In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Representing Individuals Facing the Death Penalty: A Best Practices Manual

This manual is the product of a long and productive collaboration between Death Penalty Worldwide (a project directed by Professor Sandra Babcock of the Center for International Human Rights, Northwestern University School of Law), the law firm of Fredrikson & Byron P.A., the World Coalition Against the Death Penalty, practicing lawyers in at least 15 countries, and law students enrolled in Professor Babcock’s Human Rights Advocacy clinic. This manual is also available in French, and will be translated into Arabic and Chinese by the end of 2013. It is available in Farsi.

As a capital defense lawyer, you have a duty to provide high quality legal representation, which involves several essential prerequisites. You must be independent and free to advocate zealously on behalf of your clients. You must have “experience and competence commensurate with the nature of the offense.” 

You should limit caseloads to a level at which you are able to provide high quality representation. And you should receive adequate resources to enable you to provide a competent defense. Significantly, the duties of legal aid lawyers to provide effective representation are no different from those of private lawyers. This chapter describes the scope of your duties, provides guidelines on the effective use of resources and personnel during your representation, and provides practical tools to make you a better advocate. This chapter also aims to equip you with arguments you can make to the courts regarding your obligation to present a competent defense.

In every criminal case your client has certain rights, and as a lawyer you have duties corresponding to these rights. In a capital case, where your client’s life is at stake, you have an added responsibility to ensure that you conduct a thorough investigation of the crime as well as your client’s personal background in an effort to convince the decision-maker that your client – even if guilty – does not merit the death penalty.

The United Nations Economic and Social Council (ECOSOC) has called on governments to provide “adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases.”  Moreover,international law requires that in a capital case, the due process rights of the accused must be rigorously observed. It is your job as your client’s advocate to ensure that the courts respect and enforce these rights.

The right to legal assistance is essential to secure a fair trial. International law establishes that every person accused of a capital crime, even if indigent, is entitled to legal representation.  In addition, international law provides that the accused must be given adequate time and facilities for the preparation of his defense. At the least, this requirement entails a right to effective legal representation. States must also provide compensation to lawyers who are appointed to represent indigent defendants.  Lawyers have a corresponding duty to cooperate in the provision of these services. Finally, legal authorities, including but not limited to lawyers and judges, have a duty to ensure that legal assistance is effective.

In Artico v. Italy, the European Court of Human Rights held that the state’s obligation to provide legal assistance is not satisfied by the mere appointment of a lawyer, “since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfill his obligations.”

Source: Death Penalty Worldwide, published April 2013, 2nd Edition.

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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