Falling to the Singularity of the Black Hole (Movie)

The Black Hole of Litigation

Staying Out and Getting Out

In litigation where the accused person is eligible for the death penalty and the government’s desire for death as punishment is not derailed, the litigants at some phase of the litigation will enter into the Black Hole of Litigation.

Not so different in effect from the term “black hole”, which is use by the scientific and sci-fi community, the Black Hole of Litigation is best identified as the point in time when the gravitational pull of human decency, rationality, appropriate criminal justice goals and constitutionally mandated protections succumb to mob mentality, motivated by such indistinguishable factors as political opportunism, vengeance, machismo, insecurity and irrationality.

The motivations and causes of the gravitational pull of the Black Hole of Litigation, while easily identifiable in retrospect, are difficult for even some seasoned litigators to foresee, as the motivations are deceptively associated with conduct justified by such clichés as “only following the law”, “doing my duty”, “adhering to my oath of office”, “fulfilling my duty to the people who elected me”, “protecting the people of this community”, “crime deterrence”, “victim impact evidence” and “state’s right to a fair trial” that litigants are well within the Black Hole of Litigation before they determine the accurate reasons that their compass of good judgment is no longer effective in making sound litigation decisions about the predictability of the government actors involved in the killing process.

Recognizing the motivations for the gravitational pull that bring a litigant and the litigant’s support team into the Black Hole of Litigation is relevant in developing ways of getting out and staying out of the Black Hole of Litigation. While recognizing motivations are relevant, this skill alone adds little to either the prevention or recovery process.

With our present understanding of human behavior, these ill-formed motivations of persons who become governmental actors as their way to survive in life cannot be changed. While unchangeable, there is much that can be done to minimize the consequences of these actions and even more to minimize the compensation these governmental actors receive for their conduct. For example, see the article about Dr. James Grigson and Dr. Ralph Erdmann.

Is the Black Hole of Litigation just another Cliché to be used by Frustrated Death Penalty Defense Advocates or is it a Definable, Sui Juris Phenomenon with which we must deal?

For over a quarter of a century we have heard such clichés as the “Death Penalty is a part of the Political Process.” While relevant, the recognition of this fact is only one of the numerous relevant ingredients to understanding the decision making process of governmental actors.

It did not take a social scientist to proclaim that the South is “the buckle of the death belt.” This statement also speaks to a relevant consideration. Primarily, it speaks to the geographical differences in the number of executions, which account for the fact that in some areas the tasks of advocates is much different and more difficult. Here again, geographic differences in attitudes only offer another ingredient, but not a complete explanation for the motivations of governmental actors.

To these catch phrase explanations identifying predictable difficulties in death penalty cases, we must now add the Black Hole of Litigation, a more comprehensive and all-encompassing articulation of problems, which face advocates attempting to assist in death penalty litigation.

The Statutory and Constitutional Scheme for Determining who is Death Eligible is a Graveyard Joke upon Society that Aids in the Creation of the Black Hole of Litigation

Guised as constitutional protections, often acting in concert to appease popular opinion, as recorded in public opinion polls, legislative bodies and courts have devised punishment infliction schemes that require the government to prove a “limited” number of aggravating circumstances. As this graveyard joke upon society progresses, the accused is allowed to present any and all mitigating circumstances to triers of fact who are skewed to accept death as punishment as an acceptable societal requirement. While these statutory schemes have presented interesting and defining litigation, they have done little to curtail the government’s application of a false solution to real problems.

In addition to an elaborate, but meaningless process to access the punishment of death and various requirements for counsel representing persons in death penalty trials, the reality is that most individuals are underrepresented in death penalty cases. In spite of the occasional bone tossed to death penalty litigants, we are left with a death penalty defense system comprised of advocates, who, for the most part, are incapable of getting and staying out of the Black Hole of Litigation.

Realistically stated, in the early stages of litigation, where there is the greatest opportunity for relief, we have the least skilled, least prepared and least knowledgeable advocates. It is too simplistic to assert that these early stage advocates only need better training and more funding.

The task of representing persons before conviction and sentencing inflicted upon these advocates is too daunting. Admittedly, better training, more funding, better job security that would minimize obvious conflicts of interest, and more funding will help initial death penalty defense advocates, but each of these qualifiers speaks to the problem rather than a course of action that will provide a workable solution.

A Part of Our Problem that Lands us in the Black Hole of Litigation and Prevents our Return is that we Play the Game of the Government Actors

The Government, in reality, Selects, or, better stated, Deselects the Advocates for People whom it wishes to Kill for Punishment

Without overstating this issue or placing too much blame upon an apparently incurable problem, we must recognize that in attempting to establish effective government funded support programs to advocate for persons in death penalty cases, a very effective model of advocacy has been stifled, in part, and, for practical purposes, eliminated. This model is conflictineering.

Just as a review, the technical models of representation that are used by legal advocates are categorized here. These systems are persuasion, influence, legalistic reasoning and conflictineering. There are many nuances to these categories, but a simplistic explanation of these systems is as follows.


Persuasion -- the power of a person's personality, expressions and presence to win over and advance his or her position.

Influence -- the capacity or power of a person to produce effects on others by intangible or indirect means, best illustrated by example with the term "political influence."

Legalistic Reasoning -- reliance on law.

Each system is most frequently used with another system. Once the representation ends it is difficult to determine which system was responsible for results. Advocates who are super-achievers use the fourth basic system for individuals who are normally foreclosed from effective use of the other three systems. This system is Conflictineering

There is a section devoted exclusively to conflictineering to enter click here.

Conflictineering is the newest and least understood of identifiable categories of skills. Most skilled advocates have not explored this skill. Let us hope, more advocates will identify this aspect of their adversarial skills and begin writing about characteristics of this skill that they can identify and transfer to other persons.

Conflictineering is the very effective model of advocacy, which has been stifled.

The Government Controls the Death Penalty Defense Purse Strings

It is not necessary to discuss this further.

Do Jurors Really Care Why Johnnie Can’t Read and that Johnnie was Never told that Murder is a No - No?

Statutorily and constitutionally, we are directed that the presentation of mitigating circumstances to jurors places the Good Housekeeping or UL seal of approval on governmental killing.

Every Podunk Court in the country is willing to fund and allow presentation of evidence about Johnnie not being able to read and having to live in a neighborhood infested with other frequent law violators.

The question becomes, are the people in the community on the skewed jury who establish the community values that determine that Johnnie will not be given an opportunity to read or otherwise adequately nourished, willing to accept the error of their public policy as a reason to allow Johnnie not to be executed?

This is not a statement that mitigating circumstance should not be mustered and presented, but a statement that relying on the presentation of mitigating circumstances as the sole avenue of relief from a death sentence is a step on the suicidal path toward the Black Hole of Litigation.

Enough of the things that Speed the Trip into the Black Hole of Litigation; Let’s Observe some things that Prevent Death Penalty Litigants from Slipping into the Black Hole of Litigation

Early Formation of a Diversified Death Penalty Defense Team

This team needs persons who understand that things are happening outside the boxes. Click here to go to Things are Happening Outside the Boxes.

Strategy Specialist on Team

Death penalty defense teams need a strategy specialist. Click here to go to Strategy Specialist.

Safe Harbor Member of Team

There needs to be a member of the team who has "Safe Harbor" protection. As a rule, this member must be a lawyer who can litigate and pursue the type of hard hitting matter that are required to equip the Team with the clout to balance the power of the Prosecutors.

The Reality is that if you are Reading this Material, your Greatest Calling May be that of a Consultant

There is nothing that seasoned death penalty defense advocates do more and have less training in and know less about than the role of an effective consultant.

Most consults begin something like this.

“Can you tell me where I can get a person to testify that the world is square and not round?” Or, maybe, “Say, what is that case that says all death sentences rendered in Jones County will be reversed?”

Yes, we are being a little facetious, but the point is that the question posed has little to do with the help that is needed and most consultants in death penalty defense work dive into answering the posed inquiry rather than becoming the type of consultant that provides assistance that helps prevent the litigation from slipping into the Black Hole of Litigation.

Just who is best cut out to be a consultant?

If you are a person who loves to ask “why”, a curious person who likes to find out how things work and why they happen, you may should just be a person eligible to become an effective consultant. You also need a broad view of life and an even broader view of your area of expertise.

You need rigorous analytical skills, integrity in being able to forthrightly disagree, and the ability to be flexible in dealing with ineptness and surprises. You need to have the energy and time commitment to analyze and pull apart complex problems, and really drill down to find the root cause of need of those calling upon you.

While none of these requirements rank higher than others, as they all are needed, you absolutely must be committed to delivering substantial and lasting change to our people, the accused clients, whom you are ultimately attempting to assist. If you do not find it fulfilling to brainstorm potential issues and answers, you should leave the task to others.

Importantly, consultants also need to be comfortable with ambiguity and realize that each consult will not end with a one-time phone call.

Consultants must understand that their highest and best role will at times be to admit there is a better person to perform the consult, although this should not be used as an excuse to shun an obligation.

Most consultants in death penalty defense work understand that in reality, it is the consulting person’s client, who is in need of the aid; even understanding this, most frequently in empathy for the defense team, the consultant masks opinions in order to be socially acceptable to the defense team.

Effective death penalty defense consultants must be available 24/7/365. This cannot happen if the consultant is operating without 2002 technical skills.

Effective death penalty defense consultants must have empathy with accused clients and be able to view each problem as if it were their own problem.

There is Much to be Said About Good Consultants in Death Penalty Defense Work, but We Part with a Short Overview

Most people have the misconception that a consultant in a death penalty case is a person who has all the right answers. Actually, it's quite the opposite. A great consultant in a death penalty case is a person who asks all the right questions. If you ask the right questions, the answers will eventually become self-evident, albeit the answer that the client may need a better defense team. Many members of death penalty defense teams know the right answers, they've just never asked themselves the right questions.