The Big Sleep

Sleeping defense lawyers in death penalty cases are out, for now.

Just so the word of a pending new trial in the sleeping-lawyer case doesn't lull us into a false sense of security about the death penalty in the United States, I'd like to share some information:

The U.S. Supreme Court didn't say that a sleeping lawyer in a death penalty case is a bad thing. What they maybe said is that they couldn't quite justify saying it is a good thing, either.

Not that that would have been much of a stretch: less than a week before, the Court said it was alright that a defendant's lawyer was too unskilled or timid even to ask the jury for life, and to present available evidence that his client had some redeeming qualities. We of the criminal defense bar find it hard to accept the Court's constitutional approval of the lawyer's apparent choice virtually to give up when he recognized that he was overmatched by the prosecutor.

But it looks like surrender remains a viable trial strategy. You just have to be awake.

More than 100 death row inmates have been exonerated since reinstatement of the death penalty a quarter-century or so ago. While some were let go because of inconclusive evidence, a good percentage were proven actually innocent. Almost all of the 100-plus DNA exonerations proved by the Innocence Project were, as a historical fact, actually innocent. (Many of those had confessed to trained interrogators, but that's another issue.)

Every reputable statistician, knowing the small percentage of cases in which DNA testing is available, will agree there a probability approaching certainty that someone innocent has recently been executed. Two sitting Supreme Court justices have indicated recently that they recognize this much, and that it troubles them. The hard right, on the other hand, accepts execution of the innocent as the cost of doing business.

The sleeping-lawyer defendant gets a new trial because the Supreme Court refused to hear the case. That's all. The whole 15-judge Court of Appeals for the Fifth Circuit, which includes the death-belt states of Texas, Louisiana and Alabama, overturned the conviction after embarrassing news reports and editorials mocked the three-judge panel which upheld the conviction, defining "trial strategy" to include "sleeping at the switch" the first time around. The panel, chaired by well-known Supreme Court aspirant Edith Jones, said it was not convinced that the lawyer slept through the good parts.

The fact is, there is not a way to make the system flawless. Post-conviction demonstrations of innocence have led Illinois and Maryland to impose moratoriums on executions until they can insure accuracy in their systems, or so they say. Both moratoriums will likely crumble under pressure from tough-on-crime politicians, flaws be damned.

Most of the world evidently thinks that letting evil-doers stew is better than the revenge of execution, or that we shouldn't condone killing to show that killing is wrong, or that we simply cannot tolerate the possibility of executing the innocent, or the unfair frequency with which the death penalty tends to be applied to the poor and the dark-skinned, or that there can be salvation through faith, or that we can progress through science and learn what makes human beings into time bombs and so on. Most other countries say that the costs, on all levels, are just too great.

For now in this country, two justices are concerned and two states are searching for answers, but the death machine marches forward with its irrevocable results. The zero-tolerance we apply to college loans and public-housing residents doesn't apply to mistakes by police and prosecutors. We don't even convene a commission to find out why the mistakes happened, when they are discovered, as we do with airplane crashes and train derailments and bad accounting practices.

Sleeping lawyers are out (for now), but everything else remains the same.

Daniel Dodson is the public affairs director for the National Association for Criminal Defense Lawyers. Edward Mallett is the immediate past president of the National Association for Criminal Defense Lawyers.

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