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Stop Thinking Like A Lawyer

Law professors first and foremost teach their student to "think like lawyers," which in legal-land is this special way of cogitating foreign to everyone else. I either missed the import during law school--possible, I suppose, given my Fed Courts grade--or "thinking like a lawyer" is the same thing as logic, except you get to put "esq." after your name.

Thinking like a lawyer may be great when you're in front of a judge, but as University of Houston Professor David Dow shows in his New York Times editorial today, it may be distracting when one is considering politics. Prof. Dow suggests that death penalty opponents should put aside this pesky "innocence" topic and instead focus on the many flaws in our death penalty appeals process:

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

This is thinking like a lawyer, which is to say: show an unhealthy obsession with process. For many voters, if the prisoner did what the state said they did, they should be executed. The mere fact that the jury pool was somewhat different than it should have been, or that the defendant didn't get an extra bite at the appellate apple because their lawyer was negligent doesn't change the fact that the guilty man actually killed someone. So long as the public can be relatively confident in the verdict, then the fact that the machinery clinks a bit as it moves along isn't so important.

Of course, Professor Dow is selective in which process he obsesses over. Racial strikes on juries or incompetent counsel, of course, is critical, but res judicata or federalism concerns are . . . well, not really one of our deeply-held procedural values:

When the Supreme Court brushed aside Mr. Coleman's appeal 15 years ago, the justices said that a death row inmate cannot complain when his lawyer misses a filing deadline, because the lawyer is the agent of the client, and clients are responsible for the failings of their agents.

As a result of this syllogism, my client Johnny Joe Martinez was executed in 2002, because his court-appointed appellate lawyer neglected to file a proper appeal — a mistake he freely admitted to, attributing it to inexperience. When the Martinez case reached the federal courts, those courts, invoking the Coleman decision, said too bad for Mr. Martinez; the mistake of his lawyer was attributable to him.


With due respect to Prof. Dow, his client was not executed because of his trial lawyer's mistake. His client was executed because he knifed a man eight times over $25.65. The best argument on appeal I can find seems to come from here: that mitigating circumstances were not fully presented. A death penalty abolitionist who seeks to focus upon the process will be stymied by the fact that either federalism concerns or filing deadlines will seem secondary to most voters in the face of the relevant question of guilt. To a most non-lawyers, that question alone determines the justice (as opposed to the nicety) of punishment.

And there's some logic to this. Presume that the system is mostly working. Is it just for one murderer to die because his lawyer filed all the appeals properly, and yet another to live longer because his lawyer was incompetent? The best way to challenge that argument is to attack the presumption that the system is functioning within a reasonable margin of error, and even better, that it cannot. But that is precisely what Prof. Dow suggests not be done:

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

Prof. Dow's tendency to think like a lawyer is at its height here, particularly with that insidious word "our." Who is this "us?" Most of the principles that Prof. Dow mentions in his article aren't llegislatively-enacted requirements. Instead they're judge-made rules divined from various constitutional provisions, or what a layman would quite justifiably consider "loopholes." Some of these rules are good ideas, some of them arguable. Nevertheless, they're a weak support upon which to rest arguments of legitimacy ("our legal principles").

Further, focusing on process opens death penalty opponents up to charges of bad faith. Most death penalty opponents, while perfectly happy to point out the flaws in the system, are at heart not that interested in improving it. And Prof. Dow concedes that as a substantive matter, the system is pretty much working: most people executed did commit the crime for which they were convicted. Hence, the question can be asked: if we fixed these procedural problems, are people like Prof. Dow going to stop arguing for the removal of the penalty? If not, isn't the process just an excuse?

Focusing on innocence isn't a "distraction" for death penalty opponents, it's their strongest, best argument so long as they are faced with a polity that doesn't find state-sanctioned execution to be wrong in and of itself. The death of an innocent man, after all, is a tragedy. But the tragic tale of a misfiled appeal leading to a slightly earlier execution of a doubtlessly guilty man holds little traction beyond those who have been trained to think that "substantive due process" isn't a contradiction in terms.

(Hat tip Ann Althouse.)

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