Capital Punishment "Volunteers": What’s Defense Counsel to Do?
LACBA Update, November 2001

By Terri Towery, member, LACBA Professional Responsibility and Ethics Committee. Towery has worked at the L.A. County Public Defender’s Office since 1986, both as a trial attorney and in the appellate division of the office. She was co-counsel for Lyle Menendez in the retrial of that case. Her current appellate assignment involves handling pretrial writs and assisting trial counsel with law and motion matters for all of the capital cases in the office. The opinions expressed are her own.

"Think of how many you don’t even know about. You’re so right. That’s it."

This was the penalty argument given by capital defendant Bill Bradford to his jury after they heard evidence that he murdered two young women and brutally sexually assaulted five others. George Rivas, the alleged ringleader in the recent Texas prison escape that resulted in the killing of a policeman, told his penalty phase jury, "I don’t want to just exist anymore like an animal in prison." Both juries obliged and returned death verdicts.

These men are extreme examples of what capital defense attorneys call "volunteers." A volunteer may want to ask the jury to execute him or her. Or, more frequently, he or she may want to control the presentation of evidence in the trial so that a death verdict is nearly guaranteed. The most well-known example of the latter type of volunteer and of the concomitant dilemmas such a defendant creates for defense counsel is Ted Kaczynski.

Kaczynski was diagnosed as paranoid schizophrenic. His attorneys recognized that a defense based on mental illness would be the only way to save Kaczynsi’s life. He, however, vehemently opposed presentation of such evidence. Brilliant as well as mentally ill, he told the court he would rather do without counsel than be portrayed as a "grotesque and repellent lunatic" in the trial. After being denied his requests to block presentation of evidence of mental illness and to represent himself, Kaczynski pled guilty for a sentence of life without the possibility of parole to avoid that portrayal.

So what is the proper role of capital defense counsel in this situation? The answer to that question depends upon whom you ask. The courts have artfully dodged the question. The California Supreme court did at one time state that a capital defense attorney is duty-bound to present mitigating evidence, even over the client’s express objection. However, it subsequently withdrew from that position. When control of the presentation of mitigating evidence is the issue, most courts now choose to apply "ineffective assistance" rather than ethics rules and will generally uphold defense counsel’s decisions either way.

The rules of ethics also give little assistance. On the one hand, defense counsel is charged with the duty of loyalty, competent representation and zealous advocacy. On the other, defense counsel is expected to abide by the client’s desires concerning the objectives of the representation. However, the virtual impossibility of distinguishing between "objectives" of the case (which the client controls) and the "means" of litigation (which the lawyer controls) leaves the capital practitioner without real guidance.

In the end, there is no clear answer. The ethical/moral dilemma of counsel seems to turn on individual beliefs. Most capital trial attorneys tend to believe that they must try to persuade the client to allow presentation of evidence in the manner most likely to result in a life verdict. And most believe that they must present mitigating evidence without the client’s cooperation or consent if necessary. As one well-known and respected attorney says, "I did not come into this fight to lose. If my client really wants to die, he can arrange for that himself. I will not help him."

Perhaps that is a paternalistic attitude. Or perhaps it is born of the repeated experiences of capital litigators that clients’ feelings and wishes change over time. The volunteer of today is the model "lifer" inmate of tomorrow.

The juries granted Bradford and Rivas their apparent wishes to die. But do they, or will they in the future, continue to harbor those wishes beyond the turmoil and emotion of their trials? Somehow I doubt it.