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 ‘Writ Of Habeas Corpus’
Some Bizarre Death Penalty Laws
November 25th, 2009The US Constitution, 18th Amendment, Differing Views of Intent
August 14th, 2009In 1966, Lyndon B. Johnson lauded that “it is the genius of our Constitution that under its shelter of enduring institutions and rooted principles there is ample room for the rich fertility of American political invention.” This leeway for “political invention” is what makes the US Constitution a living document, since not only do its contents change with the years, but also its interpretation.
Of the over 8,000 words in the Constitution today, only about 4,500 of them are from the original 1787 document. The first ten amendments, known as the Bill of Rights, weren’t added to the Constitution until 1791 and an additional seventeen have since been added. That being said, the fact that the US Constitution is not only the supreme law of the land, but also an extremely powerful symbol of America makes it extremely difficult to know when, why, and how to amend the dang thing.
In 1856, Abraham Lincoln – the go-to president for great quotes and warm, fatherly feelings – warned: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” Which is more than a little ironic coming from a guy who not only suspended the writ of habeas corpus (which protects citizens against illegal imprisonment) just five years later, but also added the 13th Amendment to the Constitution during his short presidency. Lincoln clearly didn’t believe that maintaining the integrity of the Constitution meant serenading it to the tune of “Don’t Go Changin’.”
This opens up the nasty can of worms that is the letter of the law vs. the spirit of the law. Those who interpret the Constitution strictly argue that it was written by some of the brightest and best minds in American history, who thought long and hard about their exact word choice so that future generations wouldn’t have to. Those in favor of a more elastic interpretation, however, cite the document’s various instances of “historical flavor” to argue that the Constitution must be interpreted in accordance with the times; for instance, up until it was stricken from the document after the Civil War, part of Article I Section 2 of the Constitution referred to a slave as 3/5 of a person for census-taking purposes.
Of all the amendments added to the Constitution, only one was ever considered a bad enough idea to merit annulment. Passed in 1917 after years of hard campaigning by the temperance movement, the 18th Amendment legalized prohibition nationwide. Not only was the ban on alcohol completely ineffective, but it actually fueled a powerful underworld of crime and bootlegging (à la Great Gatsby) that give rise to mafia criminals such as Al Capone. Nevertheless, it took over 14 years before the 18th Amendment was repealed via the 21st Amendment.
In general, the more contentious parts of the Constitution are altered not through sweeping written changes, but through differences in interpretation. In 1907, New York mayor and future Supreme Court Justice Charles Evans Hughes famously said that “the Constitution is what the judges say it is.” Pretty hard to argue with, considering the historical context; since the 1880’s, the Supreme Court had been interpreting the word “people” in the Equal Protection clause of the 14th Amendment to include corporations, thereby severely restricting the government’s ability to regulate the abuses of big business.
The Supreme Court’s huge influence over constitutional law is the reason why all Supreme Court nominations undergo such harsh and prolonged scrutiny before being accepted to the bench. Perhaps Supreme Court Justice Hugo Black best expressed our ongoing concern over judges when he insisted in 1970 that the “Constitution was not written in the sands to be washed away by each wave of new judges.”
By: Paul Thomson
