... and if they don't die in a timely enough fashion, Texas will take some extraordinary steps to try to make sure that they can finally get this killing thing done.
Longtime Death Case Lawyer Appeals Ouster (NY Times, March 24, 2003, registration required): For nearly a quarter-century, John Wright has represented Johnny Paul Penry, in a trial, two retrials and appeals on charges that he raped and murdered a Texas woman in her home. Twice, Mr. Wright has helped get the United States Supreme Court to overturn death sentences against Mr. Penry. But as Mr. Penry now appeals a third death sentence, arguing that he is mentally retarded, a state judge in the East Texas town of Livingston has removed Mr. Wright from the case and replaced him with a lawyer who assisted Mr. Penry's prosecution. The judge said that if Mr. Penry someday wanted to argue that his counsel at trial had been ineffective, a fairly common tactic in late stages of death penalty cases, Mr. Wright might have a conflict of interest. Several legal experts question the decision, saying that there is no reason to anticipate such a conflict and that the judge, Elizabeth E. Coker of Polk County District Court, has responded to a problem that is wholly hypothetical. David Dow, a law professor at the University of Houston, says the decision seems to reflect a kind of coziness between judge and prosecution that is endemic to small-town Texas justice, and it may be Mr. Wright's effectiveness that is really the issue. The decision to remove Mr. Wright, a step supported by prosecutors, "has no conceivable explanation except retaliation for litigating a case so well," Professor Dow said.
Even if the explanation given by the judge were objectively reasonable -- which it really isn't -- surely there's a certain conflict of interest in having a person represented by someone who has been prosecuting him. If nothing else, that would seem to be a slam-dunk setup for the state to lose an appeal.
(That said, I can somewhat agree with the prosecution that it is disingenuous to argue on the one hand that you're mentally retarded and thus have diminished capacity for understanding and being punished for your crime, and arguing that you are then competent to choose your lawyer. That said, the state cannot make that argument without conceding that he is in fact mentally retarded, which is why that argument will appear in no legal papers anywhere.)
Regardless of who wins this round, Penry's appeal is headed back to the Texas Court of Criminal Appeals to determine whether or not he should be considered mentally retarded. The TCCA having seldom seen a death sentence it didn't like, and being particularly fond of Mr Penry's death sentences, they will almost certainly find that he is not retarded within the sense of the Atkins decision. Logically, with a lawyer who had Mr Penry's best interests in mind, this would then be headed up the appeals chain (although it would be probably his weakest appeal yet, since the Court left it up to the states to determine standards for mental retardation). Since Mr Taylor does, in fact, have something of a conflict of interest -- having prosecuted Mr Penry with such vigor, surely he himself actually believes the man should die -- heaven only knows if any such appeal will actually be made.
Posted by iain at March 24, 2003 11:41 AMComments
