Singing Loudly: Off the Boat and Swimming with the Mermaids

Singing Loudly

Wednesday, March 02, 2005

Off the Boat and Swimming with the Mermaids

Frankly, I think that Waddling Thunder is missing the mark, which is too bad because I normally quite enjoy his posts. If he really wants to read an opinion that uses faulty logic, he should look no further than the ill devised remedy in the Booker/Fanfan decision.

The evolving standards test is a bit silly but it's the test that has been long used in these cases. It works for something of this nature WT notes his reservation is partially caused by Orin Kerr.

As far as Kerr, I realize that many professors still have an antiquated and wrong view of defense attorneys. I have personally sat through lectures where professors hinted at defense attorneys being nothing more than slimy drunkards who will manipulate the law in whatever way as long as they get the guilty off. It's upsetting that Kerr sinks to such baseless allegations too. I can't stand it when law professors make the same tired allegations (often innocently enough) that defense attorneys are less ethical.

Kerr, quite simply, is wrong with his opinion of this opinion. It's unfortunate that he is not willing to recognize that at times justice can come out of the halls of injustice with the Supreme Court. It happened last year with Washington v. Crawford and this year with Roper v. Simmons.

UPDATE: Actually, it enrages me when professors act like criminal defense attorneys are going to do whatever it takes to mess with the system. I used to think better of Kerr. I know that you can defend Kerr by saying that he's only meaning that the court has opened up this path for capital defense litigators to go down. However, he is suggesting that they do something that is ethically gray. He's using the same tired arguments that defense attorneys look out for "technicalities" so that they can set the guilty free. It's disgusting, and it's uncalled for by someone who is supposed to be a role model to future attorneys. I don't care how innocuous it seems. These sorts of insinuations go too far and are uncalled for.

Upon further reflection on this case and Professor Kerr's post, I think that my initial reaction is incorrect. This isn't actually an ethically area, however, I think that if defense attorneys follow this then it will create further disdain in the public of defense attorneys.

However, this isn't the fault of the Kennedy opinion. It is the fault of the evolving standards test that is not a good test. It is also the fault of a system where lives are exterminated. Any defense attorney worth his bar card will fight for his clients life as far as possible. This means that there will always be delay in the death penalty regime.

This isn't an incentive created by Kennedy's opinion. It is an incentive created by an unnnecessary death penalty regime.


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