British-American U Law School owner performs badly in court

Today's San Francisco Chronicle (www.sfgate.com) reports that the US Circuit Court of Appeals voted unanimously to reverse the death sentence of a criminal, because of the poor work done by his lawyer in defending him.

"Yesterday's ruling said Visciotti's attorney, Roger Agajanian, in trying his first capital case, had decided no jury could sympathize with his client and did little to investigate his background. Agajanian was suspended by the California State Bar in the early 1990s for unrelated reasons and later resigned but he has been recently reinstated to practice."

Agajanian is the founder-owner of British-American University School of Law, a California-approved, non-ABA distance law school.

 

Chron articles are as follows:

Appeals court orders death sentence revisited - lawyer inaccurately portrayed killer at trial as 'bad seed,' it says

Federal appeals court blocks murderer's execution


Previous thread on this topic: Law School Dean Reinstated. The older thread has some additional links about Agajanian's abysmal performance in court.

 

Now, just a minute. Before everybody jumps to the conclusion that this lawyer did a crummy job therefore BAU must be a crummy law school, I'd like to point out that one of the MAJOR criticisms of the death penalty is that appointed defense lawyers are often incompetent to handle what is, after all, a subspecialty of criminal defense. And the VAST majority of THOSE lawyers got their degrees from ABA schools.

Death work is EXPENSIVE. Without literally thousands of dollars available for investigations and evaluations, NO lawyer can do an adequate job. And death defendants are usually poor.

Death work is HIGHLY SPECIALIZED. It is a different world from the relatively free-wheeling world of ordinary felony defense because EVERYTHING must be tried, whether promising or not. EVERY objection must be made, EVERY theory must be tested, EVERY writ must be applied for, because it is a DEATH case.

Believe me, it costs society MUCH less to incarcerate for life than to execute.

Let me also point out that EVERY lawyer defending a death case will attempt to convince the appellate court that he was incompetent. One's professional pride does not stand in the way of saving another person's life.

Nosborne, JD
(who has defended murderers but so far avoided the death penalty)

 

This is one of the classic arguments against the death penalty. And it is very true. It takes millions of dollars and many years to put someone to death against their will. This is absolutely necessary to ensure the accused's rights in what should be a free and just society. To those who would say that it SHOULDN'T cost that, that inmates have too many rights, I say it is a price we pay for freedom. Remove those rights and you will lose many of yours, right away! Not only that, look at all the people sentenced to death that were not guilty of their crimes. I saw one estimate where more than 100 people were wrongly put to death during the 20th century. And that was before DNA testing.

Incarceration costs can be high. Our 500-bed prison in Nevada cost the state about $20,000 per day, plus the amortized cost of the $29 million facility over 20 years. It adds up to about $20,000 per inmate, per year. Costs in urban areas like Washington DC could be double. But even at that, the inmate would die long before the death penalty break-even point.

Another argument against the death penalty is that it doesn't deter murder. Statistics back this up; there is no appreciable lessening of murder rates in states with the death penalty. In fact the most murderin' state in the Union is Texas, and they're death penalty process is pretty swift.

Eye-for-an-eye? We don't do that for other crimes.

Finally, there's the "no human should take another's life, even in the name of justice" argument. Well, that's the one I gotta give a little on. I just think there are a few people that have turned in their human race membership cards, and society needs to spend the money necessary to kill them. Dahmer would've been one, IHMO, along with Mcveigh and our latest, Moussaoui.

 

It's inherently unlikely, in my opinion, that imprisoning a 25 year old murderer for the rest of his life (50 years +) could be less expensive than promptly executing him.

If you choose the worst of both worlds, namely giving a person the "death penalty", but then never executing the sentence and giving the inmate endless specialized appeals for the rest of his life, then the additional cost is the fault of a flawed justice system.

How about this counter-argument: Every attorney that does that should be disbarred.

The reason is that the attorney either:

A. Really was incompetent, in which case he should be disbarred. Or

B. Is lying to the appellate court, in which case he should be disbarred.

Hence, every defence attorney in a death penalty case is either incompetent or unethical, and should be disbarred. QED.

 

You can't put a price on justice.


Bruce

 

I like that. I like that a lot.

We here in MA just had to endure the trial of "Mucko" McDermott, who executed 7 of his co-workers, then attempted to excuse his crime by blaming mental illness. He tried to sell the idea that he thought he was transported back in time, and was actually killing Hitler and other Nazi leaders. Fortunately, the jury didn't buy it, and he was sentenced to 7 consecutive life terms with no chance of parole (we don't have the death penalty).

The only good news is that Mucko isn't likely to appeal based on legal incompetence. His lawyer is one of the most experienced trial lawyers in MA, especially in murder cases. I've faced him in court, and besides being very slippery & cute, his huge ego would never let him attempt an appeal based on legal incompetence.


Bruce

 

In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. (Dallas Morning News, March 8, 1992).

The taxpayers of Suffolk County and New York State paid $2.5 million for the capital murder trial of Robert Shulman, who was sentenced to death on May 6. Because prosecutors sought the death penalty, the trial was 3.5 times more expensive than if the death penalty had not been sought. The cost was more than double what it would have cost to keep Shulman, 45, in prison for 40 years. The public cost of Shulman's sentence will continue to climb throughout his incarceration. (Newsday, 7/12/99)

The State of Ohio spent at least $1.5 million to kill one mentally ill man who wanted to be executed. Among the costs were: $18,147 overtime for prison employees and $2,250 overtime for State Highway Patrol officers at the time of the execution. This does not include overtime for 25 prison public information officers who worked the night of the execution. The state spent $5,320 on a satellite truck so that the official announcement of Wilford Berry's execution could be beamed to outside media, and $88.42 for the lethal drugs. Attorney General Betty Montgomery had 5 to 15 prosecutors working on the case. Between 5 and 10% of the annual budget for the state's capital-crimes section was devoted to the Berry case for 5 years. Keeping Berry in prison for his entire life would have cost approximately half as much. (Columbus Dispatch, 2/28/99)

In Indiana, three recent capital cases cost taxpayers a total of over $2 million, just for defense costs. (Prosecution costs are usually equal or more than defense costs and appellate costs will add even more expense.) Former death penalty prosecutor David Cook remarked: "If you're gonna spend this type of money in a system where there isn't much resources to go around, I think that we have a reasonable right to expect that we're gaining something by doing this. . . .We don't gain anything by doing this." (Indianapolis Star/News, 2/7/99)

According to an article in the Louisiana Sunday Advertiser, prosecutor Phil Haney, who often pushes for the death penalty, says if he could be sure 'life in prison really meant life in prison,' he would be for abolishing the death penalty. It's a matter of economics, he said. "It just costs too much to execute someone." (The Sunday Advertiser, 8/23/98)

A report from the Nebraska Judiciary Committee states that any savings from executing an inmate are outweighed by the financial legal costs. The report concluded that the current death penalty law does not serve the best interest of Nebraskans. (Neb. Press & Dakotan, 1/27/98)

Florida spent an estimated $57 million on the death penalty from 1973 to 1988 to achieve 18 executions - that is an average of $3.2 million per execution. (Miami Herald, July 10, 1988).

(Excerpts provided by the Death Penalty Information Center.)

"Prompt executions" don't happen in a free and just society, only in repressive regimes. We are a nation of laws and rights, which are expensive to maintain. Swift justice often results in no justice at all. It rightly takes time to determine truly who is and is not guilty, who should and should not die. Kill them, if you must, but be prepared either to write the check, or forego the same rights that protect you.

 

It was not my intent to engage in a debate about whether there should be a death penalty. My personal view is really not relevant to the theme of this thread which concerned the professional activities of Mr. Agajanian.

All I want to point out is that few lawyers do enough death work to get really good at it and, as it happens, there are a number of issues raised in connection with a death penalty prosecution that are unique to that sort of case.

Here in New Mexico, our Public Defender Department maintains a separate Death Penalty Unit in an effort to develop expertise and concentrate unique resources to deal with the few death cases we have here. In Texas, as I understand it, lawyers are appointed from the private bar and required to defend with neither the experience nor the resources to do an adequate job. Thus, it is perfectly possible for an honest, conscientious lawyer to do an inadequate job, to be, in other words, incompetent.

Heck, the right wing governer of Illinois placed a moratorium on executions after HALF of the inmates on death row were found to have been improperly convicted!

I also should state that I may have misled folks with my signature line. I have never DEFENDED a death case. I did not mean to imply that I have never LOST a death case. Not quite the same thing!

Nosborne, JD

 

When a person receives a prison sentence the sentence is normally executed immediately and the individual immediately goes to prison.

It's only in death penalty cases that there is suddenly this idea that the original trial was worthless and the defendant needs an endless series of new trials (unless one of them finds for him, in which case that trial was definitive) before the sentence can be executed.

Nevertheless, my original point stands: The cost of death penalty cases has nothing to do with the cost of the death penalty itself. The cost of a lethal injection (50 cents worth of barbiturates) is less than housing somebody for fifty years in a maximum security prison. It's ridiculous to argue otherwise.

The additional costs of death penalty cases are the result of the politics surrounding those cases. Death penalty opponents try to drive up the cost and expense of death cases, then they issue press releases like the ones you posted highlighting the cost and expense of death cases. It's political rhetoric.

Then why hold any trials at all, if their verdicts aren't credible?

I didn't catch that. If somebody murders me, how many appeals do I get? In the case of crime, *no* rights protect me.

 

I don't know whether the law is different in California where Mr. Dayson is, but in New Mexico virtually ALL jury trials in felony cases that result in a conviction are appealed, whether the sentence is death, imprisonment, or probation. Furthermore, the vast majority of such appeals consist of a technical re examination of the trial by the Court of Appeals.
The difference with death is that it is permanent. You can be released for prison if you win your appeal.

Nosborne, JD

 

If you're not willing to accept that the legal system that protects those accused of (and even convicted of) capital crimes also protects your rights, then there is little to discuss.

The right to appeal is inherent in our justice system. How many appeals and on what grounds is something judges decide. They decide what to hear and not hear. It is a complicated thing to put someone to death; the penalty, once administered, cannot be remedied.

Timothy McVeigh actually asked for the swift administration of the death penalty. And he got it. Still, his conviction cost in the neighborhood of $100 million.

I'm sure if you were accused of a crime you didn't commit, or didn't receive a fair trial regarding a crime you did commit, you'd want the opportunity to appeal the decision to a higher court. Trials sometimes are unjust. That's why we have an appellate system.

You conveniently ignore the now hundreds of people put on death row who did not commit the crimes of which they were accused. Without the appellate process, many would die unjustly. Many have.

The cost of lethal injection is about $100. But it costs tens of thousands more in security, overtime, administrative costs, etc. An execution is a circus, and circuses cost money. Plus, the costs of the justice machine necessary to put someone to death costs far more than the execution of a life sentence. Ignoring this is ignorance.

Managing inmates--including those on death row--has hardly made me sympathetic to them. You have to do a lot of bad things--or one really bad thing--to even get to prison. But we need to be sure bfore we kill someone in the name of justice. That surety costs a lot. A lot more than lifetime incarceration.

I happen to be in favor of the death penalty in some cases. But I'm willing to acknowledge the costs involved in order to be sure. People who bitch about the rights of criminals conveniently ignore that those same rights extend to them--and not just in criminal cases. Judicial review is crucial to justice, and that costs money. The more severe the penalty, the more precautions are necessary to ensure the system gets it right. Anger over those costs doesn't make them go away. But washing away justice will.

 

There really isn't any reason why a "prompt" execution can't be scheduled for several years after trial. That leaves time for credible appeals that are supported by substantial new evidence, and also for an automatic procedural review of some kind. If the appellate courts need more time, then they can order it.

In your first post in this thread you said this:

Death work is HIGHLY SPECIALIZED. It is a different world from the relatively free-wheeling world of ordinary felony defense because EVERYTHING must be tried, whether promising or not. EVERY objection must be made, EVERY theory must be tested, EVERY writ must be applied for, because it is a DEATH case.

Believe me, it costs society MUCH less to incarcerate for life than to execute.

I'm just suggesting that if you eliminate all the spurious appeals that don't have any credible grounds and saw off a majority of death row inmates in five years, costs would come down a lot.

That still leaves the issue of the morality of the death penalty which hasn't been addressed yet. (I don't intend to, either.) But it deals pretty effectively with your and Rich's cost objection.

 

The trouble with eliminating spurious appeals is that a Court pretty well has to HEAR the appeal in order to decide whether it IS spurious.

Nosborne, JD