| Part 2 of 2 |
|
Case Study III:
Samuel Bice Johnson Samuel Bice Johnson, an African American person, was charged with killing a white Mississippi Highway Patrol officer. He was provided two court-appointed lawyers who were paid a total of $2,000 to represent him.[48] After his death sentence was affirmed on direct appeal,[49] the New York corporate law firm of Cahill, Gordon and Reindel volunteered to represent him pro bono in a habeas corpus proceeding. Twenty-nine lawyers and 27 summer associates worked on the case for 7,686 hours at a cost of 1.7 million dollars. Certainly, there is much to be said for the outstanding work of these people. Floyd Abrams, a partner in the firm and one of the nation's leading civil rights attorneys, later argued the case in the United States Supreme Court.[50] After the court vacated Johnson's death sentence,[51] Abrams philosophized: Think if the
resources poured into this case at the end had been poured in at the beginning .
. . Suppose instead of two young lawyers having a total of two thousand dollars
for everything, they'd had twenty-five thousand, fifty thousand, one hundred
thousand. It might well be that instead
of the more than one and a half million dollars we've spent on this, none of
this would have been required.[52] Abrams intended this comment to be an indictment of the grossly inadequate fees that are paid to court appointed counsel in Mississippi[53] but it also raises a serious question about a strategy that requires many lawyers to donate their talent, time and resources to represent poor people in death penalty cases on the back end. Many more lives would be saved if lawyers like Abrams represented capital defendants or even acted as consultants or resource providers for the appointed lawyers "at the beginning." The stars of the civil rights bar, famous legal scholars and partners in silk stocking Wall Street law firms usually enter a capital case in collateral proceedings after underpaid court appointed solo general practitioners represented the defendant at trial and on direct appeal.[54] There are also dozens of creative young attorneys on the staffs of government-funded capital resource centers who could save more lives if they became involved in cases at the pretrial stage instead of in collateral proceedings[55] if these lawyers were adequately trained and assisted. The interpersonal skills of these lawyers are desperately needed to assist capital defendants in making the few decisions that are available for them to make. As many as 70% of the people on death row could have pleaded their cases to sentences that would have saved their lives.[56] Lawyers who should be applying their talents on the front end, where it can be beneficial, are writing habeas corpus petitions that are little more than obituaries for death row inmates. The
lesson yet unlearned The over 2,800 people on death row in the United States in 1994[57] and a population steadily growing at the rate of about 150 a year[58] should be statement enough as to the need. There is sound logic to support the belief of many informed persons that a large majority of these death sentenced persons will be executed. However, most knowledgeable, realistic, seasoned observers of executions in America know intuitively that there is a socially acceptable rate of execution that is the controlling factor of how many people a state will execute in a given period of time. Informal, institutional controls will prevent the number of executions from exceeding the accepted rate. The Supreme Court is now sanctioning executions at the same rate that they were carried out before the moratorium strategy was implemented.[59] In 1982, Jack Greenberg, one of the masterminds of the moratorium strategy, assured the concerned ever-growing capital defense bar that there was "no reason to believe" that the astounding 60% rate of reversal in habeas corpus proceedings would ever be significantly reduced.[60] However, Ronald Reagan was packing the federal bench with conservative judges who were determined to make the death penalty a reality.[61] In 1983, the Supreme Court began affirming death sentences and writing decisions that were clearly designed to free the court from the trap of LDF's Catch-22 logic.[62] As one commentator put it, the court was
deregulating the death penalty, just as Reagan was deregulating industries.[63] By the end of 1984, even the most optimistic advocates of the moratorium strategy recognized that the Supreme Court was not going to abolish the death penalty or continue to create new standards for imposing it that made it virtually impossible to execute anyone. Twenty-one executions were carried out in 1984.[64] Death row populations were growing in every state and the supply of volunteer counsel to represent the condemned in collateral proceedings was insufficient to meet the demand.[65] It was impossible for LDF's lawyers to provide real leadership to the anti-death penalty movement in the mid-eighties. There were too many execution dates, too many death row inmates who needed lawyers and too many negative developments in the law for LDF to devise and implement a single strategy for dealing with the crises. The lawyers who had deliberately created a huge death row population to force the Supreme Court to choose between an unprecedented blood bath and abolishing the death penalty were like so many fingers caught in a crumbling dike. The tactic of recruiting lawyers to represent every death row inmate became a moral imperative.[66] In 1989, Chief Justice Rehnquist coaxed the lawyers who had their fingers stuck in the dike of death into putting their feet into quicksand. Rehnquist appointed well respected retired Justice Lewis Powell to head a blue ribbon commission to make recommendations for "reforming" the federal habeas corpus statute in death penalty cases. The Bush administration used the Powell Commission's recommendations to launch a pitched battle to effectively repeal the Great Writ in capital cases through legislation. LDF mobilized the lawyers in the anti-death penalty movement to use their political influence and thousands of hours of their time to convince the Congress to leave the federal habeas statute alone, at least for the time being.[67] While that legislative battle was being fought, the Supreme Court severely narrowed the scope of the writ[68] and the death row population grew substantially. In the early 1990's when it became almost impossible to win a death case in federal court, the Congress finally agreed to fund resource centers to recruit and mentor lawyers to represent the condemned in collateral proceedings. There is still a shortage of pro bono habeas counsel for the condemned and underpaid court appointed solo general practitioners in small towns are still ineffectively representing poor people in trials for their lives across America. It will be difficult to transfer the resources that are being used in futile collateral litigation to state court trials and direct appeals, where they are more likely to save lives. The resource centers do not have any discretion to use their federal funds for trial and direct appeal litigation. The large corporate law firms are better equipped to do collateral litigation because they use death cases as a training tool for recent law school graduates who have no trial experience. Some large firms do pro bono collateral litigation because they deeply believe that no person should be put to death without legal representation. That noble sentiment is a strong deterrent to involvement in the trial and direct appeal stages of capital litigation where the states are required to provide free counsel. There are similar noble sentiments that deter lawyers with discretion to use their resources in any forum from becoming involved in capital trials and direct appeals. Some of the finest capital defense lawyers in the nation repeatedly "parachute" into hopeless last minute collateral litigation in the most hostile forums because a condemned person who had already exhausted all of his remedies in state and federal court was about to be executed without a lawyer. These
practical obstacles to the most effective use of the scarce resources that are
available for capital defense work are not insurmountable. The nation-wide
"Emergency Committee to Save Habeas Corpus" that was organized by LDF
in 1990 to block legislative repeal of the Great Writ and the campaign that LDF
led to obtain clemency for Virginia death row inmate Joe Giarratano prove that a
handful of talented advocates can still devise an effective strategy, recruit
enough people to carry it out and motivate them to make great personal
sacrifices. Many lives would be saved if that kind of creative energy was focused on preventing death sentences instead of merely writing lengthy obituaries. The people under death sentences should not be forsaken, but energy, training and effort must be refocused to the front end. This message has been habitually stated, as the sun rises, from pleas of these authors since 1976. It has been unheeded as habitually as the sun sets. There is no secret plan that will
duplicate LDF's early 70's feat of saving hundreds of lives with a single
brief. There are specific ideas for a different focus. There is urgent need for an immediate
fundamental change in the way that the capital defense bar uses its time, money,
political influence, organizing skills, imagination and legal training to defend
the lives of the poor people who have no place else to go for representation. If you decide to represent a person accused in a death penalty case, whether or not their name will be added to the roll of Death Row U.S.A. will depend more on your skills than the person's crime. [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. [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). [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).
|