Who Can Represent Defendants in Death Penalty Cases?

OldMTPrisonA bonus post this month — I’m continuing to republish a few of the “Questions of the Month” from my website as it undergoes a lovely redesign. This was originally published several years ago in First Draft, the newsletter of the SinC Guppy chapter. 

Who Can Represent Defendants in Death Penalty Cases?

A writer reminds me that a subplot in the movie “My Cousin Vinnie” involves the qualifications of an out-of-state lawyer hired to represent the defendant in a death penalty case. So, she asks, what are those qualifications?

Federal courts and most states with the death penalty require that when a defendant is charged with a crime eligible for the death penalty, at least one member of the defense team meet certain standards. Although prosecutors are not required to declare whether they will seek the death penalty when they file charges, the American Bar Association’s 2003 Guidelines recommend that qualified counsel be appointed as soon after arrest as possible – even before the defendant has been formally charged or found eligible for a public defense. As far back as 1932, the U.S. Supreme Court acknowledged that a person facing criminal charges “requires the guiding hand of counsel at every step in the proceedings against him.”

Why? Because the stakes are never higher. The primary goals, of course, are to make sure that the process is fair, that convictions are reliable, and that the sentence imposed is appropriate. A great deal of recent publicity has underscored the too-frequent inequities and outright errors in capital – or death penalty – cases. Those cases involve many of the same decisions and issues as other criminal cases – issues of witness credibility, forensics, aggravating and mitigating factors in sentencing. But in capital cases, those issues may be more acute, and others also arise. Should the defendant undergo a psychiatric examination? How should potential jurors be questioned about their attitudes toward capital punishment? Should the method of execution be challenged?

As the law evolves – and it always does – keeping up gets harder. Capital cases often involve psychiatric issues not present in other cases. Prosecutors and defense counsel need a working knowledge of both mental competence – the defendant’s ability to understand the charges and help with his own defense – and mental illness. A high percentage of capital defendants suffer from some degree of mental illness. Lawyers on both sides – and judges – have to evaluate whether mental illness is a defense in the case, a factor in sentencing, both, or neither.

The enormous responsibilities of defending capital cases place huge pressures on counsel – emotional and psychological pressure, as well as the need to organize their time, case files, and staff efficiently.

Such highly specialized skills can be hard to find. In states with smaller populations, death penalty cases are less common, and it may be difficult to find a lawyer with sufficient experience who is able to take on the case. In that situation, the court may appoint an out-of-state lawyer with death penalty experience to work with an experienced local criminal lawyer.

What of a defendant who chooses to represent himself? The death penalty complicates the already messy question of pro se defense. The defendant’s mental status and competence to represent himself is crucial – and for that reason, pro se capital cases are rare. Backup or standby counsel will be appointed to assist and advise the defendant, and take over if necessary.

So what is required to be a capital defense lawyer? The federal courts have adopted a specific procedure for certification, as have many states, following the ABA Guidelines. I can’t begin to summarize the various rules, but at the minimum, they involve the following considerations:

  • experience preparing, negotiating, and trying complex criminal cases, preferably including other capital cases;
  • knowledge of the applicable law, both substantive and procedural;
  • experience and skill working with expert witnesses, especially on issues such as  forensics, DNA, ballistics, and psychiatry;
  • skill in research, analysis, and drafting documents, and in oral advocacy;
  • skill in investigating, preparing, and presenting evidence on mental status;
  • experience managing complex cases, including staff (other lawyers, investigators, and clerical personnel), physical evidence, and documentation;
  • experience investigating and presenting mitigating factors – those aspects of a case and a life that warrant a sentence less than death;
  • ability to work and communicate with a client who may be mentally impaired or socially dysfunctional;
  • a limited workload.

And, I would add, empathy, unquestionable ethics, and a passion for justice.

The ABA publishes Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (rev. 2003).

Photo: the Old Montana State Prison, now a museum; credit to the Museum Society.

Another state suspends the death penalty

I’ve written here about the death penalty, and covered it extensively in Books, Crooks & Counselors.  Now another state — Washington — has suspended the death penalty, Governor Jay Inslee calling its use inconsistent and unequal in this AP story. It’s still an available sentence — unless and until the legislature changes the statutes — but the governor’s office will issue a reprieve, meaning no executions will be carried out. The nine inmates currently sentenced to death will remain in prison, effectively serving life without possibility of parole. Blog readers know I think that’s a far greater sentence — life-long punishment served day by grueling day.

18 states have abolished the death penalty. Public debate continues.

Here’s a Feb 16, 204 update from the Seattle Times on local reaction.

Update: the death penalty for the mentally disabled

In Books, Crooks & Counselors, I wrote about the Supreme Court’s 2002 decision, Atkins v. Virginia, holding that execution of the mentally disabled violates the Eighth Amendment’s ban on cruel and unusual punishment, as 18 states had already decided. Atkins did not establish standards for sentencing judges to apply in determining mental disability, leaving that to the states.

The Supreme Court has now accepted for review Hall v. Florida. Florida defines mental disability as an IQ of 70 or less; the defendant, Freddie Lee Hall, scored just above that threshold. More from the SCOTUS blog.

Death penalty debate continues — what do your characters think?

Once again, a state legislature is debating whether to abolish or retain the death penalty. This time, it’s Montana, which has debated the issue before and left the death penalty in place. What strikes me—from the perspective of a writer, and one encouraging other writers to use legal issues to raise the tensions in their stories—is the passionate, articulate disagreement. Not just among legislators—we expect that. But among families of murder victims, among clergy, and even among prosecutors. Read more about the debate in this story from the Missoulian.

And don’t miss this report of testimony from Ron Keine, who testified about his experience of being nine days from execution in New Mexico in the 1970s, when another man–a law enforcement officer–confessed to the crimes to a minister, who convinced him to go to police. Even then, the prosecutor rejected the confession, but the court threw out the conviction and released Keine, who later started his own business and become what’s often called “a productive member of society.”

I’ve written before about the conflicting views of victims’ families, and statistics from the Death Penalty Information Center.  Books, Crooks & Counselors includes extensive Q&A on the death penalty.

And because I’m asked every time I write about the death penalty, I’ll say it: I’m against it. I’ve been in prison—although always with the ability to leave at will—and I’m convinced that life without the possibility of parole is a far worse punishment, at least on this earthly plane, than death.


How can you use this difference of opinion to create more conflict and tension for your characters?

Update: the ban failed to pass out of committee, on an 11-9 vote. The Legislature is biennial, so the issue can’t come up again until 2015.

(Photos of the Montana State Capital building and the Old Montana Prison from State of Montana website.)


Heightening the tension: murder victims’ families disagree about the death penalty

Story centers on conflict. On reversal. Literary agent and teacher Don Maass says that when we write about emotion in a familiar way, we fail to evoke it in the reader–but if we write about the unexpected, the reader will respond emotionally.

In Books, Crooks & Counselors, I answered questions about the death penalty, and suggested that it might be interesting to write about the family of a murder victim who opposes the death penalty. What better example than a character who wants what the reader may not think he should want?

Here’s a real life example, from the Billings Gazette, of the son of a murder victim who actively works against the death penalty.

For more about family members’ opposition to the death penalty, visit Murder Victims’ Families for Reconciliation or the Death Penalty Information Center.

My purpose here is to highlight the usefulness to writers of presenting an unexpected perspective–in this instance, opposition to the death penalty–but it’s also useful to look at the views of family members who support it. Though I found no organizations of such relatives, several articles and interviews present those views. I admire the determination of the son of a victim in a notoriously brutal Montana case to not be defined by his father’s murder, when he was just two months old, telling the killer at a recent clemency hearing: “I am Thomas Running Rabbit and I do not fear you.” (Reported in the Daily Interlake.) Clemency was denied. 

This 2009 Anchorage Daily News editorial by the brothers of a 1972 murder victim–one now a retired police officer–demonstrates how the horrific facts of a crime shape relatives’ opinions–and never fade.  

How can you use these tensions to fire up your story? What if a mother and a father–or those two brothers–disagreed? What if a victim’s relative believed that the defendant was innocent–or that the tables could could have been turned? How will your fictional relative respond to new evidence? To another person’s confession? To suggestions that prosecutors withheld critical evidence, that police officers falsified evidence, or that lab tests were faked? Or to evidence suggesting that the murdered relative was not the first victim?

Conflict. Life presents us with countless opportunities. Use them to heighten the tension in your fiction.

Sentencing juvenile killers — the Supreme Court rules

Last March, I discussed the case pending before the Supreme Court challenging state statutes mandating life in prison without the possibility of parole for juveniles convicted of murder.

Earlier this week, in Miller v. Alabama and Jackson v. Hobbs, the Supreme Court held 5 to 4 that the Eighth Amendment ban on cruel and usual punishment bars mandatory life sentences for homicide offenders under 18 at the time of their crime. Both defendants were 14. The decision builds on earlier cases holding that because young offenders lack the maturity and judgment of adults–and have greater capacity for rehabilitation–they should not necessarily receive the same punishment. (Books, Crooks & Counselors discusses the first case, Roper v. Simmons (2005), striking down the death penalty for juveniles.)

I want to stress that this ruling does not mean no juvenile can be given a life sentence without parole or LWOP, as it’s sometimes called. It holds only that a state may not make such sentences mandatory.

Instead, sentencing must take into account mitigating factors (discussed in Books, Crooks & Counselors), such as age, personal history, immaturity, or duress.

Judges tend to dislike mandatory sentences, because they take away judicial discretion to consider factors unique to the case or defendant. This ruling assures that sentences are tailored to the particular facts of the case, including both the crime and the defendant.

For further details, see the analysis in the SCOTUS blog and this Washington Post report.

How can you use this in your stories? Consider the family of your juvenile offender–or the family of his victim. Play out the debate in real time, or after the crime–look to the dissents for fodder. Create tension in the prosecutor’s office–or the defenders. How does the case hit home for the lawyers, judge, or jurors–who may have teenagers of their own? Bring in racial and socio-economic factors. What about public reaction?

And if you’re looking for a model of a passionate, driven defense attorney, consider Bryan Stevenson, profiled in this Washington Post story. Stevenson has long represented young offenders sentenced to death or LWAP, and led the fight for Miller and Jackson–even though when he was 16, his own grandfather was murdered by four teenagers in Philadelphia.

Update to the update: FOB (Friend of the Blog) Hank Phillippi Ryan sent me this Boston newspaper interview with prosecutors and defense counsel, including her husband Jonathan Shapiro, about the impact of the decision.  Shapiro represented a teenager sentenced to LWAP for murder; his sentence will now be revisited.

Life without parole for young killers?

In real life and in fiction, young people commit serious crimes. In late March, the Supreme Court heard arguments about whether juveniles–14 year-olds, in these two cases–can be sentenced to life without parole for murder. The SCOTUS blog–always a great source–provides a roundup of coverage and a detailed report on the arguments.

The cases ask whether a state should be able to impose a mandatory sentence of life without parole on juveniles, e.g., those under 18 at the time of their crime. Should it be optional? Barred entirely? Or barred only for very young offenders, e.g., 14 and under?

The cases, Miller v. Alabama and Jackson v. Hobbs, are the third in recent years asking what limits should be put on sentences for juveniles.

As I discussed in Books, Crooks & Counselors, in Roper v. Simmons (2005), the Court struck down the death penalty for crimes committed before 18. It held that the death penalty for juveniles violates the Eighth Amendment ban on cruel and unusual punishment and is “disproportionate” in light of the general immaturity of youth. It acknowledged that some juveniles commit brutal crimes, but wrote that their

“susceptibility … to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. … From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

The majority also concluded that juvenile executions do not serve the goals of retribution or deterrence.

And in Graham v. Florida (2010), the Court that juveniles could not be sentenced to life without parole for crimes not involving murder, and that inmates already under such a sentence must be given an opportunity to show grounds for early release. 

Something for your fictional prosecutors, defense lawyers, and other characters to consider.

I’m in Oregon this week for Don Maass’s Breakout Novel workshop. Wow. My characters may never recover–and that’s a good thing!  

Books, Crooks and Counselors – update – Death Penalty

The sentencing chapter of Books, Crooks and Counselors answers writers’ questions about the death penalty. Last week, the Death Penalty Information Center released its year-end report showing that 78 people had been sentenced to death in 2011 and 43 had been executed–compared to 224 sentences and 85 executions in 2000.

According to an NPR report, the DPIC executive director says that the majority of Americans are opposed to or ambivalent about the death penalty. They are concerned about wrongful executions, unfair sentencing–highlighted by debate over Georgia’s execution of Troy Davis–and the expense of the legal process surrounding the death penalty.

A Gallup poll taken in October showed that 61% of Americans favored the death penalty for murder, the lowest support since the early 1970s.

Illinois abolished the death penalty, Oregon recently imposed a moratorium, and bills to ban it have cropped up in several state legislatures, including my state, Montana.

Again according to NPR, the director of the National District Attorneys Association–the prosecutors–says a big factor in the change in support is a change in the alternatives. Years ago, a life sentence often meant 15 to 20 years. Now, all 50 states and the federal system offer life without parole, meaning death in prison. The director also points to the drop in murder rates, now back to 1960s’ levels.

I’ve long thought that life without parole is a far worse sentence than the death penalty. Once you’re dead, you’re done–at least on the earthly plane–with no more guilt, fear, or shame. And no more potential regret, rehabilitation, or forgiveness. Knowing you’ll die in prison, never to walk free, seems far worse to me.

(Photos: Old Montana Prison, Powell County Museum & Arts Foundation. Handcuffs: morguefile.com)