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