Nothing More Intractable Than Seeking Death

Over at TalkLeft, Jeralyn Merritt (who's blogging on her own dime from D.C. and needs all the help you can send her) links to a defense lawyer's "Motion to Declare U.S. Attorney's Appointment Unconstitutional" in which he argues that the Bush administration's move to replace Assistant United States Attorneys with party hacks (via a Patriot Act provision that allows for recess appointments) violates his client's rights as well as a federal statute.

[In case you missed it, Paul Krugman accurately observed that the "likely answer" to why this move now "is that for the first time the administration is really worried about where corruption investigations might lead..."]

The motion and attached memo, are accessible via the above link, but I was astonished to read the following comment on the TalkLeft post:

"How does this filing in any, way, shape or manner help the person whose life is at stake in this case? If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? ... If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?"

Iresponded with the following comment:

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante. There are times, indeed, when heeding this advice is appropriate, but they're rare.

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA. This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.

Fight them with any means, inside the law, when they want to kill your client."

What do you think?