Death Penalty: Federal Judges Feuding

LOUISVILLE (TBD) -- Judge Danny J. Boggs is a conservative Kentuckian and Ronald Reagan appointee on the 6th Circuit U.S. Circuit Court of Appeals, and he speculated openly recently that Ohio's defense lawyers may purposefully be doing a crummy job in death-penalty cases so their clients can be spared years later. He is the court's chief judge, and the highest-ranking officer in the federal judiciary in Ohio, Michigan, Tennesse and Kentucky.

Boggs sees a ''continuing oddity of the circumstances" where cases are overturned because lawyers failed to represent their clients skillfully at trial. In other words, they got killers off by losing.

"Thus, if counsel provides fully-effective assistance, and the jury just simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever,'' Boggs wrote. (Poindexter v. Mitchell, 01-3250/3300)

Judge Richard F. Suhrheinrich, a Michigander who also serves on the 6th Circuit, weighed in that, "I agree with Judge Boggs. " In essence, their argument is that the federal courts encourage a climate of ''ineffective assistance of counsel" allowing convicted murderers to avoid their dates with the executioner. Boggs said the federal courts had created a "moral hazard" through their jurisprudence.

Now, Boggs and Suhrheinrich have drawn a sharp rebuke from Judge Boyce F. Martin, another Kentuckian. He is a one-time chief judge who was appointed by former Democratic President Jimmy Carter. Martin said their reasoning ''strikes me as demonstrating callousness" and indicates some of his colleagues on the appeals court have lost touch with legal world reality.

"I also believe that it is simply incorrect, and contravenes common sense, to suggest that the protection of the Sixth Amendment right to counsel by the federal judiciary has somehow created an incentive for defense counsel to intentionally fail to provide adequate representation during capital sentencing proceedings," Martin wrote. (Keith v. Mitchell, 01-4266)

"The proposition that a trial lawyer would ever intentionally lose at trial or sentencing in the hopes that his client will have the resulting conviction reversed on appeal would seem incredible to an attorney with any experience at the trial level, and is indicative of the tendency of appellate judges to be oblivious to the real world of litigation strategy."

Martin said he thought the federal judiciary has become ''increasingly willing to play fast and loose with the individual protections guaranteed by the Constitution."

Tomorrow, the 6th Circuit takes up another death-penalty question -- is lethal-injection a cruel and unusual punishment? As the preceding comments make clear, this court is deeply fractured and has been openly feuding about capital punishment. And at this point in time, it does not look like the judges have found any way to bridge their divide: instead the feuding is probably going to get worse.