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Choosing to die: the defence dilemma

17 September 12

When a client in a capital case no longer values his life, what is the appropriate role of the defence lawyer? The question arose sharply for a Scottish graduate on a clerkship in the United States

by Philippa Greer

A peculiar context

Departing from a country that last took the life of one of its citizens in 1963 (21-year-old Henry John Burnett on 15 August 1963 in Craiginches Prison, Aberdeen), I knew that my experience assisting in the defence of clients on death row as a law graduate from Scotland would be fraught with peculiar encounters. The purpose of this article is not, however, to relay my daily experiences in this line of work.

Rather, it is to explore in particular one serious moral issue that I have been confronted with in Georgia: executing the “willing”.

When an individual facing the death penalty, defeated by the corruption of the system, asserts that they do not care if they should die, how should we interpret this viewpoint? Should they have the choice to acquiesce in their own death? Should this be classified as assisting suicide? Or does giving the condemned the right to choose somehow enforce the dignity of their life?

Although thankfully not an issue faced by the modern day Scots lawyer, it is hoped that consideration of this moral issue can serve to shed light on the appropriate role of defence counsel. The extremity of the context of capital punishment naturally serves to magnify many of the issues facing our legal system, viewed from across the Atlantic.

The philosophical problem

The question struck me at high speed as I walked out of the jail and into the car following my first client visit. How should one categorise personal autonomy in the context of, not only incarceration, but incarceration where the inmate is (potentially) waiting to die?

This complex philosophical problem was thrown at me with such little warning and such little sensitivity that I spent the entire evening thinking it through. Having served most of his adult life in prison, this client has come to an acceptance that the termination of his own life is not that great a risk. He expressed with clear strength of conviction that he does not want to fight his case. He is opposed to mitigating evidence being led on his behalf at trial and he does not care whether the effects of this will harm his defence. To put it frankly, he has stated that he does not care if he dies. To him, his life no longer counts.

How should one rationally interpret this?

I know that at this point you are probably thinking, if not screaming, that the effects of institutionalisation and the weighty issue of mental health, in all its nuances, often have a significant bearing upon the categorisation of the defendant’s view.

And you would be completely right. The peculiar effects of institutionalisation and the issue of mental health naturally play distinct roles in this debate. Taking the immediate example, severely affected by post-traumatic stress disorder from his childhood, the defendant has mental issues that one cannot even begin to contemplate and they continue to scar him today.

Yet, putting aside for the time being concerns over whether or not we can take at face value an inmate’s choice, if we assume for present purposes that we can accept the words of this individual to be his own rational choice, does anyone have the right to die in this context?

Where do the acceptable boundaries lie in respect of the role of the defence lawyer? Should these boundaries be defined or is it ever acceptable for them to fall to the personal judgment of the defence lawyer? If the latter, does this merely become a battle of personal autonomy between the client and the defence lawyer?

Some legal guidance

In the United States, rules of professional conduct are state specific. However, for the most part, they are broadly similar. Rule 1.2 of the Georgia Rules of Professional Conduct and Enforcement Thereof provides much the same as the equivalent rule 1.2(a) of the New York Rules of Professional Conduct.

This states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation”, but that a lawyer must only “consult with the client as to the means by which they are pursued”.

The rule further states that in a criminal case counsel must abide by the client’s decisions as to (1) a plea to be entered, (2) whether to waive jury trial, and (3) whether the client will testify. 

Accordingly, in respect of these three specific issues, counsel clearly has an affirmative duty to strongly advise his client on how to proceed if counsel and the client disagree on any of them. Yet, the final decision belongs to the client and counsel must honour it.

However, beyond these three specific issues, technically the attorney can overrule the client’s requests since they merely need to consult, yet not abide by, the client’s wishes as to the means. Thus, there appears to be a grey area in the guidance provided on professional conduct that does little to help solve our philosophical question.

Since the objective of the client cannot adequately be described as a desire to attain a death sentence, it is the means by which his defence is conducted that is in dispute. The client’s indifference as to whether he lives or dies cannot be accurately classified as an objective, thus the guidance arguably leaves open the issue of when counsel should put aside the client’s wishes and follow his or her own view on how to proceed.

A brave case

The Connecticut death penalty case of State v Ross, 269 Conn 213, 849 A2d 648 (2004) provides a concrete example of this particular uncertainty.

In this case, involving the execution of Michael Ross, a convicted serial murderer and rapist who was sentenced to death for the murders of four young women, the defence lawyer, at his client’s insistence, ceased further challenges to the death sentence, preparing to proceed to execution.

The lawyer believed that he was ethically obligated to carry out his client’s wishes.

However, the judge hearing the case, Judge Chatigny, strongly disagreed. In two companion federal actions filed a few days prior to the scheduled execution, the judge actually chastised the defence lawyer for violating (what the judge perceived to be) his ethical obligations to his client, practically threatening to disbar the lawyer for failing to fight the death sentence imposed.

The polar opposite viewpoints expressed by the judge and the defence lawyer in this case are quite remarkable.

In the end, charges of misconduct were actually brought against the judge for his behaviour in challenging the defence lawyer’s approach (see Ross v Lantz, 2005 WL 181883 (D Conn Jan 26, 2005); Ross v Rell, 2005 WL 282615 (D Conn Feb 3, 2005)). Counsel was actually praised for resisting the pressure exerted by the judge and for respecting his client’s instruction.

The brave approach taken by the lawyer falls sharply in line with the school of thought in favour of classifying the view of the client as final. It accords with the stance aptly expressed by Justice William J Brennan in his dissent in Jones v Barnes, 463 US 745, 103 S Ct 3308 (1983) at 763, where he persuasively wrote:

“[T]he role of the defense lawyer should be above all to function as the instrument and defender of autonomy and dignity in all phases of the criminal process.”

Yet, as we have seen, there is ultimately no concrete guidance as to what a defence lawyer should do in a situation such as this. These dicta are certainly persuasive, yet they remain individual cases and it remains the case that no bright line test exists to cater for this situation.

Accordingly, we proceed to consider this issue from a philosophical perspective.

The purpose

Obvious parallels aside, this is an issue that one must consider as distinct from euthanasia debates. This is because it occurs within the context of the criminal justice system, of a “judicial killing”, and, in consequence, it is inextricably wrapped up with the notion of punishment.

The ultimate taking of life in this scenario occurs at the hands of the state. The individual will be judged by their peers in society, and, in consequence, their life may be taken in the name of “justice”.

One purpose of punishment is to encourage an acceptance of culpability on the part of the wrongdoer. Accordingly, if one objective of the execution is to punish the defendant and to compel an acceptance of culpability, then a defendant’s choice to acquiesce in his own execution arguably should not be opposed.

Challenging the pro-prosecution view

Yet the above conclusion derives from an analysis of the issue in a vacuum. It arises from an examination that is purely from the viewpoint of the prosecution and the state alone.

The objective of prosecuting the defendant is ultimately to achieve one or more of the objectives of deterrence, incapacitation or retribution.

In other words, from a prosecution perspective, it would be reasonable to conceptualise the defendant’s acceptance of culpability as a positive thing. One might assume that a prosecution lawyer would meet with encouragement a defendant’s move to accept his or her potential fate, classifying it as a choice to accept punishment. The move could, in this vein, be classified as rational.

Accordingly, a defendant’s acquiescence in their own death is capable of being viewed as legitimate when considered from the viewpoint of the prosecution. When viewed from the client-choice vantage point, the only question is whether the client is competent to make that choice.

The legitimacy of this analysis is instantly diminished, however, when one takes into account the role of the defence lawyer. In other words, the above determination is arrived at in complete ignorance of the defence standpoint – a standpoint which serves to tip the balance in a very different direction.

Forcing the defence perspective: a fight for life

In this scenario the ultimate goal from the point of view of the defence lawyer is to prevent imposition of the death penalty. Consideration of the defence role in this debate clearly tips the scales away from the notion that a defendant’s decision to bear his punishment is legitimate. Personal acceptance of one’s potential punishment does not play a role in assessing the validity of the decision to acquiesce in one’s death when the issue is considered from this viewpoint.

Returning to the present example, the defendant is unwilling to assist counsel in the preparation of his defence. His unco-operativeness has manifested itself in numerous ways. For example, the defendant is disinterested in signing releases in respect of mitigation evidence that could help him at trial. (It is important to caveat that such evidence is not intended to excuse the defendant’s actions. Rather, it is used as a means of allowing the jury to fully assess the man in the dock, essentially showing his peers on the jury the chance in life that he never really had and helping them understand to some extent the circumstances by which he arrived at the door of the criminal justice system.)

The decision of his defence team to conduct thorough mitigation preparation (by more testing means) was taken fully in acceptance of the fact that, once carried out, the attorney-client relationship would be severely damaged to an extent beyond repair. It was a decision taken on the basis that the ultimate objective is to save this man’s life.

The client’s wish to risk his life was simply not an option that could be reconciled in light of this goal. Adherence to his refusal to allow any mitigation to be put forward on his behalf would inevitably lead to his execution. The circumstances of the crime and the heavy racial tension involved in his case made execution an outcome that was entirely probable.

Exploring the role of the defence lawyer

Accordingly, perhaps the philosophical issue at hand urges us to take a closer look at the role of the defence lawyer in cases where a defendant fails to cooperate with the creation of the best defence for his case.

The purpose of defence counsel is to safeguard the defendant’s rights. It is the role of counsel to conduct a defence for his or her client in the best manner possible. Certainly, it is counsel’s role to ensure that the individual’s encounter with the criminal justice system is not fraught with bias. Ultimately, the defence role is to ensure that the defendant is afforded, in absolute terms, a fair trial.

Yet, it is also the role of the defence lawyer to advocate for the client. Counsel must represent and communicate the client’s wishes and, in this sense, be an advocate for the client’s own personal independence. As Alan Dershowitz of Harvard University has aptly put it (Dershowitz, Letters to a Young Lawyer (Basic Books, 2001)):

“As a lawyer, you are someone else’s representative. You’re acting on their behalf. You’re their spokesperson. You may not like the term, but you’re their mouthpiece. You are they, only you are better educated and more articulate. So doing good often means doing good specifically for your client, not for the world at large, and certainly not for yourself.”

In the example I have presented, it is clear that the client’s own personal goals and those of his attorneys clash to some extent. The client holds a tunnel-vision view that refuses to utilise any mitigating material that could help to save his life.

In any death penalty case, the defence lawyer aims to demonstrate to the jury that his client does not deserve extermination. The strategy and ultimate goal of defence counsel is to paint a true picture of the defendant’s life and to put forward any mitigating circumstances that the jury ought to be aware of when deciding whether or not to vote to execute him.

So where does this leave us as to the client’s choice in this scenario? What of the parallel aspect of the defence lawyer’s role, that element of legal representation that ought to reasonably advocate the client’s wishes? Presuming, once more, that the client’s wishes can be taken at face value, what weight should a death penalty defence lawyer ultimately afford to them? Is it ever correct essentially to ignore these wishes?

By following this line of thought, we inevitably arrive at a corresponding classification of the defendant as an irrational actor, seeking to aid the state in his execution, and by extension, perhaps seeking the aid of the state to commit suicide. In a scenario such as this, should the defence lawyer blindly follow the client’s wishes?

Which characterisation do you consider to be correct?

Admittedly, in the present example, were it not for the fact that the client’s choice could result in him being taken to the execution chamber, it would be clearer to view this decision as one that the client is entitled to make, regardless of his lawyer’s opinion.

However, a primary role of legal representation is to advise the lay person beyond his or her own abilities. One simple truth is that the client lacks the legal training and experience that the lawyer enjoys. This argument manifests itself quite clearly. Given the client’s absence of foresight and experience as to how the legal system may operate in a given case, it would be an injustice to the client to allow them to lead the direction of their case.

For this reason, tactical decisions fall to be taken by the lawyer and not by the client. One prominent role of the defence lawyer is to offer and apply invaluable foresight that the client simply does not have. Thus the heart of legal representation clearly entails ensuring the knowledge of the lawyer is applied to the benefit of the client.

From this viewpoint, one logical conclusion is that the autonomy of the client can be sacrificed. In other words, it can be reasonably argued, in certain circumstances, that the client’s views may be forfeited in a situation where he wishes to point his case in a direction that his lawyer considers to be inadvisable. That is to say, usurping the client’s view in certain situations might be considered to be legitimate in the name of administering legal advice.

Considering the issue from this viewpoint, one comes to the inevitable conclusion that, at times, such knowledge should serve to override the client’s choice.

However, conceptualising the decision to supplant the inclination of the client with that of his lawyer as a decision to administer legal advice, ultimately relies on the client’s view being one that relates purely to trial strategy. In other words, the above argument relies on a classification of the defendant’s view as a poor legal decision, rather than as consent.

Although the client’s decision to refuse to establish a good defence and his willingness to face death as a possible penalty may be related in the present example, they are by no means equivalent. In addition, an obvious qualm with the above reasoning is that we must also assume that the lawyer’s view is offered to the client in the name of legal advice, i.e. that it is purely a professional, rather than a personal opinion.

It must be caveated that, not only in death penalty cases but also in those involving real consequence to human life, personal morality can often be extremely difficult to separate from legal opinion.

Death is different

Nevertheless, on balance, the backdrop to this debate being that of capital punishment arguably should serve to shift a conclusion which falls on the side of support for life, rather than death. When death is at stake, it is arguable that the extremity of this risk should serve to remove the autonomy of the living person whose life is in the balance.

When the client may be sentenced to death and the ultimate goal is to prevent imposition of the death sentence – to save his life – the conclusion of lawyers whose work is to defend such cases seems to be that it is correct to take away his autonomy. As noted above, the effects of institutionalisation and the issue of mental health often also carry a significant weight in terms of categorising the defendant’s view.

Putting death aside, I certainly have my reservations with this conclusion. If the client’s view can be taken at face value as their rational wish, how can an outsider, who lacks true understanding of the defendant’s position, disregard that view? No matter how many clients in a similar position the lawyer has serviced, he has never sat in the chair that the client sits in before him. The best advice that a lawyer may give can arguably never account for the emotional experience that the client lives in.

Yet when the ultimate goal is to save a life, the right conclusion seems to be that it is correct to take away the client’s autonomy.

Even if the extremity of this conclusion leaves a slight bitter taste in your mouth, I trust that you would also assess as unsavoury any conclusion arrived at in ignorance of the fact that death is different.

Philippa Greer has spent the summer of 2012 working at the Georgia Capital Defender and the Southern Center for Human Rights. She is currently in New York working for the Criminal Appeals Bureau, the Human Trafficking Unit and the Bronx Defenders in Criminal and Family court.

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