Best Practices in Counseling? Ethical Practices in Counseling?

This morning, on the WBUR (Boston) radio station, a criminal trial professor (from New York) was discussing the case of Dzhokhar Tsarnaev, recently convicted of the bombing of the Boston Marathon two years ago, with hosts Margery Eagan and Jim Braude.

As you may be aware, the punishment phase of the case began today – the question is whether Tsarnaev will get the death penalty or life in prison. The hosts asked whether the defense would be able to argue, to mitigate the punishment and try to avoid the death penalty for their client, that the older brother, Tamerlan, who died in a police shootout (and after being run over by his brother!), was the one truly behind the bombing — essentially that Dzhokhar was “under the influence” of his brother.

The lawyer being interviewed was asked whether, if Dzhokhar doesn’t want to use that defense, but rather considers his brother to be a hero in avenging US aggression overseas (comments he scrawled in ink and blood on the tarp covering the boat in which he hid before being arrested), could Dzhokhar deny his lawyers permission to use that defense theory. The lawyer said that it is clear that he could not forbid his lawyers from arguing that, and opined that these were merely “trial” tactics that are not in the client’s control, but rather in the hands of the lawyers.

I was frustrated that the radio show was not taking calls, as I was eager to dispute that conclusion, and to point out that this type of lawyering is far different from that which we in the clinical community practice as we guide our students through the principles of client-centered lawyering. It was anathema to me to hear the role of the client completely discounted.

Criminal law is not my expertise, but it made me wonder whether my assumptions about clinical teaching don’t apply in criminal and/or death penalty clinics. In a death penalty case, after conviction, at the sentencing stage, does the defendant lose the right to control his/her defense? I’m eager to hear the views of those teaching criminal clinics.

3 Responses

  1. This is a wonderfully complex area, to which there is no easy or right answer. At least one of my case rounds each year, and if I have the right mix of students I will do it more, we discuss the Unabomber case and use this New Yorker article from March 16, 1998.
    (William Finnegan, “Defending the Unabomber”)

    Judy Clarke was one of his lawyers. In the opinion of many, a great lawyer.

    Since I do not think there is a “right” answer to the question, as with many areas of law, and as we try to teach in clinic, approaching the questions and issues with mindfulness, compassion, and having a good reason to explain why you take the path you do is perhaps the best we can ask of ourselves as lawyers.

  2. Isn’t it completely consistent with the view that he was under the influence of his brother that he would idolize the brother? Why would the lawyer give up that argument due to exactly the detrimental and controlling influence that is alleged? I look forward to hearing from criminal law experts on this, though.

  3. It’s a surprisingly complex issue that can be addressed several ways.

    One is to use the “abide & consult” duties under Model Rule 1.2(a). Notice that as to tactics, the lawyer need only “consult” with the client and traditionally the lawyer controls the tactics. But the defense theory often rises to the level of an objective. That is, one theory might be a mere mitigation and another might be a justification and you might believe that the difference between acquittal and mitigation is an objective rather than a mere tactic. At that point, the rule gets harder to apply, given that the competent client controls the objectives and the lawyer abides by the client’s choice.

    In reality, MR 1.2(a) is rarely invoked and these issues rarely get litigated. For a fascinating case where we actually do have written opinions, read these documents: (1) William Finnegan’s article, “Defending the Unabomber,” from The New Yorker; (2) the trial court decision in the Unabomber case; and (3) the Ninth Circuit opinions (and especially Reinhardt’s concurrence) in that case.

    Before reading all that, realize that the lawyer for the Unabomber — whom some believe manipulated her client so that she could control the tactics and plea — was the same Judy Clark who represents Tsarnaev. I hasten to note that Clark is one the most deeply respected criminal defense lawyers in the nation. It just really is a tough issue.

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