Judge Chatigny's nomination is held up

Here's a collection of article about Judge Robert Chitigny, who's been nominated for the Second Circuit.  The main opposition against him seems to be purely political, but there's an interesting issue in his past that touches on legal ethics and which garnered him an honorable mention my Top Ten Legal Ethics Stories of 2005.  In a tense hearing where a lawyer was representing a so-called "death row volunteer," Judge Chatigny used very heavy-handed, threatening language to the lawyer -- which, depending on your point of view, was appropriate, appropriate given the extreme circumstances, less than ideal but excusable given the circumstances, or just plain over the line.  A panel of the Second Circuit, including Judge Michael Mukasey, reviewed Chatigny's conduct and, using some guarded and nuanced language, concluded that Judge Chatigny's behavior was reasonable and not motivated by bias.

UPDATE: I would not have have wanted to be in the shoes of anyone who was involved in that case. Capital defense and the representation of so-called volunteers -- and the judges, like Judge Chatigny, who have to handle those issues -- are doing the hard work that the rest of society isn't rushing to do. I should mention that my views were shaped by one of my best students, James Oleson, who taught a class session in one of seminars, wrote a class paper on this issue which I turned into an exam question, and who wrote two great articles on this issue.

http://law.wlu.edu/deptimages/Law%20Review/63-1Oleson.pdf

http://cardozolawreview.com/PastIssues/29.2_oleson.pdf

My exam question, based on James Oleson's student paper

Example 2.8
 Death Row Volunteer
 (former exam question)

            One of your friends from law school needs help.  Please respond to her question:

            My big law firm allowed me to take on a pro bono death penalty appeal.  In reality, I’m using the case as a chance to switch to public interest law, and death penalty defense cases in particular.  I’ve been getting lots of help from the California Capital Defense Project (CCDP), which is a public interest group that supports death penalty defense teams by providing briefs, organizing strategy conferences, developing legal theories, etc.

            I will represent Ty Jackson who’s been on San Quentin’s death row for eight years since his conviction for the killing a storeowner during a robbery.  The evidence against him is uncontestable (confession, fingerprints, videotape, eye witnesses, and hot capture in the store’s parking lot!), but the trial was grossly unfair: all people of color were struck from the jury pool for pretextual reasons, the judge obviously favored the prosecutor, and the judge wouldn’t allow the defense to develop its theories during the penalty phase.

            We’re preparing briefing before the Ninth Circuit — our best chance for a new trial.  In the long run, the best chance is to keep Jackson alive long enough for the political winds to change and for the death penalty to be abolished or at least suspended.  Realistically, the best we can hope is that Jackson will spend his remaining years in a brutally harsh prison environment.

            I’m preparing to meet Jackson for the first time.  Terry Rushton, a CCDP lawyer, pulled me aside and talked to me about death row “volunteers”—prisoners who voluntarily drop all appeals and seek an early execution date.  Apparently, Jackson has raised the topic repeatedly.  I said I thought that that was the client’s choice.  Rushton disagreed.  Strongly disagreed.  This morning, my voicemail had the following message.  (It wasn’t Rushton’s voice.) 

“Don’t let your client volunteer.  The death penalty is murder.  By necessity you must stop the murder of your client.  Because your client is on death row, he’s undoubtedly suffering clinical depression.  Imagine the brutality of his living conditions.  He’s a client under a disability.  Choose his objectives for him.  You have a duty not just to clients, but also to the system.  Permitting your client’s execution after the prosecutor struck African-American jurors will make that sort of racist execution easier in the future.  There are lots of techniques to prevent clients from volunteering.  Ask the CCDP attorneys.  I tell you this because I like you.  I want you to be a success at what you do, and not make a fatal mistake on your first matter.”

            How should I approach this problem?

*          *          *          *           

Give the lawyer advice.  The only governing law is the ABA Model Rules 

*          *          *          *          *

Comments

[Wick R. Chambers]

Of course I wasn't there. I know only what I've read about the case, but from my seat deep in the bleachers Judge Chatigny did nothing wrong, other than using what might reasonably be described (reasonable minds can differ) as "less than ideal" language in addressing counsel for the death row inmate. As I understand it, there was reason to believe that Ross - the inmate on death row - may have been mentally ill at the time he instructed his counsel to stop defending him and to report to the court that he, the inmate, wished to be put to death. Rule 1.14, Client Under a Disability, addresses one of the most difficult situations a lawyer can be in. How is the lawyer to know if the client is of sound mind? What should she do if she is in doubt? At what point does the lawyer have a duty not to follow the client's instructions without first satisfying herself - against the client's instructions - that the client is legally capable of making the decision to be killed? For me the case was not so much about the death penalty as it was about the sanctity of human life, about the respect for human life in the same sense, although in a different context, that one would have if a lawyer, acting on behalf of her client's literal instructions, petitioned a court to order the withdrawal of treatment that could well save the client's life. I image it would have been expedient for Judge Chatingy to do nothing, to play it safe. By reputation, he is very smart, experienced and principled. One doesn't become a United States Federal District Court Judge without having an awareness of certain political realities and risks. In terms of any appellate court aspirations he may have had, the safe thing for Judge Chatingy to have done would have been to go through the motions. No one would have thought twice. "Everyone" in the court of public opinion either wanted Ross put to death or couldn't have cared less. But if the State had put a man to death who was mentally ill, the system of justice would have failed and no one would have noticed or cared. So as I imagine it - and that's all I can really do - what Judge Chatingy did was insist that "the system", including Ross' counsel, dot the "i's" and cross the "t's" when just about everyone else thought putting Ross to death without further inquiry was exactly what justice required. It must have taken a good amount of courage for Judge Chatingy to publicly - while under stress with a life and a principal at stake - do what he believed was the right thing to do - not for his career - but under law.

[John Steele]

Wick,

Thanks for posting. I read the transcript and concluded that Chatigny lost control of his emotions and made the threats personal (as opposed to legal). Still, I understand the gravity of the situation and that Chatigny was motivated to "do the right thing." I'm OK with the conclusions of the Second Circuit panel, especially given their opinion that some of that Chatigny said should have been left unsaid.

I don't think this incident should be a basis to reject the nomination.

[W.R. Chambers]

John,

A friend who was involved in the case saw my post and sent me a link to the Application For Relief From Stay (Judge Chating's stay). news.findlaw.com/cnn/docs/deathpen/lantzross12605stayapp.pdf Together with your view (thank you) I have a better sense of the facts. I agree the Judge appears to have "lost it" and that he shouldn't said what he did to Ross' counsel. What I remember from the news accounts at the time and from some local chatter was how virulent the criticism of Judge Chatingy was. I didn't think it was fair. I imagined - as best I could - being in his shoes. It was, I thought, a horrible situation ... for everyone. I have no criticism of anyone, including Ross' counsel. I assumed that EVERYONE did the best they could and did what they thought was right. But somehow, for some reason it seemed as if all the emotion of the case focused on the Judge as if the only thing that mattered was what he said to Ross' counsel (I'll have your license). Yes his threat was off-the-wall. Yes the Judge appeared emotionally involved. But, he cared enough to stick his neck out. Why? Because it was his responsibility to decide whether a question about Ross' sanity should be addressed. Everyone else said no. The State said no. Ross' lawyer said no. I wonder what it's like to to be a judge in a life and death case - especially the first time around. I hope he's confirmed.

[John Steele]

Wick,

Thanks. I would not have wanted to be, as you say, "in the shoes" of anyone who was involved in that. Capital defense and the representation of so-called volunteers -- and the judges who have to handle those issues -- are doing the hard work that the rest of society isn't rushing to do. I should mention that my views were shaped by one of my best students, James Oleson, who taught a class session in one of seminars, and who wrote two great articles on this issue.

http://law.wlu.edu/deptimages/Law%20Review/63-1Oleson.pdf

http://cardozolawreview.com/PastIssues/29.2_oleson.pdf

[Wick R. Chambers]

John,

Thanks for your reply and for posting links to James' articles, which I look forward to reading. BTW, Legal Ethics Forum reminds me of the online legal ethics discussion group moderated by Steve Gillers on Counsel Connect what seems like a long, long time ago. It's wonderful that "the conversation" continues and that Legal Ethics Forum is a major reason why.

[John Brown]

Read your post on Chatigney’s rise to the second circuit; another act of insanity by the “man” He ALWAYS treated me like shit and was rude, condescending and had an annoying habit of threatening sanctions all the time. He seemed more conservative and once told me my suits on behalf of cops were a ridiculous thing since “aren’t they all on the same side.” Put that in the dumbshit ignorant category

[CCDP]

Judge Chatigney, human as he, was moved by his emotions. Maybe, if this situation occurs again, he is wiser enough to react as professional.