The United States Army has announced that it will seek the death penalty in the murder trial for SSG Robert Bales. Bales is accused of killing 16 civilians in Afghanistan, 9 of which were children. In a news story published today, that writer points out that although 16  servicemen have been sentenced to death since 1986, none been executed since 1961. The case is particularly news worthy in the Northwest because Bales is being held at Joint Base Lewis-McChord, outside Tacoma, Washington.

I have not posted anything to this blog since October, in part because I was appointed lead counsel in a death penalty case in Canyon County about the middle of that month. For sixty days I worried about whether the county would in fact seek the death penalty. While prosecutors cogitated on the complexity of imposing the ultimate sanction, we did research and read reports and went to a seminar to "update" ourselves on all the issues. As I write this, and am headed today to see my client, the death penalty has been taken off the table. The case will go forward without the ax hanging over our client’s head. 

For that, I am thankful.

Every case, whether routine or extraordinary, presents unique challenges. Here are two tips for lawyers and clients when dealing with the stress of criminal trials:

First, get a good grip on the facts alleged by the prosecution.

Second, develop a good understanding of the legal theories in play.

A recent attempt to settle a drug case was made more difficult by the fact that the prosecutor "knew" my client had been involved with another defendant in a similar case.

"You know that he sold drugs to X," he told me as we tried to come to a favorable resolution instead of trying the case.

I did not "know" that to be true, and neither did the prosecutor. He assumed it was so, and X likely said it was, but that did not make it true. My client denied he had ever sold drugs to X, and that disputed "fact" made it nearly impossible to settle the matter. Sometimes the facts that the prosecutor alleges simply cannot be reconciled with your (or your client’s) position. When that occurs, and neither side will change positions, trials happen. 

I mentioned above the time required to "update" myself with respect to the death penalty. That article I linked to indicates that 9 of the 16 death penalty cases in the military system had been overturned on appeal. I personally have been co-counsel to three persons who had been sentenced to death at trial. I was not the trial lawyer in the case, but rather served as one of their lawyers in federal habeas cases. These cases are brought as a last resort to stop the execution.

In each case, and after years of work, all three of these clients ended up with a life sentence and avoided the death penalty. The real key in each case was my having teamed up with other lawyers who specialized in this type of matter. The learning curve was far too great for me to have handled the matters by myself, and I was fortunate to work with really bright lawyers who knew and understood the complexities of the law in the area.

My point is this – the law can be very complex in its application to particular facts. If you are facing a criminal charge you may generally understand the law, but that is not the same as really understanding the law’s application to your case. Get a lawyer who will spend the time to get a grip on that part of the case.

So back to work. I have thousands of pages of investigative reports to read and motions to file, and there are only four shopping days to Christmas. That assumes the world does not come to an end tomorrow. I am not betting on the Mayans. 

If you have a case and want to talk, give us a call. Courtney’s off to Chicago, Patty’s trying to balance the checkbook, and I may soon settle down for a long winter’s nap… but go ahead and call anyway. And enjoy the holidays!