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February 10, 2008

The personal realities and opportunity costs of capital cases

Thanks to How Appealing, I saw this interesting piece in the Casper Star-Tribune about some personal realities that come from working on a capital case.  Here are excerpts:

Intensely stressful.  Overwhelming.  Simply miserable.  The attorneys who've litigated death penalty cases in Wyoming don't mince words when describing the experience.  Fighting for the ultimate punishment, or fighting to prevent it, is an emotionally taxing business that sticks with the participants long after the outcome has been decided....

Last Monday, prosecutors in Natrona County disclosed their plans to seek the death penalty against Donald Rolle, a Casper man accused of murdering Jennifer Randel, a woman he'd dated and been convicted of assaulting in the past.  If the experience of others is any indication, the participants in the Rolle case can expect a long, difficult process.... Attorneys who've litigated capital cases say they differ from other trials -- even murder trials where defendants face life behind bars. "I don't know if anybody is so callous and indifferent that they don't spend many, many nights tossing and turning, trying to make sure they do the right thing," Newell said....

Death penalty cases proceed slower than a typical criminal case. Just getting to trial can be time consuming.  In a regular criminal proceeding, attorneys might file a handful of motions. In a capital case, they sometimes file more than 100.  Jury selection also takes longer.  It might take a morning to seat a jury in murder cases that don't involve the death penalty.  It took more than a week to seat a jury for the 2004 trial of Dale Wayne Eaton, the last defendant in a capital murder trial in Natrona County.  It's also grueling process for jurors, who normally have little experience with the legal system....

The manpower required for a death penalty case is considerable. Keith Goody, who represented James Harlow, one of Wyoming's two inmates now on death row, estimates a lawyer can spend more than 1,800 hours on a death penalty case. "If you look at that, that's a year's worth of one lawyer's time," he said....

Stories like this always bring me back to thinking about the opportunity costs of the modern administration of the death penalty.  There are literally millions of law-abiding Americans who could and would benefit greatly from just a few hours of a lawyer's time.  And yet, while lots of law-abiding poor people have to make due with help from a lawyer, murderer James Harlow received the benefit of " year's worth of one lawyer's time" principally because the state of Wyoming decided it wanted to execute Harlow for his crime. 

The opportunity costs, of course, extend far beyond the time of defense lawyers.  How many crimes will go unprosecuted or under-prosecuted in Natrona County while state prosecutors invest resources in trying to add Donald Rolle to Wyoming's death row?  How many civil lawsuits in the state will have to wait while state judges consider the "more than 100" motions that could be filed in the Rolle case?  How many other state employees will get consumed (and perhaps even emotionally scarred) by the "long, difficult process" that just about every capital case creates?

As I explained here a few months ago, I am quite ambivalent about the death penalty in theory.  But articles like this one from Wyoming confirm my view that the modern American death penalty system as administered by states involves an expensive, convoluted and distorting legal machinery that probably does more harm than good.  But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward the kinds of absolute claims of most abolitionists. 

February 10, 2008 at 04:26 PM | Permalink


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Doug, I read your prior posts. It's not really clear to me how federalizing death prosecutions would address the problem of opportunity costs. Doesn't it, primarily at least, just shift those costs from one court system to another? Also, while federalizing the death penalty would avoid some complicated AEDPA problems on appeal, wouldn't it create more fundamental federalism problems. How many murders really involve some inter-state hook or some connection to federal land that give rise to federal jurisdiction? I'm not as sensitive to states' rights as some, but I don't think the Constitution envisions the wholesale federalization of homicide law.

Posted by: | Feb 10, 2008 5:00:38 PM

There is an over abundance of criminal and civil litigation on every level - federal, state and local. I guess I don't see how it would change court time or attorney agony.

Posted by: beth curtis | Feb 10, 2008 5:57:04 PM

The problem is that capital defendants have too many ways to get out of the ultimate punishment.

What we, as a society, need to do is get over our obsession with the "fairness" of the DP. The DP should be tied to the level of certainty about the defendant's guilt, not to what excuses his lawyer can dig up for his crime.

Posted by: William Jockusch | Feb 10, 2008 6:23:55 PM

the death penalty is cruel and unusual punishment for defense lawyers. As a defense lawyer I am constantly thinking throughout a trial that if the prosecutor makes a mistake somebody lives, if I make a mistake somebody dies.

bruce cunningham

Posted by: bruce cunningham | Feb 10, 2008 9:08:09 PM

"In a regular criminal proceeding, attorneys might file a handful of motions. In a capital case, they sometimes file more than 100."

We need to stop allowing them to do that. The defendant is entitled to competent defense. He is not entitled to unlimited resources.

Posted by: Kent Scheidegger | Feb 10, 2008 9:28:48 PM

Yes Kent, just as long as the defendant is dead & there isn't much impediment to him dying. 126 capital mistakes, however, are happy you ain't the lord emperor of the universe

Posted by: | Feb 10, 2008 10:09:46 PM

126 capital mistakes? Just keep swallowing that propaganda . . . . Jeremy Sheets, was he innocent?

Posted by: federalist | Feb 10, 2008 10:23:35 PM

William Jockusch wrote: "The DP should be tied to the level of certainty about the defendant's guilt, not to what excuses his lawyer can dig up for his crime."

Then I would propose we go the China route and begin executing corporate officials and university and government employees for white collar and other economic crimes/frauds. After all, they do more collective harm and never have good excuses anyway.

Kent wrote: "We need to stop allowing them to do that. The defendant is entitled to competent defense. He is not entitled to unlimited resources."

Defendant's don't have, and have never had, unlimited resources nor resources that are ever remotely comparable to the other side. In fact, often they don't even receive a remotely competent defense. This is why we execute innocent and mentally retarded people. You win.

Posted by: DK | Feb 10, 2008 10:37:51 PM


How many innocent people condemned to death and/or executed is retention of the death penalty worth? And is retention worth YOU being one of the innocent condemned? Then again, they don't send partners, even junior partners, to death row.

Posted by: | Feb 10, 2008 10:43:32 PM

Innocence is a valid argument against the death penalty. I have never said that it was not.

But I fail to see why pointing out that the 126 number is propaganda (given the near certainty that some of those 126 "did it") is problematic. I could easily say that you guys have never proven the execution of an innocent, but that's pretty weak. Bottom line, the decision is not really mine to make--it is up to the public, and if capital punishment is not supported by the public, I am fine with that decision. Capital punishment is authorized by law--I support that law, and I don't support judicial efforts to thwart it. If an innocent man has been executed, then the public has the right to know, and can evaluate capital punishment accordingly.

Maybe someday I'll be charged (wrongly) with a capital crime. We'll see if that changes my view. Somehow I doubt that it would, although one never knows.

Posted by: federalist | Feb 11, 2008 1:02:43 AM

If you want to remove the guarantees, amend the constitution or move to China, as DK suggests. I also agree that it is laughable to suggest that the procedural guarantees "favor" defendants. Statistics after the AEDPA would suggest otherwise.

As for federalization, no. Even a liberal like me thinks commerce clause jurisprudence is out of control, particularly in criminal cases. I agreed with Lopez and Morrison. The court lost me on Raich and lower court decisions lose me on the porn possession cases. And there is no colorable enforcement clause argument, as far as I can see (without developing some new approach that I doubt DP proponents would favor as a group). Spending clause? Careful. An invitation to legislate the social policies of all the states from the federal legislature favors no one, and that no one (except MADD) favors. At this point, I want the DP "debate" resolved carefully, and through state experimentation. If federalization means anything, it means one size fits all, particularly with Prof. Berman's approach. While I understand the high costs of litigating all of these issues independently, federalization just shifts the costs to every American and more importantly consolidates federal jurisdiction and power. No.

Posted by: Alec | Feb 11, 2008 1:37:54 AM

I'm not sure who the "remove the guarantees" comment is addressed to, but that certainly was not my suggestion. As I said, the defendant should have a competent defense. However, there is a mentality in much of the capital defense bar that it is the proper function of the lawyer to bury the court in a blizzard of motions "just to make trouble," as Andrea Lyon wrote in a law review article some years back. No, it is not, and that notion has to change. Making motions with no merit just to delay the proceedings and rack up the expense is unethical, and, no, death is not different in this respect.

Posted by: Kent Scheidegger | Feb 11, 2008 8:12:18 AM

On federalization, I agree with Alec except for his comment that "no one (except MADD) favors" federalization of social policy. Actually, a lot of people do, and they need to be resisted.

Posted by: Kent Scheidegger | Feb 11, 2008 8:16:06 AM

How can the federalization of the death penalty work? The federal government has no right to abolish capital punishment for the states, and the federal government doesn't have a general police power.

Sounds like a non-starter to me.

Posted by: federalist | Feb 11, 2008 10:13:02 AM

Kent, one of the reasons I filed over a hundred motions in my last trial is that the state continued to withhold relevant and beneficial information from the defense. The judge granted most of my motions. The problem with the adversary system is that one side wins and the other side loses. It defies human nature to think that a person is going to help his opponent beat him. The police officers who investigate murder cases have that mentality. I'm not making value judgments against them or saying it is intentional. I'm just saying that's the way it is. I am curious whether you have had actual involvement in the trial of murder cases, or are you making your observations from afar?

bruce cunningham

Posted by: bruce cunningham | Feb 11, 2008 10:23:07 AM

Mr. Scheidegger, You are arguing the defense attorneys should be “prevented” from making some motions, and hence prevented from making legal arguments.

I am somewhat confused. Are you saying that some legal arguments should be illegal to make? Are you saying that defense attorneys should be forced by law to waive arguments because it might be inconvenient for prosecutors to respond to otherwise meritorious motions?

But, let’s assume that you are not trying to execute as many people as possible for purely political reasons. Let’s assume that you really care for the efficient operation of courts.

Wouldn’t a better idea be to require prosecutors to concede as many legal arguments as possible at the outset. For example, a prosecutor would be required, by rule, to concede that 1) he would not introduce certain evidence (as it was obtained illegally); 2) he would not raise certain arguments; 3) certain facts are not true; and 4) certain arguments are not true. No legal argument would be required to make these concessions, and it certainly would save a lot of time. Alas, since you really do want to execute as many people as possible, you are not advocating for these simple “reduction in paperwork” measures.

A lot of these “motions” seem to involve discovery materials. You seem to be arguing that 1) a defendant should be prevented from making a discovery motion to obtain relevant (and possibly exculpatory) evidence; 2) defendants should be prevented from filing motions to deal with non-compliance with prior orders. After all, once they exceed their limit, your argument goes, no further motions should be allowed.

Finally, 100 motions in civil litigation is not unheard of. There, of course, something much more important than the life of a person is at stake. Real money is at stake. So, I guess you would agree that 100 motions is not so bad.

I am not sure what you mean by a “competent” defense. What does this mean? Competent legal representation has a lot of components beyond just trial technique. It often requires making the other side work (this is why a lot of civil clients pay for), and it often requires doing a lot more than just preforming well in trial. Maybe if you could enumerate what you consider to be “competent” your comments might make more sense.

Federalist, Although I don’t necessarily adopt it, “innocence” IS a valid argument against the death penalty, since it can be argued that the death penalty prevents relitigation based on newly-discovered “facts.” As a practical matter, your kind screams the loudest for a lawyer whenever you get into the smallest amount of trouble and screams even louder when things don’t go your way, alleging all sorts of judicial “bias” and whathaveyou. Granted, I have never seen your kind get charged with a death-eligible kind, but I see your kind charged with DUI all the time and your reactions are, uniform: 1) the cops are lying; 2) the judges are biased; and 3) it isn’t fair. Eventually the cases are resolved just like everyone else’s.

Posted by: S.cotus | Feb 11, 2008 1:00:53 PM

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