Ineffective Assistance of Counsel for Capital defendant

A leading case summery of Harvard Law Review: Schriro v. Landrigan (2007) (11 pages)

Sixth Amendment — Ineffective Assistance of Counsel

Capital defendants are not always cooperative or repentant, even at sentencing hearings determinative of their fates. Some death penalty defendants may refuse to aid in investigation of mitigating evidence, or they may actively obstruct presentation of it during the sentencing phase. Others may flaunt the purposeful nature of their killings, their lack of remorse, or their willingness to be put to death for their crimes. Courts must be aware, however, that this behavior may be due to mental illness or caused by physical and emotional abuse, a genetic disorder, or drug addiction — characteristics that may reduce a defendant’s moral culpability.

Last Term, in Schriro v. Landrigan, the Supreme Court upheld a state court’s finding that a defendant who refused to allow the presentation of mitigating evidence from his family members was not prejudiced by his counsel’s failure to investigate fully or to present other sorts of mitigating evidence. Thus, the Court held, the defendant was not entitled to an evidentiary hearing on the claim of ineffective assistance of counsel. The Court failed to analyze the context of Landrigan’s refusal, including unique concerns about particular mitigating evidence and the defendant’s background — factors that may have explained his statements and behavior. Moreover, the Court did not consider the defendant’s refusal in the context of its waiver precedents or the importance of mitigating evidence. Courts should not expand a limited refusal to present only some mitigating evidence into a complete refusal to present any mitigating evidence, nor should they allow recalcitrant behavior at sentencing to justify eradication of a defendant’s constitutional right to effective assistance of counsel.

Death Qualification Decisions

A leading case summery of Harvard Law Review (Issue 121, Nov 2007): Uttecht v. Brown (2007) (11 pages)

Sixth Amendment — Death Qualification Decisions

Endless review of death sentences is exhausting the courts. The legislative response to this problem can be seen in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which sharply limits federal habeas review of state court decisions. The judicial response is apparent in the Supreme Court’s increasing reluctance to reverse sentences for minor errors many years after their imposition.

The Justices’ frustration with the delaying tactics of capital defendants was on display last Term in Uttecht v. Brown, in which the Court reinstated a thirteen-year-old death sentence overturned by the Ninth Circuit. The Court held that the trial judge had not abused his discretion by striking a potential juror who expressed some hesitancy to impose a death sentence under the circumstances of the case and whose removal was not objected to by defense counsel. Brown should remind appellate judges of the high degree of deference afforded to trial court determinations, particularly under circumstances that suggest the trial judge may have been relying on his observation of an individual’s demeanor. But as Congress and the Court move to curb excessive review of death sentences, it is important that lower courts not mistake more lenient standards of review on appeal for less rigorous first-order standards. Brown did not alter the standard that trial judges must apply in deciding whether to exclude a juror for cause, which remains strongly tilted toward retention of all but the most biased veniremen.

Execution of the Presently Incompetent

A leading case summery of Harvard Law Review (Issue 121, Nov 2007): Panetti v. Quarterman (2007) (11 pages)

Eighth Amendment — Death Penalty — Execution of the Presently Incompetent

The Supreme Court’s capital punishment jurisprudence might be characterized as a struggle for coherence. Since its fractured ruling in Furman v. Georgia, however, the Court has achieved relative clarity at least on the proposition that capital punishment is intended to promote retribution and deterrence. In Ford v. Wainwright, the Court found that neither of these purposes is served by the execution of a prisoner who has become incapable of comprehending
the connection between his crime and his impending execution and that such executions are barred by the Eighth Amendment.

Last Term, in Panetti v. Quarterman, the Court held that the same logic applies to prisoners who can articulate this connection, but are so delusional that they are incapable of “rational[ly] understanding” it. This conclusion is not surprising, but in reiterating the arguments made in Ford, the Panetti Court revealed a troubling incoherence: the treatment of retribution and deterrence in Ford and Panetti is inconsistent with the Court’s prior treatment of these theories of punishment. Indeed, under a consistent interpretation of the Court’s accepted rationales for capital punishment, there may be no coherent way to distinguish between the execution of one who is competent and the execution of one who has lost his sanity. As such, Panetti highlights the possibility that the logical conclusion of our death penalty system is a result that, in the Court’s own words, “offends humanity.”

Mitigating Evidence and Death Penalty

A leading case summary of Harvard Law Review: Abdul-Kabir v. Quarterman (2007) and Brewer v. Quarterman (2007) (11 pages) The two cases were consolidated.

Eighth Amendment – Death Penalty – Consideration of Mitigating Evidence

The maxim that “death is different” has long guided the Supreme Court’s death penalty jurisprudence. In the landmark case of Lockett v. Ohio, a plurality of the Court declared that the Eighth Amendment mandates that a capital sentencing body be permitted to “consider[], as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In Penry v. Lynaugh, the Court applied the Lockett principle to a death sentence under a Texas statute mandating death if the sentencing body found that the defendant had acted deliberately and was likely to be dangerous in the future. Under that statutory regime, the jury could not necessarily consider and give effect to the mitigating force of the defendant’s mental retardation and history of childhood abuse.

Last Term, in Abdul-Kabir v. Quarterman and Brewer v. Quarterman, the Supreme Court addressed the constitutionality of two defendants’ death sentences under that same statute. The Court held that the Texas Court of Criminal Appeals (CCA) had misapplied clearly established law by refusing to invalidate the sentences when the sentencers were not permitted to give meaningful effect to the defendants’mitigating evidence: childhood neglect and impulse-control disorder in Abdul-Kabir,9and mental illness, childhood abuse, and substance abuse in Brewer. The Court therefore concluded that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief was warranted.

At first sight, the decisions in Abdul-Kabir and Brewer seemed to signal a departure from precedents granting wide deference to state court decisions where the relevant clearly established law was broad and general. In fact, however, the law that the Court invoked in these cases was much narrower than the opinions superficially suggest. Therefore, the Court’s selection of a fact-specific, highly determinative holding as the relevant clearly established law explains how the strictness of the Court’s review of the CCA’s decisions is reconcilable with precedent.

“Death in Georgia”

Few months ago Jeffrey Toobin wrote in the New Yorker about Brian Nichols and death penality reform in Georgia.

To end the death penality

Today there is a letter to NY Times editor:

To the Editor:

Re “The Death Penalty Returns” (editorial, May 7):

I spend 20 hours a week working as a volunteer to end the death penalty. I write letters to the editor and op-ed articles, and I am the chairwoman of the San Francisco chapter of Death Penalty Focus, a grass-roots anti-death-penalty organization.

Here is what I am learning:

Most people never give any thought to the death penalty. Once you get them to think about it, they are more often against it.

If people want to help end state killing, they should start talking to everyone about it.

Nancy Oliveira
San Francisco, May 7, 2008

About Public Defender System

Michael Whiteman, the chairman of the Committee for an Independent Public Defense Commission, wrote to NY Times editor:

To the Editor:

Re “Releases From Death Row Raise Doubts Over Quality of Defense” (front page, May 7):

You don’t have to look to other states for gross violations of the American Bar Association’s Ten Principles of a Public Defense Delivery System. New York’s failed county-based system for defendants who cannot afford a private lawyer was aptly described as “an ongoing crisis,” underfinanced and poor-performing, in a report to Chief Judge Judith S. Kaye.

And inadequate defense has been identified as a major factor in the plague of wrongful convictions that has seen more inmates in New York freed from murder convictions this decade after DNA-based post-trial investigations established their innocence than in any other state.

“Justice delayed is justice denied” is more than a slogan. It is a burden imposed daily on the countless inmates who sit in jail because of their inability to afford an effective defense. It is time for state leaders to embrace Judge Kaye’s recommendations and create an independent public defense commission to begin the process of carrying out a state takeover of financing and operation of our public defense system and remove a stain on our self-professed commitment to equal justice.

Michael Whiteman
Albany, May 7, 2008