House Bill 3986 - The Proposed Death Penalty Appeals Act and the Need to Include Adequate Funding for Indigent Defense Counsel

Recently, Representative Henry Johnson (D- Ga.) introduced House Bill 3986, the Effective Death Penalty Appeals Act.  This proposed law would make sure that defendants who have been sentenced to death at trial have the chance to have those death sentences reviewed as federal habeas corpus relief when they are able to provide evidence that they are not guilty of the crime -- especially when that evidence was not presented at their trial. 

The summary written by the Congressional Research Service (a nonpartisan part of the Library of Congress) provides:


Effective Death Penalty Appeals Act - Amends the federal judicial code to make federal habeas corpus relief available to a person sentenced to death if adjudication on the merits in state court proceedings of the claim cited in the writ application resulted in, or left in force, a death sentence imposed without consideration of newly discovered evidence which, in combination with the evidence presented at trial, demonstrates that the applicant is probably not guilty of the underlying offense. Allows presentation of such a claim in a second or successive habeas corpus application. Allows a second or successive court motion to vacate, set aside, or correct a death sentence based on such a claim.

Many may assume that this type of federal judicial review already exists for those individuals facing a sentence of death. After all, isn't the cost of appellate review one of the big chunks of Capital Punishment expense that is being used as an monetary argument to abolish the death penalty?

Right now, federal courts are limited in their ability to review state court decisions in Death Cases --  Troy Davis is one big example

While death penalty appeals are expensive in both time and money, the fact is that the innocent men and women on Death Row -- and they're there, don't think they're not -- may not have as easy of a time taking evidence proving their innocence before a tribunal in order to gain their freedom as the public might assume.

For example, the Antiterrorism and Effective Death Penalty Act of 1996 limits the ability of federal review of state court decisions involving the death penalty.  We're already written about the AEDPA and how this single federal statute has tied the hands of federal courts seeking to correct injustice -- resulting in a rising number of federal judicial dissents pointing out the problems with AEDPA and its ability to bar certain types of habeas corpus petitions.  Of particular note, the internationally monitored case of Troy Davis involves the AEDPA - federal habeas corpus review problem.

Monitoring House Bill 3986 as it proceeds through the legislative process.

Right now, House Bill 3986 remains in committee -- you can monitor its travels through the Congressional procedural pathways online if you wish.  And, its language may change as the statute is molded by discussion and the taking of testimony, etc.   For example, its attempts to solve the problem of Death Row inmates needing a chance to bring evidence of their innocence to a federal tribunal via federal habeas corpus relief may be expanded during the legislative process to allow federal review of state decisions when other constitutional violations exist. 

Hopefully, Congress will take this opportunity to include within this legislation not only the increase in access to the federal appellate system but practical solutions to the accompanying financial support that will be needed for this expansion in post-conviction legal representation. 

It's only thing to allow access to the federal appellate system for these Death Row inmates.  It's quite another issue to insure that their indigent defense counsel are provided the proper tools to effectively advocate for these citizens once access to review by the federal appeals courts has been insured.

Allegedly Improper Communications Between Judge and Broward County Prosecutor Gets Death Row Inmate Omar Louriero a New Trial

Omar Loureiro will be tried a second time for the murder of a Lighthouse Point man who he had gone home with from a local bar: right now, he's setting on Death Row for this crime.

In 2007, Loureiro was tried for first degree murder in the case, found guilty, and sentenced to death. Two years later, he's going back in the courtroom - and it's all because of the actions of the judge and the prosecutor in his first murder trial. (The new trial date hasn't been set.)

Testimony that Judge and Prosecutor Discussed the Case Over Dinner

Bottom line, there was testimony by Broward County prosecutor Sheila Alu that she had dinner with both Judge Ana Gardiner and prosecutor Howard Scheinberg, where they talked about the case, days before Loureiro was convicted. In fact, Alu testified that they had joked about the case.

Judge and Prosecutor Tell Their Side

The judge and prosecutor Scheinberg gave testimony, too - they admitted to an "appearance of impropriety," because they ran into each other at the restaurant while the trial was ongoing, but they denied discussing, much less joking, about Mr. Loureiro's trial. Critically, both also revealed in their testimony that they talked on the phone (cellphones, not office landlines) about the Louriero case sometime between this restaurant event and Mr. Louriero's sentencing several months later.

The Appearance of Impropriety is the Standard

Looks bad, especially since all attorneys everywhere recognize that phrase "appearance of impropriety" all too well. It's engrained early on that attorneys (and judges) are to err on the side of caution - we're not to give even a suggestion that anything inappropriate is taking place.

The Recent Texas Judge and Prosecutor Case Comparison

Of course, things can get much worse than this. Much worse. Over in Texas, it was revealed last year that a trial judge and the district attorney assigned to her courtroom had been carrying on a secret love affair for many years - and no one knew (though there was much courthouse gossip suggesting it) until one of the prosecutor's assistants blew the whistle on the two, which resulted in at least one Texas Death Row conviction being overturned thus far.

Charles Hood's conviction was overturned last month with the court ruling he had received an "unfair trial" due to the relationship between the judge and the prosecutor during his murder trial - and this, without any direct evidence that the judge and the district attorney ever spoke about the case directly.

Please Check Out My Op-Ed Piece in Today's Orlando Sentinel

I have written an article concerning the impact of media coverage on our constitutional rights to a fair trial - and the presumption of innocence, which appears today in both the print and web versions of the Orlando Sentinel.

It is entitled "Media zap right to fair trial: To wit, Casey Anthony et al. " and you can read it here.

I welcome your thoughts and opinions.

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