In Oregon, a judge has granted death row inmate Gary Haugen’s motion to dismiss his lawyers after they persisted in taking measures to block his execution. They had declared he was not mentally competent to waive his appeals and allow his own state-decreed death to proceed.
Leave it to lawyers to be convinced that they know what’s best, even when it involves someone else’s wishes about his own life and death.
In an attorney-client relationship, the lawyer is ethically bound to do what the client wants as long as it is legal and within the bounds of the ethical constraints on the lawyer. A lawyer can render advice and should; a lawyer can explain the legal consequences of a course of action. But substituting the attorney’s judgment for that of the client is taboo…except, all too often, in cases like this one, in which a death row inmate decides that letting justice take its course and accepting the state’s death decree is preferable to rotting in prison. That, to many lawyers and courts, is sufficient proof of derangement to allow the lawyer to treat his client as a person who is mentally disabled or of diminished capacity, and to do what the lawyer thinks his client would want if he weren’t out of his gourd.
For the convicted prisoner, it is a true Catch-22. If you are sane enough to accept the legal consequences of your crime, your defense attorney is likelyto use that to argue that you are too crazy to make your own decisions. Thus the lawyers representing Haugen, a double murderer, concluded that the 49-year-old was psychotic and suicidal. “It speaks volumes to the psychotic process that is going on here,” said Haugen’s former attorney Keith Goody of Haugen’s death-wish. “Somehow the prosecution is his friend when the prosecution is seeking to have him executed. It makes no sense.”
Of course it makes sense. The decision of a convicted murderer to accept his punishment is responsible, courageous, and rational. When a death row inmate’s lawyers attempt to foil his legitimate desire to die, they are the ones being irrational…and also unethical. Virtually all criminal defense attorneys oppose the death penalty, and long to be the ones to handle the landmark case that ends forever what they consider a barbaric practice . When a client does not share their commitment, however, it is unethical for the lawyer to use the client to further the lawyer’s objectives—the exact opposite of a lawyer’s duty.
When there are independent factors, completely separate from the prisoner’s desire to be executed, that objectively suggest that a client is not capable of making a decision affecting his welfare, then a lawyer should consider treating the client as incapacitated. But the mere decision to save the state time and money while accepting punishment is not proof by itself, as some anti-capital punishment zealots believe. Many convicted murderers were advocates of the death penalty before their arrests. In such a case, remaining true to that belief indicates integrity, not madness.
Virginia has it right. In a 1999 legal ethics opinion, Virginia confirmed that it is a lawyer’s ethical obligation to follow a client’s wishes when he has decided to stop appealing his own death sentence. It appears that Oregon is getting it right too.