Attorney Misconduct, Death Penalty, Legal Ethics, Politics, Rape, SCOTUS, Supreme Court, Women's Issues

What Do A Wendy Davis Campaign Ad And An Unusual SCOTUS Order Have In Common?

When you make individuals means to your ends only, you become a farce, if not also a fraud.

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This week, a Texas campaign ad and a Pennsylvania death penalty appeal each illustrate what happens when lawyers lose sight of for what — and whom — they claim to be working.

Wendy Davis, in the final throes of her Texas gubernatorial race against Attorney General Greg Abbott, launched a controversial campaign ad a few days ago. The ad accuses Abbott of “siding with a corporation over a rape victim,” spotlighting a 1998 Supreme Court of Texas case brought by a woman seeking damages from a vacuum manufacturer after a door-to-door salesman of the vacuums allegedly raped her in her home. A background check should have revealed that the man had a criminal history. Abbott was then a justice on the Texas court. He dissented from the majority’s decision in favor of the woman. Davis’s ad ignited heated debate, with even her supporters questioning the propriety of the ad. Abbott’s campaign called the ad “despicable.”

Meanwhile, on the other side of the country, the United States Supreme Court on Monday issued a highly unusual order in a Pennsylvania death penalty case. The Court asked the Pennsylvania Supreme Court Disciplinary Board to investigate and take appropriate actions against Marc Bookman, an attorney who filed a petition for review of Michael Eric Ballard’s death sentence. Ballard slaughtered four people in 2010: his former girlfriend, her father, her grandfather, and a neighbor who tried to help the family when he heard screams coming from the home. Ballard was sentenced to death in 2011. In November 2013, the Pennsylvania Supreme Court upheld the sentence. On June 23 of this year, SCOTUS denied Bookman’s petition to review Ballard’s case, but the Court then ordered Bookman to file additional responses about his relationship to Ballard. Apparently not satisfied by Bookman’s replies, the Court referred the case to the state disciplinary authority.

So, what’s the problem in either of these situations? Why the controversy? And what do they have in common?

To start with, the Wendy Davis campaign ad is flagrantly misleading. The case at issue turned on a dry question of liability. Abbott’s dissent relied on an existing agreement between the vacuum manufacturer and independent distributors explicitly giving full responsibility for hiring salesmen to the distributors. Sure, Wendy Davis was right that Abbott did not think the woman could collect damages from the manufacturer. But suggesting that misogyny or callousness toward rape victims motivated Abbott’s judgment is ridiculous.

More troubling, though, may be the fact that the Davis campaign admitted that it never bothered to contact the victimized woman before airing the ad. So, not only did Wendy Davis stoop low by smearing her political opponent, she also cavalierly drew statewide media attention to a rape victim without the victim’s consent.

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The problem in the case of Michael Ballard’s appeal also hinges on consent. Ballard’s own June 2 letter to SCOTUS reveals the reason for concern:

“Honorable Justices:

It has come to my attention via the news media that an appeal has been filed on my behalf contesting my death sentence.

I never authorized anyone to file anything on my behalf. I am not appealing this sentence any further than it has been.

It is my most ardent plea that asks now of you that appeal filed in my behest be rejected summarily. The reasons being: The “Federal Defender’s” filing have acted without my authorization; without my knowledge even. They are attempting to secure themselves as “attorney’s of record” so as to circumvent having to obtain my authorization. And lastly, but most importantly, they are acting against my own wishes to waive my appeals.

Respectfully Submitted

/s/Michael E. Ballard”

If the claims in Ballard’s letter are correct, Marc Bookman of the Atlantic Center for Capital Representation filed a cert petition asking the Supreme Court to review the death sentence of man who neither authorized the petition nor wanted to challenge his sentence further. Moreover, it appears that Ballard did not even know who exactly it was who was trying to represent him or that it was even happening until he saw his case covered on the news.

The picture painted by the Supreme Court’s case file is ugly. You can peruse it here and here. You can read detailed coverage here and analysis by Crime & Consequences here.

Feeling sorry for a man who murdered multiple innocent people is tough. Yet reading Ballard beg the Supreme Court to please stop listening to the guy who claims to be his lawyer almost evokes pity. One can picture Ballard trapped in a weird inversion of a Kafka tale. Instead of being punished for crimes by a shadowy, unknowable legal process, Ballard was represented by shadowy, unknowable counsel, when what he really wanted was to be punished for the crimes he knew he committed.

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The Supreme Court asked for Marc Bookman to explain why he was challenging the death sentence of a man who may or may not have actually been his client, but who pretty clearly did not want to further delay his punishment. Bookman defended himself to the Court, writing in a letter that he acted in “the finest tradition of the pro bono bar consistent with the Rules of Professional Conduct.” Which may be true, except perhaps some bits of Rule 1.2 of the Pennsylvania Rules of Professional Conduct.

I wrote recently about how public interest litigators select clients and cases that will help to advance broader policy goals. When I defended that approach, I sort of assumed that the litigators in question would get their clients’ permission, or at least establish a proper attorney-client relationship, first. In light of Bookman’s alleged activism, I guess I need to state that explicitly.

Did Bookman know that Ballard did not want to appeal? Or did Bookman just not care? Did Davis know whether the rape victim wanted to be featured in a campaign ad? Or did Davis not care? Did they see individuals in these situations, or just opportunities to advance their own careers and causes?

We don’t know what Bookman or Davis knew. Yet, either way, both situations illustrate what happens when someone becomes more intent on serving their own goals — to be elected as a pro-woman governor, to eliminate the death penalty — than with the people they claim to want to help. When someone’s pursuit of ideological ends becomes that myopic, that person starts viewing everyone as mere means to those ends. Even the very people your ideology is supposed to protect become instruments for your bigger project. If this happens, you’re liable to end up being the anti-capital punishment crusader who won’t honor the wishes of someone facing capital punishment. You end up being the women’s rights radical who exploits a woman. You argue that the death penalty violates a man’s Eighth and Fourteenth Amendment rights . . . while disregarding his right to choice of counsel and to authorize a further appeal or not. You campaign relentlessly on the principle that a woman’s consent and self-determination is sacrosanct . . . while blithely assuming that she’ll be fine with whatever you decide to do to her in service of your own aims.

When you make individuals means to your ends only, you become a farce, if not also a fraud. This week, in their own ways, Wendy Davis and Marc Bookman may have each done just that.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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