Open Warfare on the Bench in a Capital Case

The judges of the 6th U.S. Circuit Court of Appeals have not exactly been known recently for getting along so well. A few years ago, they squared off against one another in a fight over judicial independence. And today, a bitterly-divided panel granted some relief to a murderer even as several of the judges took pot shots at one another for their views on the role and motives of defense attorneys in capital cases. Here's a good blog site that describes the fight but the question for all grownups here is: why can't they all get along?

This particular catfight started in an otherwise unremarkable capital appeal with a concurring opinion offered by Chief Judge Danny J. Boggs, a Reagan appointee, who remarked that death penalty laws in the circuit essentially create an incentive for defense attorneys to purposely provide ineffective assistance to their clients at trial, especially when the facts of the case are against them, in order to have a better chance of succeeding on appeal. "While I do not assert that the counsel in this or any other case made such a judgment, either consciously or unconsciously," Judge Boggs wrote, "I do note that our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."

Those remarks drew a sharp rebuke from Judge Martha Craig Daughtrey, a Clinton appointee, who wrote to "express" her "dismay at Judge Bogg's unjustified attack directly on both the capital defense bar and indirectly on the members of this court." She continued: "For the chief judge of a federal appellate court to state that it is 'virtually inevitable' that 'any mildly-sentient defense attorney' would considering playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined." Ouch.

Judge Richard F. Suhrheinrich, meanwhile, a Bush 41 appointee, sided with Judge Boggs and took a pot shot at defense attorneys by saying that his "experiences" in capital cases was different from those of Judge Daughtrey. This sort of public brawl makes all of the judges involved seem smaller and more petty than they need to seem in order to maintain the authority and dignity of the federal courts. It's a losing proposition, in other words, to snipe at each other in public this way.

Know what these snippy judges need? A tough trip to the woodshed by a grizzled veteran, Supreme Court Justice John Paul Stevens, who has been assigned to handle emergency matters from the 6th Circuit. He ought to give them a buzz and tell them to play nice together or not play at all.

By Andrew Cohen |  July 24, 2006; 2:00 PM ET
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Actually, this sounds to me like a good open question. Both sides have an interesting argument. The question remains is there a foundation in fact?

We know that judicial decisions obviously affect behavior. And they do this on both the indended and on unintended levels. If they did not then the exclusionary rule for improperly acquired evidence would not exist. Clearly this had the intended effect of reducing illegal search and seizure. But it also had uninteded responses in the many police ruses to hide or include evidence of questionable acquisition. For example, the infamous "dropsy" epidemic in drug cases in the seventies (documented by the late Judge and Professor Irving Younger), where police claimed they saw drug dealers drop the goods to legitamize a search. As Younger pointed out, as officers of the Court, police should not lie and are owed respect for their statements unless disproved, on the other hand no savvy drug dealer would drop the evidence when he knew the police had not reason for the search.

So rather than scold (as Andres always does) the judges, let us openly examine the arguments. I would suggest this is an excellent cadidate for "Freakonomics" style analysis. Identify a behavior that would qualify, see if that behavior increased in high-risk cases over time, in response to appellate rulings. I doubt that it would be that difficult to do and would make a very good Masters thesis topic and worthy of a major Law Review article.

Posted by: Constitutionalist | July 24, 2006 05:28 PM

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