Because the audience participation discussion failed to answer the question, this rumination on the problem followed. It examines the Model Rules, and determines, ultimately, that it is only by informing those rules with criminal law provisions [particular witness tampering statutes] and considerations of evidentiary relevance that a conclusive resolution can be made. Whether a concussive physical act or a concussive question, when there is no evidentiary relevance and the intent is to procure unavailability, the conduct is banned. That this leaves tremendous opportunity for zealous advocacy, even with the heightened stakes in a trial for charges of child abuse, is without doubt. But an attack on the right to testify based on extra-legal matters has no place in the courtroom, or in any lawyer’s arsenal.

What does this, and Sir Walter Raleigh, have to do with Barack Obama?

Even if a prosecutor’s office were to embrace this metric, and conduct pre-trial reviews of defense mitigation evidence to screen out those not ‘worthy’ of death, three barriers stand in the way of successful implementation of this standard. Counsel often fail to develop mitigation evidence, either due to ineffectiveness or a lack of resources. A defendant’s youth may compromise his/her willingness and ability to assist in the mitigation process, and where youth stands as a barrier to expressing remorse may unjustifiably leave a particular defendant in the death-worthy cohort. Finally, the power of victim survivor constituencies, as when the victim is a police officer killed in the line of duty, may bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy. The result will be an over-inclusive charging process in capital cases; and given the variability of juror response (and the persistence of race-based judgments in jury deliberations), the result will ensure that capital punishment is visited upon some who are not, by any measure, “death worthy.”