Tennessee Death Penalty Committee Recommends Changes in Representation Standards

A legislative committee created to study the death penalty in Tennessee has recommended ways to ensure capital cases are handled fairly and effectively.  The committee approved a resolution that asks lawmakers to create a statewide authority whose duties would include identifying lawyers experienced in capital cases, raising the standard pay for such attorneys, and monitoring their caseloads.

Thomas Lee, a Tennessee attorney on the committee, said such an authority would help ensure that "trials are done right the first time."  The committee, created last year after the state legislature decided Tennessee’s death penalty system needed to be examined for fairness and accuracy, will present its findings to the Governor and lawmakers.

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COSTS: Utah Supreme Court Says Death Sentences Will Be Reversed Unless Legislature Provides for Adequate Counsel

Utah’s Supreme Court recently expressed concern that the lack of qualified defense attorneys for indigent death row inmates could unravel capital sentences. In a unanimous decision in the case of death row inmate Michael Archuleta, Associate Chief Justice Michael Wilkins (pictured) said the court might be forced to reverse capital sentences because the low pay and the complexity of such cases have shrunk the pool of Utah attorneys who will accept them. "It falls to us, as the court of last resort in this state, to assure that no person is deprived of life, liberty, or property, without the due - and competent - process of law," Wilkins wrote. "Without a sufficient defense, a sentence of death cannot be constitutionally imposed." He wrote that the justices may soon be forced to reverse a death sentence and impose life without parole on such grounds if the legislature fails to provide adequate resources.

An excerpt from the opinion follows:

In recent years we have become especially concerned with the diminishing pool of competent counsel in capital cases. There is no acceptable justification for this trend. Competent defense and appellate counsel are guaranteed by our constitution. We cannot allow a defendant’s life to be taken by the government without an adequate review of the conviction. Our judicial oath to support, protect, and defend the Constitution must, of necessity, include the requirement that we take measures within our authority and responsibility to see that the mandates of the Constitution are observed.

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NEW RESOURCES: The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution

Civil rights litigator and death penalty expert Ronald J. Tabak recently published “The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution” in the Justice System Journal. The article presents an in-depth review of the American Bar Association’s (ABA) role in ensuring effective counsel in capital cases. Tabak recounts the ABA’s efforts since the mid-1980’s to secure competent representation at every state of legal proceedings, stating that “someone without counsel has little chance of securing redress for constitutional violations that may have tainted a conviction or death sentence.”

The article explores the particular problem that exists because the Supreme Court has not recognized a right to counsel in post-conviction proceedings. Death-sentenced inmates may lack representation after their trial and direct appeal even though the legal proceedings that follow would offer opportnities to challenge their convictions and death sentences. Mr. Tabak discusses the ABA’s efforts to find pro bono lawyers to represent death-sentenced inmates in post-conviction proceedings, federal habeas corpus proceedings, and clemency proceedings. “Dealing with the issues specific to capital cases, whether arising from the trial record or requiring further investigation, requires an expertise far beyond that of most criminal law practitioners--not to mention the civil lawyers who predominate among the volunteers whom the ABA recruits,” explains Tabak. If lawyers do not understand the complex procedures and rules of capital cases, it "can literally prove fatal to clients.”

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NEW RESOURCES: Representation and Costs in Federal Death Penalty Cases

In June 2008, the Office of Defender Services of the Administrative Office of the U.S. Courts published a report analyzing the cost, quality and availability of defense representation in federal death penalty cases. The report determined that federal capital trials in which the death penalty was sought were substantially more expensive than non-death penalty federal trials; however, a death sentence was handed down in only one-quarter of the cases. In addition, defense expenditures in a federal death penalty case correlated strongly with whether a death sentence was ultimately handed down.

Congress increased the number of offences for which the death penalty could be sought from one to 50 in 1994, resulting in an immediate increase in the number of death-eligible federal defendants. While death-eligible defendants numbered 26 in 1993, that number increased to 63 in 1994 and to approximately 150 every year after that. Of the cases that went to trial seeking the death penalty, only 25% resulted in a death sentence (61 out of 233). Only 14% of the cases in which the Attorney General authorized seeking the death penalty actually resulted in a death sentence. Cases in which the Attorney General authorizes pursuit of the death penalty are significantly more expensive than non-death cases. The average cost of a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought.

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Professor Anthony Amsterdam To Receive the Frederick Douglass Human Rights Award

Leading attorney, law professor, and advocate Anthony Amsterdam is being honored by the Southern Center for Human Rights with the Frederick Douglass Human Rights Award in Washington, DC on October 2. Professor Amsterdam conducts the Capital Defender Clinic at New York University Law School and is recognized for his four decades of prominent work in cases ranging from death penalty defense to claims of free speech and the press, privacy, and equality of opportunity for racial minorities and the poor.


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Hearing Scheduled on Affair between Prosecutor and Judge in Texas Death Penalty Case

UPDATE: CHARLES HOOD'S EXECUTION HAS BEEN STAYED BY THE TEXAS COURT OF CRIMINAL APPEALS.  A Texas state judge has ordered a hearing into the accusation of an affair between the judge and the prosecutor in Charles Hood’s death penalty case. With a week to go before Hood’s execution date, the Texas Attorney General also called for a review of the fairness of the trial. The Attorney General, Greg Abbott, requested that the district court “thoroughly review the defendant’s claims before the execution proceeds [to] protect the integrity of the Texas legal system.” He added, “The impartiality of a defendant’s trial and conviction must be beyond reproach.

Thus, before the state carries out the ultimate, irreversible punishment, the appropriate trial court should thoroughly review this matter.” The latest motion seeking an investigation had landed in Judge Robert T. Dry’s court, who set a hearing date two days after the scheduled execution. In his opinion, “You are exploring a civil lawsuit for the estate of Mr. Hood.” He acknowledged that he knew the judge and prosecutor very well, but then suddenly recused himself on September 3rd when he revealed that he had also been close friends and business partners with the judge’s former husband. The case is now scheduled for a hearing on September 8th, before the scheduled execution, under Judge Greg Brewer. The hearing will be held to decide if the judge and prosecutor will be required to testify.

(J. McKinley, Jr., “As Texas execution nears, hearing is set on claim judge and prosecutor had affair,” New York Times, September 5, 2008). See Representation and Arbitrariness.

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NEW RESOURCES: Study on Quality of Defense Representation in Tennessee Death Penalty Cases

A recent law review article explores the quality of defense representation in capital cases in Tennessee. Authors William Redick, Jr., Bradley Maclean, and M. Shane Truett conducted an in depth study of Tennessee death penalty cases in their article, “Pretend Justice--Defense Representation in Tennessee Death Penalty Cases” in the University of Memphis Law Review. The article argues that Tennessee fails to provide effective defense representation in death penalty cases, citing ineffective attorney qualification standards, inadequate compensation and resources for indigent capital defense representation, and inequalities between defense to prosecution resources. It also examines various inherent difficulties defense attorneys face in death penalty cases, such as the “death qualification” of jurors.

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Upcoming Georgia Execution Involves Racially Biased and Unprepared Defense Lawyer

On June 4, Georgia has scheduled the execution of Curtis Osborne. (UPDATE: Osborne was executed on June 4.) Osborne's own defense lawyer at trial was racially biased against him and failed to do the most basic investigation that might have saved his client's life. The attorney repeatedly referred to Osborne with a racial epithet, saying, "that little n____r deserves the chair."

At the time of the murder that sent Osborne to death row, he was suffering from mental problems and his family had a history of mental illness going back for 3 generations. However, Osborne's attorney failed to raise this issue.

Law enforcement officials and religious leaders who have come to know Curtis Osborne have noted his complete remorse for the crime and the dramatic changes in his life while on death row. His story is recounted in a video prepared by his current defense attorneys. (Posted May 28, 2008).

View the video with Windows Media Player. View the video in QuickTime.

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Mississippi Preparing to Execute Man Despite Strong Evidence of Mental Retardation

Earl Berry is scheduled to be executed on May 21 in Mississippi, despite evidence that he has mental retardation. Judicial review of this evidence has been denied because his former lawyers failed to file the evidence in a timely fashion. This would be the second execution since the U.S. Supreme Court approved Kentucky's method of lethal injection on April 16. Last month, a psychologist concluded that Berry had an IQ of 75 or below and “significantly sub-average intellectual functioning and … meets the criteria to be classified as mentally retarded.” The U.S. Supreme Court banned execution of those with mental retardation in Atkins v. Virginia (2002).
Affidavits describe Berry’s slow development, head injuries sustained as a child, multiple suicide attempts, and that, even as an adult, he was never able to live independently. When Berry was discharged from a Mississippi prison hospital at 25, his release followed a suicide attempt and he was diagnosed with “suicidal gestures/mentally retarded.” During his school years, Berry’s IQ was tested at 72. In 1992, a psychologist also testified that Berry suffered from paranoid schizophrenia.

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U.S. Supreme Court Agrees to Hear Virginia Case on Quality of Representation

On May 12, the U.S. Supreme Court granted certiorari in Bell v. Kelly, No. 07-1223, where the petitioner challenged a lower court's dismissal of his claim of ineffectiveness of counsel. Edward Nathaniel Bell stated that his trial lawyers presented no mitigating evidence on his behalf at his sentencing hearing, despite the existence of many sympathetic facts that might have led a jury to vote for a life sentence. The state court presented with this claim did not hold a hearing on whether Bell was put at a disadvantage because of his lawyers' failures. When the case reached the federal courts through a habeas corpus petition, the U.S. Court of Appeals for the Fourth Circuit believed it was bound by the state court's finding of no prejudice to Bell, even though this issue had not been developed in the state court. The U.S. Supreme Court will decide whether the 4th Circuit was correct in using this highly deferrential standard.Bell

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