Tuesday, July 28, 2015

Against My Better Hopes

I was talking with another lawyer about an appeal someone might be filing.  He thought it surprising that instead of rooting for a defense win, the criminal defense bar might actually be hoping that the prosecutor prevailed.  On the particular facts of the case, it would make better law.

No big deal, I said.  It's the sort of thing that happens more than you'd imagine.  I want to win the case for this client, but on the peculiar facts, the government's argument would do more good for the defense bar.

A variation involves getting a case into the Supreme Court - Ohio's, the U.S., or maybe the high court of your state.  Any court that gets to decide whether it will hear the case.  Consider:  

The supreme court hasn't ruled on an issue, but we've lost in an intermediate appellate court.  It's in the client's interest to get heard by the high court.  After all, whatever the odds, we might win and he'd get some relief (a new trial, a lesser sentence, sent home with an apology, whatever).  On the other hand, the court could take in the case and turn bad local law into bad statewide/nationwide law. 

Not a happy prospect.  But we do it anyway.  Because whatever we might wish to see happen, we don't represent the cause.  We represent the client.

And so, Richard Glossip, John Grant, and Benjamin Cole.  And the problem of counting to five.

Bring us a case, said Stephen Breyer joined by Ruth Bader Ginsburg.  Call the question.  It's time, once again, to ask whether the death penalty is unconstitutional for all these reasons.  

And he laid them out, those reasons he and RBG had, for 40 pages in a dissent from the decision to allow Oklahoma to kill Messers Glossip, Grant, and Cole using a mix of drugs including midazolam. If it were so inclined. 

It's clear that the two of them would vote, if they had a clear opportunity, to say that the death penalty is unconstitutional.  It's a fair assumption that the Generalissimo and the empathetic Latina would join them.  And then?

I spent a few days earlier this month with a couple of hundred death penalty lawyers.  Many of the top capital defense lawyers in the country were there.  And there was much talk about that fifth vote. 

It's Anthony Kennedy, of course, if it's anyone.  Lots of folks are ready to trust him.  As one smart, thoughtful, knowledgeable guy explained, neither Breyer nor especially Ginsburg is so naive as to call for a frontal assault on the death penalty without being damn sure that they'd win.

To which many of the others present, said
Maybe.  But maybe not.
And it's a hell of a risk to take.  

But the world is complicated.  And while the capital defense bar scrambles and tries to decide and works at putting together a strategy, the court in Oklahoma set dates for Richard Glossip, John Grant, and Benjamin Cole. On Friday, they filed a petition for rehearing.  They made this pitch.
The Court Should Grant Rehearing To Consider Whether The Death Penalty Is Unconstitutional Per Se. 
Which is what the lawyers had to do for their clients.  And what I imagine the State of Oklahoma will either oppose or ignore in the hope it goes away so they can get on with the killin'.  But what in their heart of hearts at least some in the prosecutorial, kill-'em-all community will wish the Court would take in.  To drive another nail into the abolitionist position.  Here's Bill Otis immediately after Glossip was decided.
  1. Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence. For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.
  2. If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg). Neither did. It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.
I'm not sure Bill's right about the conclusions he draws from any of that.  In fact, I think he's wrong on 2. But on 1?  I don't want to find out.

And so, I - along with many other folks who oppose the death penalty and believe that it really is unconstitutional - find myself rooting against Glossip, Grant, and Cole.  Do I want them to be killed? 


Do I want the folks in Washington to take up their request - which may be their only hope?


Damn.  This is fucked up.

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