DEATH ROW, U.S.A. WELCOMES THE STATE OF KANSAS AS ITS NEWEST FRANCHISEE AND SUPPLIER 

Millard Farmer

Joe Nursey                  

Kimellen Tunkle [i]

  Preface

The State of Kansas is late in joining the majority of the states  in their selective killing processes.  This material is intended for use by the legal community for developing a protocol in this new era for Kansas.  The creature of death, left to its own ways, functions randomly, haphazardly and unpredictably; the pinnacle of absurdity occurs when the creature of death is imposed upon a person at the direction of government.

The direction and guidance that the legal community should provide to both society and the individual, potential victims of this process have sailed in as turbulent waters as has the process.

Throughout this country, a substantial majority of the attorneys who represent people in death penalty cases are engaging in an antiquated legal strategy that does more harm than good for the universe of persons accused of capital crimes.  This strategy -- created and promoted by the influential Legal Defense and Education Fund (LDF) -- forestalled hundreds of executions in the 1970s and early 1980s.  But, due to changes in the law resulting in part from changes in public opinion, this same strategy unwittingly hastens the movement of condemned persons to the death chamber in the 1990s and soaks up scarce financial resources that could be devoted to alternative, and more effective, strategies.  In short, LDF and a substantial majority of the capital defense bar is like the Maginot line:  pointed in the wrong direction, cemented in place, helpless in watching a blitzkrieg roll over the people in need of protection.

Defense attorneys and commentators have been arguing for years that there are egregious problems with the death penalty  infrastructure in this country.  Prosecutors know about these problems.  Defense lawyers know about them.  Judges know about them.  But few advocates for reform of this dastardly system of death wish to talk about the role the mainstream capital defense bar plays in nourishing these problems through its antiquated strategy.  Such talk is simply too troubling to those enormously dedicated front-line attorneys who devote their energy, with little monetary compensation, to this line of work.

The primary problem is that the mainstream capital defense bar has its priorities backwards.  The vast majority of its resources are devoted to representing clients who already have been condemned to death, and, who, because of changes in death penalty law in the l980s, have virtually no chance of prevailing after their direct appeal.  In the 1990-91 term, only 14 mandates were issued in published federal habeas corpus cases where a death row inmate obtained relief. It is estimated that the United States Court of Appeals for the Fifth Circuit denied relief in well over 90% of the capital habeas cases that it decided in the past three years. [2] Clients, of course, deserve effective and vigorous representation at every stage of the legal process, from trial through clemency.  The problem is that the vast resources being devoted to the post-conviction process drains resources from the pre-conviction level, where people accused of capital crimes have a much higher chance of avoiding capital punishment.  This strategy must be reversed if the capital defense bar is to deal effectively with the death penalty in the 1990s.

The American legal profession has failed to provide effective advocacy, fairness, civility, uniformity or intellectual honesty along the path to Death Row, U.S.A.  Sad, but true, LDF  has been the Pied Piper.

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