No Appeal Means No Execution

Gov. Pete Wilson endorsed legislation last week to reform the process of death row appeals. The package includes an extra $23 million per year to hire defense lawyers for death row inmates. The money would pay for more public defenders and, at least temporarily raise the fee paid by the state to private death row lawyers from $95 to $125 per hour.

Why would a law-and-order governor fond of capital punishment do such a thing? Because among the 438 inmates now on California’s death row, more than 125 don’t have lawyers to represent them. In California, the imposition of a death sentence triggers an automatic direct appeal to the state Supreme Court--which has affirmed nearly 95% of the death cases that have come before it this decade. Without representation, the cases of inmates awaiting review cannot be heard, their convictions cannot be upheld and the inmates cannot be executed.

Wilson’s theory--and it’s correct--is that buying death row inmates more lawyers will speed up the pace of executions. “With the reforms we’ve introduced, we’re taking another step closer to the day when old age is no longer the leading cause of death on death row,” Wilson said.

Wilson’s initiative brings into focus an ethical paradox: If taking the case of a death row inmate hastens his execution, it is the duty of defense lawyers to refuse to handle it.

Lawyers owe to their clients what is known as fiduciary duty--a solemn obligation always to act in the best interest of the client, within the boundaries of law, even if that is against the personal or professional interests of the lawyer. Just like a doctor who must follow the Hippocratic injunction, “first, do no harm,” a lawyer must represent a client only if doing so is likely to help. If the very act of representing the client radically increases the odds that harm will befall the client, the lawyer is duty-bound to refuse the job. In this case, the harm is death, and the odds of avoiding it through litigation before the California Supreme Court are virtually nil. On the other hand, if left unrepresented, death row inmates would, as the governor suggests, die of old age in prison.

Should defense lawyers doubt this argument, they need only look to their colleagues in the fields of medicine and psychiatry for reassurance. Both professions explicitly bar participation in executions.

The idea that it is a breach of professional responsibility for a lawyer in California to take on a death penalty defense is sure to raise eyebrows at the bar. All kinds of arguments will be conjured against it, such as that lawyers are obliged not only to their clients, but also to the court. They are, in fact, officers of the court, and as such, can be ordered by a judge to represent the condemned on appeal. But this reasoning is circular. The rationale behind a court’s power to order representation is that some benefit might accrue to the defendant as a result.

On California’s death row, that is manifestly not the case. The rate at which the California Supreme Court affirms capital convictions mocks the notion of “harmless error.” The court has turned a blind eye to mistakes and even to intentional wrong-doing in capital trials, regardless of severity or prejudicial effect. In one infamous case, defense counsel was arrested for driving under the influence of alcohol on the way to trial. His client’s ensuing death sentence was affirmed by the Supreme Court, establishing the principle that a lawyer can be too drunk to drive, but sober enough to defend his client’s life. Any critique of the court’s decision is subjective. But the numbers are objective, and their lesson is simple. A death row inmate in California is far more likely to be executed if he has a lawyer than if he is unrepresented.

With that in mind, the defense bar needs to recall its basic mission and revise its tactics. As soon as California’s defense lawyers take this obligation seriously, the state-sponsored death machine will grind to a halt.