Yesterday (3/15/13), the Maryland legislature voted to end
the death penalty in that state. Governor Martin O’Malley, who has pledged to
sign the bill, summed up the many reasons why death penalty opponents like me
are against the death penalty: “We
also have a moral responsibility to stop doing the things that are wasteful,
and that are expensive, and do not work, and do not save lives, and that I
would argue run contrary to the deeper principles that unite us as Marylanders,
as Americans, and as human beings."
Thursday (3/14/13), the 9th circuit court of appeals
overturned the conviction of Debra Milke, who has been on Arizona’s death row
for 22 years. The lead detective, whose testimony was a major part of the
prosecution’s case, had fabricated evidence in a number of other cases that
have since been overturned. This, of course, throws serious doubt on his
testimony in Milke’s case. The State plans to appeal to the Supreme Court.
While Gov. O’Malley cites moral and philosophical reasons
for banning the death penalty, Milke’s case strikes a chilling, more personal
note. We have executed nearly 1,300 people since 1976 in this country. How many
of those did we get wrong?
We soothe our collective conscience by telling ourselves
that a death row inmate has years of appeals during which his or her case is
closely examined by wise factfinders. On the other hand, we point to this
tortuous, lengthy process as evidence that the death penalty is too expensive
and doesn’t serve justice at all.
When I tried to describe the appeals process yesterday to a
fellow attorney, I stumbled. I was caught short when I couldn’t remember all of
the steps—let alone accurately describe them. I decided to outline the process
here for my own satisfaction. Anyone else is welcome to listen.
Note: This description assumes a
state and not a federal case. Also, some states vary slightly. This process is
typical.
I. Trial
and sentencing
We’re most familiar with this step. It’s the “sexiest” one,
dramatically illustrated in thousands of movies, from “Twelve Angry Men” to “My
Cousin Vinny.” The State must prove the Defendant’s guilt beyond a reasonable
doubt. The Prosecutor may have decided to seek the death penalty if
“aggravating factors” are present—perhaps a murder was particularly grisly,
part of another felony such as armed robbery, or the Defendant shows no
remorse. While many movies show the judge handing down the death sentence
during the sentencing phase, the Supreme Court has ruled that only the jury may
decide whether these aggravating factors are present, and therefore whether the
Defendant can be sentenced to death. Ring
v. Arizona, 536 U.S. 584 (2002).
II. Capital
appeal
A. Direct appeal
1. State court of
appeals
In most states, this appeal is mandatory in death penalty cases.
This is not a new trial. The Defendant is now the Appellant, while the State is
the Respondent—and is represented by the state’s department of justice and not
a local prosecutor. These appeals are based only on the trial court record. In
other words, if the attorneys did not raise an issue or present evidence at the
trial, it won’t be considered here. No new witnesses are heard. Instead, the
attorney for each side writes a brief and presents it during oral arguments. The
panel of judges rules based on the briefs and oral arguments alone.
While the panel of judges can review the trial transcript
and evidence, they are not deciding guilt or innocence but are reviewing the
case to see whether the lower court made “reversible error,” an error which
would have made the trial turn out differently. If so, they will reverse the lower
court’s decision and remand the case to the lower court for further proceedings
to “fix” the error. This may result in a new trial. Also, the court of appeals
can reverse the death sentence itself. If the appeals court finds no reversible
error, the trial court’s decision is affirmed.
2. State supreme court
The losing side may then appeal the decision of the appeals
court to the state supreme court. This is similar to the court of appeals
process.
3. U.S. Supreme Court
The losing side can then appeal to the U.S. Supreme Court,
asking it to review the federal constitutional issues of the case, such as
whether the Sixth Amendment right to a fair trial was violated. While the state
supreme court is required to hear death penalty appeals, the U.S. Supreme Court
is not. 43 Stat. 936 (1925).
B. State post-conviction appeal
1. Trial court
2. Court of appeals
3. State supreme court
4. U.S. Supreme Court
It’s not necessary to detail all of these steps, except to
say that the Appellant can file a petition with each of these four courts,
raising issues that were and perhaps were not part of the original trial.
Common issues at this stage include ineffective assistance of counsel or Brady
violations, where the Appellant accuses the State of withholding evidence
crucial to the Appellant’s case. At this stage, as in the Direct Appeal, the
U.S. Supreme Court can refuse to grant certiorari (can refuse to hear the
case). After this phase, the Appellant has exhausted state remedies and can
attempt the federal courts.
C. Federal habeas corpus review
Latin for “you have the body,” this is the stage during
which the Appellant tries to show that his body is imprisoned without legally
sufficient reason. Practically speaking, when you hear politicians complain
about death row inmates cheating death for years with numerous redundant
appeals, they’re usually talking about habeas corpus.
Habeas corpus review ain’t what it used to be. In 1996,
Congress passed the Antiterrorism and Death Penalty Affectiveness Act (AEDPA).
110 Stat. 1214 (1996) Among other things, the AEDPA limits the inmate to one
petition only and imposes strict time limits on the filing of the petition.
Also, under AEDPA, federal judges may grant the petition only if they find that
the state courts clearly and unreasonably applied federal law or made an
unreasonable judgment based on the evidence. Critics of AEDPA have argued that
these limits make the habeas process an ineffective rubber stamp of the lower
court’s decisions.
Keeping in mind the above limitations imposed by AEDPA, the
habeas process works as follows:
1. U.S. District Court
The State
and the Defendant file briefs in which they argue federal issues only. The
judge can deny the petition or overturn it and can also overturn the death
sentence. The judge can hear new evidence, too.
2. U.S. Court of Appeals
If and only
if the District Court judge or the Appeals Court judge allows the petition to
move forward, the Court of Appeals reviews the case, limited to issues brought
before the District Court. The conviction or the death sentence can be upheld
or overturned here, but if it is overturned, the state court can retry the
case.
3. U.S. Supreme Court
This is the
Defendant’s last resort. The Court hears only a few of these cases a year, and
only for compelling reasons. A recent notable example happened 1/10/12, when
the Court overturned the conviction of Juan Smith, who was convicted of killing
five people in New Orleans in 1995. The court ordered a new trial for Smith,
largely based on the prosecutorial misconduct of New Orleans District Attorney
Harry Connick, Sr., whose office withheld key evidence from Smith’s attorneys
that could have resulted in a “Not Guilty” verdict for Smith.
III.
Clemency
Once the accused has exhausted his
final appeal rights, the Prosecutor applies for a death warrant. Once this is
granted, the only hope is clemency.
The governor of the state in which the Defendant was convicted
can review the case and can commute the death sentence to a lesser sentence.
This is not as rare as you’d think, but mostly because governors have commuted
all current death sentences immediately before the governor signed a bill
repealing the death penalty in that state, as Gov. Pat Quinn did in Illinois in
2011. It is fairly rare for a governor to grant clemency to an individual
inmate, but it happens. In 1977, Gov. George Busbee of Georgia granted clemency
to Charles Harris Hill, who got the death penalty for his participation in a
robbery during which the victim was stabbed to death by his co-defendant, Gary
Watts. Gov. Busbee granted clemency to Hill, finding that it was unfair for
Hill to get the death penalty when Watts did not.
In the movies, this step adds extra
drama to the plot. As the hours tick away in the march toward the death
chamber, the condemned is said to be waiting for a phone call from the
governor.
I’ve learned a lot here. While I had a general idea of the
process, I find myself surprised by the number and complexity of the individual
steps. It’s important to note, however, that Defendants do not typically get
the benefit of most of these levels of review. When they do, they usually lose.
Even if they win, the result is generally not freedom, but is more likely to be
life in prison or maybe a new trial or a review of the evidence.
If anything, I’m even less comfortable with the death
penalty than I was before. I’m left wondering how many mistakes we’ve made.
Worse—with more than 3,200 people on death row today, how many mistakes are we
going to make?
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