Balkinization  

Wednesday, June 22, 2005

Death Trials as Games

Mark Graber

"Touch move" is a central rule of tournament chess. You intentionally touch a piece, you must move it (assuming the piece can be legally moved), even if you realize you could have made a much better move. Most games have similar rules, reflecting a belief that strategy is an important component to determining winners and losers.

The Supreme Court's recent decision in Rompilla v. Beard highlights how similar death trials are becoming to games of strategy. The issue was whether two public defenders were constitutionally ineffective because they did not find evidence concerning the defendant's mental condition and history of abuse that might have been a mitigating factor at his trial. A 5-4 majority found ineffective assistance. As an opponent of the death penalty, this is good news. But I have to confess there is much to Justice Kennedy's dissenting opinion that this was not ineffective assistance. I've certainly seen courts let much worse go by.

The more interesting political and constitutional question is why we should care very much about the ineffective assistance question when even the dissent admits that a different investigation would have turned up "useful information." So what if it turns out that the reason counsel failed to turn up mitigating evidence was a reasonable use of scarce time and resources rather than a clear legal mistake. I've lost chess games because I made a mistake an intentionally touched the wrong piece. Do we also execute people because their counsel made a reasonable decision that in hindsight turns out to be a mistake.

Comments:

I think the point here is nothing more profound than that any procedure that aspires to be finite must have a stopping rule. A point at which you say, "Enough, already; You've had your shot at winning it."

We may disagree where that point would be, but it has to be somewhere, and somebody is always going to be unhappy when it's reached.
 

to a point i agree with brett that there is a stopping point where you say enough already. for me, even taking into account that i am generally against the death penalty, the stopping point is once it has been determined that the evidence overlooked, the investigation not undertaken, etc. would not have changed the outcome of the trial if all had been properly put before the jury. i don't know how you can determine that without a jury, but there must be some way of doing it.
 

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