Recently I had a Federal judge reject my attempts to keep a client on death row from being executed. I was appointed to represent the defendant after he had lost his trial; lost his appeal in state court; and lost his attempt to convince the trial judge to find his case constitutionally flawed pursuant to a “writ of habeas corpus.” I was appointed, as Federal law provides, to represent him in relation to his final “appeals” to Federal court.
After I was appointed to represent him I asked the judge to let me have investigators and the funds to thoroughly review his case. Eventually the court agreed to let me do this. The evidence of guilt was overwhelming but the investigation revealed that the trial attorneys had failed to put on hardly any evidence in the phase of the trial in which the jury is supposed to hear all the evidence relevant to the question of whether he should live or die. The Supreme Court has made it increasingly clear over the years that it is unconstitutional in this day and age to execute someone unless the jury is provided a complete overview of the defendant’s life. The good, the bad and the ugly. Yet this clearly did not happen in this case. Easy answer right? Just retry the defendant on the question of whether he should be executed. Wrong!
The problem is I did not find out all of this information until it is too late. The law provides that if an allegation is made that the trial lawyers failed to do something it has to be raised in the first state writ of habeas corpus. If it wasn’t raised then it may never be considered again. Why wasn’t the evidence presented in the first state writ of habeas corpus? The defendant had a lawyer didn’t he? Yes, but one that worse than having no lawyer at all. The trial court appointed a lawyer who had just graduated from law school and had no experience in death penalty litigation. It appears she simply had no idea what she was supposed to do because she raised no meaningful issues in the state writ of habeas corpus. Well, in that case the courts should just allow the defendant another chance to file a state writ of habeas corpus right? Wrong again. The courts are afraid that if the failures or inadequacies of state habeas counsel could result in “do overs” the death penalties appeals really would never come to an end. So if state habeas counsel drops the ball, to bad, so sad,” for the defendant.
Consider the upshot of all this for a moment. The defendant is guilty. As a practical matter the only question is whether he should spend the rest of his life in prison or be executed. The Supreme Court says no automatic death penalty. The jury must here all relevant evidence about the defendant before it can make such a momentous decision. The court appoints the defendant a lawyer who fails to put even a fraction of all the relevant evidence before the jury. The first appeals lawyer can’t do anything about it, even if he knew about it, because the law says in the first appeal the lawyer can only talk about things that were before the court at trial and the whole point is the trial lawyer did not place any of this information before the court. The court then appoints an inexperienced lawyer who has no idea what she is supposed to do to prepare and file a state habeas petition. She does no investigation and thus makes no mention of the failure of the first attorneys to present any of this evidence. Then the courts appoint the defendant a new attorney and tell that attorney that he is limited to carrying forward the frivolous claims of the first habeas attorney. When he informs the court of all the important evidence the jury never heard, the court then responds, “the defendant failed to raise these issues in the first habeas corpus and thus cannot raise them now.” Really? The nearly retarded defendant with a fourth grade education on death row? He didn’t do anything but sit in his cell. The courts initially failed to appoint competent attorneys for the defendant. The attorneys that the court assigned to the defendant failed him and the public, who would like to believe that before people are executed, the jury that imposed the death sentence was making an informed decision. In reality, the courts are far more responsible for the failure of this evidence to presented to the jury than the defendant himself. In fairness to the judges the law provides for this “Catch 22,” but sometimes the law promotes more injustice than justice.
By: Broden & Mickelsen
Posts Tagged ‘Attempts’
Some Bizarre Death Penalty Laws
November 25th, 2009Why You Really Do Need To Keep Records In Lemon Law Cases
November 6th, 2009If you think your car might be a “lemon,” start by doing a quick checklist of the problems.
So, if your car makes odd noises, but otherwise drives just fine, you might not have a car that falls under your state’s Lemon Law. But, if you are having major problems, like with the engine, drive axle, brakes, steering or radiator, you might want to start a paper trail. You could have a lemon.
With any issues you might be having, check your car service contract first. Give the manufacturer an opportunity to make repairs or corrections – this can be up to 3 or 4 attempts to fix a problem. At this point, a Lemon Law attorney may not be required.
However, if you are experiencing major defects with your car, the most important thing you can do is keep all receipts and records concerning your vehicle. Be sure you have a copy of the car warranty in a safe place. Keep all receipts concerning repairs that have been made to your vehicle. You might also want to consider keeping a log or notebook that contains all of this relevant information, including the number of days as a running tally that it was kept in the shop for a related problem. Start to research the Lemon Law in your state.
You may also want to research whether any ‘service bulletins’ have been issued for your make and model of car (this can be accomplished with a simple Google search). Do your homework, copy any information you find and put it in your notebook. Keep logs, as you may need this information later on in the event that you need to make a claim under your state’s Lemon Law.
In most states, the Lemon Law provides a legal remedy for customers who purchase a car that turns out to be a lemon. Dealers are required to give you a written car warranty under which a dealer must put right, free of charge, any defects in covered parts. In some cases, the dealer may have the option to reimburse you for the sensible cost of repairs; check your car service contract to see if this applies to you.
But if your car needs excessive repairs, start researching the Lemon Law statutes in your state. Many problems during the car guarantee period may not constitute a defect, but one major defect might be a breach of the Lemon Law. Note the dates of all repairs to your car in a notebook, and how long your car was “in the shop” and “off the road.” Make the receipts for repairs in a safe place. At this point you may want to look into finding a Lemon Law attorney in your state.
If you think you might be driving a lemon, gather up all of your paperwork. Become familiar with your state’s Lemon Law statute. Compile a list of Lemon Law attorneys. Check with the Attorney General’s office in your state for more information on the precise statutes.
Besides the car warranty, be sure you have each and every work order performed on your car, as well as any service bulletins issued that may relate to the problem or problems you’re having. Nearly every Lemon Law statute will include a list of records that are important to keep. Any reports or correspondence you’ve received from the dealer will also be important in case you decide to file a claim under your state’s Lemon Law.
It is a long paper trail, but if kept effectively, you will know rather quickly whether you are dealing with a chronically ‘sick’ car, or just normal car repairs.
By: Charles Stubbs
