SCOTUS, Never Trust Anyone Over 30

Well, this week anyway.  I’ve explained the significance of Baze v. Rees, the lethal injection case to be argued before the Supreme Court on January 7th. But I was unaware, until reading all about it in Arbitrary and Capricious and In the Moment, that the lead attorney for Baze and another death row convict was a Kentucky Public Defender, David Barron, age 29.

While many attorneys try, few ever get to stand before the Supreme Court and do their job.  I’ve never been there, though I’m available if anybody needs me to carry their briefcase up the stairs.  So the fact that David Barron fought for 3 years to get this case before the Court is quite a coup.  Needless to say, David went to Brooklyn (that’s in New York for all you Texas folk) Law School.

Not only his youth, but the fact that he is a Kentucky PD, makes this achievement all the more remarkable.

Public defenders work one of the lowest rungs of the legal profession, one that is often not very highly regarded by other lawyers. Many young lawyers right out of law school often get their start as public defenders, and often race from case to case with barely enough time to read the file, much less do the in-depth investigation attorneys in private practice can do. 

Public defenders have traditionally received little funding, particularly in the South. Kentucky has one of the lowest-funded offices in the country.  The starting pay for most Kentucky’s public defenders is about $38,000 a year. 

Kentucky spends about $33.5 million in 2005 (the last year for which numbers were available) on a population of 4.1 million. That’s about $8.14 per person for public defense — 23rd among the 30 state-run public defender offices nationally.

Not too shabby to get into the big game on $8.14 per defendant. 

There has been some  earlier comment about the ability of lone wolf criminal defense lawyers to find their way into the SCOTUS well without tripping all over themselves.  The academics, beloved of the mandarins of the Supreme Court bar, think that the reason criminal defense lawyers do so poorly in Washington is that we’re just not up to scholarly snuff. 

Well, there is a deafening silence in the blawgosphere of lawprofs criticizing David Barron’s work on the Baze briefs.  Mind you, these aren’t the papers of some highly paid, big name, fancy pants criminal defense lawyer, but of a lowly Kentucky PD, who was likely paid $38,000 a year when he started work on Baze.  Again, not too shabby.

In a sideways dig (not to criminal defense lawyers, but to “certain justices”),  Volokh indulges in a flight of fantasy by surveying the means of executions in foreign countries.


Several Supreme Court Justices believe that foreign law and practice can help elucidate the meaning of the United States Constitution. They contend that the experience and practices of other countries are relevant to the meaning of our founding charter; what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us.

 Notice the non sequitor about learning from the experience of others versus relevance “to the meaning of our founding charter?”  That’s the way to promote one’s politics while infusing a little plausible deniability into your sentence.  Because I’m sure executions in foreign lands offer no lessons to 110% red-blooded Americans. We die different. It’s not easy to make the phrase “open-minded” sound pejorative.  But nary a negative word of our 29 year old “shaggy-haired” protagonist.

Not to prejudge the outcome, but it appears we may have a leading candidate for the 2008 Criminal Defense Lawyer of the Year.  Regardless of the outcome of Baze, and it may well be a fascinating outcome indeed if it does nothing more than tie up executions for a while to give everybody a chance to reassess the question of whether killing people is as good an idea as they think in Texas, David Barron has done himself, his office, criminal defense lawyers and certainly all the maligned Public Defenders of this nation proud.

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