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Ethics dilemma for lawyers when inmates seek death

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BRETT BARROUQUERE | November 19, 2008 05:29 PM EST | AP

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LOUISVILLE, Ky. — John Delaney faced the toughest moment of his legal career _ his condemned client wanted to drop his appeals and die by injection, an act Delaney opposed and had been trained to try to prevent.

"What do you say?" asked Delaney, a public defender in northern Kentucky who represented Marco Allen Chapman.

It's a question that has arisen 131 times since states resumed executions in 1977, and each time it leaves defense lawyers struggling against their training to act in the best interest of their clients and justice.

"We're trained as lawyers to be an advocate for someone and fight as hard as we can," said Stephen Harris, a University of Baltimore law professor who represented execution volunteer John Thanos in Maryland in 1994. "Here's someone who says, 'I don't want you,' then, 'I want to die.'"

The first volunteer after the U.S. Supreme Court reinstated the death penalty in 1976 was Gary Mark Gilmore, put to death a year later by a firing squad in Utah for killing a gas station attendant. The 128 men and two women who have followed suit often gave similar reasons _ mainly remorse, a desire for atonement and not wanting to spend their lives in prison _ according to the Death Penalty Information Center, an anti-capital punishment group that compiles statistics on executions.

About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned their appeals and asked for their sentences to be carried out, said Richard Dieter, executive director of the center and a law professor at Catholic University in Washington. Each time, the inmate either fired the defense lawyer or told them to stop filing appeals.

"It amounts to the same thing," Dieter said.

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law.

"Their hands are pretty well tied," Mello said. "These are the cases that haunt you. This is the most hideous of cases."

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994.

"I really liked Keith," said Cahill, a public defender in Boise. "You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do.'"

Harris, who opted not to try to talk Thanos into sticking with his appeals, said cases of death penalty volunteers always come with second thoughts, but knowing that a client went willingly to his execution is something attorneys just have to come to grips with.

"I don't know what was in his mind," he said. "You always have regrets about that stuff. But I think I made the right decision."

Chapman, 36, is to die Friday at the Kentucky State Penitentiary in Eddyville for killing a 7-year-old girl and her 6-year-old brother six years ago in a crack cocaine-fueled attack on a family for whom he'd worked as a handyman.

Delaney, 49, was assigned the case in 2004, and Chapman quickly made it clear that he didn't want a defense and didn't want his life spared. Chapman said at several court hearings and in letters to judges that he wanted to plead guilty and be sentenced to death.

To Delaney, Chapman's reasoning for dropping his appeals made sense on some level.

"Marc wanted to try to make amends to the family," Delaney said.

That didn't make it easy to step out of the way of Chapman's execution. Delaney repeatedly tried to get the inmate to at least let a jury determine what sentence to impose. He refused.

Delaney told Chapman to fire him before pleading guilty.

"I wasn't going to help him," Delaney said. "He wasn't in left field for what he wants, though."

A judge granted Chapman's request to dismiss Delaney and appointed him standby counsel in case Chapman changed his mind.

On Wednesday, the Kentucky Supreme Court rejected two requests to halt the planned execution, saying Chapman is competent to make his own decisions about whether to die. Barring a last-minute change of heart by Chapman, the ruling could clear the way for his wish to die.

Delaney tells himself he did everything possible for his reluctant client.

If the execution goes through as scheduled Friday night, he said, he'll be having a drink and tell himself that at least one more time.