1 The Egregiously Unfair Implementation of Capital Punishment in the United States: Super Due Process or Super Lack of Due Process? 1 RONALD J. TABAK Attorney at Law IWILL DISCUSS what I have learned since I was more or less dragged, kicking and screaming, into working on the death penalty. In 1983, my arrangement with my law firm enabled me to spend a substantial amount of my time doing free legal work for poor people. Someone suggested that, since I had that much time to devote to pro bono, I should contact the NAACP Legal Defense & Educational Fund, Inc., which presumably would have interesting civil rights cases on which I could work. I thought that was a good idea. I spoke to Jack Greenberg, who was then LDF s director-counsel. He asked that I represent a Georgia death row inmate in the federal appeals court for the Eleventh Circuit. The inmate, Raymond Franklin, had been convicted and sentenced to death at trial; he had lost his direct appeal in state court, he had lost in state post-conviction proceedings, and he had lost in the federal district court. This was not the kind of case I had anticipated getting through LDF. And it did not fit well with my experience, which was almost exclusively with civil cases, including antitrust cases involving big oil companies. My only criminal law experiences were on some misdemeanor matters, none of which went to trial because we got the charges dropped without even a hearing, and work on one criminal appeal brief. I had never argued an appeal of any kind. Also, I was under the impression that there were more than enough lawyers to clog the courts with frivolous arguments on behalf of death row inmates. What need was there for my help? 1 Read 26 April PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 147, NO. 1, MARCH 2003 
2 14 ronald j. tabak Mr. Greenberg told me that more than two-thirds of death row inmates who lost in state courts were getting relief in federal courts, which have life-tenured judges. These condemned inmates were not getting relief on technicalities. They were getting relief because the United States Constitution was violated in their cases in ways that may well have affected the outcome. Mr. Greenberg said that no matter how poor a death row inmate is, he has no recognized right under our Constitution to have a lawyer appointed to represent him after he loses his direct appeal in state court. Under these circumstances, he stated, I was the most qualified lawyer in the entire world available to represent Mr. Franklin. I responded that I would try anything once, but needed LDF s Jack Boger to help me. Mr. Boger agreed to do so. I then learned that the opening brief was due in the federal appeals court in one week. I believed that if the Georgia attorney general s office was like any other adverse counsel I d dealt with, it would give me at least a month s extension, since I had never done this work before and I was just getting into the case. Mr. Boger said the Georgia attorney general s office never gave anybody extensions of time in death penalty cases. I did not believe that, so I called up that office. I did not get any extension of time. In the next week, we managed to write a brief. Jack wrote up the facts, and two of the legal issues, and I wrote up, with help from my colleagues and guidance from Jack, the two other legal issues. One of the two legal issues we worked on concerned part of the judge s charge to the jury. Mr. Franklin had admitted to having fired the fatal shot, but said he had not intended to kill anyone. He had had his gun up against a screen door. The door was slammed on him, at which point a shot went off that killed a person. Although there was a second shot, it went up into the ceiling. The defense attorney had asserted that there was insufficient evidence of intent to kill. The judge instructed the jury that it shall presume that a person intends the natural and probable consequences of his actions, but that the presumption can be rebutted. A few years before I worked on this appeals brief, the United States Supreme Court had held in Sandstrom v. Montana that if a judge instructs the jury that it shall presume intent, the instruction is unconstitutional because it shifts the burden of proof to the defendant on the element of intent. 2 The defendant is not supposed to have to 2 Sandstrom v. Montana, 442 U.S. 510 (1979).
3 implementation of capital punishment 15 prove the absence of a key element of the case after it is presumed to exist. The government has to prove its existence. The Sandstrom question in our case was whether it made any difference that the judge had added that the presumption of intent could be rebutted. I wrote the reply brief on all four issues, and I argued Mr. Franklin s case in the Eleventh Circuit. We won on the Sandstrom issue. A conservative panel held unanimously that the charge to the jury was unconstitutional. 3 Then, the United States Supreme Court decided to take up this case, at the state s request. The Supreme Court takes up only a small number of cases each year, currently well under a hundred cases out of the thousands that people ask it to consider. When the Supreme Court granted review in Mr. Franklin s case, I had begun work on a few other cases, including one of the two that are written about in the book Dead Man Walking. But I still did not have very much appellate experience. I told Jack Boger that I was not going to stand on ceremony. This issue could affect many people s cases, and I told him just to say so if someone else should argue the case in the Supreme Court. But he said I should represent Mr. Franklin in the Supreme Court. I did so in November 1984, slightly more than eighteen months after I first began work on this case, the first death penalty matter I had ever handled. During the oral argument, when I was describing how the second shot went up into the ceiling, people in the back of the Supreme Court s courtroom looked up to the ceiling to see where the shot had gone. The Supreme Court held, by a 5 4 vote, that the charge to the jury was unconstitutional, and our client got relief. 4 At his new trial, he did not get the death penalty. If Mr. Franklin s case were to arrive in the federal courts today, the United States Supreme Court would not take the case and no federal court would grant relief. Why? First, a few years after 1985, when the Franklin case was decided, the Supreme Court adopted a new antiretroactivity doctrine. Under this doctrine, if as of the time you lose on direct appeal in state court (i.e., your first appeal) the Supreme Court has not already ruled on an issue virtually identical to the one you want to raise, you cannot get any federal court (including the Supreme Court) to rule on that issue in a habeas corpus proceeding. 5 3 Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1984). 4 Francis v. Franklin, 471 U.S. 307 (1985). 5 See Teague v. Lane, 489 U.S. 288 (1989).
4 16 ronald j. tabak Second, the state of Georgia changed its procedural rules. At the time of Mr. Franklin s trial, the trial lawyer s failure to object to the charge to the jury did not bar the claim from later review. But Georgia s legislature noticed that whereas Georgia inmates were getting relief in federal court when their constitutional rights were violated, Alabama and Florida inmates were being barred from raising the same kinds of claims in federal court. Why? In Alabama and Florida, defense counsel who did not object at trial to constitutional errors were violating state laws that required them to object at trial. Georgia had not had such a procedural bar, but it changed its law to provide for procedural default. Now, in Georgia, if your trial lawyer negligently fails to object at trial, you are usually barred forever from securing relief from a serious constitutional violation, in federal court as well as in the Georgia courts. There are a variety of other reasons why Mr. Franklin would not be able to get a ruling on his claim now. Wholly aside from that, it is worth noting that if the charge to the jury in Mr. Franklin s case had been, You may infer intent to kill, the Supreme Court would not have held that unconstitutional. Why? The United States Supreme Court thinks the average juror knows the difference between shall presume and may infer. Perhaps in this august group, the American Philosophical Society, you all know the difference between a mandatory presumption and a permissive inference. I do not think most jurors know the difference, yet the Supreme Court acts as though they do. This type of unreality permeates much of the Supreme Court s jurisprudence bearing on capital punishment. One of the things I discovered as I began to get involved in these cases is that prosecutors have huge discretion as to whether they are going to seek the death penalty. There is no such thing as a mandatory death penalty. That you could get the death penalty does not mean that anybody has to seek the death penalty. Nor does it mean that anybody has to impose the death penalty. You may think that the death penalty is limited to the very worst crimes. Indeed, when death penalty laws are initially passed, proponents talk about criminals like Ted Bundy or Charles Manson. But the tendency is to keep expanding the scope of death penalty laws. For example, where death penalty laws are initially limited to killings of police officers, the survivors of some murder victims have protested: Why are you limiting the death penalty to cases where police officers were killed? Our loved ones are just as important as police officers. A major reason for such protests is that the death penalty is asserted to be a magical elixir for the problems of murder victims survivors.
5 implementation of capital punishment 17 There is no proof of that. On the contrary, survivors abilities to come to terms with the deaths of their loved ones are impeded by the death penalty which is not sought in most murder cases, is not imposed in the majority of cases in which it is sought, and even when it is imposed entails long years of litigation. In any event, the scope of the death penalty keeps expanding, so you can get the death penalty where people are killed in the course of a robbery, even where there was no premeditation to kill anyone. And if you kill anybody at a federal airport, you can get the federal death penalty. The huge expansion of the scope of the death penalty gives prosecutors even more discretion than they had initially. Prosecutors exercise their discretion in widely varying ways. In Philadelphia, the district attorney seeks the death penalty on almost every possible occasion. In similar cases in Pittsburgh and elsewhere in Pennsylvania, prosecutors usually not do seek death. In the city of Baltimore, Maryland, the prosecutor rarely seeks the death penalty, whereas in Baltimore County, Maryland, the prosecutor seeks the death penalty in almost all cases in which she could possibly seek it. Whether the death penalty will be sought can literally be determined by which side of a street you are on when the murder occurs. The courts have done nothing about this. 6 Statistically valid studies have shown that the racial discrimination in the implementation of the death penalty is principally due to discriminatory patterns in prosecutors decisions on when to seek death. In 1987, the Supreme Court had before it a study that found a systematic pattern of racial discrimination based on the race of the victim. The study showed that if numerous other factors about the crime, for example, the defendant s background, were the same, the odds of getting the death penalty in Georgia were far greater if the victim was white than if the victim was black. The Supreme Court assumed, for the purpose of its decision, that that study was valid. But by a 5 4 vote, the Court held in McCleskey that the pattern of racial discrimination in implementing capital punishment was constitutional. The majority said that if you want to do something about this discrimination, you can go to your legislative bodies and try to get laws enacted to deal with it. 7 I later had the dubious privilege of testifying before Senator Strom Thurmond about why Congress should enact a law dealing with racism in the capital punishment system. Senator Thurmond did not cotton to 6 Nightline: Crime and Punishment: A Matter of Life and Death (ABC News television broadcast, 13 Sept. 2000) at trans.html-size 54.4K 7 McCleskey v. Kemp, 481 U.S. 279 (1987).
6 18 ronald j. tabak that idea. He claimed that when he was a trial lawyer, he handled capital cases pro bono and his clients never got the death penalty. I was tempted to say, Senator Thurmond, we need you to resign from the Senate because we need people as capable as you to represent these people. The lawyers who are representing them now are not doing the great job you did, Senator. In any event, Congress did not enact the Racial Justice Act, although it did pass the House of Representatives twice. Justice Powell, who wrote the majority decision in McCleskey, later told his biographer that it was the biggest mistake of his entire career, and that if he could do things over, he would always rule against the death penalty. That is good to know, but it does not bring Mr. McCleskey back to life and it does not change constitutional law. We need to have our best defense lawyers handling these cases from the outset. Capital cases are far more complex than other criminal cases. There are special rules of jury selection, under which anyone who will never vote for the death penalty can be excluded from the jury, as can people who will automatically vote for the death penalty for anyone convicted of the alleged capital murder. There is not just a determination of guilt or innocence, as in other trials. If the person is found guilty of capital murder, there is a sentencing proceeding at which anything about the defendant s background that might make the sentencer decide on a non-death sentence can be presented. In numerous cases, lawyers who have no criminal law experience have been appointed to handle capital cases at trial. In the sentencing phase of these proceedings, defendants often find themselves represented by lawyers who have no experience in, or knowledge about, developing evidence of mental illness or other mitigating factors. In case after case, the jury never hears that the defendant had an honorable military record and then developed post-traumatic stress disorder, or that the defendant had serious mental illness when growing up but was never treated. In most cases in which post-conviction counsel later finds mitigating evidence, i.e., evidence that might have resulted in jurors not voting for the death penalty, the courts reject claims of ineffective assistance of counsel. Why? The United States Supreme Court has set a standard under which, to be held ineffective, a lawyer has to have performed significantly worse than the average lawyer handling these cases in that locale. 8 If the average lawyer there is inadequate to the task, and so are you, you are not held to be ineffective. And even if defense counsel s performance is significantly worse than that of the average lawyer in 8 Strickland v. Washington, 466 U.S. 668 (1984).
7 implementation of capital punishment 19 the area, the inmate also has to show a significant probability that if his lawyer had not been ineffective, the outcome would have been different. With regard to the sentencing phase, this means that a death row inmate has to show a reasonable probability that, if his trial lawyer had not been ineffective, he would not have been sentenced to death. I handled the post-conviction and federal habeas corpus proceedings in a case where that reasonable probability standard was applied to a claim of prosecutorial misconduct. The United States Fifth Circuit Court of Appeals said I had to show that if the prosecutor had not given his egregiously improper and inaccurate argument which he gave for the sole purpose of trying to get the jury to vote for the death penalty there was a reasonable probability that my client would not have been sentenced to death anyway. I pointed out that in the codefendant s trial, where the evidence was the same but the improper prosecutorial argument was not made, the jury did not vote for the death penalty. The Fifth Circuit held that that was not good enough. The claim was denied, and my client was executed. 9 I wondered whether the Fifth Circuit would have wanted me to conduct a retroactive séance with the members of the jury, to determine what the jury would have done if the prosecutor had not made his horribly improper argument. Justice Sandra Day O Connor stated last year that she is troubled by the low quality of defense lawyers in many death penalty cases, and that we may need some counsel standards. She also said it is quite possible that we have executed at least one innocent person in recent years. 10 However, we have not seen any change in the last year in the way the Supreme Court deals with ineffective assistance of counsel claims. There was a time when federal funding was available to support post-conviction capital defender organizations, like the one Bryan Stevenson heads in Alabama. These resource centers represented many death row inmates in state post-conviction and federal habeas corpus proceedings, and recruited and mentored other people, like me, who handled additional cases. Then, in , Congress eliminated that funding. The de-funding of these resource centers caused most of them to close and forced the rest to contract substantially and has greatly exacerbated the unfairness of our capital punishment system. 9 Willie v. Maggio, 737 F.2d 1372 (5th Cir.), cert. denied, 469 U.S (1984). 10 O Connor Questions Death Penalty, Associated Press, 2 July 2001; John Fulwider, O Connor Lectures Lawyers, Recollects for Students in Lincoln, Nebraska State Paper, available at archives, 18 October 2001.
8 20 ronald j. tabak What about the judges in these cases? The death penalty has brought a politicization of the judiciary that is tarnishing our entire legal system. For example, a justice on the Tennessee Supreme Court, Penny White, sat on only one death penalty appeal, in which the court unanimously granted relief. Nevertheless, a political campaign was waged against her, claiming that she was soft on the death penalty and therefore soft on crime. Tennessee Republicans lambasted her on this basis. Vice President Al Gore refused to take any position on her retention election. She lost. This kind of politicization can happen not only when judges are elected, but also when they are appointed. You may recall the case of Ronnie White, the only African American member of the Missouri Supreme Court, who was nominated for a federal district court judgeship. John Ashcroft, then senator from Missouri, attacked Judge White s nomination. Denying that he was doing so because Judge White was African American, Senator Ashcroft said he was doing so because Judge White sometimes voted to grant relief to death row inmates and thus was soft on the death penalty. It was then pointed out in Judge White s defense that the judges whom Ashcroft, when governor, had appointed to the Missouri Supreme Court, had voted to overturn virtually the same percentage of death sentences as Judge White. Nevertheless, the Senate voted against Judge White s confirmation. Even Senator Kit Bond of Missouri, Judge White s original sponsor, voted against his confirmation. To the extent they discussed Judge White s votes in capital punishment cases, Senator Ashcroft and his colleagues did not consider the legal issues involved, or whether Judge White s decisions were mandated by binding precedent. They just talked about the percentage of death penalty cases in which he voted to reverse. If the defenders of a besieged judicial nominee say as Judge White s defenders said that he should be confirmed because he upheld the vast majority of death sentences he considered, what will that do to the mindset of anybody thinking about getting appointed to a judgeship? This is one way the death penalty tarnishes our judicial system. Moreover, the judicial system is tarnishing itself with certain rulings and doctrines it has developed in an effort to enable executions to happen faster. Here are a few quick examples. The first is procedural default. If you are a poor person, you get a court-appointed lawyer. You have no choice of who it will be. If your lawyer fails to object to something unconstitutional that happens at trial, the state and federal appeals courts will likely be forever barred from considering your claim if state law requires that the objection be made at trial.
9 implementation of capital punishment 21 This procedural default bar applies even when a court knows it would grant relief if the claim were not barred. The court may know this because in your co-defendant s case, the court has already granted relief on the very same constitutional claim. But in your case, even though what happened to you violated the Constitution and could have affected the outcome of your case, the court will say, Sorry. Procedural default. You lose. You will get no relief because your trial lawyer out of ignorance or negligence did not object. 11 But then assume that you do not have that problem, because your lawyer raised the constitutional issue every step of the way. After you lose on this issue on direct appeal to your state s highest court and the Supreme Court does not take up your case, you begin post-conviction proceedings. At that point, the Supreme Court in somebody else s case takes up the exact issue that you have been raising all along. It holds that you are right, and that the very type of thing that happened in your case is unconstitutional. You might think that under these circumstances, you would surely get relief. No, you wouldn t. This was the procedural posture in the case of Joseph O Dell, who was on Virginia s death row. He raised from the outset the claim that his jury should have been told that the alternative to the death penalty was life imprisonment without parole. (This exists in most states, and it really means you will never, ever, get paroled. Many people do not think life without parole exists because Charles Manson keeps coming up for parole. That is because he was sentenced before California s lifewithout-parole law was enacted.) After Mr. O Dell had lost on this issue on direct appeal and the Supreme Court had not chosen to take his case, he was in post-conviction proceedings when, in someone else s case, the Supreme Court held that it was unconstitutional in a system like Virginia s to fail to inform the jury that life without parole really means life without parole. But Mr. O Dell was denied relief, due to the Supreme Court s doctrine of anti-retroactivity. 12 Under that doctrine, you usually cannot benefit from new Supreme Court decisions if you have already been through your direct appeal process at the time of the Supreme Court ruling. It does not matter that you tried to get the Supreme Court to decide that issue in your case, after raising the issue at trial and on 11 Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Compare Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 474 U.S (1983) (claim procedurally defaulted) with Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982), cert. denied, 459 U.S (1983) (granting relief to Smith s co-defendant, whose lawyers objected at an earlier stage of the litigation than did Smith s lawyers). 12 O Dell v. Netherland, 521 U.S. 151, (1997).
10 22 ronald j. tabak appeal. The federal courts will not rule in your favor. Like Mr. O Dell, you will be executed (unless, unlike Mr. O Dell, you are granted clemency). What if you attempt to raise a valid constitutional issue that you could not have raised before, because the state hid the evidence, or because you did not have any basis for raising it before? You want to go back to federal court a second time, and raise the meritorious constitutional claim. Can you do so? No, unless you can also show that you are factually innocent of the crime to such an extent that all reasonable people would agree on your innocence. Congress put that requirement into the Antiterrorism and Effective Death Penalty Act of Thus, if the constitutional violation led to the jury s voting for death, whereas, in the absence of violation, it would have voted for life, you cannot get back into federal court without compelling evidence of factual innocence. This is especially outrageous, because in most capital punishment cases, the main battle occurs during the penalty phase, not the guilt/innocence phase. Finally, what if you do not have any of these problems? You are in federal court for the first time. You do not have a procedural default problem, because your trial lawyer raised the claim when he was supposed to do so. There is no retroactivity problem. And the federal court says that the state court erred and should have ruled in your favor. Surely, then, you will get relief, right? Not necessarily; you must reckon with that 1996 effective death penalty act. The full, en banc, Fifth Circuit court recently concluded that the Mississippi Supreme Court had erred in denying relief to a death-row inmate. The Mississippi Supreme Court held that although the trial lawyer had been ineffective, his ineffectiveness had not been sufficiently prejudicial to entitle the inmate to relief. The Fifth Circuit said that the Mississippi Supreme Court s holding on prejudice was incorrect, and that the lawyer s ineffectiveness was so prejudicial that relief should have been granted. The Fifth Circuit held, however, that it was required under the 1996 statute to give deference to this erroneous state court ruling because the state court was not unreasonably wrong when it erred. Therefore, the petitioner got no relief. 13 When, as your last attempt to prevent your execution, you try to get clemency, you are faced with the argument that it should be denied because you already got super due process in all these courts along the way. But it is plain from the cases I have described here that we do not even have regular due process. 13 Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002)(en banc), cert. denied, S.Ct. (Jan. 13, 2003).
11 implementation of capital punishment 23 Instead, we have a system of justice that has been dragged down the drain because those responsible try to satisfy what they perceive to be a public insistence on more and faster executions. Unfortunately, this is not reported in our leading media in a manner accessible to most readers. When several of us met with the theneditor of the New York Times national news coverage about a decade ago, he said that the Times s readers would not understand things like procedural default. I responded that I had talked to many high school classes, where the students quickly understood it. But the Times still does not consider procedural default fit to print. I have had nothing to say here about philosophy, ethics, or religion. Rather, I have shown how the system is functioning. The actually implemented capital punishment system in the United States is a disgrace. This means, at the very least, that we should have a moratorium on executions.
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