Copyright (c) 1999 Loyola Law Review
Loyola Law Review
ARTICLE: FOLLY BY FIAT: PRETENDING THAT DEATH ROW INMATES CAN REPRESENT THEMSELVES IN STATE CAPITAL POST-CONVICTION PROCEEDINGS
45 Loy. L. Rev. 55
Clive A. Stafford Smith *, Remy Voisin Starns **
It is an aphorism that nobody contests: The person who represents himself 3 has a fool for a client. However exceptional his natural abilities, however superior his legal training, however thorough his preparation of the facts, the lack of objectivity of the person who proceeds pro se is sufficient to brand him an idiot.
Yet, the law occasionally reaches a conclusion that simply makes no sense. In these cases, the judiciary risks alienating itself from the people it serves, as the nation looks on askance. For example, most citizens believe it obvious that the guilt or innocence of the accused should be the most important factor in any criminal proceeding. The United States Supreme Court, on the other hand, strains credulity when it suggests that there may be no constitutional bar to executing the innocent. 4
Likewise, nobody in his right mind would expect the average inmate to be capable of proceeding pro se in a capital case -- researching the most complex issues known to the law, investigating the facts from his narrow death row cell, and providing himself with meaningful legal representation. Yet a plurality of the Supreme Court has indicated that an equitable justice system may deny legal representation to those on death row. 5 "If the law says that," as Mr. Bumble might bellow, "then the law is a ass, a idiot!" 6
Fortunately, with the recent conversion of the Mississippi Supreme Court, 7 now thirty-three of the thirty-eight states with the death penalty ...
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