[1].

Millard Farmer is an attorney who was one of the cofounders of the Team Defense Project, Inc.  He has been active in both death penalty and civil rights legal work on the trial and appellate level since before some of the residents of death row were born. 

Joe Nursey is a supervising attorney with the Office of the Appellate Defender in New York.  He previously was an attorney with the Team Defense Project, Inc. for 14 years, representing numerous persons in death penalty cases and consulting with hundreds of attorneys in death penalty cases nationwide. 

Kimellen Tunkle began with Team Defense Project, Inc. conducting community research in the case of five young men accused of murder in Dawson, Georgia in 1977.  Since that time she has been an integral part of Team Defense's advocacy efforts in death penalty cases throughout the South. 

This paper, and its presentation, extends an invitation for people to supplement the thoughts, suggested or provoked by the paper.   There will be additional papers to expand ideas introduced here.  The effort to open discussion, articulate justifications or provoke new thoughts will fail if all the papers or presentations about this subject are from one school of thought.  Those that did and do support the system of representation  about which we complain should respond with equal vigor. 

[2].          See Favorable Decisions in Capital Murder Appeals Federal Circuits  (available at the Southern Center for Human Rights, Atlanta, Ga.); Eden Harrington, director of the Texas Capital Resource Center (July 24, 1993).

[3].         In 1978, a capital defense training seminar for attorneys was held in Tallahassee, Florida.  LDF representatives who had formulated the legal strategy for fighting the death penalty over the previous decade were featured speakers. 

As the seminar drew to a close, the final speaker approached the podium.  He was not an LDF expert on capital punishment litigation, he was not knowledgeable in capital litigation at all.  He was not there to discuss strategy or arcane legal issues.  However, what he said shocked and angered the gathering of mostly young, idealistic lawyers.  This final speaker, a well respected and dedicated local attorney, was invited to describe for the audience his experience in spending the final hours with a client who was executed.  That client was Abraham Beard.  The facts of Abraham Beard's case related here are recollected by the authors, who were present at that seminar.

[4].         "Death Row, U.S.A.," Spring, 1994, NAACP Legal Defense and Educational Fund, Inc., New York, New York.

[5].         M. Meltsner, Cruel and Unusual:  The Supreme Court and Capital Punishment, 107 (1984).

[vi]  [6] [6]          Id.

[vii] [7] [7]          Id. at 112.

[viii] [8] [8]          408 U.S. 238 (1972).

[ix]   [9  [9] M. Meltsner, supra note 5, at 292.

[10].         Id. at 306-16; Greenberg, Capital Punishment as a System, 91 Yale L.J. 908, 915-16 (1982).

[xi]  [1[ [11] M. Meltsner, supra note 5, at 314.

[xii]  [1  [12] Id. at 314.

[xiii] [1[[13] Id. at 301.

[[14].       See Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989).

[15]. Meltsner, supra note 5, at 301-02.

[16].       See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262(1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

[[17].      428  U.S. 262 (1976).

[18].     The Supreme Court has nearly unlimited discretion to select the cases that it decides.  That discretion must be reserved for important issues of law because the court only has the capacity to give plenary consideration to about 100 cases of the tens of thousands of cases that are decided each year by all of the federal and state courts in the nation.  See generally, Liebman, Apocalypse Next Time?  The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997, 2075-91 (1992).

[19].       433 U.S. 72 (1977) (state prisoner must show cause for his lawyer's procedural default and actual prejudice from constitutional error to obtain federal habeas review of merits of his claim); see also Smith v. Murray, 486 U.S. 527 (1986) (cause is ineffective assistance of counsel or some factor external to the defense that made it impossible to preserve error).

[20].        See Tabak & Lane, The Execution of Injustice:  A Cost and Lack of Benefit Analysis of the Death Penalty, 23 Loy. L.A.L. Rev. 59, 85-89 (1989); Hughes, Sandbagging Constitutional Rights:  Federal Habeas Corpus and the Procedural Default Principle, 16 N.Y.U. Rev. Law & Soc. Change 321, 334-36 (1989); Rosenberg, Jettisoning Fay v. Noia:  Procedural Defaults by Reasonably Incompetent Counsel, 62 Minn. L. Rev. 351 (1978).

[21].       See Evans v. State, 441 So.2d 520, 528 (Miss. 1983) (Robertson, J., dissenting) ("average Mississippi criminal defense lawyer" has "no familiarity" with constitutional claims that are typically raised in federal habeas petitions and barred by Sykes in capital cases); Robbins (reporter), Toward a Just and Effective System of Review in State Death Penalty Cases:  Recommendation and Report of the American Bar Association on Death Penalty Habeas Corpus, 151-177 (1989).

[22].      See Ex parte Herrera, 819 S.W.2d 529, 631 (Tex. Crim. pp. 1991) (Clinton, J., dissenting) (citing Penry v. Lynaugh, 492 U.S. 302 (1989) and Jurek v. Texas, 428 U.S. 252 (1976).

[23].            Greenberg, supra note 10, 91 Yale L. J. at 919-24.

[24].     Id. at 918; Death Row U.S.A., (Spring 1993) (Available at LDF, 99 Hudson St., NY, NY).

[25].      David Kendall, a dedicated, caring and skilled lawyer, was one of the lawyers that represented John Spenkelink until the Ramsey Clark team began representing John a few days before his execution.  David had worked a number of years with LDF.  After John's execution, David wrote an extremely long and detailed account of the legal proceedings and events surrounding John's execution.  This paper was circulated to a few persons, including the authors.  David later requested return of the paper, as he had decided not to publish his reflections after receiving advice.  As requested, this paper was not retained; however, it should be a rich source of otherwise undocumented information should David choose to release the paper without a retrospective revision.

[26].     Ramsey Clark, Rush to Death, Spenkelink's Last Appeal, The Nation, October 27, 1979 at 385, 402.

[27].    428 U.S. 153 (1976).

[28].    428 U.S. 242 (1976).

[29].     Supra, note 17.

[30].      578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976 (1979).

[31].     Clark, supra note 26, at 402.

[32].    Id. at 401.

[33].    Id.

[34].   Id.

[35].    Id. at 400.

[xxx [36] Id.

[37].            Spenkelink v. Wainwright, 578 F.2d at 599.

[38].  Renze, Will He Be The First?, New York Times Magazine, March 11, 1979, at 29.

[39].   391 U.S. 510 (1968). 

[40].         Id. at 606.

[41].        440 U.S. 976.

[42].       Clark, supra note 26 at 385.

[43].      Id. at 400-401.

[44].      Id.

[45].       Id. at 402-403.

[46].      Id.

[47].     For a description of these studies, see McCleskey v. Kemp, 481 U.S. 279, 286-88 (1987); Lockhart v. McCree, 476 U.S. 167-173 (1986).

[48].            Kamisar, Gideon v. Wainwright A Quarter Century Later, 10 Pace U.L. Rev. 343, 365-66 n.163 (1990).

[49].      See Johnson v. Mississippi, 477 So.2d 196 (Miss. 1985), cert. denied, 476 U.S. 1109 (1986).

50].            Kamisar, supra note 49, 10 Pace U.L. Rev. at 366.

[51].          See Johnson v. Mississippi, 486 U.S. 578 (1988) (due process violated in penalty phase when prosecution introduced evidence of prior conviction that was obtained in violation of right against self incrimination).

[52].            Kamisar, supra note 49, at 366 n.163.

[53].        See Miss. Code. Ann. Sec. 99-15-17 (capping fee for court appointed trial counsel at $1,000).

[54].        See Robbins, supra note 21 at 61-99.  In every jurisdiction in the United States with a death penalty statute, capital punishment is meted out in a bifurcated trial followed by an automatic direct appeal.  See Greenberg, supra note 10, 91 Yale L.J. at 915-21.  After a death sentence is affirmed on direct appeal, the condemned prisoner can attack his conviction and sentence in state and federal collateral proceedings on constitutional grounds.  See generally Liebman, supra note 18, 92 Colum. L. Rev. at 2041-91, Yackle, The Misadventures of State Postconviction Remedies, 16 N.Y.U. Rev. L. & Soc. Change 359 (1987-88); Tabak, The Death of Fairness:  The Arbitrary and Capricious Imposition of the Death Penalty in the 1980's, 15 N.Y.U. Rev. L. & Soc. Change 797, 829 (1986).  The Sixth and Fourteenth Amendments to the United States Constitution guarantee the right to free, effective legal representation at trial and on direct appeal, but not in state and federal collateral proceedings. Murray v. Giarratano, 492 U.S. 1 (1989). 

[55].         The resource centers were established with federal money for the express purpose of representing and recruiting pro bono counsel for death row inmates in collateral proceedings because federal judges wanted an orderly, efficient system to process the large number of complex petitions for writs of habeas corpus in capital cases that began to flood their dockets in the mid 1980's.  See Robbins, supra note 21 at 64-66 and nn.83-86.

[56].        Tabak & Lane, supra note 20, 23 Loy. L.A.L. Rev. at 66-67 & nn. 36-37.

[57].       supra note 4..

[58].      In December of 1980, there were "only 715 persons on death row."  Greenberg, supra note 10, 91 Yale L.J. at 917.

[59].        There were an average of 31 executions a year in the United States between 1960 and 1965, when LDF's lawyers first became involved in death penalty litigation.  Meltsner, supra, note 5, at 52.  In 1992, there were 31 executions in the United States.  Death Row U.S.A., supra note 24.  The Supreme Court decline to reverse each of these cases at least three times.  See generally Tabak, supra note 54, 15 N.Y.U. Rev. L. & Soc. Change at 829.  There were 38 executions in 1993 and 6 until April 4, 1994.

[60].            Greenberg, supra note 9, 91 Yale L.J. at 923.

[61].        See generally Morgan v. Illinois, 112 S.Ct. 2222, 2242 (1992) (Scalia, J., dissenting) (court's most recent application of "our annually improvised Eight Amendment 'death is different' jurisprudence . . . strikes a further blow against the people in its campaign against the death penalty") Bell v. Lynaugh, 858 F.2d 978, 985-86 (5th Cir. 1988) (Jones, J., concurring) (pro bono habeas counsel from large N.Y. corporate law firm should be struck from the rolls of the Fifth Circuit" because "(h)is motive in late-filing" of habeas petition "must have been to play 'chicken' with the state and federal courts on the eve of execution").

[62].       Zant v. Stephens, 452 U.S. 862 (1983); Barclay v. Florida, 463 U.S. 939 (1983); California v. Ramos, 463 U.S. 992 (1983); Barefoot v. Estelle, 463 U.S. 880 (1983).

[63].            Weinberg, Deregulating Death, 8 U.Chi. L. Rev. 305 (1984).  Justice Scalia would return to a free market system by overruling the precedents that require discretion for the sentencer to decline to impose the death penalty based on mitigating factors.  Walton v. Arizona, 110 S.Ct. 3047, 3058-68 (1990) (Scalia, J., concurring).  He can barely conceal his contempt for the "permanent flood-tide of stay applications and petitions for certiorari to review adverse judgments at each round of direct and collateral review, alleging novel defects in sentencing procedure arising out of some permutation" of the "contradictory principles" of objective standards for imposing the death penalty and absolute discretion not to impose it.  110 S. Ct. at 3063.  Justice Thomas describes some recent attempts to extend the latter principle to be "a mockery of the concerns about racial discrimination" in capital sentencing that "inspired" the Supreme Court to get into the business of regulating capital punishment.  Graham v. Collins, 111 S.Ct. 892, 915 (1993) (Thomas, J., concurring).

[64].      Death Row U.S.A., supra note 24.

[65].       Tabak, supra note 55, 15 N.Y.U. Rev. L. & Soc. Change at 830.

[66].      One exuberant commentator was so impressed by the pro bono lawyers from large corporate firms who persuaded the Fourth Circuit to hold that there was a constitutional right to habeas counsel in capital cases that he wrote, "As long as we have such people in our profession (Gideon's) trumpet will sound again.  For lawyers such as these will not let the courts lay that trumpet down."  See Kamisar, supra note 49, 10 Pace U.L. Rev. at 377-78 (emphasis in original).  However, the Supreme Court reversed the Fourth Circuit's decision before this article was printed.  Id. at 375, n.211.

[67].     Mello & Duffy, Suspending Justice:  The Unconstitutionality of the Proposed Six Month Time Limit on the Filing of Habeas Corpus Petitions by State Death Row Inmates, 18 N.Y.U. Rev. L & Soc. Change  451, 492-51 (1990-91).

[68].     See Liebman, More Than 'Slightly Retro':  The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 10 N.Y.U. Rev. L. & Soc. Change, 537, 547-64 (1990-91).