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When a death penalty defendant smears feces on his face, in front of the jury

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Photo from website of U.S. District Court (W.D. Mi.).

The death penalty is a barbaric system thinly masquerading in the United States as something not barbaric.

A legitimate debate among the most skilled of criminal defense lawyers has taken place before — and probably still continues and rages — about whether refusing to defend capital cases is more justified than defending them. On the one hand, when qualified lawyers refuse to defend capital defendants, the defendants are shortchanged in their criminal defense, but, perhaps, their refusal would reduce the number of death penalty prosecutions and convictions, lest capital sentences be overturned for ineffective assistance of counsel findings later on down the line (of course, the courts have set a high burden for proving ineffective assistance of counsel). On the other hand, when qualified lawyers accept capital defense cases and clients, they help reinforce a system that requires (at least in federal and some state courts) the lead capital defense counsel to be death penalty-qualified, and that assumes a steady stream of lawyers will be available at the going court-appointed rates.

Three of the lawyers whom I admire the most are tireless courtroom fighters against the death penalty. They are Andrea Lyon, who directs the Center for Justice in Capital Cases; Steve Bright, who has long directed the Southern Center for Human Rights in Atlanta, Georgia; and Bryan Stevenson, who long has directed the Equal Justice Initiative in Alabama.

I admire and thank all quality criminal defense lawyers defending capital cases. Thus far, the only assistance I have provided for such a case is giving a few hours of volunteer work on an appeal of a death sentence in Maryland, during a law school spring break. Doing death penalty defense requires jumping into it with both feet and the rest of one’s body and soul, closing up much of the rest of an individual lawyer’s law practice through the completion of trial (and finding a way to get new clients after the case is finished). I will feel better when I have joined in such defense; if I am unable to make the financial sacrifice to first-chair a capital trial, less time-consuming work is available in death penalty appellate and post conviction litigation, and providing such support for first chair capital trial defenders as mock trial work (I have participated in a psychodrama case workshop for a capital case that resulted in a life rather than a death sentence, but the victory had nothing to do with me).

Imagine pouring your heart, soul, time, and finances into a death penalty trial, only to have your client reach into his pants while the prosecutor is asking the jury for a death verdict, and smear feces on his face. It calls for turning lemons into lemonade, quickly. Anthony R. Garcia — who attended the Trial Lawyers College (which includes an annual death penalty defense seminar) after I did — represents the man, Paul Wesley Baker, who smeared the feces on his face last week. Anthony said of his client, who suffered severe abuse as a child (and, I will not minimize that he was convicted for sexually assaulting three women and murdering one of them), that the feces-smearing “paints a picture that words cannot.”

This just goes to show that even the best lawyers cannot prevent harmful outbursts from their clients. No matter how much the feces-smearing gave defense counsel the opportunity to highlight that the action underlined that the defendant’s self respect was barely existent after all the abuse he faced, followed by the prosecutor’s asking the jury to let him be exterminated, the jury still entered the deliberation room with the shocking feces-smearing incident fresh on their minds. They voted for a death sentence, and the trial judge will decide at the June 20, 2008, sentencing hearing whether to impose such a sentence.

Unless Mr. Baker puts a stop to it, he still gets the chance to appeal, and to seek habeas corpus relief if unsuccessful on appeal. In the meantime I thank Anthony Garcia for standing up for this man — no matter how guilty he is, and no matter how heinous the crime for which he was convicted — and in so doing standing up against the barbaric death penalty system.

Jon Katz