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Counsel must be competent to deal with death penalty matters

The death penalty process in terms of its constitutional motions and challenges depends on the strength and independence of the Courts.

“That’s the lynchpin of the process and one has to ask the question, ‘Are the judiciaries in the Caribbean in such a position that we can say that they are sufficiently strong and independent?’.”

Attorney-at-law Gregory Delzin posed this question while speaking at Greater Caribbean’s for Life World Day Against Death Penalty webinar Saturday, October 10.
Delzin was among the panellists including Archbishop Jason Gordon, Antiguan and Barbudan attorney Dr David Dorsett and Kevin Rivera-Medina, attorney, and president of the World Coalition Against the Death Penalty.

In answering the question, Delzin replied in the affirmative. He commented since the execution of Glen Ashby in 1994, there has been a “movement” in the judiciary not to allow itself to be “embarrassed” by such an occurrence.

In his discussion on the role of competent counsel in the context of the death penalty, Delzin opined that the lawyer’s competence depends on the stage of the proceedings, how the lawyer is able to assess the needs of his/her client at that stage of the proceedings and how strong the lawyer is to withstand the social pressures in small societies like the Caribbean.

“That is a key element of the success in any lawyer in dealing with death penalty matters before the Court,” Delzin said.

Delzin began his talk with the definition of competent counsel. He cited the American Bar Association which states that legal competence is measured by the extent to which an attorney is specifically knowledgeable about the fields of law in which he or she practises, performs the techniques of such practice with skill, manages such practice efficiently, identifies issues beyond his or her competence relevant to the matter undertaken to the client’s attention, properly prepares and carries through the matter undertaken and is intellectually, emotionally and physically capable.

“Now that is exceedingly relevant to the context of the death penalty because work in the death penalty taxes you. It is a minefield in a sense of intellectual challenge as well as emotional discipline. And it is usually undertaken in a context of social discord,” Delzin said.

He explained sometimes the work of the death penalty counsel could be an “isolationist” type of approach especially for those who live in small societies like the Caribbean. He however stressed that there must be a singular belief that the death penalty is wrong if one is to be motivated to work in this area over a long period of time.

“And you have to be psychologically willing to deal with failure. And failure in the context of the death penalty involves the death of your client. So that in itself is a traumatic experience for young attorneys who are not prepared or who do not understand the demands of working in the area of the death penalty.”

Delzin also highlighted that “strangely enough” in the Caribbean most murder trials are funded by legal aid which many senior lawyers are not willing to take.

“So you have the young lawyers who are willing to do a lot of the murder trials…you get that conflict and you get that dearth of experience in relation to a lot of the death penalty trials,” he said.

The execution of a person has nothing to do with criminal law; it has to do with an area of constitutional law which demands a different skillset. To this end, Delzin asserted one must have an inherent “disrespect” for the current law.

“Now I’m not using the word ‘disrespect’ in a sense that lawyers should not respect the law, but you should have to in a sense always be willing to push the boundaries. In a sense that when you’re dealing with death penalty matters, you have to be able to think out of the box and you have to be able to say that the current law that’s allows the execution is wrong….” Delzin said.


By Kaelanne Jordan


Twitter: @kaelanne1