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SCOTUS Refers Death Penalty Lawyer to Pa. Disciplinary Board

By Mark Wilson, Esq. on August 13, 2014 | Last updated on March 21, 2019

The U.S. Supreme Court has taken the highly unusual move of referring a lawyer to the Pennsylvania Supreme Court's Disciplinary Board for investigation. The case involves an appeal by Michael Ballard, who was sentenced to death in 2010 for killing his ex-girlfriend and three others, The Wall Street Journal reports.

Ballard's attorney, Marc Bookman, the director of the Atlantic Center for Capital Representation, filed an appeal to the U.S. Supreme Court on Ballard's behalf.

Ballard, though, said that he didn't want to appeal to the Supreme Court.

Client's Choice?

So why would the Supreme Court refer this matter to the Pennsylvania Supreme Court for discipline? WSJ quoted a Yeshiva University law professor who "expressed concern that a lawyer could be punished for aggressively protecting a defendant's rights." But aggression in this case was a bit too far. The decision about whether to continue with litigation, including the decision about whether to appeal, is firmly in the client's hands.

When it comes to the death penalty, however, all bets are off. Just last month, the Florida Supreme Court refused to allow a lawyer to withdraw from a case where his client actually wanted to argue in favor of the death penalty, the ABA Journal reported. A concurring justice in the 4-3 decision noted that "the highly significant state interests in ensuring that the death penalty is administered fairly, reliably, and uniformly" mean that "a capital defendant cannot choose in the first instance whether to pursue the direct appeal."

Not Ineffective Assistance of Counsel

That's all well and good at the state level, where many states, including Florida, have statutes requiring the automatic appeal of a death penalty conviction, placing the decision out of the defendant's hands. The U.S. Supreme Court, on the other hand, has no such rule. Could it be considered ineffective assistance of counsel to abide by a client's decision not to petition the Supreme Court? Or is this a case where the attorney knows better than the client?

Apparently it's not ineffective assistance, according to the Criminal Justice Legal Foundation's Crime & Consequences blog. As long as everyone can be satisfied the client is making a free, reasoned decision (i.e., the client is not volunteering for the death penalty because of mental illness), that's his decision and no one else's. Clients decide not to pursue appeals for many reasons, and if a clear-headed, thinking person wants to go forward with the death penalty, why stop him? There may be an argument that a person who volunteers for the death penalty is, ipso facto, not clear-headed, but no one's successfully made that argument quite yet.

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