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Tuesday, December 14, 2004

Interesting SCOTUS Stuff 

Well, with some Supreme Court decisions finally coming out, perhaps it is time to engage in some light blawging. Although there is that delightful case that parses the meaning of "subparagraph" and "clause" in statutory construction, including a separate opinion by Scalia describing how the Court screwed it up, my attention is on the odd case of Florida v. Nixon.

Here, defendant Nixon committed murder, and the state had overwhelming evidence, including a confession. Mr. Nixon was mentally impaired, possibly brain damaged, and could not meaningfully participate in his own defense. For example, "On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him." His lawyer abandoned all hope of winning the guilt phase of the trial, and decided to focus all attention on the penalty phase, hoping to avoid the death penalty. He tried to explain this strategy to Nixon, but was not very successful. Guilt was conceded during the penalty phase; and the jury ultimately recommended death.

The issue in this case was ineffective assistance of counsel, not unusual in capital cases. More specifically, it was argued that the concession of guilt was a de facto guilty plea and waiver of trial rights, which requires express consent and waiver, which Nixon did not (and probably could not) give. The Court unanimously rejected this argument.

Aside from the constitutional aspect, this case is interesting from a pure strategy perspective. The idea behind the whole defense is that asking the jury to spare the defendant's life is less credible if innocence is strenuously argued in the previous phase. Preserving a sense of honesty with the jury in the guilt phase by not truly contesting overwhelming evidence is an interesting strategy, if unsuccessful here.

In a trial of this magnitude (which must have taken some time, even if the evidence was not contested) the lawyers certainly develop a relationship with the jury; they pick up on personality traits, and decide what they like and dislike. It might indeed be difficult to wash off the smarm from vigorously arguing for a position that the jury certainly, by the end, would know is completely untenable. If the defense against guilt seems artificial, what would they think about the penalty phase arguments?

Then again, it seems like it could backfire. If a lawyer doesn't even fight to save his client in the guilt phase, why should the jury think he is even worth sparing in the penalty phase? The whole trial might feel like just going through the motions before they reach the inevitable conclusion: guilt and a death sentence.

When it comes down to it, bad facts are bad facts. There may be no getting around them, but I have to hand it to those lawyers who try. And I have to agree with the Court here; no second bite after trying this strategy. That would be way too much of a carrot to give creative defense lawyers, probably to the detriment of their clients.

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