Mimesis Law
25 May 2020

Unsurprising But Still Uncalled For: Tim Kaine Attacked For His Work On Capital Cases

October 5, 2016 (Fault Lines) — It’s obvious that the latest political ad against Vice-Presidential hopeful Tim Kaine seeks to appeal to those who are primarily driven by their lizard brain, and to the Philistines who are willing to sacrifice a constitutional mandate in favor of whatever pulls at their heart strings. The LA Times reports on the latest cheap shot against someone who had the cojones and ethical fortitude to take on the defense of those facing the ultimate punishment:

Republicans launched a stinging ad ahead of Tuesday’s vice presidential debate, attacking Tim Kaine’s work as a defense attorney on capital offense cases.

“Long before Tim Kaine was in office, he consistently protected the worst kinds of people,” the narrator says in the ad “America Deserves Better.”

The Republican National Committee pointed to the Democratic vice presidential candidate’s defense of several convicted murderers on death row in its 1-minute, 23-second spot. The cases include Richard Lee Whitley, who was convicted of murdering a 63-year-old neighbor, and Lem Tuggle, convicted of raping and killing a 52-year-old woman.

“He has a passion for defending the wrong people,” the narrator finishes.

This is a desperate and terminally unoriginal attack against defense lawyers that still manages to pack some punch, but it nonetheless must be repudiated and met with contempt, no matter who’s attacking and who’s the target.

These attacks emanate from either side of the political aisle. Republican candidates, as well as Kaine’s running mate, have been targeted for standing up for criminal defendants. In a similar vein, those running for judicial office have been attacked for their perceived lenience in favor of the accused, with some ads claiming that a sitting judge “took the side of child molesters” or was simply “too lenient” with those sitting in the dock.

To clear the air, in the hopes of maintaining a borderline level of discourse, a brief repeating of what criminal defense lawyers are tasked with is warranted. It is a constitutional mandate, as per the 6th Amendment to the U.S. Constitution, that criminal defendants be assisted by counsel.  After Guideon v. Wainwright in 1963, that same right was extended to the subjects of state prosecutions as well.

The word “criminal” in criminal defense attorney does not define the attorney, the same way that the word baby in baby doctor is a description of the clientele and not the professional. To competent defense lawyers, the person’s “guilt” is totally irrelevant to providing an effective defense, and the failure to provide an effective defense might (albeit rarely) give the defendant relief and make the state start from scratch. Experienced practitioners do not give a discount on retainers or a premium on effort put forth to those who are “innocent,” and they use their skill and experience to provide effective assistance to those considered “deplorable,” all within the applicable legal and ethical contours.

As for Tim Kaine, it’s not the first time he’s been attacked for defending the “wrong people.” It’s hard for learned minds to determine what the “wrong kind of people” is, let alone what “justice” means.  The latter is left for those sitting at the prosecution table. While running for re-election, an ad featuring the father of a victim killed by one of Kaine’s former clients said that Kaine was opposed to the death penalty even when it involved someone like Adolf Hitler.

Kaine represented that inmate, Mark Sheppard, while he was in private practice. Kaine never gave up, and kept fighting for his client to the very end, unlike others who have thrown in the towel while telling their clients to accept their fate.

For what it’s worth, Kaine denied 11 requests for clemency while he served as Governor of Virginia. Most of those requests were based on ineffective assistance of counsel, similar to the ones that Kaine had filed as a defense attorney. He has stated that he is against the death penalty, but as Governor he took an oath to uphold the law of Virginia, which has the death penalty on its books.

Perhaps it’s about the duality of man. Whether the signing of death warrants comports with his stance against the ultimate penalty is another conversation for another day, but the following illustrates the contrast between Kaine the defense attorney and Kaine the politician:

It was spring 2008, and Mr. Green, a 31-year-old who had shot and killed a grocery owner, was on Virginia’s death row. His woes, his lawyers said, dated to childhood; he was born with his umbilical cord wrapped around his neck, repeated three years of elementary school and never learned to tie his shoes.

His was precisely the kind of execution a young Tim Kaine, a Harvard-educated lawyer with a deeply felt revulsion for capital punishment, would have worked himself to the bone to stop.

“Murder is wrong in the gulag, in Afghanistan, in Soweto, in the mountains of Guatemala, in Fairfax County,” he once declared, as one of his clients was about to be put to death. “And even the Spring Street Penitentiary.”

But on the night of May 27, Mr. Green was led into the execution chamber at the Greensville Correctional Center, strapped to a gurney and hooked up to intravenous lines.

Tim Kaine would be well within his right to reply, “So fucking what?” to those attacking him for defending the wrong people. By all accounts, he fulfilled his constitutional mandate to zealously defend his clients to the end. Kaine reminds us that those “wrong people” are just as entitled to a competent defense as those who are deemed “innocent” by the moral police du jour.

Update: During last night’s vice-presidential debate, Tim Kaine addressed the issue when he was asked, “detail a time when you struggled to balance your personal faith and a public policy position:”

For me, the hardest struggle in my faith life was the Catholic Church is against the death penalty and so am I. But I was governor of a state, and the state law said that there was a death penalty for crimes if the jury determined them to be heinous. And so I had to grapple with that.

When I was running for governor, I was attacked pretty strongly because of my position on the death penalty. But I looked the voters of Virginia in the eye and said, look, this is my religion. I’m not going to change my religious practice to get one vote, but I know how to take an oath and uphold the law. And if you elect me, I will uphold the law.

And I was elected, and I did. It was very, very difficult to allow executions to go forward, but in circumstances where I didn’t feel like there was a case for clemency, I told Virginia voters I would uphold the law, and I did.

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