In the Aftermath of the Holsey Execution: What Courts Say About Drunken Lawyers and Hypothetical Justice.

We just simply put a mirror under the lawyer’s nose, and if it clouds up, that’s effective assistance of counsel.

That’s what a lawyer told Ken Armstrong of The Marshall Project after the execution of Robert Wayne Holsey Tuesday night. Armstrong reports that Holsey’s court-appointed attorney, who was later disbarred, “admitted to trying the case while drinking up to a quart of vodka each evening, the equivalent of about 21 shots.”

You might think that supplying a defendant with a drunken lawyer does not meet his right to legal representation, but “for decades, in courts across the United States, defendants who have argued that their trial lawyers were drunk or high have found it extraordinarily difficult to prevail on appeal,” Armstrong reports.

The problem is that it’s not enough for a defendant to show his lawyer was incompetent; he must also show that the trial’s outcome would likely have been different with a competent lawyer. In other words, an appeal must provide hypothetical evidence concerning a hypothetical trial with a hypothetical judge and hypothetical jurors. Good luck with that.

Armstrong goes on to list 10 cases in which courts have refused to throw out a conviction based upon a lawyer’s drunkenness. Scroll down to my personal favorite, in which a defense investigator “said he had witnessed the attorney shoot up with cocaine during trial recesses and saw him using speed, Quaaludes, alcohol, morphine and marijuana after court,” according to a law review article. The attorney’s client was executed.

This, of course, was not the only issue in the Holsey case. His lawyer “had also been preoccupied with pending theft charges that sent him to prison,” and Holsey “had an I.Q. of around 70, his lawyers said, on the borderline of a disability that could have made his execution illegal,” according to Erik Eckholm of The New York Times.

The Holsey case deserved the wide coverage it got. We like to think our system of justice usually works. In this case, however, it seems clear that a hypothetical justice system with a hypothetical competent attorney might have done much better at demonstrating hypothetical justice and hypothetical fairness.

Admittedly, this is not the kind of story that is typically covered by science and medical writers, but it should be. The issues involved–alcoholism; drug use; cognitive impairment due to alcohol or drug use; and the culpability of a mentally ill patient are all subjects that science writers should feel comfortable addressing. And why should they? Because these issues are too important to be left to reporters who don’t know how to cover them.

-Paul Raeburn