Balkinization: Executions, Jewish Law and the Old College Try

Executions, Jewish Law and the Old College Try

Mark Graber

Texas is in no danger of becoming a Jewish theocracy, at least of the Maimonidean version. Maimonides insisted that members of the Sanhedrin pull out all stops defending condemned persons. Texas prefers death row lawyers who are good losers. The question the Supreme Court is now considering is whether to sanction the execution of Robert L. Roberson, whose co-counsel at crucial points seemed more interested in defending themselves than their client.

Maimonides in The Book of Judges celebrates last minute reprieves for capitally sentenced prisoners. As the condemned is being led to execution, an announcement is made, “If there is anyone who knows a rationale leading to his acquittal, let them come and tell us.” If anyone claims to have a rationale, the court is reconvened and reconvened as often as any person provides a rationale for avoiding the execution. The prisoner gets two additional cracks at the apple. Two scholars accompany the condemned to the execution and make every effort to discover a reason why the execution should not be carried out. Rabbis brag about their capacity to find reasons to forestall executions.

Seth Kretzer and James Volberding, two lawyers in Texas who represent death sentenced prisoners, have a differently philosophy, what we might call the “old college try” theory of criminal defense. They take a shot at a first habeas hearing. If they lose, then they write the prisoner a letter declaring their defense at an end. They urge their “client” to be a good sport and accept his or her fate. Unlike the sore losers at many anti-death penalty organizations, who fight to the very bitter end, Kretzer and Volberding inform their client that they consider it too much of a bother to consider grounds for a subsequent habeas petition or clemency. After all, a true gentleman resigns in a bad position and does not require his or her opponent to proceed to checkmate. In their efforts to ensure this gentlemanly spirit of their defense of death row inmates, Kretzer and Volberding threaten with sanctions any less supporting lawyer who tries to pursue appeals for their “client.” Apparently, Justice Sotomayor aside, the Supreme Court thinks that is constitutional.

Over the last year, Kretzer and Volberding have established new gentlemanly standards for defending capitally sentenced persons. Volberding represented convicted murderer Robert L. Roberson at his state federal habeas corpus hearing and failed to investigate whether trial counsel had been ineffective during the penalty phase, despite substantial evidence supporting such a Sixth Amendment claim. Kretzer successfully petitioned to become co-counsel with Volberding for Roberson during Robertson's federal habeas appeal. After becoming co-counsel for Roberson , Kretzer spent substantial energy demonstrating that Volberding, his comrade in arms, had not forfeited Roberson's Sixth Amendment claims, even though the federal district court had reached that conclusion. When Roberson unsportingly sought counsel that would represent his interests rather than those of his lawyers, Kretzer first misrepresented the nature of his appointment to the Fifth Circuit, claiming that he was lead counsel who acted independently of Volberding, and then sought to prevent pro bono counsel from appealing the adverse (to Roberson) decision to the Supreme Court.

Fortunately, Roberson has the advantage of something more than Jewish law and basic decency on his side when the Supreme Court considers his petition for certiorari this week. Federal statutory law requires that capitally sentenced defendants be represented by experienced attorneys. Martinez v. Ryan (2012) mandates that convicted defendants do not waive their constitutional rights when their counsel negligently fails to make the appropriate argument in a state habeas corpus proceeding. Common sense dictates that an attorney considering whether the previous representation of a condemned person fell below legal standards not be the person who did the original representation or the legal buddy of that attorney. As the author of the leading treatise of legal ethics in Texas declares, "Not only do [Mr. Kretzer and Mr. Volberding] appear to have had conflicts of interest, they also appear to have acted in a manner evidencing the adverse effects of those conflicts--to their client's detriment."

What the justices will do is unclear. On the bright side, the justices do not appear to like persons who represent death row inmates. On the less bright side, the court seems to appreciate death row lawyers who are satisfied with the old college try. If, as some of the justices believe, the United States needs a religious revival, perhaps we might start with religious principles for defending persons sentenced to death, at least when they seem to receive far more support in the actual text of federal law and judicial precedent than do other religious principles being urged upon the court

Posted 12:09 PM by Mark Graber [link]