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Breaking Rules of a ‘Life and Death Game’ : Law: Must an attorney face disbarment for helping a client who desires the death penalty attain that objective?

<i> George V. Denny III is a criminal defense and civil-rights attorney and former president of the Los Angeles Criminal Courts Bar Assn. </i>

In light of the games being played out by both the prosecution and defense in the O.J. Simpson trial, how extraordinary to read of public defender Elliott Levine. It seems that both the Utah Supreme Court and the State Bar are ready to punish him for not playing “the game.” That is the “life and death game” that attorneys are expected to play in murder cases.

In Utah--as well as in other states--the “rules” of the game appear to require that an attorney bend every effort, spare no expense and utilize every trick or loophole in the law to get his client acquitted or, at least, a life rather than a death sentence.

But what of the client who doesn’t want that type of representation? What if the client, having played the game before, wants no more of it? What if, after being told of all possible defenses and procedures to escape conviction and/or punishment, the client nevertheless wants to plead guilty in a capital case and submit himself to the death penalty? Does the life-and-death game require that his attorney act absolutely contrary to his client’s wishes and diligently fight to prohibit the state from imposing the “ultimate penalty” of death? Is the attorney required to violate his client’s trust and battle steadfastly to save him from the penalty he earnestly seeks?

Levine’s client, James Holland, asked Levine to do nothing unethical. He sought no perjured testimony. He did not solicit research into the backgrounds of potential witnesses to embarrass and/or impeach them at trial. He asked for no experts whose testimony might raise a reasonable doubt in the minds of potential or actual jurors. Holland simply advised Levine that he had committed the two murders and multiple robberies and, having spent 35 of his 47 years in various reformatories, jails and prisons, he wanted to be executed.

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Levine has been excoriated by the Utah Supreme Court in his representation of Holland and Von Lester Taylor, another multiple murderer (and arsonist and kidnaper), who, unlike Holland, did not want to be executed. By attempting to make a “proportionality argument” for Taylor, Levine called a willing Holland from prison to show the jury that Holland was a career criminal and three-time murderer who expressed little remorse and deserved the death penalty, whereas the much younger Taylor had a single prior felony burglary conviction and lots of remorse and did not deserve death.

The trial judge did not allow him to make full presentation of Holland’s crimes. When Taylor’s jury returned the not-unexpected death sentence, Levine filed an appellate brief with the Utah Supreme Court in which he claimed a denial of Taylor’s rights because the trial judge had not allowed him to argue “that an individual such as James Holland is a prime candidate for the death penalty while Taylor is not.”

Levine’s candor and honesty were considered wholly inappropriate by the Supreme Court which, in order to “preserve the integrity of the judicial system,” required that Levine withdraw from both the Taylor and Holland cases and referred the matter to the Utah State Bar for “appropriate action.”

Before 1975, the states could force an attorney on a defendant in a capital case whether or not the defendant wanted to be so represented. Such a defendant could not represent himself because the Sixth Amendment did not in so many words give him that right. In Faretta vs. California, the U.S. Supreme Court specifically granted the right of self-representation in any case, including a death penalty case. If a defendant in a capital case can choose to represent himself, it seems illogical that he cannot choose an attorney who will help him attain his objective, whether that be acquittal, a plea bargain to a lesser offense or a conviction and execution.

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“Telling it like it is” appears to disconcert public prosecutors and black-robed justices who (these days) are happy enough to uphold death sentences if they can say the convicted murderer got “effective representation” because his attorney “played the game” properly. In that way, prosecutors do not look quite so bloodthirsty, and appellate courts can pontificate about the murderer’s “fair trial.”

According to the Utah Supreme Court, Elliot Levine “breached his duty of loyalty to Holland” and “not only acted directly contrary to Holland’s interest, but aligned himself with the state’s position.” (The court, it seems, knows what is in Holland’s “interest” better than Holland himself.) The court did concede that “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.”

Is the public perception of the criminal-justice system strengthened or weakened when, consistent with his client’s knowing and intelligent choice, an attorney lets his guilty client speak the truth? “I am guilty of taking life, and I want to die for my crimes.”


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