Lawyers Take Offense at Peer’s Unorthodox Defense : Law: Utah public defender Elliott Levine faces possible disbarment for respecting his client’s wish to be executed.
It is hard to say whether his exposure to James Holland transformed Summit County public defender Elliott Levine into an unbridled renegade or merely uncovered long-held sentiments. What is clear is that the choices he made in defending Holland against murder charges appear to have galvanized him. What began as an earnest ethical inquiry into the obligations and boundaries of criminal defense lawyers has started to take on the markings of an unabashed infidel’s crusade against his own profession.
This became evident when Summit County handed Levine another murderer to defend in early 1991 just as Holland was sentenced to death here for the second time. Holland had eagerly confessed, readily pleaded guilty, adamantly resisted his lawyer’s efforts to appeal and flatly chosen the executioner over life in prison.
If anything, Von Lester Taylor’s case--as told in court documents--looked even less promising than Holland’s.
Along with a companion, Taylor, who was in his mid-20s, broke into the Tiede family cabin in the Beaver Springs mountain development not far from Coalville. When the Tiedes arrived home, Taylor without provocation shot the mother point-blank, then the grandmother, killing them both while one daughter looked away, praying. Later, he told his companion to shoot the father but impatiently did it himself after the companion took too long to aim. Then he doused the father with gasoline, cut the telephone lines, set the cabin on fire, took two daughters hostage and ran a couple of roadblocks before crashing his car.
Looking at these details later, there are those, chiefly in the defense bar, who sputter at the fact that Levine let Taylor plead guilty to murder, and those, chiefly prosecutors, who think he had little choice if he wanted mercy at a penalty hearing. There is also dispute about how this decision was reached. Levine says Taylor, who reportedly attempted suicide in jail, insisted he wanted no trial. Taylor now claims, through his new lawyer and in an affidavit, that he was just following Levine’s advice.
What is beyond challenge are the events that unfolded at Taylor’s penalty hearing in May, 1991. In order to make what’s called a “proportionality” argument--in essence to compare the character and actions of this defendant with current Death Row inmates--Levine called a willing James Holland to the witness stand. Levine wanted to show the jury that Holland was a career criminal and three-time murderer who expressed little remorse, while the much younger Taylor by comparison had a single felony burglary conviction and lots of remorse. The judge wouldn’t let him do it, so instead Levine simply had Holland testify generally about his background and his unhappy life in prison.
Then Levine launched a closing argument on Taylor’s behalf that would often be quoted in the coming months, not infrequently with tones of wonder.
“It’s not as though Mr. Taylor is sitting here trying to cover up his deeds . . .” Levine began. “Mr. Taylor came forth and he admitted two murders . . . . In opening arguments I told you that the decision to do this came as a result of long hours of conversation between myself and Mr. Taylor. Let me tell you a little bit about my approach as a defense attorney . . . . Last Thursday I got home very late, walked in my house and what happens to be on TV but ‘L.A. Law’ . . . . I don’t even know who the character was. She was talking to a judge, and she was explaining to the judge an obligation as a criminal defense attorney, and that is to do what I can to get my client off. In my opinion, that’s a bunch of bull. You don’t do yourself any good, I don’t do my client any good, and I don’t do the system any good. I don’t feel that is my task as a defense attorney . . . . My approach differs in that normally what I try and do, I talk to my client, I need to know whether or not they committed that crime . . . .”
If the client has committed the crime, “then I feel it’s my obligation to get that person to take the first step, and that is to come forth, admit their wrongdoing, then to get them through the system in a sense that the appropriate punishment is imposed . . . . That’s exactly what I’ve done in Mr. Taylor’s case . . . . Mr. Taylor has taken that first step, a very difficult step for anyone, and that is admitting wrong . . . . He couldn’t believe what he did. It sickened him . . . . Mr. Taylor does not lack emotion. Mr. Holland lacks emotion when he talks about his murders . . . . Mr. Taylor was very emotional here . . . .”
There are those who look at this decidedly unorthodox description of a defense attorney’s role with some understanding. Instead of denying or contesting, they point out, Levine was seeking mercy by saying his guy admits it, his guy is remorseful, his guy is willing to face the music. It was, some thought, a plausible approach--even if Levine had gotten rather carried away.
“I don’t know that you can hold an attorney responsible for what he’s saying to a jury in closing argument,” one lawyer generously observed. “He’s doing whatever he can.”
Others were not nearly as generous.
“Stand up and atone and rehabilitate?” chortled attorney Bruce Savage, whom Summit County eventually appointed to take over the Holland and Taylor cases. “That only works if everyone is operating on the same page, if everyone agrees to rehabilitate you if you stand up. If everyone is not in agreement on how the game is played, you can’t be doing this. You just can’t be doing this. Pleading into a capital charge when you know they’re coming at you with a syringe is problematic. You’re not going to be an adversary, but the problem is, they still are.”
If only Levine had stopped there, he might still have avoided all that was to come. But he did not stop there.
When the jury ended up handing Taylor a death sentence, Levine filed an appellate brief with the state Supreme Court. In it, among other points, Levine included what he later acknowledged was the incendiary “kicker.” In it, Levine claimed a denial of rights because the trial judge hadn’t allowed him to argue “that an individual such as James Holland is a prime candidate for the death penalty while (Taylor) is not.”
In the face of the vitriolic firestorm that erupted when the Utah legal community learned he’d offered his own client to the executioner, Levine has remained resolute.
He was not saying that Holland deserved to die or should die, Levine emphasizes to anyone who will listen. He was just saying Holland was a more likely candidate, on a spectrum of possibilities, if you were going to have a death penalty at all. How could he have jeopardized Holland’s position, at any rate, when what he’d done was totally consistent with Holland’s position?
“Mr. Holland has always taken the position that he wants to be executed for his crimes . . . .” Levine told the State Bar. “I, as counsel for Mr. Holland, have, in consultation with him, pursued his desires . . . . I defy anyone to specifically delineate any disadvantages which occurred to either client . . . . I have continually maintained a position, though not popular in the legal community, consistent with Mr. Holland’s publicly stated desires and wishes.”
Here and there in the legal community, a few isolated voices of support have been heard, one being that of Greg Smith, partner in Affordable Legal Advocates, a Salt Lake City law firm representing low-income people.
“This response to Levine has me baffled,” he said. “What do they want? Are we to force the state’s will upon our clients? Mr. Holland wanted the death penalty, and his attorney got him exactly what he wanted. I think Levine was playing adversary, in the sense that he was advancing the interests of his client against what the state wanted. What bothers me is, so many attorneys don’t even see the danger here of Big Brother telling you what to do. This is an intrusion of the state between the defense attorney and his client. It’s amazing to me that everyone sees this as so easy to call. I don’t think it’s easy, or cut and dried. I think it’s nebulous. This is not an easy issue.”
For most of the Utah legal community, though, it indeed has been an easy issue. For most, Levine’s actions were, in the end, an utterly unacceptable betrayal of what they were all about. Levine was making not just the defense bar but everyone in the legal system look bad.
The defense attorney’s unfettered advocacy of his client, after all, is what validates the prosecutor’s resolute and unbridled effort to prove him guilty, and the state’s devastating act of imprisoning or executing him. Each side assumes their unpleasantly hard pushes will be countered, and thus justified, by someone else’s hard pushes. If the defense attorney refuses his role, the state’s actions begin to look questionable, if not odious.
Plainly, Levine’s stance demanded a response. That task fell to Utah state Assistant Atty. Gen. J. Frederic Voros, the appellate-level prosecutor in the Taylor case. In a motion to the Utah Supreme Court, he put his argument simply: To preserve the “integrity of the judicial system,” Levine must withdraw from both the Taylor and Holland cases.
The state high court’s justices unanimously agreed. On Sept. 23, 1993, granting Voros’ motion, they removed Levine from the Taylor case and referred the matter to the Utah State Bar for “appropriate action.” On Jan. 14, acting on their own, the justices also removed Levine from the Holland case.
They were appalled by Levine’s “fundamental and underlying misconception of the defense attorney’s role,” and they were appalled by Levine’s failure to act as an adversary at Holland’s second penalty hearing. But what most troubled the justices was Levine’s comment in Taylor’s brief.
“Defense counsel breached his duty of loyalty to Holland . . .” the court wrote. “By asserting that Holland deserved the death penalty, Levine not only acted directly contrary to Holland’s interest, but he aligned himself with the state’s position . . . . We are aware that Holland might prefer the death penalty . . . . Nevertheless, an attorney is not justified in asserting that his client deserves the death penalty, even if his client desires to have that penalty imposed.”
Levine received his first warning from the Utah State Bar’s Office of Attorney Discipline in late October. That was followed in late February by notice that an “informal complaint” had been filed against him by the State Bar, and in May, after a hearing, that a State Bar panel had found probable cause to file a formal complaint against Levine in the state District Court. In coming weeks, Levine faces measures that range from reprimand to probation, suspension or disbarment.
“Levine has raised legitimate issues that need to be resolved,” said Gary Ferrero, the State Bar’s assistant disciplinary counsel. “Elliott Levine is not a bad guy. I see bad guys; he is not one. The thing that makes Elliott a problem is that Elliott doesn’t see the problem.”
If Levine does not see the problem, he certainly does see the likely verdict. There is little chance, he realizes, that he’s going to prevail. In late spring, as a result, Levine more or less stopped fighting.
He also stopped lawyering, for his practice had virtually evaporated in the wake of so much bad publicity. For a time, he worked as a customer service phone representative for Fidelity Investments in Salt Lake City. Now he is taking the summer off.
“Maybe I’ve adopted Holland’s philosophy,” he said one recent morning. “I don’t want to fight. I have more important things to do with my life. I’d rather spend my time and energy on something else, like my 15-month-old daughter, instilling values. Look at the big picture: The worse thing that can happen is, I get disbarred. So? I’m not sure I want to be involved in the law anymore.”
Most lawyers in Utah would say that this is just as well. Most would say that Levine, by refusing to play their game, in a way has demonstrated precisely why it has to be played. Most would say that Levine, whatever the merits of the issues he’s raised, just doesn’t have the instincts and stomach for criminal defense law, so he shouldn’t be cast in that role.
This story of a lawyer turned renegade to his profession, in other words, appears to be ending satisfactorily for just about everyone in Utah but Levine--Levine, and, as it happens, James Holland.
The one who seven restless summers ago first inspired a lawyer’s improbable rebellion now draws no solace from those who would defend him from Levine. Being described by his attorney as a prime candidate for the executioner has not altered Holland’s thinking at all.
“I am mad as hell about the Supreme Court decision,” Holland, from his 5-by-7-foot cell, recently advised Levine in a three-page handwritten letter. “I’ve been on Death Row for 6 1/2 years and still can’t get beyond automatic review . . . . The court wants an appeal and I don’t . . . . I am guilty of murder . . . . I still want you as my attorney . . . . I will not accept any attorney the courts want to give me . . . . As far as I am concerned you are my attorney . . . . Elliott, I appreciate what you have done . . . . You have done nothing but what I wanted done.”