Three capital cases are covered this week and, all three are at least partial losses.  The Tenth Circuit in Hale v. Gibson, denies relief, chiefly,  on the failure to prepare for mitigation and conflict of interest questions. The Eight Circuit remands on some issues and denies relief on other issues in Kenley v. Bowersox, where the chief issue revolves around how much process is due in a state post-conviction proceeding.  Finally,  in Hale v. United States Department of Justice, the Tenth Circuit denies relief on an attempt to gather information via a FOIA request for this capital inmate. 

This week's installment features an overview of plea bargaining in capital cases from the Champion, "Heart of the Deal: Ten Suggestions for Plea Bargaining" by Kevin M. Doyle (http://209.70.38.3/public.nsf/championarticles/99nov08?opendocument)

[51]     B. Mitigation Evidence

[52]     Hale argues his trial counsel, Mr. Van Wagner, was ineffective during the penalty phase of the trial. Specifically, Hale contends that his attorney failed adequately to investigate, prepare, and present a second stage defense. Hale focuses on the lack of any mitigation evidence during the sentencing phase, which he asserts was readily available had Van Wagner done any amount of investigation or preparation. According to Hale, there exists a reasonable probability that had the jury heard the undiscovered mitigation evidence, it would not have voted for death.

[53]     On direct criminal appeal, the OCCA rejected this claim, stating that counsel's decision with regard to witness testimony is a matter of trial tactics which the court would not second guess. See Hale I, 750 P.2d at 142. On Hale's first state habeas petition, the lower court held an extensive evidentiary hearing. Following the hearing, the court denied relief and the OCCA subsequently rejected the claim a second time, reiterating that what witnesses should be used at trial are a matter of trial strategy, and further stating that Hale had failed to meet his burden to show that but for trial counsel's decisions, the result of the trial would have been different. The OCCA then pointed out that Hale had raised this issue on direct appeal, and thus was barred from raising it again on post-conviction. See Hale II, 807 P.2d at 267.

[54]     Claims of ineffective assistance of counsel are mixed questions of law and fact. See Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999) (applying AEDPA). "To establish ineffective assistance of counsel, a petitioner must prove that counsel's performance was constitutionally deficient and that counsel's deficient performance prejudiced the defense." Id. (citing Strickland, 466 U.S. at 687 (alteration in original omitted). With regard to the first prong, to prove deficient performance Hale "must overcome the presumption that counsel's conduct was not constitutionally defective. Judicial scrutiny of counsel's performance is highly deferential." Wallace, 191 F.3d at 1247 (citation omitted). If constitutionally deficient performance is shown, then Hale must demonstrate that "there is a `reasonable probability' that the outcome would have been different had those errors not occurred." Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994). However, when a petitioner is specifically challenging the imposition of the death sentence during the punishment phase of the trial, the prejudice prong of Strickland focuses on whether there is "a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994). Courts may address the performance and prejudice components in any order and need not address both if a defendant fails to make a sufficient showing of one. See Strickland 466 U.S. at 697.

[55]     Hale's trial counsel did not give an opening statement at the beginning of the penalty phase and presented no mitigating evidence. Counsel addressed the jury during the second stage only in his closing argument in which he urged the jurors to bestow mercy on Hale and give him life in prison. Hale argues on habeas that his counsel should have introduced the testimony of persons in the community who knew him both as a youth and as an adult, in his capacity as a father, businessman, and friend.

[56]     "[T]he failure to present available mitigating evidence is not per se ineffective assistance of counsel." Brecheen, 41 F.3d at 1368. Instead, it is necessary to evaluate the reasons for counsel's failure to present mitigating evidence and then determine whether that failure, if due to deficient performance by the attorney, prejudiced the defendant. Here, Hale contends that counsel's failure to present mitigating evidence resulted from his failure to investigate possible sources of such evidence. "[A]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Brecheen, 41 F.3d at 1366.

[57]     The duty to investigate derives from counsel's basic function, which is to make the adversarial testing process work in the particular case. Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, the Supreme Court has noted that counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (alterations in original omitted).

[58]     This duty is strictly observed in capital cases. See Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997). An attorney's failure to conduct a reasonable investigation "may fall outside the scope of reasonable professional assistance, and thereby amount to deficient representation under the first prong of Strickland." Brecheen, 41 F.3d at 1366 (quotation marks omitted).

[59]     To determine whether Van Wagner's performance was below the prevailing standards, we review the evidence presented at the state habeas evidentiary hearing. During the hearing, Van Wagner testified that he spent a considerable amount of time reviewing the law and the charges, conferencing with Hale, examining the FBI reports from the federal prosecution, talking with Hale's father and wife, and talking with other witnesses. Although Van Wagner testified that he spoke with various potential witnesses, he could not recall any person with whom he actually spoke other than Mr. Hale's father and wife. Moreover, Hale testified that he gave Van Wagner a list of friends that Van Wagner could contact about possibly testifying on Hale's behalf. Several people Hale named on this list testified at the hearing that they were never contacted before or during the trial, though they would have been willing to testify at trial on Hale's behalf. Although Van Wagner testified that Hale was adamant that his wife and daughter not testify during the mitigation stage, this did not preclude him from investigating other potential witnesses or mitigating evidence. In addition, Van Wagner admitted that he did not hire an investigator to track down any potential mitigation witnesses. A defense investigator hired by Hale's state habeas counsel testified at the hearing that finding mitigation witnesses in this case was in fact easier than most death penalty cases because Hale had been a long-time resident of the area where the crime and trial took place. Thus, there were reasonable lines of investigation open to Van Wagner which would have revealed readily available mitigation witnesses; however, Van Wagner failed to pursue any of them.

[60]     Given this lack of investigation, Van Wagner's decision not to put forth any mitigation evidence at the sentencing phase cannot be justified as strategic. As this court stated in Breechen, before an attorney can insulate his behavior from review by claiming that a decision to forego mitigation evidence was strategic, "an attorney must have chosen not to present mitigating evidence after having investigated the defendant's background, and that choice must have been reasonable under the circumstances." Brecheen, 41 F.3d at 1369. In this case, Van Wagner testified that he "thought" one of the reasons he may have decided not to present any mitigation testimony was because Hale had several prior felony convictions which he feared would be brought out by the prosecution should he put on character witnesses. However, none of the these prior felony convictions involved violent crimes. Moreover, the witnesses that testified on behalf of Hale at the post-conviction hearing stated that these prior convictions would not have influenced their opinion of Hale. If Van Wagner had spoken with these individuals he may have decided that the risks of revealing several prior, non-violent convictions were outweighed by the benefit to be obtained from the witnesses' testimony. In any event, Hale's criminal record could not justify a failure to investigate possible mitigating evidence even if it might be a justification not to introduce such evidence at trial. Because Van Wagner failed to make any investigation, we believe it was unreasonable for the OCCA to conclude that Van Wagner's decision to present no mitigating witnesses was a strategic decision. We conclude that Van Wagner functioned well below the level of any competent attorney during the penalty phase in failing to investigate mitigating evidence.

[61]     We must, however, still determine whether Hale has met his burden under AEDPA of showing that Van Wagner's deficient performance prejudiced him.

[62]     In assessing prejudice in the penalty phase, "we must keep in mind the strength of the government's case and the aggravating factors the jury found as well as the mitigating factors that might have been presented" if Van Wagner's performance had not been deficient. Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994).

[63]     During the state post-conviction evidentiary hearing, Hale presented the testimony of four family members and nine friends who all stated they would have testified at the sentencing phase if asked. Two of these witnesses, however, included Hale's wife and daughter. Hale had insisted at trial that his wife and daughter not be allowed to testify on his behalf, and affirmed this demand when he testified at the post-conviction hearing. As the client, Hale had the right to preclude this testimony. See Stafford, 34 F.3d at 1564-65 (recognizing client's right to preclude a line of defense). This left the potential testimony of two family members, Hale's sister and his uncle, and nine friends. Initially, we point out that it is unclear whether Hale's sister would have been able to testify on her brother's behalf. At the time of the trial, she was away in Italy and no one had informed her that her brother was on trial. In addition, four of the people who testified provided somewhat equivocal statements on behalf of Hale. For example, one friend stated that he liked Mr. Hale, but he was also friends with the victim's family, and stated only that Hale "seemed to care," or at least "I never saw anything that would indicate that he didn't." Another friend stated in response to the question "Would you have told the jury to ask them to spare his life?": "I don't know what I would have told them." Still another friend responding to the same question testified that he would have simply stated that he "knew him [Hale] socially to the extent that he and I talked together frequently about baseball, and we were good friends. I-I didn't know anything other than that about him, really." The remainder of the testimony from other witnesses was limited to general statements that Hale was a good father and friend, a good citizen, and had been a good student back in high school.

[64]     Against these testimonials from friends and family members, some of which were equivocal, is the State's strong case against Hale. The jury found two aggravators: the murder was "heinous, atrocious, or cruel" and the murder was committed to avoid lawful arrest. There was ample evidence to prove both of these aggravators. *fn6 In addition, there was strong evidence connecting Hale to the crime. The victim was wrapped in Hale's trampoline tarp. The body was found at Hale's father's home and the gun used to kill the victim was a gun Hale had borrowed from his father. Furthermore, there was hair, blood, and fingerprint evidence connecting Hale to the murder. There was also evidence presented at trial that Hale had attempted to kidnap a woman just one day prior to the kidnapping of the victim, and a former cellmate of Hale's testified that Hale had told him he knew how to get rid of witnesses. The cellmate further stated that when Hale learned that the inmate was going to testify against him, the inmate was beaten up by Hale and others.

[65]     Given the strength of the case against Hale, the aggravating factors found by the jury, and the nature of the crime itself, we do not believe that the later-identified testimony from family and friends, some of which was equivocal and none of which was compelling, would have created a reasonable probability that the jury would have sentenced Hale to life in prison. See Boyd v. Ward, 179 F.3d 904, 918 (10th Cir. 1999) ("Even if we assume the failure to present mitigating evidence in the form of testimony from childhood acquaintances and family members is deficient performance," petitioner failed to establish prejudice in light of minimal other mitigating evidence and overall strength of state's case); Smith v. Gibson, 197 F.3d 454, 463-64 (10th Cir. 1999) (finding testimony from family, friends, bosses, and former coaches insufficient to show jury would have sentenced defendant to life in prison in light of "brutal and senseless nature of this crime and the strength of the State's evidence supporting the three aggravating circumstances"). Thus, we conclude the OCCA's determination that Hale's counsel was not ineffective was not an unreasonable application of federal law.

[19]     III.
[20]     A.

[21]     Initially, the State contends that the District Court should not even have considered the issue upon which the court based its decision to grant the writ--failure of notice and opportunity in the Rule 29.15 proceedings--because that issue was not properly presented to the Missouri Supreme Court and was not raised in the District Court. Indeed, it is apparent from the record that the focus of Kenley's arguments on the due process question was the Rule 29.15 court's verbatim adoption of the State's proposed findings and the state circuit judge's lack of independent judgment. Recognizing that success on that claim was foreclosed by our opinion in Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir.), cert. denied, 513 U.S. 983 (1994), the District Court seized upon Kenley's brief mention, in both his state appeal and in his § 2254 petition, of his due process rights to notice and an opportunity to be heard, and essentially made the argument for him. The Missouri Supreme Court's failure to address Kenley's due process argument in the context of notice and opportunity belies Kenley's insistence that the issue was fairly presented to that court. *fn4

[22]     Nevertheless, because Kenley invoked the "notice and opportunity" language in both the state court and the District Court, albeit fleetingly, we will give him the benefit of the doubt and consider the due process question as it was discussed by the District Court. As we explain below, we have other reasons for reversing the District Court's decision.

[23]     B.

[24]     The State next argues that Kenley's claim based on a failure of due process in the Rule 29.15 proceedings is not cognizable in a § 2254 petition. As we have said, the District Court determined that Kenley was "not challenging the verbatim adoption of the State's proposed findings of fact and conclusions of law," but instead was challenging "the procedure under which these findings were adopted." Memorandum and Order at 11. The court decided there was a distinction between a claim of "infirmities" in the proceedings, which clearly is not cognizable in § 2254 proceedings in this Circuit, and "a federal due process claim based on a state court's handling of a claim on post-conviction review," which the District Court thought would be cognizable. Id. at 13. The court concluded that Kenley's claim "falls within the latter category" and therefore was properly raised in his § 2254 petition. Id.

[25]     This Court has said that, although there is no right to state post-conviction proceedings under the United States Constitution, "once such a remedy is granted by the state, its operation must conform to the due process requirements of the 14th Amendment." Easter v. Endell, 37 F.3d 1343, 1345 (8th Cir. 1994) (noting that rule only in a discussion of procedural bar; petitioner had not invoked § 2254 to challenge process afforded him in state post-conviction proceedings); accord Mack v. Caspari, 92 F.3d 637, 640 (8th Cir. 1996) (noting that "a contention that a state court has applied a procedural rule arbitrarily to a defendant's prejudice [in a state post-conviction proceeding] may state a federal constitutional due process violation"), cert. denied, 520 U.S. 1109 (1997). But the question remains: is a writ of habeas corpus the remedy for a failure of due process in state post-conviction proceedings? We hold that it is not.

[26]     Under 28 U.S.C. § 2254, a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Kenley's attack on the constitutionality of the procedure employed in the state post-conviction proceedings does not test the legality of his sentence. Kenley is not on death row because his due process rights were violated in his Rule 29.15 proceedings; he is on death row because he was duly sentenced to death at a criminal sentencing trial. He challenges only the procedure employed in collateral civil proceedings that occurred after his direct criminal appeals were exhausted, not the process afforded him at resentencing or on direct appeal (at least not with this claim). On its face, then, a claim such as Kenley's is not a constitutional challenge to state custody.

[27]     Indeed, this Circuit has long recognized that truism, holding on several occasions that a § 2254 court is not an appropriate forum for a prisoner who wishes to challenge the process afforded him in state post-conviction proceedings. As we noted in Williams v. State, 640 F.2d 140, 143-44 (8th Cir.), cert. denied, 451 U.S. 990 (1981), "[I]nfirmities in the state's post-conviction remedy procedure cannot serve as a basis for setting aside a valid original conviction. . . . Errors or defects in the state post-conviction proceeding do not, ipso facto, render a prisoner's detention unlawful or raise constitutional questions cognizable in habeas corpus proceedings." See also Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir.) (holding that § 2254 petitioner's claim that state post-conviction court's failure to make findings on allegation that prosecution withheld discovery "is collateral to appellant's conviction and detention, and is therefore not cognizable in a 28 U.S.C. § 2254 petition"), cert. denied, 495 U.S. 936 (1990); Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir. 1989) (quoting Williams in holding challenges to failure to hold state post-conviction hearing and to lack of written findings were not cognizable), cert. denied, 493 U.S. 1028 (1990). This position is in keeping with that of most of the other circuits that have had occasion to address the issue. See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.) (citing Jolly and denying COA on petitioner's claim that he was denied due process when state post-conviction court adopted state's proposed findings and conclusions three hours after they were filed with court, noting that claim provided no grounds for federal habeas relief), cert. denied, 527 U.S. 1056 (1999); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (noting established law that "errors concerning [the state post-conviction] process are not cognizable in federal habeas proceedings"), cert. denied, 525 U.S. 903 (1998); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding that petitioner's challenge to state "post-conviction procedures on their face and as applied to him would fail to state a federal constitutional claim cognizable in a federal habeas proceeding"); Bryant v. Maryland, 848 F.2d 492, 492 (4th Cir. 1988) (following courts that have determined "claims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief"); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (per curiam) (concluding § 2254 claim that petitioner's due process rights were violated when state post-conviction court held no evidentiary hearing and failed to attach appropriate portions of record to its opinion "goes to issues unrelated to the cause of petitioner's detention [and] does not state a basis for habeas relief"); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986) (holding that § 2254 was not available to challenge "a denial of the sixth amendment right to effective assistance of counsel, a denial of due process, and a denial of equal protection in the State post-conviction proceedings--claims unrelated to his detention"). But see Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.) (per curiam) (noting that "errors" in state post-conviction proceedings are not cognizable in § 2254 petition "[u]nless state collateral review violates some independent constitutional right, such as the Equal Protection Clause"), cert. denied, 519 U.S. 907 (1996); Dickerson v. Walsh, 750 F.2d 150, 153 (1st Cir. 1984) (noting position of other circuits on the question and concluding that federal habeas was proper avenue for attacking state post-conviction proceedings).

[28]     Kenley's attempt to distinguish his claim--that he did not receive notice and an opportunity to be heard--from a claim of "infirmities" in state post-conviction proceedings is unavailing. A failure of notice and opportunity, as with those other "infirmities" in state post-conviction proceedings that in fact deprive a petitioner of any part of the process he is due, is subsumed in the overall right to fundamental fairness that is central to procedural due process. Virtually all of the "infirmities" noted in the cases that hold such claims are not cognizable in a § 2254 action represent due process violations in varying degrees. The law is clear that such violations of due process during state post-conviction proceedings are not remediable by federal habeas corpus. *fn5

[29]     C.

[30]     Even assuming arguendo that Kenley's due process claim relating to his state post-conviction proceeding is cognizable in a § 2254 petition, we reverse the District Court's decision to grant the writ because we conclude that the record does not support Kenley's allegation that he was denied notice and an opportunity to be heard in the Rule 29.15 proceedings.

[31]     Kenley had ample notice of the post-conviction hearing--he is, in fact, the one who sought it. He also had a full and fair opportunity to be heard and to present his case to the court. The state court's failure to let Kenley know that the court would be issuing amended findings and conclusions after the hearing had been held and the judgment entered cannot be a failure of notice. Kenley knew that the court might rethink its findings and conclusions based on the State's submissions, which also were sent to Kenley's counsel. Moreover, the court did not reconsider or alter its judgment denying Kenley's motion for post-conviction relief, but simply amended the findings and conclusions supporting the judgment already entered. Likewise, the opportunity to be heard (assuming there is such a post-conviction due process right after the judgment of the court has issued) was Kenley's for the taking. He never indicated to the court that he also wished to be heard on the subject, neither before nor after the State proposed its findings. It is not clear what greater opportunity Kenley thought he deserved. For these reasons, we reject Kenley's due process claim on the merits.

Curry v. Crist, No. 99-4184 (8th Cir. 09/28/2000) "On November 27, 1997, Minnesota inmate Edwin Curry was brutally murdered at the Stillwater Correctional Facility by fellow inmate Craig Bjork. Curry's heirs filed this § 1983 action against Warden David Crist and other prison officials, alleging that they violated Curry's Eighth Amendment rights by failing to protect him from the fatal assault. Curry's heirs appeal the district court's  decision to grant Crist summary judgment based on qualified immunity. We affirm."
 

Ten Suggestions for Plea Bargaining

In August, Alabama electrocuted a man named Victor Kennedy. His case reflected many of the things wrong with the American death penalty. Kennedy, a young African American accused of sexually assaulting and killing an elderly white grandmother, was tried by an all-white jury. His lawyer, for want of training and resources, barely mounted a mitigation case in the penalty phase. Draconian technicalities then barred federal court review of trial ineffectiveness. 

Victor Kennedy's borderline intelligence may have prevented him from fully appreciating the injustice of all these circumstances. But as he went to his death he did know one thing, and it could only have added to his pain: Before trial, Victor Kennedy was offered a plea to life without parole. And, despite ugly and overwhelming evidence in a small town case with execution written all over it, Victor Kennedy, borderline-retarded, proceeded to trial. 

If you defend capital cases, before long you realize how often death sentences flow from a breakdown in the settlement process. Unfortunately, there is still no step-by-step, fail-safe recipe for capital case pleas. But, drawn from the experience of many lawyers working a wide range of cases, here are ten suggestions for effective plea bargaining. They cannot substitute for individual patience and ingenuity, but should provide some groundwork on which to build and improve.

1. Provide a Sober Perspective About the Danger of the Death Penalty
There are at least two common obstacles to the capital client's appreciation of his predicament.

First, we all come from a secular-materialist culture which denies death the way the Victorians denied sex. Faced individually with the threat of death, moreover, our clients react very much as do the terminally ill. They deny their condition. Such denial is initially healthy insofar as it may prevent panic and insulate against police intimidation. 

Still, if left in place, it can interfere with wise plea bargaining. Denial must, therefore, be displaced - not with dread and alarm but with a sober sense of the real (if distant) risk posed to the client's life.

One non-intimidating way to effect this change in perspective is to put the client's case aside and just talk "current events." Look at the trends in the courts, among candidates for office, and in the public mood. Discuss the current slant in media coverage of violent crime. Consider your local elections and your state's attorney general. Go over the newspaper and ask your client whether he thinks things are getting better for death row prisoners.

Second, martyrdom, as George Bernard Shaw noted, is the one way for the talentless to become famous. For many clients, the capital prosecution is a way to bask in societal attention. If they cannot be Bruce Willis or Michael Jordan, they will settle for being Gary Gilmore or Roger Coleman.

Such romanticized, delusional thinking can kill your client. So defuse his sense of grandeur. Demonstrate that executions are already becoming old hat in many places. Talk about the paltry coverage they are given in states where people are routinely put to death. Have your client name the last four people executed in your state.

2. Set Out an Initial Game Plan with Your Client and Identify Early On the Plea Bargain Possibility
The refusal of an appropriate plea bargain by the client represents a break-down in his reasoned decision making. This should be no surprise, since his life has not likely been a series of logical judgments. 

Still, such a breakdown can be avoided by signing your client on to a rational game plan early on, by making an agreement and reaching an accord on how you will proceed.

Tell your client how you will attempt to beat the case: (i) which motions will attack legal weaknesses in the indictment; (ii) what case law you will explore to see if capital murder is made out; (iii) how you will get all the discovery to which you are entitled; (iv) what guilt and penalty phase leads the client himself might provide and how you are going to investigate them; (v) what experts you will look to retain; (vi) when you are going to interview the police and the state forensic science folks; and (vii) which prosecutor you are going to broach a plea with, should that appear appropriate.

Be certain your client will not forego his liberty so long as he believes\ wishes\ imagines that there is some lead or angle out there that could set him free. Don't expect him to heed your professional opinion as to the wisdom of a plea bargain unless that opinion is founded on both your overall experience and your leg work on his case. Indeed, absent a lot of leg work you would be ethically remiss and morally adrift to support any kind of guilty plea. 

Most capital defendants are under capital indictment because they are, among other things, risk-prone gamblers rather than prudent decision makers. These are not the guys you would retain to manage your pension portfolio. Knowing nothing about the evidence, they will wager (their lives) that something will break in their favor and bring an acquittal.

Only your firsthand account of the case against them, your interviews of state witnesses, etc., will impart a realistic sense of the odds.

So let the client know how each step of preparation and investigation is going, draw him into the process so that he himself sees - as a jury sees for itself - what has to be done.

3. Make Sure You Get an Offer 
The vast majority of criminal matters do not go to trial; they settle. Yet, when capital charges are brought, lawyers behave oddly. The atmosphere becomes charged. Opposing counsel take to the trenches.

Some defense lawyers, in this climate, fear they will signal weakness by inquiring into a possible plea bargain. When the prosecutor shares this fear of possibly showing weakness, a case can take on a life of its own. Both trial counsel and prosecutor can end up trying a case they both privately thought should be settled. 

This need never happen. In almost any case, there are two ways of getting an offer.
 

Hard Sell 
Defense counsel can usually coax the state into broaching the possibility of a deal. Counsel can make clear early on that proceeding to trial will, given the human life in the balance, necessarily be difficult and expensive. The initial filing of 30 or 40 motions - to ensure a representative venire, a fully recorded record for appeal, adequate funds for various mitigation experts, a judge free of racial bias, etc. - constitutes a down payment on the constitutional rights so often trampled in capital jurisdictions; it signals that there will be no poor man's justice or death-on-the-cheap. Such an initial filing also can represent a very effective invitation to negotiate.
 

Soft Pedal 
If vinegar doesn't bring the state to the table, try a kinder, gentler tack. Inform the prosecutor that, because this is a capital case, ineffectiveness of counsel could someday be an issue. Some courts, and all those meddlesome post-conviction lawyers, insist that effective representation requires exploration and communication of plea bargains. You, therefore, need to negotiate to cover yourself. So what's the offer and if there is none, why not? If answers are not forthcoming, properly share your concerns with the judge; bring her or him into the process.

Remember, finally, that more than one prosecutor out there has some deep, if politically well-hidden, ambivalence about the death penalty. They know that death cases are appealed and reviewed for years on end. They may also harbor some religious or moral compunction about needlessly killing even the guiltiest human being when life imprisonment is possible. Such ethical reservations, naturally, ease the plea bargaining process, if that process is initiated. 

4. Do Not Take a Client's Uninformed 'No' for an Answer
Imagine a patient, say one not known for his mature judgment, resting in his hospital room. A doctor comes in. The doctor tells the patient that the biopsy came back positive, that there is a malignancy, that almost certainly the only way to save the patient's life is to amputate a leg. The patient, rather fond of dancing, replies that he does not want to lose his leg. The doctor just says "OK, it's your decision" and leaves to arrange for a discharge.

Now surely it's the patient's right to refuse the amputation. But a professional lends guidance, perspective, and the strength to make difficult decisions. He does not abdicate this duty out of a false sense of respect for patient (or client) autonomy. He exercises independent, professional judgment.

The client, not the lawyer, does the time. The decision to plead or not belongs to the client, in the final instance. The attorney, however, is obliged to insist that his client make a decision that is informed and mature rather than blind, impulsive or stubborn.

5. To Assure a Mature Decision Is Being Made - Make the Odds Clear and Assume Nothing
We know how bad things are. (That's why we want the plea taken.) The client, though, will only know what we tell him. So state what for you is the obvious:
 

Explain death qualification and its impact on each stage, as well as the perfunctory nature of voir dire.
Discuss the expertise and track record of your adversary.
Ponder the reaction jurors will have to the state's inevitable gory slide-show.
Recall weaker cases where the jury happily meted out a death sentence in no time flat.
Talk about clients now on death row who passed up deals and their current regret.
Note your governor's policy on clemency.
Explain that plea bargain is a no risk contract and go through the mechanics.
 

6. Speak Bluntly and Insist on Rational Answers
There is no point in speaking in the euphemisms society employs so that it can kill prisoners with a clear conscience. Be blunt. But don't lecture at your client with the answers. Rather, make him give the answers to the questions raised by his no-plea position.
 

Talk Plainly

"Why are you killing yourself?"

"How will your family deal with the execution?"

"What will your son feel when he reads the paper?" 

"Why put them through the ordeal?"
 

Walk through the days/hours leading up to the execution and how the method brings about death.
 

Keep Asking Questions

Make the client explain his position. Make him tell you why, for instance, his professed moral innocence is a reason for him not to save his life. Have him detail how he will vindicate his name from the grave and what role he can play in his kids' lives once he is dead. Insist he tell you why he must self-destructively defy a system for which he has no respect. Identify who he is going to teach a lesson by going to the execution chamber and what he is going to prove. Let him defend his decision in light of the fact that straight murder is the best he can hope for and, under the habitual felon statute, that will mean life without parole in any event. Challenge senseless responses and then keep coming back to these questions.

7. Enlist Allies
Capital Experts
Get a specialist to tell horror stories and/or inform client that his trial is a disaster waiting to happen. A second opinion is always helpful. And the input of an outsider can provide a face-saving out where a stalemate has developed between client and primary counsel.
 

Family
Prepare the family beforehand by presenting the facts and odds honestly. But have a meeting of everyone together so there is a common understanding that it is plea or die.

Have parents explicitly ask the client to save his life for their sake. Make the client say he will not give his parents the gift of saving his life. Yes, that is hardball. But, as Stephen Sondheim observes, "nice is different than good." And, if you don't pull out all the stops, you will only regret it on the eve of an execution. 
 

God
With the client who has found religion, talk about God (at least assuming you yourself are not faith-impaired). This talk constitutes a very effective channel of communication and an opportunity to connect on a very personal level. Take down the wall that keeps your spirituality separate from your lawyering and say why you think the client's saving his life with a plea is what God wants. 

Emphasize the good that the client can do, witnessing to the Lord, in general population. Explore the problem of the client's setting himself up so state officials can sin by taking his life. Christians can consider the fact that even Jesus asked the Father "if it is possible, let this cup pass by." Ponder what Mary had to go through at the foot of the cross. Assure your client that God works in mysterious ways and that, at the moment, your lawyering for a plea is the mysterious way.

Last, if your client comes back with a fatalistic: "It's in God's hands," remind him what Reverend King taught: Those who shoulder their burdens in God's plan have faith; those who expect God to do everything have only superstition. 

8. Commiserate 
Many of our clients have a strong sense of their victimhood. Society, parents, teachers, employers, judges and lawyers are all responsible for their plight. Whatever philosophical balance you strike between determinism and free choice, be ready to commiserate with your client about the raw deal life has dealt him.

More, tell him about the raw deal he is about to get. Discuss the willingness of state witnesses to lie and how often capital cases bring out the absolute worst in prosecutors and judges. The system, in short, is about to victimize your client as never before - unless he takes the plea.

9. Take Off Your Watch
You earn the trust of your client primarily by working your case and, secondly, with patience. Be ready to spend hours and days with a client to persuade him to save his life, to make the right decision for himself and to own it fully. 

Filibuster, plead, argue, cajole. Sometimes cry. Sometimes just sit and wait out your client's angry silences. Don't get frustrated. Don't give up. 

If you are in a rush, forget it. You'll only confirm what your client suspects: that you don't care, that you want the plea to save you work, not to save his life

10. Be Honest with Yourself
Trial is a blast, a rip. When you are "in the zone" your grasp of evidence goes from the mechanical to the organic; every new twist registers instantly as hurtful, helpful, or both. 

All your radar is cranking; every good counterpunching reflex is in play. Obstacles become opportunities. Difficulties become helpful diversions. Setbacks become launching pads.

The seams between style and substance, craft and creativity, rhetoric and reality all melt away. Your energy is boundless; your endorphins are staging a firework display in your brain. Within ethical bounds, you are the writer, director, and lead. Indeed, you are the hero! Right? This magazine is not The Helper, The Mouthpiece, or even The Advocate. It's The Champion!! We ride the white steed! We slay, salvage, and save. Why would you make a living any other way? 

OK, but here is the lousy truth: In many, if not most, capital jurisdictions the majority of death cases should be settled. Prosecutors don't usually select their shaky cases for capital trial. And little justifies praying for life the night before a penalty phase when it was yours for the asking at the outset. As Jed Stone, a great Chicago trial lawyer and capital litigator, says, "In the capital universe, the Planet Trial is a place you don't want to visit unnecessarily."

So be honest with yourself. Yes, you love trial work. And nobody likes to beg a prosecutor for mercy; we would all rather fight him for justice. But in those cases that should plead, saving lives has to come first. 

From the Death Penalty Information Center reports:

On Thursday, October 12, NPR's "All Things Considered"® will premiere "Witness to an Execution," a radio documentary providing in-depth details of the process before and during an execution by lethal injection.  The story is told by the men and women who participate in, or bear witness to, executions at the Walls Unit in Huntsville, Texas, where all death sentences for the state are carried out. The show, which will broadcast at 4:30 and 6:30pm EST, is narrated by Warden Jim Willett, who oversees all Texas executions, and includes personal stories of other Department of Criminal Justice employees who take part in executions, as well as several journalists who witness and cover them.  Following the 6:30 airing, NPR will run an hour-long call-in show hosted by Robert Siegel, featuring some of the people from the documentary.  (Sound Portraits Press Release, 10/6/00) 

Germany v. United States in the International Court of Justice 
The United Nation's principal court, the International Court of Justice (ICJ), will hold public hearings in the case Germany v. United States of America, from November 13-17, 2000 at The Hague.  Germany is suing the United States for violating international laws and treaties by executing two German foreign nationals in Arizona in 1999.  Germany maintains that brothers Karl and Walter LaGrand were denied consular access, as required by the Vienna Convention. Germany also says that Arizona prosecutors violated the Convention because they knew the defendants were foreign nationals and did not inform German authorities of the arrests and convictions for the 1982 crimes until 1992, when the brothers' legal avenues had all been exhausted. (Press Communiqué, ICJ, 9/27/00)  See also, foreign nationals 

Another North Carolina City Passes Moratorium Resolution 
By a vote of 8-1, the city of Greensboro became the eighth local government in North Carolina to pass a resolution calling for a moratorium on the death penalty.  Supporting the moratorium were three pro-death penalty Republican council members.  "I have very deep concerns about the equitability, the equality, and the efficiency" of the administration of the death penalty, said council member Nancy Vaughan, a Republican.  (People of Faith Against the Death Penalty, Press Release, 10/4/00)  See also, the Moratorium Now Campaign. 

 New Resources 

--"The Death Penalty in Texas: Due Process and Equal Justice...or Rush to Execution?"  The Seventh Annual Report on the State of Human Rights in Texas, by the Texas Civil Rights Project,  presents an overview of the capital punishment system in Texas, and calls for a moratorium on executions while the system is reviewed. 
--"Presidential Candidates Views on the Death Penalty," by Richard C. Dieter, was recently published in the Cranbrook Peace Foundation's Newsletter.   The article examines the events of the past few years and how they have forced candidates to define and refine their views on capital punishment. 
--Friends Committee on National Legislation's "Death Penalty Information Packet" provides an introductory look at death penalty issues.  The packet examines the history of the abolition movement, death penalty legislation and other legal issues, arguments for and against the death penalty, and religious perspectives on the death penalty.  (The publication is available in PDF format at www/fcnl.org). 

 

A discussion list for legal professionals doing capital litigation is in the beginning stages.  The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.
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List owner:   capitaldefense-owner@onelist.comAs always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.
 
 

DISCLAIMER & CREDITS --   Anti-copyrite 1997-2000.   ISSN: 1523-6684. Written with  the legal professional in mind.  Use does not constitute creation of an attorney-client relationship.  If you have a legal question contact a lawyer authorized to practice in your state. This weekly  has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters.  The law changes quickly, and information provided may be outdate by the time it is read.   Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html. This letter may be freely redistributed with attribution. Please note that the current set up of the weekly is a one way list.  Subscription information, including all names and addresses are private and unavailable to third parties. Please note all rights to terminate a subscription are retained by the editorial staff.  Publisher information: All  comments, inquiries or complaints  may be sent to: Capital Defense Weekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/kkeys@capitaldefenseweekly.com/617.249.0219ISSN: 1523-6684   Volume III, issue 37