Before he became governor of Virginia, Sen. Tim Kaine (D) worked as a defense attorney. A Catholic who is staunchly opposed to the death penalty, Kaine did pro bono work three decades ago on behalf of two defendants in capital punishment cases.
A recent New York Times report details Kaine’s first case.
His client was Richard Lee Whitley, convicted of murder for strangling and slitting the throat of an elderly female neighbor, and then sexually assaulting her corpse, after an alcohol and drug binge.
It was “not a sympathetic case,” but Mr. Kaine, driven by his faith, “was extremely passionate about it,” said his co-counsel, Tom Wolf, later Mr. Kaine’s law partner and close friend. “He said there were a lot of people on death row who hadn’t had a fair trial, and there were not nearly enough lawyers willing to take those cases.”
Virginia’s Supreme Court declined to block the execution, so Mr. Kaine turned to the federal courts. He argued that Mr. Whitley had not received a fair trial, because his court-appointed lawyer had failed to investigate or introduce evidence of the psychological damage Mr. Whitley had suffered as a child.
During an interview with the Virginian-Pilot in 2009, Kaine said his experiences as a lawyer helped him learn how to handle clemency decisions during his tenure as governor, when he presided over 11 executions.
“I’ve eaten the last meal, and I’ve held the guy’s hand, and I’ve been to the Supreme Court, and I’ve been to the protests, and I know this very, very well,” he said. “And because of that, it was kind of demystified.”
In the Whitley case, Kaine’s defense wasn’t unsuccessful. But he’s correct in suggesting many people on death row, like Whitley, don’t receive fair trials. According to the Death Penalty Information Center, since 1973, more than 150 people have been released from death row with evidence of their innocence. From 2000–2011, there was an average of five exonerations of death row inmates per year.
But in a new ad, the Republican National Committee uses Kaine’s experiences defending people like Whitley against him. The GOP’s national Twitter account initially described the ad as a “Willie Horton-Style Attack,” though that tweet has been deleted.
“Long before Tim Kaine was in office, he consistently protected the worst kinds of people,” the ad’s narrator says, listing examples of convicted murderers Kaine defended, as well as citing the single death-penalty conviction he commuted as governor. “Tim Kaine — he has a passion for defending the wrong people. America deserves better.”
During an appearance on CNN Tuesday morning, RNC spokesman Sean Spicer — he also deleted a tweet yesterday bragging about the ad’s “Willie Horton-Style Attack” — defended the GOP’s attack on the work Hillary Clinton’s vice presidential choice did on behalf of defendants in capital punishment cases.
“There are rapists and murderers that he defended [to] keep out of prison that had done horrible things,” Spicer said. “I think part of this is that Tim Kaine had previously said that someone should be judged by the totality of their record. This is the Tim Kaine part of the record that they do not want to discuss — his defense of people who went out and murdered and raped people.”
CNN’s Chris Cuomo pushed back, reminding Spicer that “he was a lawyer, Sean. That’s what a lawyer does, is defend peoples’ rights.” Indeed, the Sixth Amendment to the Constitution states that everyone accused of a crime shall enjoy the right “ to have the assistance of counsel for his defense.”
But Spicer was undeterred.
“He went out and defended people who committed heinous crimes and he sought to get the lowest penalty for them,” Spicer said. “That’s fine, he chose to do that, but he should be judged for it as well. That’s part of his record.”
On RedState, conservative columnist Patterico took issue with Spicer’s reasoning in a piece titled, “America Deserves Better Than Tim Kaine, But Not Because He Was A Defense Attorney.”
Patterico, who works as a prosecutor, writes that “ criticizing a man simply for defending a criminal defendant, in my view, runs counter to our values as Americans.”
“Don’t get me wrong: I am in favor of law and order, and I don’t like murderers,” he adds. “I prosecute murderers, on a daily basis. But when I do, I expect them to be well represented by counsel on the other side of the table — making sure that the blows I strike against the accused, while they may be hard blows, are fair ones.”
“In my humble opinion, the GOP should be ashamed for making such an argument,” Patterico concludes.
Plenty of great Americans throughout history would also take issue with the RNC’s attack. To cite just one example, founding father John Adams would probably find Kaine’s defense of defendants charged with capital crimes commendable.
As Slate discussed in the context of Donald Trump’s comments about how he doesn’t think some terrorism suspects don’t deserve full legal protections, in 1770, Adams “agreed to defend the British soldiers accused of committing the Boston Massacre” because he “believed that even the most unpopular criminal defendants deserved counsel, no matter how ghastly their alleged crimes.”
Adams later described his defense as “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”