Capital Defense Lawyers: The Good, the Bad, and the Ugly

21 Pages Posted: 3 Sep 2007  

Sean O'Brien

University of Missouri at Kansas City - School of Law

Abstract

Book review of Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. By Welsh S. White. Ann Arbor: University of Michigan Press. 2006.

Professor Welsh S. White's book Litigating in the Shadow of Death: Defense Attorneys in Capital Cases collects the compelling stories of "a new band of dedicated lawyers" that has "vigorously represented capital defendants, seeking to prevent their executions" (p.3). This review focuses on White's discussion of capital defense attorneys and the current judicial and ABA standards that govern them. Part I discusses the Strickland standard for deciding claims of ineffective assistance of counsel and how it has failed to ensure that capital defendants receive competent representation. Part II discusses Professor White's exploration of the differences between dedicated capital defense lawyers and less experienced or less committed lawyers and their approaches to innocence claims, aggravated cases, plea bargaining, and appeals. Professor White contends that if courts were to more rigorously apply some of their ineffective assistance precedents-- particularly those about investigating mitigating factors--we would see fewer individuals sentenced to death. Professor White correctly concludes that exhaustive investigation marks the difference between effective capital defense attorneys and other defense lawyers, but he provides few details about the investigative process behind the successful defenses discussed in his book. It would have been helpful to hear how the dedicated lawyers portrayed in his book obtained the time and resources needed to assemble a competent defense team and thoroughly investigate the client's life history.

Reprinted from MICHIGAN LAW REVIEW, April 2007, Vol. 105, No. 6. Copyright 2007 by The Michigan Law Review Association.

Keywords: capital defense, defense attorneys, death penalty, execution, capital case, inhumane, capital punishment, capital crimes, defendant, Strickland, mitigation, mitigating factors, ineffective assistance, ineffective representation, effective representation, effective assistance, death row

JEL Classification: K00, K14, K41, K42

Suggested Citation

O'Brien, Sean, Capital Defense Lawyers: The Good, the Bad, and the Ugly. Michigan Law Review, Vol. 105, No. 6, 2007. Available at SSRN: https://ssrn.com/abstract=1010102

Sean O'Brien (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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