NEW VOICES: Former Florida Justice and Texas Governor Urge Supreme Court to Examine Faulty Representation

Gerald Kogan, a former Florida Supreme Court Justice, and Mark White, former governor of Texas (pictured), recently urged the U.S. Supreme Court to consider the death penalty appeal of Boyd v. Allen because of inadequate defense representation. According to the authors of an op-ed appearing in the National Law Journal, William Boyd’s defense lawyers in Alabama were barely paid and did very little to try to save his life. They failed to present mitigating evidence of Boyd’s abused childhood: “[T]he jury never learned anything about the criminal assaults perpetrated against Boyd by his stepfather at least weekly throughout his youth; or the alcoholic grandparents who tried to stitch up his wounds when drunk; or the passive mother who sat mute while her husband drew her children’s blood.” The U.S. Court of Appeals for the Eleventh Circuit ruled against Boyd, finding that the attorneys’ failures were irrelevant because no amount of evidence would have convinced a sentencer to impose a sentence less than death. This standard used in deciding whether a defendant deserves a new hearing, according to the authors, disregarded the standards previously set by the U.S. Supreme Court. The op-ed noted that, contrary to the appeals court’s holding that a death sentence was inevitable, the contrary may be true. The jury in Boyd’s case recommended against a death sentence, though that recommendation was overridden by the sentencing judge. The authors remarked, “As a prosecutor who sought the death penalty and a governor who oversaw 19 executions, we believe strongly that men and women facing the ultimate punishment should be provided with competent counsel and sufficient resources to mount a defense: We can have most confidence in the outcome when the playing field is level.”

G. Kogan and M. White, “11th Court not playing by the rules in Alabama death penalty case,” National Law Journal, November 22, 2010). See Arbitrariness and Representation. Kogan and White are members of the Constitution Project’s Death Penalty Committee.

Read the complete op-ed below

11th Circuit not playing by the rules in Alabama death penalty case——High court should agree to hear case in which defense counsel failed to provide jury with mitigating evidence.

Even for those of us committed to the use of capital punishment, there are times when a court’s intervention has us breathing a sigh of relief. We don’t like hearing that a lawyer has slept through large portions of his client’s death penalty trial. That a judge was literally in bed with the prosecution during a capital case makes us queasy. And when we read that jurors deciding the most serious of cases are buying gag gifts for the judge — well, we are quietly relieved when our high court steps in and wags its judicial finger. However disturbing the crime or the criminal, we like to see everyone playing by the rules.

Although the rare snoring lawyer will capture public attention, less visible but recurring threats to fair play are equally disturbing. As a prosecutor who sought the death penalty and a governor who oversaw 19 executions, we believe strongly that men and women facing the ultimately punishment should be provided with competent counsel and sufficient resources to mount a defense: We can have most confidence in the outcome when the playing field is level.

We are disturbed when we hear of yet another Alabama death row prisoner whose unskilled and barely paid defense lawyers cut their teeth on his capital trial and did little to try to save his life. But this, however unfortunate, is not a unique story or one that will attract widespread media attention. These facts alone would not normally interest the U.S. Supreme Court. But when a prestigious federal court of appeals creates a rogue set of rules to sustain this and many other death sentences, we are roused to write and ask the Court to act.

The court we mean here is the U.S. Court of Appeals for the 11th Circuit, and the most current example of its departure from established precedent is Boyd v. Allen. William Glenn Boyd and a co-defendant committed a terrible crime: They kidnapped, robbed and killed a married couple and left their bodies to rot in an Alabama river. No one denies the ugliness of their crime. But our death penalty jurisprudence has held for more than 30 years that no murder in itself can lead inexorably to a death sentence. The jury or judge must also consider the “circumstances of the offender” before deciding on punishment.

Boyd’s lawyers did not know enough (and were not paid enough; they received only $1,000, at $20 an hour, for all time spent out of court on the case) to investigate their client’s life history. So the jury never learned anything about the criminal assaults perpetrated against Boyd by his stepfather at least weekly throughout his youth; or the alcoholic grandparents who tried to stitch up his wounds when drunk; or the passive mother who sat mute while her husband drew her children’s blood.

Our law does not say that this kind of troubled history rules out capital punishment. But every time the Supreme Court has examined a death sentence for which counsel failed to present such available mitigating evidence, it has sent the case back for a fair sentencing proceeding.

None of that precedent was persuasive to the 11th Circuit. Although it has the country’s biggest docket of death penalty cases (excluding the 9th) and although the states that comprise it — Alabama, Florida and Georgia — are not known for providing quality representation or adequately funding the defense function (Alabama does not even have a public defender system), the 11th Circuit almost never has a problem these days with counsel’s performance in a capital trial. That is because it has created its own rules for dealing with these cases.

Disregarding Supreme Court commands, the 11th Circuit found that, because Boyd’s crime fit into a particular “category” of capital offenses, the attorneys’ egregious failures were immaterial because no amount of evidence could ever convince a sentencer to choose life-without-parole over death. Worse, the 11th Circuit applies this rule mechanistically to find capital counsel’s performance adequate, even when the most compelling of what is called mitigating evidence is missing from consideration.

Interestingly, although the majority found a death sentence “inevitable” here, there are considerable indications that it was not: The Alabama judge imposed death after a jury recommended against it; the federal district court that heard the case ordered a new sentencing; and one of the three judges on the 11th Circuit panel vehemently disagreed. According to the 11th Circuit, Boyd’s fate was decided the day he committed his crime; in similar cases, every other federal court of appeals has followed Supreme Court law and ordered a new proceeding.

A few years ago, it was the 5th Circuit, which includes Texas, that refused to follow the law in capital cases, so the Supreme Court kept sending its cases back to it. We would like to see the Court take that step here. We recognize that Boyd’s is not a sensational capital case involving sex or scandal, but its ultimate impact may be far greater.

A federal court of appeals is the court of last resort for most of the South’s death row inmates; when that court refuses to follow Supreme Court precedent, capital defendants like Boyd — with underfunded, inexperienced and unprepared lawyers — may have nowhere to turn for redress. On Nov. 23, the Supreme Court will consider Boyd’s petition for a writ of certiorari. We hope the Supreme Court agrees to hear the Boyd case and holds that every actor in our criminal justice system must play by the rules.