Representation

Representation Improves, Death Sentences Dramatically Drop in Virginia

The number of people sentenced to death in Virginia has plummeted from 40 in the years 1998-2005 to only 6 from 2006 through April 2015. A recent study suggests that improvements in capital representation in the state may have played a significant role in that dramatic change. In 2004, Virginia established four regional capital defender offices, which are completely devoted to handling death penalty cases. The year before the defender offices opened, Virginia juries imposed 6 death sentences, but have not imposed more than 2 in any year since.  This mirrors the experience in other jurisdictions in which defendants have been represented by institutional capital defenders. In addition to better outcomes at trial, "[a] capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," University of Virginia law professor John G. Douglass said in his study.

BOOKS: "Examining Wrongful Convictions"

A new book, Examining Wrongful Convictions: Stepping Back, Moving Forward, explores the causes and related issues behind the many wrongful convictions in the U.S. Compiled and edited by four criminal justice professors from the State University of New York, the text draws from U.S. and international sources. Prof. Dan Simon of the University of Southern California said, ''This book offers the most comprehensive and insightful treatment of wrongful convictions to date," noting that it delves into topics such as the wars on drugs and crime, the culture of punitiveness, and racial animus, as they relate to mistakes in the justice system. The editors note that, "[The] essential premise of this book is that much of value can be learned by 'stepping back' from the traditional focus on the direct or immediate causes and consequences of wrongful convictions," with the hope of moving forward by "probing for the root causes of miscarriages of justice."

U.S. Supreme Court Grants Missouri Inmate New Attorneys for Federal Appeal

On January 20 the U.S. Supreme Court (7-2) granted Missouri death row inmate Mark Christeson new attorneys to assist him in pursuing his federal appeal. Christeson's appointed attorneys missed a crucial filing deadline for his federal appeal, not even meeting with him until a month after the deadline. New attorneys offered to represent Christeson, arguing that his current attorneys had a conflict of interest, since advocating for him would mean admitting their own error. The District Court and Court of Appeals both denied the request for substitution of counsel, and Christeson's execution date was set for Oct. 29, 2014. The Supreme Court granted a stay, and, in deciding the case, wrote, "[Christeson's original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests." Fifteen former judges filed a brief in support of Christeson, saying, "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court."

Supreme Court Allows Defendant to Present All Grounds Showing Ineffective Counsel

On January 14, the U.S. Supreme Court (6-3) handed down a ruling in Jennings v. Stephens, a capital case from Texas dealing with ineffective assistance of counsel. The Court held that when a defendant wins relief in a lower federal court and the state appeals, the defendant may offer theories rejected by the lower court as part of his defense of the relief granted. He does not have to file a new appeal on that rejected theory. In his initial federal appeal (habeas corpus), Robert Jennings had presented three instances of ineffective assistance of counsel. The District Court granted him relief based on two of them, but rejected the third. The state appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, and Jennings presented all three instances in his defense. The Fifth Circuit said it did not have jurisdiction to consider the third claim because Jennings' lawyers had not obtained a "certificate of appealability." Justice Scalia wrote the majority opinion. Jennings' case will be returned to the Fifth Circuit to consider his third claim of ineffectiveness.

RESOURCES: New Series Examines Pennsylvania Death Penalty

The Patriot-News in Pennsylvania is running a series of articles examining the state's death penalty in anticipation of a comprehensive report on the death penalty commissioned by the state legislature. Pennsylvania has not carried out an execution since 1999, and all three of its executions in the modern era were inmates who waived their appeals. Incoming Governor Tom Wolf has said he may hold off on allowing executions until the state addresses questions of fairness in the application of the death penalty. Incoming state Supreme Court Justice Thomas Saylor recently raised concerns about defense funding, saying, "If we want the death penalty, the state must provide resources to provide competent defense counsel for indigent defendants. That's the disconnect we have right now." State Sen. Stewart Greenleaf, who sponsored the resolution calling for a study of the death penalty, called the study "historic," saying, "We shouldn't run away from facts regardless of what our opinions are." Sen. Daylin Leach intends to re-introduce a bill to repeal the death penalty this year.

South Carolina Vacates the Conviction of 14-Year-Old Executed in 1944

On December 16, a South Carolina judge vacated the conviction of George Stinney, Jr., the youngest person executed in the U.S. in the last century. Judge Carmen Mullen wrote: “I can think of no greater injustice than the violation of one’s Constitutional rights which has been proven to me in this case.” Stinney, a black, 14-year-old boy, was convicted by an all-white jury of killing two young white girls. Police said Stinney confessed to the crime, but no confession was ever produced. His sister said in an affidavit in 2009 that she was with Stinney on the day of the murders and he could not have committed them, but she was not called to testify at his trial. The Stinney family was forced to leave town because of danger of violence. His trial lasted just 3 hours, and the jury deliberated for only ten minutes before finding him guilty. He was sentenced to die by electrocution. His attorneys did not file an appeal, and he was put to death less than three months after the offense.

STUDIES: Death Row Inmates Pay the Price for Lawyers' Mistakes

In Part Two of its investigation into the federal review of state death penalty cases, Death by Deadline, The Marshall Project found that in almost every case where lawyers missed crtiical filing deadlines for federal appeals, the only person sanctioned was the death row prisoner. Often the inmate's entire federal review was forfeited. The report highlighted the disparity between the 17 federal judicial districts where government-funded attorneys carefully monitor capital cases to ensure deadlines are met, and the other 77 districts, where appeals lawyers are appointed by judges and receive little oversight. In Florida, which produced 37 of the 80 missed deadline cases, appeals lawyers are selected from a state registry that includes lawyers who have previously missed deadlines in several capital cases. U.S. District Court judge Timothy Corrigan chastised one attorney who filed after the cutoff in three separate cases, saying, "I would be remiss if I did not share my deep concern that in these cases our federal system of justice fell short in the very situation where the stakes could not be higher.” U.S. Attorney General Eric Holder recently commented on the strict deadlines in capital cases, saying, “When you’re talking about the state taking someone’s life, there has to be a great deal of flexibility within the system to deal with things like deadlines. If you rely on process to deny what could be a substantive claim, I worry about where that will lead us.”

STUDIES: Lawyers for Death Row Inmates Missed Critical Filing Deadlines in 80 Cases

An investigation by The Marshall Project showed that since Congress put strict time restrictions on federal appeals in 1996, lawyers for death row inmates missed the deadline at least 80 times, including 16 in which the prisoners have since been executed. The most recent of such cases occurred on Nov. 13, when Chadwick Banks was put to death in Florida with no review in federal court. This final part of a death penalty appeal, also called habeas corpus, has been a lifesaver for inmates whose cases were marked with mistakes ignored by state courts. The Project's report, Death by Deadline, noted, "Some of the lawyers' mistakes can be traced to their misunderstandings of federal habeas law and the notoriously complex procedures that have grown up around it. Just as often, though, the errors have exposed the lack of care and resources that have long plagued the patchwork system by which indigent death-row prisoners are provided with legal help." One Alabama lawyer who missed the deadline was addicted to methamphetamine and was on probation for public intoxication. An attorney in Texas who filed too late had been reprimanded for misconduct, while another Texas lawyer had been put on probation twice by the state bar. Two weeks after being appointed in the death penalty case, he was put on probation again.

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