COLUMN ONE : Defending Killer Who Seeks to Die : A lawyer honors his client’s wish to plead guilty in a murder case. But critics rise in anger, saying his greater obligation is to make the system work by fighting for the man’s life.

From the moment Summit County public defender Elliott Levine first heard about him, he sensed James Holland was going to be a tough client to represent.

After all, they’d caught him in Bonifay, Fla., guzzling beer while barreling 85 miles an hour down Interstate 10, some 18 miles from the service station where he’d just pulled an armed robbery. In his car were a .38-caliber pistol, 40 rounds of ammunition and a paper bag filled with cash. Within hours, he’d confessed to a string of armed robberies and two murders, one in Utah, another in Idaho. Within days, he’d arrived here at the Summit County Jail, extradited from Florida to face charges for the Utah murder.

For a while, Levine nonetheless entertained hopes of forging a defense. Usually there’s a twist to a client’s brush with the law, an opening a good criminal defense attorney can parlay into a deal, if not an acquittal. My guy confessed under duress; my guy didn’t get his Miranda rights; my guy was beaten up--you could always argue something.

Levine’s hopes, however, quickly evaporated when he finally met Holland.

“Yeah, I did it, I killed him,” Holland said, sitting across from Levine in a Summit County Jail interview room. “I talked to the sheriffs on the way up from Florida. Told them everything.”

Holland sounded polite, reasonable, relaxed. He was lanky, 5 feet, 11 inches, and 152 pounds, with long sideburns and several tattoos on his hands and arms.

Levine asked questions, searching for a defense. Instead, he heard ominous hints of other, unsolved crimes. “You really never know what’s going on with me,” Holland said.

Levine considered. Holland had spent 35 of his 47 years behind bars, including 22 for a second-degree murder committed in Iowa in 1964. He’d never managed to stay free for more than a few months. He’d also never managed to express remorse. The Iowa state psychiatric reports, diagnosing a “severe antisocial personality,” had described him as “a pathetic man who has been destructive to life and property . . . . Constantly defensive and sensitive of being regarded as skinny and mild-mannered . . . . Quite uncivilized and unsocialized . . . . Unaccustomed to being treated like a human being.”

“We have options,” Levine said. “We can file motions. We can get ACLU-type groups involved. You’re facing the death penalty.”

“Let’s just get it over with,” Holland said. “I did it. I want to plead guilty. I don’t want to fight. That’s it.”

Levine liked to look into people’s eyes, but when he looked into Holland’s, he felt flat-out scared. They were the darkest he’d ever seen.

He means it, Levine realized. This is what my client wants. I’m supposed to be a zealous adversary against the state, but I’m also supposed to represent my client’s interests. What to do?

So began Levine’s fateful descent into the tangled ethical perplexities of criminal defense law. At a time when high-profile defense attorneys seem willing to go to any length to exonerate their clients, Levine has found himself obliged to ponder the boundaries and obligations of his profession. How far to go for an obviously guilty and unremorseful client who does not wish to fight? Which to serve, the client’s desires or the state’s demands?

Levine eventually decided he should, above all, honor his client’s wishes. Levine eventually decided that an unfettered adversarial stance was not always best. Levine eventually decided to stand silent and rest on the record when it came time to argue for Holland’s life.

In fact, there came a moment much later when Levine deemed it fair to say, in a written brief, that Holland was a “prime candidate” for the death penalty.

In response, the Utah legal community has risen in dismay. In recent weeks, lawyers have denounced Levine in public comments, formal complaints and appellate motions. The Utah Supreme Court has removed him from Holland’s and another murder case. The Utah State Bar has filed a formal complaint charging him with violations of rules concerning competence, diligence, misconduct and conflict of interest.

Without a zealous adversary for the defense, Levine’s critics fume, the system breaks down. No matter what the defendant wants, the defense lawyer must play his role. The defense attorney must argue; the defense attorney must file motions; the defense attorney must fight for his client’s life, if not his freedom.

“Levine is not doing what a criminal defense attorney should do,” declares an exasperated Loni Deland, past president of the Utah Assn. of Criminal Defense Lawyers.

Unmoved, Levine disagrees, and grows ever more defiant, even as he faces, at age 45, his likely undoing as a lawyer. His is a doomed, utterly impractical, but not incomprehensible vision of a world where lawyers sometimes stop battling.

“I have,” he says, “a somewhat different viewpoint of the criminal defense attorney’s role.”

*

It was not by accident that James Holland fell into the arms of the law in Bonifay, Fla. By that Friday in July, 1987, he’d been trying for some time to get caught.

Traveling across the country, he’d stand in front of security cameras and wave while robbing convenience stores. He’d leave fingerprints all over the place. He’d speed along curving mountain roads and wide-open interstates.

Finally, in Florida, he backed his car right up in front of a convenience store window, so the girl inside could see his license plates clearly. He laid his gun on the counter. He told the clerk to put the money in a sack and walk into the cooler. Then he roared up Interstate 10 with a beer in his hand. When Bonifay Police Chief Joe Roberts pulled him over, Holland was as direct and unguarded as could be, and not just about the armed robbery.

A year ago, he said, he killed a man in Utah whom he’d met at an Idaho rest stop while hitchhiking along Interstate 84. A few days ago, he killed another man at the same rest stop. In between them, he’d committed a string of armed robberies from California to Tennessee.

Holland sounded relieved as he talked. He hated prison, but at least he knew how to live there. He didn’t know how to live on the outside.

Three weeks later, Holland waived his Miranda rights and filled in the details of the Utah murder for the Summit County sheriff’s detective who’d come to Florida to fetch him. Four days after that, in the Summit County Jail, Holland again waived his rights, this time to describe the Idaho murder to the Oneida County, Ida., sheriff.

In each instance, the officers reported, Holland displayed no emotion or regret. “He got what he deserved for calling me a bum,” Holland said of the Idaho victim.

By the time Elliott Levine met him, Holland had told his story to just about any officer of the law who happened to pass through the Summit County sheriff’s office. Levine soon found, however, that his client wasn’t entirely indiscriminate with his confidences. Holland would not talk to doctors or psychologists. Nor would he take their tests.

To Levine, the question of Holland’s mental competence promised the best line of defense. But by refusing to talk to the doctors, Holland was preventing him from making that case.

In fact, Holland wouldn’t let him make any case. Instead, Holland talked to Levine for hours, looking back at his past and forward to his future with equal melancholy. In prison, he said, he spends 23 hours a day alone in a 5-by-7-foot cell. He gets out only one hour a day to walk around a yard. No one writes or visits. No friends, no family, no one anywhere. Locked up 35 years, he’s never had a single letter.

“I don’t want to spend the rest of my life in prison,” Holland told Levine. “Let’s get it over with. I’m not getting out, so I might as well die.”

Holland was right, Levine thought. He wasn’t ever going to get out. He was a career criminal, unable to function in society. This was what you got when you kept someone behind bars for most of his life.

What did he owe the client? Levine wondered. What did he owe the system?

These were questions Levine had never faced before. A peripatetic background--a year on a Chevrolet assembly line, law school at the University of Mississippi, years of meandering from one small-time law firm to another--had taken Levine from Michigan to Utah, but it had never exposed him to someone like James Holland. At midlife Levine had a wife, a graying beard, a balding dome and no certain answers. He would, he realized, have to grope for the proper course.

Later, some of Levine’s critics would suggest his difficulties stemmed mainly from his lack of experience or accomplishment in the field of criminal law, particularly death penalty cases. Levine was public defender in Summit County, they would point out, only because he offered the lowest bid for the county’s contract. Hiring the lowest bidder was many a rural county’s way of saving money in Utah. Before this, Levine was doing mainly divorces, collections, bankruptcies. What do you expect to get for a $14,000-a-year retainer?

“Levine lacks the time, the talent, the experience,” said Loni Deland of the criminal defense lawyers’ association. “He never was a criminal defense attorney in the first place. The only way he can call himself that is because he was lowest bidder.”

There may be some truth in such comments, even after discounting for the obvious animosity against an out-of-county attorney who stole business by lowballing the locals--an attorney who some in Summit County refer to privately as “a short, funny little guy.” The fact is, even above-average public defenders can’t serve clients nearly as well as do highly paid private attorneys, and nothing in Levine’s legal background suggests he is above average. All the same, some of those most concerned about the underfunding of Utah public defenders say the core of the Levine brouhaha involves something other than that issue.

Levine agrees. He has enough time, resources and experience to do his job, he argues. If not overly distinguished, his legal training at the University of Mississippi and his legal practice for small firms in Michigan and Utah have seasoned him well enough. What his background has not done, he feels, is convince him to go around saying to clients, “I’m going to get you off.” That just isn’t always possible, he believes, or even desirable.

To Deland, pleading guilty to first-degree murder without a deal for leniency in sentencing was the definition of incompetence. To Levine, a plea bargain in Holland’s case looked utterly impossible.

It was a little difficult, after all, to bargain when your client was regularly making it clear to his jailers that he wanted to “get it over with.” In other circumstances, a defense attorney might be able to negotiate down to manslaughter or second-degree murder. But Utah had a newly adopted statute that essentially raised a second-degree murder to a capital crime, punishable by death, if the accused had a prior conviction for murder or a violent felony.

We can go to trial, Levine advised his client. We have nothing to lose.

No, Holland said.

To Levine, Holland seemed not so much to have a death wish as an inclination to accept what was coming. It was sort of like having a patient in a hospital say he wanted no life support. Levine wasn’t inclined to abandon Holland. But he also wasn’t inclined to ignore his client’s wishes.

On Aug. 18, 1987, 19 days after arriving in Utah, Holland pleaded guilty to the murder of Sam Patt and asked for an expedited penalty hearing before a judge, not a jury. When that hearing began at 10:20 a.m. on Sept. 17 in the Summit County courthouse, it soon became clear just how adamant Holland was about “getting it over with.”

Levine began by asking for a continuance. In the week before the hearing, Holland had finally, grudgingly, agreed to talk to clinical psychologist Michael D. Decaria. But the two had only met twice, for a total of 3 1/2 hours, the second exchange occurring just the day before. Holland had refused to take any psychological tests. Decaria wanted more time, particularly to explore information he’d just received about Holland’s childhood. The prosecution did not object, nor did the judge. Only Holland objected.

“I want to go on today, now, be done with it,” he told the court. “I don’t want to talk with (Decaria) no more, period. I want it to go today.” When Levine began to object, Holland rose, told the jail guards, “Let’s get out of here,” and marched in shackles toward the courtroom doors.

Extended pleading and explanation could not sway Holland: “My desire is to just go ahead and get it over with and do it now and be done with it. Two or three weeks or a month is not going to make any difference at all. It is still going to be the same outcome . . . . Let them go ahead and do what they have got to do.”

Levine clearly felt torn by two obligations. “When I came to court today,” he told the judge, “I was put in this quandary between what Dr. Decaria was telling me and what Mr. Holland is telling me, and I don’t want Mr. Holland to think that I am going against him or undercutting him in any way . . . . All I am saying is that I determined it is in his best interest . . . that we be allowed the additional time . . . . I would certainly hope that Mr. Holland would realize that I am still working for him . . . .”

When Holland wouldn’t bend after several recesses, Levine finally decided to honor his client’s wishes.

“It is Mr. Holland’s desire--it is at his insistence that we go forward with the hearing today . . . “ he told the court. “I would say definitely I have advised him fully of all the consequences . . . . Mr. Holland still desires to go ahead . . . . Based upon that, I will stand by Mr. Holland.”

Called as a witness, guided by Levine, Holland for much of that afternoon retold the life story he’d already shared in private hours with his attorney. In some ways the litany was regrettably familiar, beginning with an abusive, alcoholic father who disappeared when Holland was 6. But as the details accumulated, Holland’s tale grew increasingly singular.

He’d been sad and alone, Holland said, ever since his mother died when he was 8. One night after he went to bed, someone woke him and told him his mom was dead. An auto accident. It felt to Holland like putting your finger in a light socket.

After that, his brother and two sisters were sent to one aunt and uncle’s home, he alone to another. His aunt and uncle beat and scorned him. Every chance he got, he’d run off, trying to find his siblings, trying to escape the ridicule.

When he was 9, his aunt and uncle put him in a reformatory, where he stayed until 17. From the reform school he went straight to a penitentiary, punishment for trying to escape. After he got out a year later, he met two boys while hitchhiking. They had pistols and the notion to rob a filling station. Holland joined them, netting $61. For that, he spent five years in the Florida state prison at Raiford.

When he got out at age 24, in 1964, he started hitchhiking again. One early July day that year, a fellow giving him a ride in Iowa suddenly pulled off the road into the woods near a river, stripped naked and insisted that Holland join him in a swim. When Holland declined, the fellow grabbed him by the shirt. Holland tripped, fell, pulled out a gun and shot five times at the man standing over him.

He could have gotten away with it, Holland explained, but when he soon after was caught for a robbery in Elgin, Tenn., he confessed. “It must have been just self-punishment,” Holland said. “It was kind of weighing on me, and I just wanted to get it over with.”

This time he went to prison for 22 years for second-degree murder. When he was released on Dec. 17, 1985, he felt lost. He had nobody to talk to, no sense of what to do. Get on the road, was all he could figure. He tended bar and chopped wood in Tennessee, picked cherries in California, then wandered back through Utah, confused. He couldn’t relate to people; he couldn’t deal with them. The world felt pretty crazy to him. Rolling down the interstates, he sometimes pulled to the side to drink whiskey and cry. Other times, he’d drive for hours, then turn around and drive the other way. In one month alone he covered 23,000 miles--up to 1,000 miles a day.

Six and a half months after his release from prison, Holland met Sam Patt at the Juniper rest area off Interstate 84 in Idaho. Patt was 72, an itinerant fruit-picker from Florida. Patt asked Holland where he was going and whether he had a driver’s license. Would you mind driving if I give you a ride? Patt wondered.

They started south down Interstate 84, stopping in Ogden for gas, where Patt took over the driving. Past Ogden, the region grew dark and cold and remote. Patt suddenly braked, right on the interstate, and ordered Holland out of the car. Holland didn’t want to get out. Holland drew a .32-caliber pistol from his waistband and laid it on his left leg. If anyone’s getting out of the car, it will be you, he said. Patt reached for the gun with one hand, and clawed at Holland’s face with the other. They struggled. Holland pulled the trigger five times, then dragged Patt’s body from the car and drove off.

After that, he traveled to Tucson, then back to Tennessee, then to Texas, where he worked on an offshore oil rig for a while and later stayed with his brother. When his brother’s criticisms started riling him, he left, scared of himself, scared he’d hurt his brother. He was aware, by now, that summers made him feel particularly irritable, restless, depressed; in summers he slept only an hour or two at a time.

The summer after killing Patt--in fact, precisely one year to the day after killing Patt--he pulled again into the Juniper rest area. For two hours there he vainly tried to sell a hunting knife for gas money. He approached Karl Behm, a 24-year-old from Ohio, who snarled something to him like, “Get away, bum.” This offended Holland, for he had just as nice a car and clothes as Behm. Holland knew instantly he was going to kill Behm. The more he thought about it, sitting on a rest stop bench, the madder he grew. He decided he was going to kill everybody in the rest area.

On his way to get the gun from his car, though, a lady with two children pulled into the rest stop. Holland couldn’t hurt a lady or children, so he waited until they left. By then only a truck driver and Behm were still there. Holland was approaching the truck when the truck driver happened to pull away. That left Behm. Holland walked over to Behm’s car and shot him through the window as he lay asleep in the front seat. He dragged Behm’s body across the sidewalk into the junipers, took his wallet and drove off.

Six days later, he pulled the armed robbery in Bonifay, Fla., that finally brought him back to the relief of prison life. “That’s why I went ahead and confessed to this murder here, I guess, just to ensure that I was in for good,” Holland said. “It just kind of lifted a load off of you . . . . I didn’t want to hurt anybody else . . . . I go off the deep end sometimes.”

Holland shrugged when asked about the choice between life in prison and the death penalty. “I don’t know,” he said. “I am going to die in prison sooner or later anyhow. If I get the death penalty, I will just die a little sooner is all.”

He could make no promises about avoiding violence in prison. “I couldn’t say what I would do because I never know what I am going to do from one minute to the next.”

Perhaps because Decaria was known as a professional defense witness, who was flatly opposed to the death penalty, it apparently mattered little to Judge Homer F. Wilkinson when the psychologist minutes later testified that Holland’s “extreme depression” and great longing for “relief” rendered him incompetent to enter a plea. After digesting the matter for two weeks, the judge announced Holland’s sentence.

“Judge Grants Wish of Summit Killer,” declared the local Salt Lake Tribune headline that day.

*

Much passion colors arguments in the legal community about just how far a criminal defense attorney should go with a client such as James Holland. To many, the issue reaches well beyond a concern for the defendant’s Sixth Amendment right to effective counsel. To many, the need for a zealous adversary in the criminal defense attorney’s chair arises even more out of concern for the workings of the legal system, and all of society.

Whatever the desire of an individual defendant, argues a host of scholars, jurists and lawyers, the integrity of the law as an institution must be sustained. At stake is the Eighth Amendment’s proscription against arbitrary and capricious punishment. If the defense attorney does not fill his role as adversary, if the defense attorney is seeking the same goal as the prosecution, the system just doesn’t work. The defendant and his attorney must fight, even if they don’t want to. The state’s interest in a just society takes precedence over a defendant’s autonomy.

The state’s interest, adds Utah’s Chief Justice Michael Zimmerman, also takes precedence over public sentiment. The public probably identifies with Levine, Zimmerman observed recently, talking in his chambers, “because it doesn’t like the sense of lawyers as amoral hired guns and because it sees the system thrashing endlessly on people who are clearly guilty . . . . There is a great gap between the public’s sympathy for Levine and the legal community’s horror. People don’t understand the adversary role, particularly in criminal cases. Where the might of the state comes against an individual, then a lawyer’s duty must be unalloyed to his client. It is a political model, not a legal one. The public doesn’t acknowledge this, but the defendant is surrogate for you and me. That is why the system has to put a check on the state.”

No doubt that is also why, after James Holland’s conviction, the Utah Supreme Court ordered Levine to file an automatic appeal and remained unmoved when Holland objected in a personal letter to the court.

“I comprehend your statement that you have not authorized an appeal,” Geoffrey Butler, clerk of the Supreme Court, wrote back to Holland. “But your court-appointed attorney, Mr. Elliott Levine, really has no choice. The Supreme Court has instructed Mr. Levine to . . . prepare the review . . . . This explains why Mr. Levine is proceeding without your expressed consent.”

As it turned out, the Supreme Court wasn’t impressed with Levine’s appeal, which centered chiefly on the issue of competence. From the record, the justices said, it was clear the defendant was competent to assist in his defense and “fully knew and understood” what was going on. Nevertheless, the justices sent the case back for a second penalty hearing, saying the trial judge had not followed proper procedure in reaching his sentencing decision.

The second time around, doctors of all sorts managed to gain at least some exposure to Holland, although he still usually refused to take their tests.

In Idaho (where Holland was sent briefly to plead guilty to first-degree murder and draw a life sentence), a state clinical psychologist found him polite, calm, rational, stable, in control, with no convincing evidence of mental illness--and no remorse. What he was, the psychologist concluded, was an “extremely dangerous individual” with a “severe antisocial personality disorder” and a “very poor” prognosis for improvement or rehabilitation.

The Utah doctors did not disagree. Halfway through their evaluation, Utah State Hospital medical administrators urgently asked that Holland be transferred back to prison because they believed he presented “an extreme danger to the hospital.” Members of the staff, they explained, were utterly frightened of this patient.

All the same, Dr. George J. W. Smith, the acting hospital clinical director, felt moved to add some unusually personal notes to his evaluation.

“During the interview the patient over-related to me much as the symbiotic child does . . . “ he wrote. “I found myself developing a loving feeling for him . . . . I could have cried for him, as he did for himself, as he described the accidental death of his mother, her funeral and how he can still see her in her casket and frequently talks to her as if she were present.”

Holland described his mother’s death and loss, Smith wrote, “as some people describe religious experiences . . . . He felt as if a severe electrical shock had gone through him, which he has continued to experience to the present time and which appears to be always connected to killing or wanting to kill. It is almost orgastic in nature, following which he feels much relaxed and sometimes falls asleep. He is really quite frightened of his own impulses, begging for help and not understanding what it is that comes over him.”

And yet, Smith added, as soon as Holland left this revealing interview with him, he became “an entirely different person with an entirely different tone of voice . . . . As we walked among other patients, he became tense and hostile, speaking in a much higher pitch and rapid form of speech. He said, ‘I don’t hate any individual; I don’t want to kill anybody specifically; I just hate society in general and want to do something about it!’ ”

It did not escape Smith’s attention that Holland had committed all three of his murders in early July and thus might have a manic-depressive disorder affected by changes in season or light. Smith looked at his calender with some alarm. It was June 1, 1990. “This patient must be placed in a more secure environment just as soon as possible,” he wrote to Judge Wilkinson. “As we near the beginning of July, his potentiality for dangerousness becomes ever increasingly greater!”

Since Smith and a court-appointed clinical psychologist thought Holland not competent to stand trial, Levine filed a motion to set aside Holland’s guilty plea. Wilkinson refused, instead ordering psychiatric treatment for Holland while he sat in the Summit County Jail, awaiting a second penalty hearing.

This treatment, from Dr. Breck Lebegue, director of the Forensic Psychiatry Service at the University of Utah, would provide at once medical succor for Holland and a legal impasse for Levine.

Over a period of six weeks, Lebegue reported in a letter to the judge on Jan. 14, 1991, Holland has responded dramatically to heavy daily doses of lithium carbonate and Sinequan. Holland’s irritability, hostility, hopelessness, insomnia and anxiety have decreased significantly, and his capacity for rational thought has sharpened considerably. He has “responded to the fullest extent possible to medication treatment.”

The transformation, however, had done nothing to change Holland’s mind about his fate.

“Presently, he still wishes to die,” Lebegue reported. “But this is not a symptom of nor the product of his psychiatric disease . . . . Rather, his desire to die is an existential choice based on the significant misery he has experienced in life, and on a preference for death as punishment for his crime, rather than life imprisonment. He is quite familiar with the circumstances of imprisonment, and does not choose to continue to exist under those circumstances . . . . My knowledge of Mr. Holland is derived from many interviews . . . . Mr. Holland’s mental state is presently as calm and non-depressed as I have ever seen him . . . . His decision is not the result of depressive suicidal hopelessness, but rather a rational decision to accept the sentence of the court.”

Needless to say, Lebegue’s judgment substantively reduced Levine’s chance of putting on an effective defense. Other doctors might be regarded by the judge as hired guns with axes to grind, but Lebegue was a highly respected, board-certified specialist in forensic psychiatry. When the second penalty hearing began in Coalville one month later, on the morning of Feb. 14, 1991, the Summit County prosecutor simply entered Dr. Lebegue’s letter into evidence, then rested his case.

Levine in response tried briefly to mention Holland’s bad physical reaction to medication two weeks before, involving episodes of shaking, but Holland stopped him. “Mr. Levine . . . “ Holland interrupted. “I’m the only person that knows what happened, so how can you outline it? Just drop it . . . . I am as competent as anybody in this room . . . . My hands still shake. But there isn’t nothing shaky about my mind . . . . I want to get it over and done with.”

Levine now stood at the edge of a nebulous legal wilderness. He could not look to Utah for exact precedents. The closest model came in California, where the state Supreme Court in 1985 held that an attorney who acquiesced to his client’s request not to present mitigating evidence failed to effectively represent the client. But more recent California decisions, noting the defense attorney’s “unenviable and wrenching choice” and “paramount duty of loyalty to the client,” have explicitly rejected the notion that defense counsel should be forced to present mitigating evidence over a client’s objections.

Instead, in California and elsewhere, judges on occasion have appointed a third party to investigate and offer mitigating evidence once the defense counsel rises to say his client declines to do so. Even here, though, there is dispute. To require a defense attorney to rise in this manner, some argue, is to require him to acknowledge that mitigating evidence exists. The defendant, through the mouth of his attorney, is in this way being required by the state to say what he does not want to say.

Who’s in charge? Levine wondered. Was he merely a puppet in the state court system, an actor reading a script? Can the system always require him to push back when the defendant doesn’t want to push back? Can they orchestrate the whole thing, write the script, and call you unethical if you don’t follow it? Must he play the game as the courts want?

Levine thought about Holland’s abiding sadness. Maybe there was more comfort for Holland on the other side. Who knows?

Levine’s critics would later wonder how a lawyer could decide that his client should die. How can you not argue mitigating evidence? What of the doctors who thought Holland had suffered for years from an untreated manic-depressive illness--wasn’t that worth pursuing? Even if your client is competent and responsible, even if you don’t want to defy him, how can you side with the state? You should instead withdraw; you should instead just refuse to represent him.

Standing in the Summit County courtroom at Holland’s second penalty hearing, Levine saw matters differently. Wilkinson had heard all the evidence the first time around and now had the transcript of that session, along with the current medical reports. Levine felt he’d said all he could.

How many motions do you file, how many objections do you raise? People always complain that the legal system drags on, especially in death penalty cases, because defense attorneys just never stop. Levine more or less agreed. Arguing that your client’s mama ruined his synapses by giving him too much cocoa when he was a baby--that went too far. It seemed to Levine that defense attorneys sometimes let their egos and ambitions get the best of them. It seemed to Levine that defense attorneys sometimes ignored ethical boundaries in their drive to win at all costs.

If he withdrew, who would represent Holland; who would honor his wishes? He had to defer to Holland.

“As I said initially . . . it’s Mr. Holland’s desire to submit the matter to the court based upon the transcripts . . . “ Levine finally told the court. “As far as our obligation to point out to the court any mitigating circumstances, I feel that the transcript from the last sentencing contains exactly the same information that I would . . . present to the court today . . . .”

Not even the prosecutor’s incomplete account of the murder--he failed to mention that Holland shot Patt only after the victim grabbed for and struggled over a gun--altered Levine’s course. “Your honor, I waive any response,” he said when the prosecutor finished his closing argument.

Wilkinson needed no time to contemplate his decision. “The court does . . . impose the death penalty upon the defendant,” he announced when the lawyers had finished. “The penalty should be carried out by a firing squad or the administering of lethal intravenous injection, that being at the option of the defendant. Mr. Levine, is Mr. Holland prepared to make a selection?”

“It don’t make no difference,” Holland answered for himself. “It doesn’t make any difference to me which way I go. I’ll leave that up to the court.”

NEXT: Levine pleads another murderer guilty.