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.

The death penalty is part of the political process and not an effective or meaningful part  of the criminal justice system. 

The political process that encompasses the death penalty obviously involves the legislative decision makers, but more devastatingly, it also involves the charging entity, the judiciary and the clemency decision makers.  This statement is vital to understanding the plight of the pawns and the things that can be done to alleviate their plight. 

What ability does an accused person have to defend against these political forces? 

The United States Constitution's Amendment VI provides that, "[I]n all criminal prosecutions, the accused shall . . . have . . . the assistance of counsel for his defenses."

Resources, including financial means, mental stability, formal education, maturity and communication skills are generally lacking in the universe of the persons eligible for Death Row U.S.A.  Advocates for death row eligible persons need skills to fill the gaps of the deficiencies in their clients' survival skills.  Additionally, these advocates need the ability to replace the existing deficiencies with substitute skills.  This assistance is woefully absent.

Trained advocates are needed for front end representation, not legally trained mourners to administer last  rites. The legal community in Kansas has an opportunity to structure its death penalty representation different from the structure in other states. 

A modern history of legal representation in death penalty cases

We will take a few anecdotal examples of representation to identify  systemic problems that have plagued this punishment.  A punishment which has historically accomplished little more than allowing society to vent its retaliatory attitude and substitute a false solution for the solutions to real problems.

Case study I:  Abraham Beard -- pre-Furman 

In 1954, in a typical death penalty case of that era, a lawyer represented, from trial until execution, Abraham Beard, an African American teenager convicted and sentenced to death in a segregated courtroom by an all white Leon County, Florida jury for an alleged rape of a white person.  After an unsuccessful direct appeal to the Supreme Court of Florida and an equally futile plea for clemency to the Governor, the young attorney filed a petition for a stay of execution in the Supreme Court of the United States -- a procedure that he did not understand and for which there was no organization to turn for guidance.

The night before the execution, the attorney received a telephone call from a law clerk to United States Supreme Court Justice Hugo Black.  Justice Black was considering the petition for a stay of execution, and if the attorney could give his assurance that a legitimate constitutional issue would be raised in his petition for writ of certiorari, then Justice Black would grant a stay.  "No," the attorney replied; no, he could not assure Justice Black that a constitutional issue existed in this case of a 17 year old African American adolescent sentenced to death in a segregated courtroom by an all white jury in the heart of the Jim Crow South for the alleged rape of a white woman.  The stay was denied.

The next morning the attorney traveled to the prison to visit with Abraham Beard and to witness the execution.  He told his client of the phone call from Justice Black's law clerk and assured Abraham Beard that in making his statement to Justice Black's clerk he had done the right thing.  Mr. Beard's response is unrecorded.  Abraham Beard was one of three young African American men to be executed by the State of Florida that day.  A prison official told the attorney that things would be easier on both the attorney and Abraham Beard if Beard was electrocuted first.   The prison official enumerated the benefits of Beard being executed first. The attorney agreed.  That was his final act as counsel for Abraham Beard.^[3]  Counsel for the other two persons executed that day terminated their representation earlier and did not attend the executions.

The representation of Beard was typical of the representation of the condemned before LDF developed a strategy and a system for the legal battle against the death penalty in the 1960's.  Tragically, the representation afforded Abraham Beard exceeded that afforded to most of his contemporaries. 

How did the large build up of persons on death row occur?

There were over 2800 people on Death Row U.S.A. in the Spring of 1994.^[4]  To learn how they got there, we must look back to 1968 when a small group of civil rights lawyers at LDF began a concerted effort to halt the blood bath of racially discriminatory executions.  The process of selecting the persons who would be executed was as vicious as the crimes some of the people were accused of committing.  The system was racially discriminatory from beginning to end.  The fortitude and foresight of LDF in entering this fight ranks at the pinnacle of the American legal profession's courageous acts.

The LDF plan was to impose a moratorium on executions in the United States that would drastically increase the number of people on death row and force the Supreme Court to choose between striking down the death penalty or sanctioning an unprecedented "blood bath."^[5]  To manufacture that "threat of a crisis," LDF had to provide counsel "to represent every death row inmate" in post-conviction proceedings and "raise the entire range" of constitutional challenges to capital punishment in every case where an execution was "imminent."^[6]  LDF quickly achieved its goal of halting all executions in the United States in part because Anthony Amsterdam, a dedicated and brilliant constitutional scholar, and others devised a series of broad constitutional challenges to the death penalty in standardized briefs and pleadings called "Last Aid Kits" that could be signed and filed "as is" by any lawyer.^[7]  In 1972, the Supreme Court accepted LDF's thesis that the Eighth Amendment forbids standardless capital sentencing in Furman v. Georgia,^[8] and held by a vote of 5-4 that none of the 632 people on death row could be executed.^[9]

The strategy somewhat followed the successful LDF strategy that was used in school desegregation cases.  An important ingredient that made this strategy viable was the strong support in certain segments of the public.  Public opinion was one of the driving forces that allowed and motivated the courts to accept the strategy.

LDF tinkered with the moratorium strategy when the states, and particularly the states in the South, predictably reacted to Furman by passing new statutes that required standards for imposing the death penalty in a bifurcated trial.^[10]  Little thought was given to defending capitally charged individuals pre-conviction because there were "a staggering number" of fairly broad constitutional challenges to the new statutes that could be raised by any lawyers who could sign their names to a brief supplied by LDF.^[11]  The director of LDF, Jack Greenberg, believed that this litigation would gradually result in the de facto  abolition of the death penalty.^[12]   Michael Meltsner, one of the architects of the moratorium strategy, believed that it was "probable" that the Supreme Court would "not permit an experiment with sentencing standards where the price of error is human life."^[13]

These statements may seem incredibly naive in light of recent Supreme Court precedents that bar federal habeas corpus review of many "substantial" claims that undermined the "accuracy of a sentencing decision" in a capital trial,^[14] but it was not clear to most, and maybe itself, that the Court was heading in that direction in the early seventies.  LDF exploited the Court's fear of error in capital sentencing by devising a daring argument that Furman both requires objective standards for imposing the death penalty and forbids standards for granting mercy.^[15]  The genius of this argument was that it applied to every one of the new death penalty laws; every statute gave the jury too much discretion to impose capital punishment or insufficient discretion to impose a life sentence.  In 1976, the Supreme Court examined LDF's Catch-22 thesis in five cases that considered facial constitutional challenges to post-Furman death penalty laws, but it held that three of these new statutes struck the proper balance between objective standards for imposing the death penalty and discretion not to impose it.^[16]  The greatest intellectual blunder in these decisions was upholding the Texas statute.  The decision in Jurek v. Texas,^[17] and the application of the death penalty in general in Texas, is a constant source of intellectual embarrassment to advocates of the death penalty.

LDF's strategy of nibbling the death penalty to death by arguing that the standards for imposing it were too broad and too narrow at the same time might have succeeded were it not for the fact that then Justice William Rehnquist, now the Chief Justice of the United States, devised an equally ingenious strategy for abolishing the federal writ of habeas corpus through judicial fiat.  It was crucial to be able to challenge individual death sentences in federal habeas corpus proceedings because the Supreme Court could not use its certiorari jurisdiction to review each feature of all of the new death penalty statutes^[18] and most of the state courts were hostile to constitutional attacks on capital punishment.  In 1977, Justice Rehnquist wrote an opinion in Wainwright v. Sykes^[19] that made it virtually impossible to raise constitutional claims in federal habeas corpus proceedings that were not preserved with a contemporaneous objection at trial.^[20]  This struck at the heart of the moratorium strategy because it was unrealistic to expect the level of lawyer representing indigent persons in death penalty cases to become familiar with LDF's growing list of constitutional objections to the various features of the new laws and raise all of them in every case.^[21]

In fact, there was sometimes a conflict between LDF's strategy for reversing death sentences and sound trial strategy for avoiding the death penalty.  For example, in 1977, a Texas trial lawyer had to object to a jury instruction that tracked the language of a statute that the Supreme Court had just upheld and introduce evidence that called for the death penalty under that law in order to properly raise one of LDF'S Catch-22 constitutional arguments that the Supreme Court finally accepted in 1989.^[22]  Unfortunately, most trial lawyers were willing to accept the psychologically comforting view that any death sentence would be overturned in post-conviction proceedings.  This created a perceived safety net that a death sentence would not actually result in an execution.

It became more difficult for LDF and its allies to recruit a sufficient number of lawyers who were competent to raise all of the available constitutional challenges to the death penalty in every case where an execution was imminent.   Most lawyers were doing poorly at trial, and were failing to preserve the record for post-conviction proceedings.  In 1976, LDF drafted a mind boggling document called "the ridiculous list" that contained some 90 new ideas for challenging death sentences.  Some of these claims required investigation and evidence to prove them.  Many of the lawyers who signed their names to the briefs and pleadings in LDF's "Last Aid Kits" and, filed them "as is" did not have the time, money, skill, training, fortitude and/or the intellectual ability to litigate and understand the purposes of the new claims on the "ridiculous list."

For a while the moratorium strategy continued to achieve its objective, in spite of these ominous developments.  The Supreme Court reversed all but one of the capital cases that it considered between 1977 and 1982 and recognized new rules of law that prevented almost a thousand executions.^[23]  Only six people sentenced to death under the new statutes were executed in that period and 60% of the post-Furman death sentences were reversed.^[24]

The detrimental fallout to the LDF litigation and guidance during this period was the fact that lawyers, whether working with LDF or privately, were not raising and litigating individualized issues, and the large percentage of the cases were litigated primarily upon systemic issues. 

Case study II: John Spenkelink's Execution -- Last call for ldf's systemic issues only strategy  

John Spenkelink was sentenced to death in Tallahassee, Florida for a homicide committed in February, 1973.^[25]  In 1979, he became the first person in the United States involuntarily executed under the post-Furman death penalty statutes.  His crime did not present those factors usually seen in death penalty cases.  On the contrary, the offense for which John Spenkelink was executed -- killing a fellow parolee from prison whom John Spenkelink asserted had sexually assaulted and robbed him -- was not the type of offense which raises the community outcry for the imposition of death as punishment.^[26]

That John Spenkelink became the first post-Furman involuntary execution was not a function of chance; rather, LDF's strategy of litigating systemic attacks on the imposition of the death penalty to the virtual exclusion of viable case-specific issues, targeted him for execution and extinguished any hope that he had for relief in post-conviction proceedings.

The LDF attorneys representing John Spenkelink persisted in the obsolete "systemic issues" strategy notwithstanding the 1976 United States Supreme Court decisions in Gregg v. Georgia,^[27] Proffitt v. Florida,^[28] and Jurek v. Texas,^[29] upholding the constitutional validity of the so called "guided discretion" statutes for the imposition of the death penalty.  Even after the decision in Spenkelink v. Wainwright^[30] and the subsequent execution of John Spenkelink made clear, for anyone who chose to listen, the demise of the LDF strategy, LDF attorneys, throughout the 1980's, adhered to a litigation model based primarily on systemic attacks on the imposition of the death penalty.

The authors made numerous pleas to LDF to change the strategy.  These pleas fell on deaf ears.

The particular facts of John Spenkelink's case cried out for the presentation of case-specific issues in his post-conviction proceedings, such as ineffective assistance of trial counsel.  "Prosecutors [generally] pay little attention to murder among convicts . . . .  Here there was a claim of self-defense, that [Spenkelink] had been homosexually raped and his money taken from him . . . [the victim] was older, bigger, stronger, had spent decades in prison and was in violation of parole at the time . . . .  The death penalty is not normally asked for or given in such cases."^[31]

The case was replete with mitigating circumstances:  John Spenkelink was the child of a World War II combat veteran who was psychologically crippled by the war.  The young John Spenkelink idolized his father.  At age 11 John found his father dead on the garage floor, a suicide by asphyxiation.^[32]  "The troubled youngster began a career of minor crime.  Prison psychiatrists examining [John] over the years wrote that his criminal behavior was in large part due to the suicide of his father and that he was amenable to treatment."^[33]  Spenkelink's court appointed trial attorneys presented no mitigating circumstances to the jury that recommended that John Spenkelink be sentenced to death.^[34]

These court appointed attorneys "lacked sufficient resources to prepare and conduct the defense.  One publicly stated that the case was beyond his competence.  One was absent during part of the jury selection to be with his wife in childbirth."^[35]  They failed to raise, and thus procedurally defaulted, several crucial issues at Spenkelink's trial.^[36]

By the legal standards of the late 1970's, the circumstances of John Spenkelink's representation at trial presented viable case-specific issues for post conviction litigation.  However, the LDF post conviction legal strategy in his case focused almost exclusively on a systemic attack on the procedures for imposing the death penalty.  By 1977, when Florida Governor Rueben Askew signed John Spenkelink's initial death warrant and the LDF attorneys initiated habeas corpus proceedings,  the Supreme Court decisions in Profitt, Gregg, and Jurek, upholding the constitutional validity of the "guided discretion" death penalty statutes, were a year old.

The issues raised by the LDF litigation team on John Spenkelink's behalf read like a laundry list of Furman era constitutional challenges to the imposition of the death penalty in any case:  a) the death penalty is arbitrary, capricious, excessive and disproportionate in violation of the Eighth and Fourteenth Amendments to the Constitution; b) unreliable procedures existed for determining aggravating circumstances justifying the imposition of the death penalty; c) the death penalty is imposed in a discriminatory manner based on the race of the victim; d) the death penalty is discriminatorily imposed against males and poor persons; e) execution by electrocution constitutes cruel and unusual punishment; f) exclusion of jurors with conscientious scruples against the death penalty in all cases creates a prosecution-prone jury; g) appellate review of death sentences is necessarily subjective and unpredictable.^[37]

Virtually absent from the habeas corpus pleadings was any constitutional issue concerning the specific facts of John Spenkelink's case.  Most egregiously, there was no mention of the glaring deficiencies in the representation provided by the trial attorneys.  John Spenkelink was not portrayed as an individual who was sentenced to death at a trial that failed in its entirety to address the crucial sentencing issues; rather, he became nothing more than a symbol for a nationwide strategy to attack the constitutionality of the death penalty.

John Spenkelink's status as a symbol was accentuated when he was made the subject of a featured story in the Sunday New York Times Magazine which  introduced him to the nation as the first in line for execution.^[38] 

In the habeas corpus proceedings in the United States District Court for the Northern District of Florida, Spenkelink's team of LDF attorneys was denied the opportunity to present evidence to prove their systemic challenges to the death penalty.  They met with an equally hostile audience in the United States Court of Appeals for the Fifth Circuit which found all the systemic issues foreclosed as a matter of law by the Supreme Court decisions in Proffitt v. Florida and Witherspoon v. Illinois.^[39]  When Anthony Amsterdam presented the Spenkelink oral argument to the Fifth Circuit, the questioning from the panel rose almost to the level of verbal abuse.  After the oral argument in New Orleans, in an amazing feat of moral courage, Amsterdam made his way to the Magazine Street second floor office of a community anti-death penalty organization, and gave a "chins up, fight on" optimistic view of the legal landscape of death penalty litigation.

However, in words sounding the death knell for the strategy that had served LDF so well for over a decade, the Fifth Circuit held in Spenkelink's case that:

 with  appropriate standards to guide discretion.  If a state has such a properly drawn statute -- and there can be no doubt [after Proffitt ] that Florida has -- which the state follows in determining which convicted defendants receive the death penalty and which receive life imprisonment, then the arbitrariness and capriciousness condemned in Furman  had been conclusively removed.*

         Under the Fifth Circuit's decision, if a state imposes the death sentence following the guidelines of a facially valid statute, "[the] inquiry must end there."^[40]

Notwithstanding the barely dried ink on the Supreme Court decisions in Proffitt, Gregg, and Jurek, the articulated consensus among the LDF capital defense experts was that the Supreme Court would certainly grant certiorari to review the decision of the Fifth Circuit in Spenkelink v. Wainwright.  On March 26, 1979, the Supreme Court denied certiorari with only the dissenting voices of Justices Marshall and Brennan, who believed the death penalty to be unconstitutional under all circumstances.^[41]

Florida Governor Bob Graham signed John Spenkelink's second death warrant and his execution was set for May 23, 1979.^[42]  One day before the scheduled execution, a team of attorneys lead by former U.S. Attorney General Ramsey Clark took over representing John Spenkelink,^[43]  and raised the case specific issue of his ineffective representation at trial in a successive habeas corpus petition.^[44]  Fifth Circuit Senior Judge Elbert Tuttle granted a stay of execution; but, by this time the momentum for the nation's first post-Furman involuntary execution was too great.  A hastily assembled panel of the Fifth Circuit, without conforming to the Circuit Court Rules, dissolved the stay of execution.^[45]  John Spenkelink was executed on May 25, 1979, his case specific legal issues never heard by any court.^[46]

With its decision in Spenkelink v. Wainwright, the Fifth Circuit -- at that time covering the death belt states of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas -- conclusively foreclosed the LDF strategy of broad based attacks on the constitutional validity of the death penalty itself; the Supreme Court, having foreclosed such attacks in its 1976 death penalty decisions, refused to review the Fifth Circuit's actions.  Any realistic, rational person surveying the legal landscape could only conclude that it was time to change strategies.

Yet, throughout the 1980's, LDF continued to pursue as its primary strategy in the fight against the death penalty, systemic attacks in post-conviction proceedings on the death penalty itself.  LDF continued to instruct lawyers in death penalty litigation -- who looked to LDF for guidance -- to focus primarily on systemic issues and how to obtain post- conviction relief.  While individuals and organizations litigating death penalty cases were starved for money, LDF spent in excess of a million dollars funding studies to prove that the death penalty was systemically imposed in a manner which arbitrarily discriminated based on the race of the victim and that removal of jurors with conscientious scruples against the death penalty in all cases created prosecution prone juries.^[47]

Despite the objective truths verified by the systemic studies, the legal viability of these issues already had been unambiguously foreclosed by the courts.  Certainly, any legal strategy that continued to focus primarily on systemic issues, committing large amounts of extremely limited resources to litigating these issues, was obsolete.

The LDF lawyers and experts traveled and expended funds like corporate sales people -- while people who were trying to change the focus of the strategy were unable to receive funding for such necessities as gasoline for travel to court.  LDF and its blessed allies cornered the limited amount of financial resources available in the private sector to fight the death penalty and thereby controlled the fate of thousands of death eligible persons.  Public sector funding was non-existent for meaningful work.  LDF shared their financial resources only with persons and entities that subscribed to their literally fatal strategies.  That continues to be true today.  Persons who are otherwise courageous, dedicating a huge portion of their lives to working on death penalty cases,  are literally afraid to publicly disagree with LDF because of the consequences to their personal livelihoods and professional reputations.

LDF's past leadership and guidance in the administration of the death penalty fight established its strategy and tactics as an opiate for the American legal profession to accept as an easy-to-administer strategy rather than adopting a more realistic, difficult-to-administer strategy.   Despite pleas in numerous forums, like flies to sweetcakes, the most brilliant and dedicated of the American legal profession continued to worship the golden casket that LDF displayed.

In Shakespeare's Merchant of Venice, one of Portia's suitors uttered appropriate words while rejecting the golden casket:

. . . The fool multitude that choose by show,

Not learning more than the fond eye doth teach,

Which pries not to the interior, but, like the martlet,

Builds in the weather on the outward wall,

Even in the force and road of casualty

The "fool multitude" choose words such as "crazies," etc., to hurl at those who advocate for change of the strategy.  A vivid example of misguided direction is the LDF summer conference for death penalty foes which is held each year at Airlie House, Virginia, an expensive plantation setting retreat.  The setting is more than symbolic for a conference that has continued to restrict attendance to a very small number of advocates where the educational enrichment has the tunnel vision of the current LDF strategy.  The conference should be held on the campus of Howard University or in a similar environment that speaks to change and could accommodate the large numbers of advocates that need training.