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Notes -
Good point regarding defense lawyers.
Regarding the convincing of judges, I simply don't believe that they're actually making a good faith consideration of the merits either. Some judges are in favor of the death penalty, some are against, and they will rule accordingly to the extent that they can get away with it. There is still value in making convincing argument to the extent that it permits a judge to go in the direction they'd prefer, but I would be absolutely shocked to find that death penalties are administered or not based on judges that genuinely don't know which way they'd like to rule prior to hearing the facts. Of course, this isn't just a death penalty thing - listening to just about any of the Supreme Court hearings leaves me rolling my eyes at the justices plainly looking for excuses to side with their preferred side.
Judge Posner Richard, known for his work on economic theory of law, admitted as much:
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