merely think they have
something to say!

Posted by: shurnuff | Jul 20, 2012 10:44:30 PM

"Needless to say, no one who suffers from a delusion recognizes it as such."

Sigmund Freud

Posted by: onlooker | Jul 20, 2012 10:54:14 PM

Any lawyer defending this mass murderer should be hunted, captured, tortured and killed. The lawyer is an enemy of the public safety, and the public has every moral right to defend itself. Any judge delaying the summary execution of the mass murderer in order to generate make work for the lawyer profession should meet the same fate. It is time for the public to act against the internal enemy, in self-defense. It is time to return the favor, and to start killing lawyers and judges, as I said, 100 to 1 seems fair. They are worthless human beings compared to even the lowest of the victims.

I have said in the past, I do not know if I would have the physical courage to actually carry out an execution personally against a child killer even. I have no doubt I would do so without the slightest hesitation if the execution were one of a member of the lawyer hierarchy. I would deem it a patriotic duty, to protect my nation, defending my country against the internal enemy, against the criminal cult enterprise that has taken total control of the three branches of our government. We need to elect a Lincoln class President who will eradicate this pestilence from all policy positions. Purge them, try them, execute them for treason. Pass a constitutional amendment excluding anyone who has passed 1L from all benches, all legislative seats, and all responsible policy positions in the executive.

That will be the end of all social pathologies, shoot our economic growth to its natural 10% a year, and end all crime by killing the protectors of the criminals.

Posted by: Supremacy Claus | Jul 20, 2012 11:02:30 PM

Hey! I'm tryin to better myself but it's rough out there!

Posted by: shurnuff | Jul 20, 2012 11:09:34 PM

The movie theater chain prohibits the carrying of guns, as a policy. I would like to see it sued into bankruptcy for this policy, and the lawyers responsible for this policy to get 50 lashes by night riders. To deter.

http://www.wnd.com/2012/07/colorado-theater-called-gun-free-zone/

All PC is from case law. If a judge is found to have caused this policy by assessing liability to gun carriers, the same fate for the judge. It is high time to end the tyranny of the lawyer enemy.

Posted by: Supremacy Claus | Jul 20, 2012 11:47:59 PM

Bill:

I think that, just because he's got no priors and is obviously very bright, doesn't mean that he hasn't suffered some sort of a psychotic break -- maybe even more likely, fine line between genius and insanity and all that.

Posted by: Guy | Jul 21, 2012 12:08:57 AM

Interesting how the reflexive response of so many here is always to make an excuse for a criminal.

I am becoming more and more convinced that this enabling mentality is why our crime rates are so high. People like many of those here pathetically parent their feral children by making excuse after excuse (or are not there at all) and wonder why they end up in the leech/criminal class. They go from ADD or ADHD as children to "paranoid schizophrenia" as adults. That is not to say that these things do not exist but they are ridiculously overused excuses for the purpose of enabling.

Posted by: TarlsQtr | Jul 21, 2012 8:51:47 AM

Denean --

I think you know as well as I do that what's going to happen is that the defense lawyer, whoever it is, is going to look as hard as he can to find a shrink to say this guy is nuts. If the lawyer gets the opinions of ten shrinks, and nine say he's sane and one says otherwise, the defense will trot out the one and do everything it can to make sure no one finds out about the other nine. Do you disagree? Would you characterized that as an honest search for the truth about his sanity?

I don't need to hear that the defense bar is just interested in getting him off, not in an honest search. I already know that. I'm simply asking whether finding one shrink with the desired answer and nine -- all to be hidden -- with the undesired answer, is honest. Would you tell your 12 year-old that it's honest, and that's how you want him to behave?

Posted by: Bill Otis | Jul 21, 2012 9:14:01 AM

Guy --

And if your (entirely hypothetical) suggestion of a psychotic break is not verified by a mental exam, would you then say that Doug's take on this -- that this case illustrates why the never-never-never brand of abolitionism is unpersuasive -- is well-taken?

Posted by: Bill Otis | Jul 21, 2012 9:18:03 AM

Denean --

One other point. You said, "As for the defense bar, I am sorry that you feel about it the way you do. If there is anything I can do to change your mind, please let me know."

Yes. Agree that the ethos of the legal profession needs a change (as the public correctly believes), and that the defense bar should sign on to an amendment to the canons of ethics that says, "A lawyer must be truthful, forthcoming, straightforward and candid with opposing counsel, the court and the jury."

Posted by: Bill Otis | Jul 21, 2012 9:30:48 AM

TarlsQtr --

If this had happened the day before the vote in Connecticut to abolish the DP, or the day before the Governor was set to sign or veto that bill, the bill goes down. When reality strikes, the Holier Than Thou posturing of the abolitionist side tends to go into hiding.

Along those same lines, I think this spells the death knell for the California initiative to end the DP. People can gin up all the hypothetical excuses they want -- and they're busy doing it on this thread -- but normal people will react exactly as Doug does.

Posted by: Bill Otis | Jul 21, 2012 9:39:00 AM

Paul --

"Holmes could be another Loughner, or he could be as sane or saner than Timothy McVeigh."

If the latter, would you say that he deserves McVeigh's fate?

Posted by: Bill Otis | Jul 21, 2012 9:45:29 AM

It would seem he's not insane under the M'Naghten Rule or the Model Penal Code, but is insane under the Durham rule. To me, his mental illness is confirmed by his acceptance / expectation of capture (or death) and his failure to take any steps to evade it. This is in sharp contrast to, say, the DC sniper or the guys in the Petit murders.

Thus, IMHO, killing him is like killing a rabid dog. Is this moral? Is this ethical? Whatever it is, it is not punishment, it is just retribution.

Posted by: Max Kennerly | Jul 21, 2012 10:03:26 AM

I've a few questions for Bill Otis:

In your career as a prosecutor, did you ever encounter a defendant whom you conceded was insane? Even though the insanity defense is permitted under the law, you seem to oppose it in every case I can recall. The insanity defense appears to be, in your eyes, like the death penalty in a number of liberal states: something that exists only in theory, but never applies in an actual case.

Would you concede that this fellow is entitled to counsel, and that counsel's job is to make the argument for his innocence by reason of insanity, if that case can plausibly be made? Or do you feel that any honorable attorney appointed to represent him is morally obligated to take the state's side? Your posts seem to suggest the latter.

(Incidentally, psychotic breaks quite frequently occur in one's mid-20s, so it is entirely possible that this guy actually WAS legally insane, despite never having committed a crime before. Obviously, if he was NOT insane, he is about as good a candidate for the death penalty as you could get.)

Posted by: Marc Shepherd | Jul 21, 2012 10:16:01 AM

Max Kennerly --

"Thus, IMHO, killing him is like killing a rabid dog."

That's reason enough.

Posted by: Bill Otis | Jul 21, 2012 10:40:12 AM

Marc Shepherd --

"I've a few questions for Bill Otis."

It might be useful as well to have questions for those reflexively rushing to make excuses for this guy.

"In your career as a prosecutor, did you ever encounter a defendant whom you conceded was insane?"

Not that I remember. Of course that's not surprising, since (1) I was principally an appellate lawyer, and sanity determinations are primarily issues of fact resolved in the district court, and (2) I worked in federal criminal jurisdiction, which involves almost entirely drugs, immigration, ATF violations and fraud -- crimes as to which an insanity defense is seldom if ever offered.

"Even though the insanity defense is permitted under the law, you seem to oppose it in every case I can recall."

Actually, I think Loughner is nuttier than a fruitcake, and, from what I know, has a valid insanity defense. However, as a general matter, your intuition is correct. Insanity defenses tend to get raised where the defendant is ice-cold guilty on the observable facts, and the defense needs to weave something (or just make something up) from relatively unobservable, inside-my-client's-head "facts." It actually reminds me of "faith healing" at revival tents in the South in the 1930's.

"The insanity defense appears to be, in your eyes, like the death penalty in a number of liberal states: something that exists only in theory, but never applies in an actual case."

Even defense lawyers will tell you it almost never works, because juries just aren't that gullible.

"Would you concede that this fellow is entitled to counsel..."

Yup.

"...and that counsel's job is to make the argument for his innocence by reason of insanity, if that case can plausibly be made?"

The problem is that, under existing ethics, it's counsel's job to argue for insanity even if it's NOT plausible, just as Sandusky's counsel argued the absurdity that all ten boys were independently lying and that the eyewitness just saw "horsing around." And worse (and this is my point), it's counsel's job, under present ethics rules, to try to persuade the jury that Holmes is insane, even if he knows or has good reason to believe it's flat-out false, and to hide the evidence that convinces him it's flat-out false. I do not believe the system is likely to have reliable outcomes when it condones dishonesty.

"Or do you feel that any honorable attorney appointed to represent him is morally obligated to take the state's side?"

I believe that honorable human beings are morally obligated to tell the truth and avoid misleading behavior. I also believe those obligations are not obliterated by getting a law license; indeed, I think they are enhanced.

With all respect, the problem here is not that I think the legal profession accepts too much sleaze, an opinion held by many others, if not a majority. The problem here is that Holmes planned to kill, and then killed, as many of his fellow creatures as he could, and the reaction of the majority of this thread is reflexively to try to think of excuses for it.

Doug Berman is a center-leftist and I am a center-rightist, and this case presents the point of agreement (or the center, as it were). The DP has its problems, but there are some instances in which a normal person just would not think anything else is justice; ergo, it should not be abolished.

Posted by: Bill Otis | Jul 21, 2012 11:28:13 AM

Bill:

My position on the death penalty is quite simple: there's never a right reason to take a life. Sometimes violence is truly unavoidable, such as in moments of self-defense, but that, to me, doesn't mean it's something particularly to be proud of, or to be envied, or to be cheered. That goes double for those moments when it's the state taking a life, be it at the end of a bayonet or a needle.

So, as you might imagine, in situations where the death penalty is contemplated, I could never throw my support behind it, not even with respect to Mr. Holmes.

And yes, my speculation about his mental state is just that: speculation. As is yours, as is everyone from the peanut gallery.

Posted by: Guy | Jul 21, 2012 11:46:17 AM

Bill,

Like Marc, I'm not sure I understand your view of the defense attorney's function. I consider myself an ethical attorney and always strive to be" truthful, forthcoming, straightforward and candid with opposing counsel, the court and the jury." I also strive to fulfill my other ethical duties such as maintaining attorney/client confidentiality and zealously representing my client. I do not see any fundamental conflict between these sets of obligation but some of your comments suggest you do. Am I mistaken?

You are correct that, if I chose to present an insanity defense, I would use an expert who, in my opinion, could present that case most forcefully and persuasively. It is the fact-finder's job to accept or reject that expert's view, not mine. It is my job to present the best possible defense for my client. Now, if 10 other shrinks were ready to testify that my client was not insane, I might chose not to present my expert, might chose not to present an insanity defense at all, but that is a question of strategy, not ethics. So, yes, to answer your question, I believe unequivocally it is "honest" to present a properly-qualified expert to testify on my client's behalf, even if that expert's opinion is rejected by a majority of other experts. After all, we are conducting a trial, not a poll.

The subtext of your comments, perhaps unintentional, is that the zealousness of my representation should wax or wane based on my subjective view of my client's guilt or the heinousness of his crimes. But if that's true, what's a judge or jury for?

Posted by: Fed Defender | Jul 21, 2012 11:47:05 AM

Honestly when I first heard about this story I wondered if Supremacy Clause had finally snapped. When I further learned the guy said he was The Joker I was certain of it. So I am naturally disappointed to come here and see that I was wrong.

So far the most insightful thing I have read on this topic was posted here:

http://www.theonion.com/articles/sadly-nation-knows-exactly-how-colorado-shootings,28857/

Posted by: Daniel | Jul 21, 2012 11:47:53 AM

Bill -

This is about your question at 9:14. If the defense lawyer has reason to think the one shrink was more careful, more observant, or more insightful than the nine, or that the nine overlooked relevant scientific principles, then presenting the opinion of the one won't be dishonest or contrary to a search for the truth. If the defense lawyer has reason to think the one shrink wasn't really qualified in forensics or that he's a hack who will produce any opinion you want so long as he's paid, then presenting his opinion will be dishonest. If the defense lawyer thinks the shrinks are equally competent and just disagree, as experts often do, then it's not dishonest for him to present the expert opinion that's in his client's best interest. In fact, it's unethical for him not to.

The point is that being honest requires more than counting noses and assuming the majority must be the ones with the right answer. That's why a prosecutor can honestly present testimony from one shrink who says that the defendant is sane, even when the other side presents testimony from five shrinks who say he's not. I think you were trying to construct a hypo where the defense lawyer would have to know that the one shrink's opinion wasn't trustworthy. And of course it would be dishonest for the defense lawyer to present the expert's opinion if that was the case.

Posted by: arfarf | Jul 21, 2012 12:04:37 PM

Fed Defender --

Let me just ask you this: There were, I think, ten victim-witnesses against Sandusky. Most of them didn't know each other, and had been molested at different times and different places over many years (fifteen years, to be exact). Notwithstanding this, defense counsel implied to the jury that their stories were ALL false, because they were planning to sue Penn State and Sandusky (would any victim NOT sue?). But counsel's implication was false. The victims' stories of molestation were true, and defense counsel could not have helped knowing they were true, just as the rest of the world did.

Responsible adults cannot just go into this fantasy world that, "Oh, we can never really know what's true!!!" We most certainly can know, as, ironically, defense counsel will insist in the next breath when they say, for example, it was really the defendant's co-conspirator's who did all the dirty work.

Sandusky's lawyers were trying to put their client back on the street by selling a portrait of the victims' stories they could not have helped knowing was false. Do you think that's honest?

Posted by: Bill Otis | Jul 21, 2012 12:08:12 PM

Professor Berman, how much of your gut feeling that Holmes should be killed do you think is based on pure logic, and how much do you think is based on how others are punished? LWOP has become a relatively common punishment. Brett Harmelin gets LWOP for possessing a kilo of cocaine, and Holmes's actions are exponentially worse than Harmelin's, so instinctively Holmes must receive a sentence greater than Harmelin. Since Harmelin got LWOP the only greater sentence is the death penalty. Thus the gut reaction that Holmes must die.

In the middle ages, when every felony was a capital crime, they would have considered merely killing Holmes laughably lenient. A medieval law professor would probably have written that his gut reaction is that the medieval equivalent of Holmes must be boiled in oil till near death, then drawn and quartered. If we had a system where LWOP or LWOP equivalent sentences were reserved for aggravated murders would your gut reaction still be that Holmes must die?

Posted by: Paul | Jul 21, 2012 12:25:55 PM

I am a former prosecutor and current NRA member. I am not in favor of more federal laws, but I would support the following legislation for starters:

"It shall be unlawful to manufacture, distribute, or possess any clip or magazine able to hold 100 or more rounds."

My fellow lovers of the Second Amendment, what do you say?

Posted by: onlooker | Jul 21, 2012 12:30:59 PM

arfarf --

"I think you were trying to construct a hypo where the defense lawyer would have to know that the one shrink's opinion wasn't trustworthy. And of course it would be dishonest for the defense lawyer to present the expert's opinion if that was the case."

But from what I'm hearing today, counsel couldn't really "know" that the opinion was untrustworthy, he could only believe that, not being qualified in the field. Thus counsel would be free, if not obligated, to put the quack on the stand, provided only that he thought the quack was a good, smooth talker and might convince the jury even if his professional competence were zilch.

Posted by: Bill Otis | Jul 21, 2012 12:39:38 PM

Paul --

Your question to Doug implies that only people living in the Dark Ages could believe that the death penalty is ever warranted.

Is that what you think?

Is Obama in the Dark Ages? Was Lincoln?

Posted by: Bill Otis | Jul 21, 2012 12:45:49 PM

Bill, wouldn't our system breakdown or require a complete overhaul if defense attorneys functioned in the manner you suggest they should function? Defense counsel does not function to find guilt and should either not practice criminal defense law or lose his/her bar card if defense counsel takes on the role of the fact-finder in the manner you suggest. Isn't this what they tell us in law school? If this is not the way it should be and if the system should change, the system should be openly changed and the public should know that if an individual contacts an attorney after being accused of a crime, then that individual might be the subject of fact-finding by defense attorney?

Posted by: Tim Holloway | Jul 21, 2012 12:52:43 PM

Bill,
You stated: "But from what I'm hearing today, counsel couldn't really "know" that the opinion was untrustworthy, he could only believe that, not being qualified in the field. Thus counsel would be free, if not obligated, to put the quack on the stand, provided only that he thought the quack was a good, smooth talker and might convince the jury even if his professional competence were zilch."
Wouldn't the competency of the doctor be an issue for the jury or possibly the judge (Daubert) under our system? The system functions on the idea that juries can figure it out?

Posted by: Tim Holloway | Jul 21, 2012 1:09:02 PM

Bill -

Perhaps I'm not understanding your answer. But I've never met a lawyer on either side of the aisle, in a civil case or a criminal one, who doesn't check out the potential experts before he hires them. At a minimum, he talks to several other lawyers who've used each expert and asks them about the expert's scientific background, his vulnerabilities, and whether any problems came up. If a lawyer hires two experts who come up with conflicting opinions, he asks them questions, and maybe asks for further testing, to see if the conflict can be resolved or if it is just one of those things where competent experts can have different perspectives. That is easily enough for the lawyer to form an opinion about whether the experts he chooses to use are trustworthy.

Posted by: arfarf | Jul 21, 2012 1:17:45 PM

Bill,

I thought Sandusky's lawyers were appalling both ethically and in their performance. Precisely because I could not see how any jury would have bought their defense, I thought it was an incredibly stupid defense to pursue. The case was so poorly presented I have no idea what his lawyers were trying to accomplish with it. It failed to work either as an argument for acquittal or even a "long guilty plea." While obviously a defense lawyer's first duty is to his client, competent lawyers know that the client's interests are not furthered by mounting desperate, unsupported attacks on sympathetic victims.

Because I don't know the lawyer's subjective motivations, I can't say the defense was unethical. I can say it was idiotic and incompetent and, intentionally or not, needlessly insensitive, even cruel.

What clearly was unethical was the lawyers' self-justifying, self-aggrandizing media campaign in which they repeatedly appeared to violate the attorney-client privilege by disclosing confidential communications of their client.

It would have been interesting to see how a competent lawyer would have represented Sandusky.

Posted by: Fed Defender | Jul 21, 2012 2:45:32 PM

Daniel: You hurt my feelings. Do you truly believe I could coldly dispatch an innocent 6 year old little girl?

Think of me if the news is of a geriatric patient riding his Scooter, totally free from the Scooter store, detonating a ton of military explosive and taking down the entire building housing an appellate judge conference.

Posted by: Supremacy Claus | Jul 21, 2012 3:40:32 PM

"fine line between genius and insanity and all that."

This has not been supported by the empirical literature. In fact, it might be quite the opposite.


Posted by: Steve Erickson | Jul 21, 2012 3:48:53 PM

Tim Holloway --

Yes, I think the canons as they exist now need reform. At present, they are clientcentric. I would make them truthcentric. This would involve putting aside the agnosticism about guilt and innocence that defense counsel are permitted, if not required, to have. I think an "ethics" system that is intentionally indifferent to the central question criminal litigation is supposed to answer is very odd, for one thing, and incompatible with the most important purpose the rules governing the practice of law ought to serve, that being to help free the innocent, no matter how bad they look, and convict the guilty, no matter how clever they (or their lawyers) are. The guilty are still human beings, and still deserve to be treated with dignity and respect for their rights, but they do not deserve a system that rewards full-bore ingenuity in bamboozling the jury into thinking they're innocent, nor does the text of the Constitution require such a system.

Posted by: Bill Otis | Jul 21, 2012 5:03:14 PM

@onlooker:

A ban on extended mags is something I could certainly support. One wonders if any fewer individuals would be dead had Mr. Holms not been toting an AR15 with a 100-round drum magazine, and the answer is probably so. Loughner, for example, was only tackled after he paused to reload his 33-round extended magazine on his Glock.

I understand that there's a 2nd Amendment, and personally I would favor an assault-weapons ban but I know that won't get through in the political climate that exists atm. Second to that, though, I would like to think that most people could at least get behind banning extended magazines like this one, but I know that the NRA is a super-lobby. Hell, as the Daily Beast pointed out, neither Romney nor Obama, in their statements condemning the massacre, so much as mention the word "gun" -- like it isn't even something that's up for discussion.

Posted by: Guy | Jul 21, 2012 5:08:49 PM

@ Steve:

Be that as it may, mine was intended more as a colloquialism to underscore the point I was trying to make -- just that mental illnesses can have onset in adulthood and can have varied etiologies, such as physical or emotional trauma, virus, genetic predispositions, drug use, etc.

Posted by: Guy | Jul 21, 2012 5:10:51 PM

Fed Defender --

The problem is that, under the current canons of ethics (see my note to Tim Holloway), Sandusky's counsel HAD NO CHOICE but to try to portray the victims' testimony as false. If the jury accepted it as true (which it and the rest of the world did), the client was toast. Thus the mission of defense counsel, under the current rules, was to devise SOME WAY to put the skids under the victims' accounts. The underlying problem is not that the particular way employed was wrong (although as you correctly say it was), but that the mission itself was wrong. Under a truthcentric version of the canons, that would change.

Posted by: Bill Otis | Jul 21, 2012 5:21:22 PM

Guy --

The phrase "gun violence" makes as much sense to me as the phrase "finger violence," since there has to be a finger pulling the trigger to make the gun work.

The problem is not the gun, the trigger, or the finger. The problem is the person.

Posted by: Bill Otis | Jul 21, 2012 5:25:24 PM

Fed Defender: What is your opinion of the ethics of this true scenario?

Defense counsel offers the location of the body of the tortured, raped, and murdered little girl in exchange for withdrawal of the death penalty.

Prosecution declines the offer. Trial proceeds.

The defense now tries to show that the parents murdered the little girl, to cover up their sexual abuse of her. They put the parents through the wringer trying to prove the innocence of the defendant.

Posted by: Supremacy Claus | Jul 21, 2012 5:51:29 PM

SC --

Although I cannot say I subscribe in general to your worldview, your question to Fed Defender is dynamite. I'll be interested to see his (or anyone's) answer.

Posted by: Bill Otis | Jul 21, 2012 5:58:32 PM

I was surprised to read that Doug finds any "comfort" at all in the death penalty, even in this case. I have to doubt he will feel this way 10-15 years from now if and when the case reaches that conclusion. But maybe that's just part of wanting my intellectual heroes to feel the way I do.

Posted by: Michael Parente | Jul 21, 2012 5:59:28 PM

Michael Parente --

Why should this case take 10-15 years? We know who did it and what he did. The only questions are whether he knew right from wrong and whether he could conform his behavior to the requirements of law. It might take a matter of months to resolve those questions, but that's it.

I agree that this case is likely to take years and years, but it shouldn't, and neither should most other DP cases. When, as here, we can answer the needed questions in months -- whether favorably or unfavorably to the accused -- then let's just get on with it, whether "it" is a permanent mental ward or lethal injection. We all know the system needs to start saving money, and here's one good place to start.

Posted by: Bill Otis | Jul 21, 2012 6:17:12 PM

@Guy
It's unlikely that a ban on assault-rifles would lower the death tolls in these shootings. The Virginia Tech gunman was only armed with a 9mm handgun and a .22 handgun (a caliber better suited to squirrels) with 10-round magazines and he killed more than twice as many people. Assault weapons are actually not deadlier, or at least not to the extent many think, than other weapons not subject to bans. Shotguns are deadlier, handguns are easier to conceal and hunting rifles can kill at a greater range. The massive double-drum magazine he appears to have used seems like the only thing making a massacre more likely.

Posted by: MikeinCT | Jul 21, 2012 6:37:47 PM

Fascinating thread here folks, and I will just add a few responses to a few of the later queries heading my way. To Paul, I agree that huge overuse of LWOP and other extreme non-death sentences for not so extreme crimes makes me long for something more severe for extreme crimes like the Batman mass killing. But it is also because I do not really view the death penalty as worse than LWOP, but rather a different type of punishment --- one that brings the "death is different" idea into some use as a form of punishment when a criminal has himself decided to do a crime so different in its heinousness to other crimes as is true in these types of mass murder cases.

The comment about Holmes as perhaps like a rabid dog raises for me the question of whether anyone would urgently advocate, for the sake of the dog or for the sake of society, that we lock this rabid dog in a small cage and feed him until he dies years later of disease? We think it is wise and humane to put down sick and dangerous animals of other species, and thus one might think this is the right treatment for a mass murderer if we think he is akin to a rabid dog.

Of course, we may never know what makes a mass murderer tick. But we do know that lots of decent people feel in their guts that ending the life of such a person is a just and fitting response. In addition, lots of decent people feel in their guts that a nation should never use this form of punishment. But, for Michael and others who look for intellectual heroes, I would suggest that being open-minded to all views/feelings and being respectful in the discussion of others' views/feelings is a heroic way to use one's intellect.


Posted by: Doug B. | Jul 21, 2012 6:55:58 PM

Doug — Personally, I have bigger battles to fight than to save the life of a diseased mass murderer. Like I would think of a rabid dog, if the citizens of Colorado decide to kill him, so be it. I think death penalty opponents do themselves a disservice by fighting the good fight on these cases. The moral case against the death penalty ever being used has been made and has been rejected by society; better in my opinion to focus on the situations in which someone is wrongly put to death, either because of innocence or because of an ineffective mitigation defense.

Posted by: Max Kennerly | Jul 21, 2012 7:16:49 PM

"one that brings the "death is different" idea into some use as a form of punishment when a criminal has himself decided to do a crime so different in its heinousness to other crimes as is true in these types of mass murder cases."

Indeed, "death is different" cuts both ways. I'm glad someone has finally said so.

"We think it is wise and humane to put down sick and dangerous animals of other species, and thus one might think this is the right treatment for a mass murderer if we think he is akin to a rabid dog."

The analogy is false. Infection (not exposure) to rabies is almost always fatal. Even if there was a treatment, one could argue the costs for curing an animal are prohibitive. While I do think there are prohibitive costs to treating humans, one would hope they are not the same for humans as they are for dogs. If the defendants here does have a serious mental illness, such as schizophrenia, it is treatable in most cases. Of course, just having schizophrenia doesn't excuse his conduct (expect in NH) and it's important to note that even crazy people can be bad people too.


Lastly, the idea that having an AR-15 v. just a regular handgun would make no difference to the body count is just ludicrous. Rifles are far more accurate than handguns and assault rifles carry a lot more ammo than traditional hunting rifles. IMHO (and as someone how has owned handguns) I think the NRA does tremendous damage to its credibility when it argues that citizens should have access to assault rifles and extra capacity magazines. No right is absolute and that applies to the 2nd amendment as well.

Posted by: Steve Erickson | Jul 21, 2012 7:52:21 PM

Did you not learn your lesson after you prematurely called for the death penalty immediately after the Loughner shooting and prematurely declared that he didn't have any mental problems that rose to a forensic level? (Of course, even the government's psychologist has since declared that he is incompetent to stand trial.) I don't mind someone being in favor of the death penalty but calling for it half-cocked when all you know about is the nature of the offense is pretty ignorant (not to mention inconsistent with constitutional doctrine). I wish you would just stick to what you know, which is noncapital sentencing. Posts like this make me want to stop reading this blog.

Posted by: Josh | Jul 21, 2012 8:48:46 PM

I mean, seriously, one can practically predict your response to some national tragedy: "Golly, sure am glad we still have the death penalty." We could all do without your nonchalant calls for capital punishment in times like this.

Posted by: Josh | Jul 21, 2012 8:54:05 PM

Bill, my preference would be a quick resolution via LWOP. On the death penalty side, I would not favor lessening access to capital habeas, just so the "clear" DP cases like this one could go through the system more quickly.

Posted by: Michael Parente | Jul 21, 2012 9:14:05 PM

How could anyone purport to have adequate information to make any judgment, at this point, about the killer's mental state?

How could anyone with experience in capital appellate litigation not understand that this case is likely destined for decades of litigation (in the trial court, in the Colorado appellate judiciary, in possible state habeas proceedings, in federal district court, in the Tenth Circuit, etc.) before any night-night needle is deployed? The members of the gathering posse will have to put down their pitchforks and nooses for a while.

Posted by: Calif. Capital Defense Counsel | Jul 21, 2012 9:34:04 PM

Bill,

First, I disagree that Sandusky's counsel had no choice other than to portray the victims as liars. The defense lawyer's job is to zealously and effectively represent his client. He does his client no good by presenting a defense that is hopeless and counterproductive. Ted Kaczynski's's lawyer did not argue that the his victims somehow "had it coming." Susan Smith's lawyer did not argue that someone else killed her children. It is true that in some cases, as difficult as it may be, the proper- and ethical- defense strategy would be to attack the credibility of the alleged victim. Sandusky's was not that case.

More fundamentally, I have no idea how the "truth-centric" system you favor would work in practice. Taken to its logical conclusion, no lawyer could ever represent a client he believed to be guilty because, in such a case, presenting ANY defense would be counter to his understanding of the "truth."

For all its flaws, the adversary system has generally succeeded for more than two centuries as a system for separating the guilty from the innocent. Accordingly, I think the burden is one you to show how your system would work and how it would be an improvement.

Posted by: Fed Defender | Jul 21, 2012 9:41:32 PM

Michael Parente --

Once it is determined that this guy knew right from wrong and was able to control his behavior, any additional litigation is simply process for process's sake -- exactly what is driving up the costs we can no longer afford.

Where, as here, there is no doubt of factual guilt, time to get on with it. The system buys its own disrepute by tolerating gratuitous delay.

Posted by: Bill Otis | Jul 21, 2012 9:41:59 PM

But it is also because I do not really view the death penalty as worse than LWOP, but rather a different type of punishment --- one that brings the "death is different" idea into some use as a form of punishment when a criminal has himself decided to do a crime so different in its heinousness to other crimes as is true in these types of mass murder cases.

First, thank you for giving me a serious, thoughtful response. Second, are you referring to the labeling effect of a death sentence here? Do you mean a death sentence for Holmes (or McVeigh, or Khalid Skeikh Mohammed, or insert person here) has value because it shows the person sentenced to death is particularly reprehensible and deserves a punishment greater in kind than even the typical murderer?

I mean, seriously, one can practically predict your response to some national tragedy: "Golly, sure am glad we still have the death penalty." We could all do without your nonchalant calls for capital punishment in times like this.

Josh, that is unfair. If you have read this blog you should realize Professor Berman does not make a nonchalant call for a death sentence. Do not be unfair and equate him to certain other trolls commenting on this post.

Of course, just having schizophrenia doesn't excuse his conduct (expect in NH)

Huh? Are you referring to the New Hampshire insanity test? I don't think you understand how the New Hampshire test works in practice.

Posted by: Paul | Jul 21, 2012 10:27:38 PM

@ Bill:

I don't mean to presume that it's an either / or proposition, nor do I fantasize that getting rid of guns means that we'll all get along. I believe the problem is multi-factorial, with guns, people, laws, and politics all playing a part. I also don't presume to think that limiting the number of bullets a magazine can lawfully contain will stop people from going on shooting sprees, either. What I will say is that of the shooting sprees with which I am familiar, the ones that ended with the gunman being tackled did so when the gunman had to pause to reload his firearm. I would much prefer that to be after ten bullets as opposed to one hundred.

@ MikeinCT:

That may well be the case, and is a good point. Perhaps it's just an emotional reaction that I have to assault weapons as opposed to a reasoned argument against them. Even if that is the case, however, I still would be inclined to think that a proposal limiting the number of bullets per clip would. And as far as which weapons are deadlier, I suppose it all depends on the circumstance and the ranges that are being contemplated, correct? If we were to limit the number of bullets per magazine to, say ten, then I suppose there wouldn't be much functional difference between an assault rifle and a hunting rifle, assuming that the assault rifle hasn't been modified to go full auto.

Posted by: Guy | Jul 21, 2012 10:37:00 PM

Paul,

I have read this blog since 2005. I understand that Professor Berman is ordinarily very thoughtful, even on the death penalty. His responses in situations like this, though, are not. He offered the same overhasty call for the death penalty after Loughner. At times, I begin to think posts like this are faux populism offered to maintain a sort of centrist street cred.

Posted by: Josh | Jul 21, 2012 11:11:21 PM

To call for the killer's execution at this point is to call for dispensing with core constitutional safeguards, not to mention proof of the requisite mens rea.

To call for vigorous representation of the killer is to call for upholding constitutional provisions that the Framers knew were necessary to protect individuals from government and lynch mobs.

Posted by: Calif. Capital Defense Counsel | Jul 22, 2012 12:38:01 AM

SC, Bill,

Basically, your hypothetical boils down to this- can a defense lawyer who has strong reason to believe his client is guilty (as evidenced by the offer to disclose the body) nevertheless raise a defense suggesting that someone else did it (here the parents)?

In most, but not all cases, the answer is yes and the reason is not that defense lawyers enjoy making victims suffer or unleashing criminals into world. The reason is that the system we have won't work if defense attorneys decide in advance which defendants they will fight for and which they won't.

The old saying "Hard cases make bad law" is true in the reverse, "Easy cases make bad law" as well. The hypo you propose stacks the deck- it assumes the defendant is 100% unequivocally guilty and who could defend such a monster- but let's suppose the defense attorney in this hypo only strongly suspects his client is guilty but there is good evidence that the victim's parents DID in fact sexually abuse her and thus did have a motive to kill her? What should the lawyer in that case do? Ignore this line of defense because it would be painful if it were wrong? And this is the issue, anytime a lawyer starts tailoring his efforts based on his subjective view of his client's guilt or innocence, he's abdicated his role as a lawyer and assumed the role of judge and jury which is not his to take.

Can you tell me HOW a lawyer should calibrate the degree of effort he should expend in each case and how he can decide, case by case, which defenses are OK to raise and which are not? Then, what if different lawyers make different calculations- some gave 100% all the time, some if only if they had substantial doubts about the defendant's guilt? The system would collapse in on itself. And maybe, SC, that is what you want and that's fine, there are other criminal justice systems in the world, maybe you'd prefer the systems that have in France or China or Saudi Arabia. And I say that in all seriousness, it is not written in stone that the adversary system was handed down to us by God. But for as long as we have our system, the only rule that works is that a defense lawyer must represent every defendant as zealously and effectively as he can with the bounds of the law.

Posted by: Fed Defender | Jul 22, 2012 12:41:25 AM

CCDC: The mens rea is plagiarized from the catechism analysis of mortal sin. The assessment of the mens rea violates the Establishment Clause. How would you like to have Sharia established as the basis of criminal procedure (I like the Sharia, personally. 90% of Sharia is very good and effective, only 10% is wacky)?

From the catechism analysis of mortal sin, each of these "elements" must be met:


"Its subject must be a grave (or serious) matter.
It must be committed with full knowledge, both of the sin and of the gravity of the offense (no one is considered ignorant of the principles of the moral law, which are inborn as part of human knowledge, but these principles can be misunderstood in a particular context).
It must be committed with deliberate and complete consent, enough for it to have been a personal decision to commit the sin."


The insane and the intoxicated can be more dangerous than the contract killer, being out of control.

The insane, the retarded, the intoxicated, the young and adolescent, should be put to death ahead of the contract killer being far more of a threat to the public safety. Only in your upside down Twilight Zone lawyer world do such dangerous people get extra protection.

The families of the murder victims might consider hunting, capturing, and giving 50 lashes to the member of the Supreme Court. To deter the lawyer enemy of our nation. This lawyer enemy forced the psychiatry profession to wait until an injury had taken place to treat psychotic people, rather than to treat as symptoms arose for clinical purposes. Then they protect this class of highly dangerous people from the consequences of their knowing murders. Why? To generate lawyer government make work jobs, such as yours. These internal enemies are plundering the taxpayer with flimsy and false legal pretexts.

Posted by: Supremacy Claus | Jul 22, 2012 12:55:53 AM

Fed Defender: Thanks for your serious reply.

Here is a summary of the case. Go to the second paragraph of the Conclusion for the missed plea deal.

http://en.wikipedia.org/wiki/David_Westerfield

Is the purpose and expense of the criminal law to provide lawyer government make work jobs or to protect the public? If it is to protect the public, our system has to be among the worst in the world, rather among the best as lawyer propaganda claims. There are 20 million FBI Index felonies (serious traditional crimes) a year, and 2 million prosecutions. This is the most violent First World nation on earth. Why? If one commits a serious crime, there is a 90% chance of never being inconvenienced by the law. One the other hand, when the prosecutor has a guy, it may be the wrong guy in up to 20% of cases, and they get a confession and a plea deal anyway.

The adversarial system comes from the disputation method of trying to answer difficult questions. That came from Scholasticism, a philosophy and methodology of Medieval monks. There is nothing from 1275 AD that is in any way acceptable as standard practice today.

The Catholic Church is very slow as you may know. It has given up on Scholasticism. That means the American lawyer is slower and stupider than even the Catholic Church. The adversarial system comes from a church. The court looks like a church. The buffoon on the bench dresses like a priest. You use a lot of Latin, a language used by only one entity today, the Church.

Here is a list of indicia of church origin of the common law.

http://supremacyclaus.blogspot.com/2009/01/indicia-of-church-origin-of-common-law.html

These are all violations of the Establishment Clause.

There may be more executions per capita in Saudi Arabia, but there are by far fewer murders. They are far ahead in protecting murder victims.

Lawyers cannot even utter the V word without choking. Why is the crime victim's interest ignored, and lawyers never utter their name, Victim? The criminal generates massive lawyer make work jobs. The crime victim generates nothing.

So the conflict of interest in all sides of the criminal law, judge, prosecutor, and defense lawyer, is so severe, and so equivalent to each other, that the lawyer should be excluded from all lawmaking, all criminal law policy decisions, as a thief of tax dollars. I see no lesser dependence on the criminal's safety, welfare, and survival between the defense, the prosecution, and the judge in the middle. They all owe the criminal their jobs, know that, and will let nothing happen that might drop the crime rate.

The best example? The guidelines dropped crime across the board by 40%, the greatest accomplishment of the lawyer profession in history. So what happened? Scalia, of all people, led the charge to end them as mandatory.

Beyond the theft of taxpayer money, all those indicia of church origin represent an all out, brazen insurrection against the constitution. This insurrection justifies the one day raid, arrest of the entire lawyer hierarchy, 15,000 traitors who have taken over the government of the USA. They should all get an hour's fair trial, where their legal utterances would be the sole evidence. There would be no lawyer gotcha of collateral corruption. Upon the reading of the verdict, they all should be shot in the head in the court basement, to end the insurrection, and to deter the profession.

Posted by: Supremacy Claus | Jul 22, 2012 2:43:41 AM

Fed Defender --

"First, I disagree that Sandusky's counsel had no choice other than to portray the victims as liars."

But if they weren't liars, a conviction was automatic. So could you say specifically what defense (other than insanity, which was even more hopeless (and dishonest)) his counsel should have employed?

"For all its flaws, the adversary system has generally succeeded for more than two centuries as a system for separating the guilty from the innocent."

Remind me to quote you on that the next time I hear that the system haphazardly, and routinely, convicts the innocent.

Finally, the virtue of a truthcentric system is that it does more to emphasize the value of truth, which is what I thought we were supposed to be aiming for.

Posted by: Bill Otis | Jul 22, 2012 8:12:58 AM

CCDC --

"How could anyone purport to have adequate information to make any judgment, at this point, about the killer's mental state?"

Could you quote the commenter who said we can, at this point, decide his mental state? Right, there isn't any. But I have said his mental state can be found out in less than a year, and no one has provided any reason to think differently.

"How could anyone with experience in capital appellate litigation not understand that this case is likely destined for decades of litigation..."

The question is not what is likely to happen in a system that allows itself to be tied down in gratuitous delay by people who want to run the clock and the meter. The question is what SHOULD happen in a system that is serious. And the answer is that everything important to know about Holmes, and thus to reach a decision about his punishment, can be found out in a year or less. Indeed, the best assessments of his mental state are certain to be those undertaken closest in time to the murders.

Posted by: Bill Otis | Jul 22, 2012 8:22:33 AM

Fed Defender --

For a person with normal morals (whether a defense lawyer, prosecutor, or the man-off-the-street) publicly to suggest that the bereaved parents of a murdered little girl did the killing to cover up their non-existent molestation of her, when that person had previously conveyed the actual killer's offer to disclose where he had put the girl's body, is cynical and cruel beyond belief.

I can't be the only one who's astounded at the exemption defense lawyers give themselves for behavior that in any other context would get them blackballed from civil society.

Posted by: Bill Otis | Jul 22, 2012 8:40:55 AM

Bill,

Because I have sort of a Churchillian view of the adversarial system- "It is the worst type of criminal justice system there is...except for all the others", feel free to quote me. Just remember to use the whole quote, including the part that says "For all its flaws."

As for alternative Sandusky strategies, not being privy to the case file or Sandusky, I have no idea what alternatives could have been pursued. Perhaps with better counsel, he could have been persuaded to plead guilty- see Kaczynski; perhaps he could have attempted some mental impairment defense- insanity, diminished capacity- which even if far-fetched and unlikely to succeed (as you reasonably posit) might have marginally helped him at sentencing which his chosen strategy- even more far-fetched and futile- certainly did not not.

Let me turn the question around- in your "truth-centric" system, how do you propose Sandusky should have been represented? That he should have received no defense at all because his guilt was apparent to all? If so, how do we extrapolate that to next case and the one after that? Is a 98% guilty defendant entitled to a defense? a 90% guilty one? 75%?

To repeat my earlier comment, until you answer these sorts of questions, I have no idea how your system would work in practice. Finally, do you disagree the adversary system produces "true" verdicts- i.e. the guilty are convicted- the great majority of the time? If so, it seems to me your proposals are a solution in search of a problem.

Oh, and by the way, do you think overall there are more wrongly convicted defendants or wrongly acquitted ones?

Posted by: Fed Defender | Jul 22, 2012 8:50:38 AM

Bill,

First, as I'm sure you already know, if defense lawyers have an "exemption" to behave in uncivil ways, it is not one they have given themselves. It is given to them by the system. As you have made clear, you don't like this and want to change the system. Maybe you're right and the system tilts too far in the direction of lawyer zealousness and away from "truth" or "compassion" or whatever. I remain unconvinced but, any way you slice it, you're problem is not with defense lawyers who, by and large operate within the rules they are given, but with the system itself.

Posted by: Fed Defender | Jul 22, 2012 9:12:52 AM

Fed Defender --

Good questions, all. I'll be out of pocket most of today, but will return to them.

Posted by: Bill Otis | Jul 22, 2012 9:13:35 AM

Josh: you assert that I have "offered ... overhasty call for the death penalty after Loughner" committed mass murder and now in the wake of Holmes' even more brutal acts, and you suggest this may be "faux populism offered to maintain a sort of centrist street cred." Let me clarify what I think I actually said (and/or desire to say):

1. I view mass murders involving many innocent victims which apparently lacking any plausible justification or provocation --- e.g., Loughner & Holmes --- to be crimes of a unique character that make me feel that a uniquely severe criminal punishment should be available as part of society's response to these kinds of crimes.

2. Because the death penalty is a uniquely severe punishment embraced by modern US democracy, I am instinctly and emotionally drawn to this punishment in the immediate aftermath of these crimes.

3. I never mean to call for (nor do I think I really have called for) mass murderers like Loughner & Holmes to be hastily executed. Rather, my main goal and hope in blog posts right after these events is to give expression to my own (and perhaps others') feelings that the death penalty, at least instinctly and emotionally, feels like a fitting punishment for these kinds of crimes. Thereafter, I am content and quite proud that the US justice system will take its time (though probably too much time) exploring just whether and when the uniquely severe punishment embraced by modern US democracy is, in fact, a truly fitting punishment for the murderer at the center of these horrible events.

4. Though I suppose I like having "street cred" in various circles, I hope that such cred will always come from the belief that I aspire to be truthful, transparent and thoughtful in all that I say on this blog and all that I do in my professional and personal life.

Posted by: Doug B. | Jul 22, 2012 1:24:58 PM

"the death penalty is a uniquely severe punishment embraced by modern US democracy"

Not in various cases, including when the person is mentally ill to the extent that s/he is not legally liable to be put to death. Such crimes have a disproportional chance of involving such individuals. So, before we know the facts, my "emotional" reaction is to feel it not proper (taking the death penalty as legal) to suddenly assume it is the appropriate option.

Such is just a personal reaction. Again, this is taking for granted that the death penalty is an acceptable punishment in some cases. It also suggests why it is a problem in general -- some of the "best" case scenarios turn out to be mentally unfit individuals without the full guilt to warrant execution. For instance, shooting the President, seems like a clear case. But, case after case, turns out such people were mentally unfit individuals (John Booth perhaps an exception).

I'm not sure what executing this guy will do really for the family of the victims but obviously this will depend on the person. Some victims oppose the death penalty even then, some don't, some don't get much closure though they have no feelings of remorse or opposition to executing the person. For me personally, the immediate thought is that executing this guy doesn't do us that much good. He is also not a "dog." He is a human being. Some think one with a soul. Some think he should be executed others not. But, he is not a "dog."

Posted by: Joe | Jul 22, 2012 2:13:48 PM

"Fed Defender: What is your opinion of the ethics of this true scenario?

Defense counsel offers the location of the body of the tortured, raped, and murdered little girl in exchange for withdrawal of the death penalty.

Prosecution declines the offer. Trial proceeds.

The defense now tries to show that the parents murdered the little girl, to cover up their sexual abuse of her. They put the parents through the wringer trying to prove the innocence of the defendant.

Posted by: Supremacy Claus | Jul 21, 2012 5:51:29 PM"

Now me i'm a mean vindictive hillbilly.

my response would be!

"Well now that you have admitted to being an accessory AFTER the fact at a minimum. You have 2 min's to give me the location in exchage for which i WON'T kill you along with your client!"

as for this bill!

"Michael Parente --

Once it is determined that this guy knew right from wrong and was able to control his behavior, any additional litigation is simply process for process's sake -- exactly what is driving up the costs we can no longer afford.

Where, as here, there is no doubt of factual guilt, time to get on with it. The system buys its own disrepute by tolerating gratuitous delay."

When there is no doubt as to guilt. time to move on. Under our sytem you have some someone conduct an exectuion in front of 50,000 people and 10,000,000 on TV and on the nightly news it would be "the alledged perpetrator"

Posted by: rodsmith | Jul 22, 2012 3:17:12 PM

Fed Defender --

"Let me turn the question around- in your "truth-centric" system, how do you propose Sandusky should have been represented?"

Excellent question. Let me illustrate by scripting for you the Sandusky - Lawyer initial meeting, where the lawyer is truthcentric:

Lawyer (L): The state has ten victim witnesses and an eye witness. I need for you to tell me whether they're all lying, because that's the main thing a jury will be thinking about.

Sandusky(S): (Squirming) I was just horsing around.

L: Look, if you're going to do a shake-and-jive with me, that's going to handicap me in thinking about what we should do. What these people describe is not "horsing around."

S: I've got character witnesses.

L: There is no chance you can win this case with just character witnesses. I need for you to be honest with me.

S: I've said what I'm going to say.

L: Then you'll be toast at trial, whether I call you to the stand or not. Your best choice is to plead guilty, give a tearful apology, and hope it gets you something other than a life sentence, which is what you're headed for right now.

S: I want a trial. I'm not about to admit to these gross charges.

L: I've told you what I think your best path is. You are free to reject that advice, but if you do, I don't know how I can help you. If you won't accept my best judgment, I am poorly positioned to defend you.

S: You're an arrogant jackass, and you're fired. There are plenty of lawyers in this town.

L: You are of course free to discharge me. Thank you for your time. I'll say only one more thing: If I see you anywhere near my 12 year-old son, I'll knock you into next week.

Posted by: Bill Otis | Jul 22, 2012 3:43:50 PM

Although the Rules of Evidence prohibit any inference from the refusal of the defendant to testify, normal human reaction says otherwise. The jury is thinking.

I am innocent. I have been falsely accused. I want to scream my testimony to the world, to defend myself. I am agitated and angry at the false charges and want every opportunity and a long allotted time to defend myself.

Playing it cool, and not testifying is always an indicator of guilt. Or really bad legal advice, even if I have an eye in the middle of my forehead, and two horns growing from the sides.

Posted by: Supremacy Claus | Jul 22, 2012 4:59:00 PM

Bill, we can all agree it's the shooter not the gun, but would you not agree that if the killer had not had a 100-round magazine, there might be fewer deaths. How about limiting magazines to 10 rounds or even 20?

"(CNN) -- The semi-automatic rifle used in the Colorado theater killings jammed during the rampage, apparently because of a problem with the 100-shot magazine feeding it, a law enforcement source with direct knowledge of the investigation said Sunday.

The military-style AR-15 had a separately purchased drum magazine, which can have trouble feeding bullets into the firing chamber if the gun is fired rapidly, the source told CNN.

"These after-market extended magazines have a tendency to jam," the source said."

Posted by: onlooker | Jul 22, 2012 8:28:53 PM

onlooker --

"Bill, we can all agree it's the shooter not the gun..."

I wonder about that. If it were true, we would see the phrase "shooter violence" as often as we see "gun violence." But we see only the latter, I strongly suspect because those using it want to deflect responsibility away from a sentient being and onto an object. But the basic problem isn't the object.

As to your suggestion about limiting rounds, off the seat of my pants I have no particular objection to it, but I have to tell you that I know zilch about guns or ammunition, and people who do might see problems that I miss because of my lack of knowledge.

Posted by: Bill Otis | Jul 23, 2012 12:06:44 AM

Aussie lawyer here again. Sympathy to all. Perhaps a little of our experience with mass murders like this might assist debate?

1996, high power assault rifles used to kill 36 people and wound others in a single shooter episode. The offender is/was schizophrenic. His guns were legal. For the first few years in custody he was a management problem because he kept trying to kill himself (and only succeeded in creating some serious harm). He now looks set to spend the remainder of his life in a sterile, cornerless, white cell on his own. He has pleaded to die.

Since the shooting, high power semi-auto long arms were banned (with an amnesty period in which to hand in firearms). No similar episode since.

Posted by: Marko | Jul 23, 2012 2:28:39 AM

Bill --- with regard to your hypothetical interview that a lawyer might have had with Sandusky under a "truth-centric" approach, I think interviews like that (or somewhat similar to that) do happen nowadays under the current system. If the evidence against a client is overwhelming, I think many lawyers have discussions that indicate the best path of action is damage control, etc.

Posted by: Tim Holloway | Jul 23, 2012 11:22:37 AM

Tim Holloway --

I'm glad to hear it. The more that truth ordains the outcome, the better off we are.

Posted by: Bill Otis | Jul 23, 2012 1:13:08 PM

Bill:

Now I finally understand why you submit such vitriolic posts against the defense bar. It is the "truth-centric" view of what you believe the law should be, but not what it is. Now I have a better context.

Posted by: FPD | Jul 24, 2012 10:22:55 AM

FPD --

Anytime you want to defend the deceitcentric view of law, as opposed to the one I propose, feel free. I must have missed that defense in your last comment.

Posted by: Bill Otis | Jul 24, 2012 7:55:57 PM

Isn't the theory that the adversarial process does in fact result in the truth, but not the necessary the truth as determined from one side of the fence? While theory and what actually happens are two different things, it does not seem like any one side should be determining the truth.

Posted by: Tim Holloway | Jul 25, 2012 12:54:41 PM

Tim Holloway --

"Isn't the theory that the adversarial process does in fact result in the truth, but not the necessary the truth as determined from one side of the fence? While theory and what actually happens are two different things, it does not seem like any one side should be determining the truth."

I could scarcely agree more. That is precisely why I think BOTH sides -- and indeed the entire profession -- should be bound to a truthcentric ethic, even while, in individual cases fought out within that ethic, presenting the client's best case. The problem with the present system is not that it's adversarial, but that there is a gross asymmetry in the allegience the respective adversaries owe to the truth.

Posted by: Bill Otis | Jul 26, 2012 12:09:43 AM

i'm with bill and tim here! it's long long long past time we remember that part of the oath!

"The TRUTH; the WHOLE TRUTH! and NOTHING BUT THE TRUTH!"

anyone who can't go along with that if they are part of the sytem needs to be LOCKED UP!

Posted by: rodsmith | Jul 27, 2012 3:29:17 PM

Thanks for the information, it's been useful.

Posted by: Basement Finishing System | Aug 21, 2012 7:18:25 AM

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