Tuesday, July 25, 2006
A concurring judge questioned findings about defense lawyers.
CINCINNATI (AP) -- Lawyers might be tempted to offer a weak defense in death penalty cases because many execution sentences are being overturned due to attorney incompetence, the chief judge of a four-state federal appeals court said in an opinion released Monday.
Prisoners who receive ineffective assistance are likely to be spared, "certainly for many years, and frequently forever," wrote Chief Judge Danny Boggs of the 6th U.S. Circuit Court of Appeals.
"To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court," Judge Boggs wrote.
The 6th Circuit hears appeals of federal cases from Ohio, Michigan, Kentucky and Tennessee. Judge Boggs' comments came in a unanimous three-judge ruling that threw out the death sentence for a man whose execution has been pending 21 years.
Dewaine Poindexter was convicted of aggravated murder in 1985 for killing the new boyfriend of a former girlfriend in Cincinnati. The appeals court cited ineffective counsel in ruling that Poindexter's death sentence must be thrown out unless Ohio conducts a new penalty proceeding within 180 days.
Judge Boggs called the possibility of deliberately ineffective representation a "moral hazard" but said "any sensible attorney ... would have to be blind not to reason."
He also said his thinking was only speculation, and he did not criticize attorneys in this or any other case.
Concurring but questioning
Judge Martha Craig Daughtrey, who was on the three-judge panel, concurred in the ruling but wrote a separate opinion to express her dismay with Judge Boggs' "unjustified attack" on defense lawyers and, indirectly, on other members of the court.
"For the chief judge of a federal appellate court to state that it is 'virtually inevitable' that 'any mildly-sentient defense attorney' would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing," she wrote.
Judge Richard Suhrheinrich, who delivered the opinion of the court, also wrote separately to concur with Judge Boggs' remarks.
"I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase," he wrote.