Burger v. Kemp

483 U. S. 776

June 26, 1987

In 1977, Christopher Burger and Thomas Stevens kidnapped a taxi driver named Roger Honeycutt. Honeycutt was eventually locked in the trunk of his taxi, and then Burger drove the taxi into a pond, where Honeycutt was left to drown. Both Burger and Stevens were sentenced to death at separate trials, but Alvin Leaphart, Burger’s lawyer, was the law partner of Stevens’ lawyer. Burger argued that this was an impermissible conflict of interest, and that Leaphart failed to present adequate mitigating evidence at sentencing.

The Court affirmed Burger’s conviction 5-4. Justice Stevens started with the conflict of interest argument, and pointed out that a single lawyer could Constitutionally represent co-defendants. Stevens was unmoved by claims that certain strategic decisions were not taken by Leaphart because of his relationship with the other lawyer; these claims, he said, were mere speculation. Moving on to the inadequate representation issue, Stevens showed that Leaphart had pursued several avenues in a search for mitigating evidence, and had decided not to use several witnesses at trial only because he thought they would harm Burger’s case. While some stones had not been turned over, Leaphart had clearly met the Constitutional minimum.

Blackmun wrote a dissent joined by Brennan and Marshall. His arguments were very fact specific, and they basically amounted to little more than a metric ton of Monday morning quarterbacking. In short, Leaphart’s relationship with Stevens’ lawyer did create a prejudicial conflict of interest, and Leaphart did fail to do a decent job amassing mitigating evidence during the sentencing phase. Powell joined the section about mitigating evidence, and tossed off a dissent of his own which was joined by Brennan. It stressed that Burger had a crappy childhood, was only 17, and had a mental age of about 12. None of this was brought up as mitigation by Leaphart.

I must admit, even when I was 12, I knew that it was unvarnished evil to drown a kidnapping victim in a locked car trunk. It’s bad enough that the four dissenters did not believe Burger deserved death, but it’s made all the worse by the fact that attempted tried to throw a decent lawyer under the bus as a means to save the monster. This was Powell’s final opinion ever, and he closed on a low note. Sadly, it was a note that his replacement has been all too eager to sound in the years since.

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