Before he was governor of the Great State of Kansas, Mark Parkinson worked in the state senate as a legislator, helping to draft the current law approving of capital punishment in that state.  Kansas’ death penalty statute was passed into law back in 1994.

However, it’s a new day and last Friday, another piece of legislation started making its way through the Kansas legislature — a law that would repeal the death penalty, and replace it with a crime of capital murder with aggravation, punishable by life without parole. 

Right now, this fledging has jumped its first hurdle.  The Kansas Senate’s Judiciary Committee endorsed the bill, and now it faces a vote by the entirety of the Kansas Senate.  Once that is achieved, it goes before the Kansas House — and assuming that it meets approval there, too, it goes over to the Governor’s desk.

That’s right:  Mark Parkinson, who helped write the death penalty law that is currently in effect, will have the final say on this recall of capital punishment. 

What are its chances?  Well, there’s some chatter that this proposal won’t make it through the House this year, because the Kansas House is dealing with a budget crisis where they’re short $400 million – and their new fiscal year starts July 1st.

Here’s a question for Kansas:  if you’re interested in budgeting, then why aren’t you connecting the COSTS of the death penalty with your budgetary crisis? 

According to the Death Penalty Information Center, a study was done in the early 2000s regarding the cost of the death penalty in Kansas.  While it might need to be updated, it’s important to note that it’s a definite budget issue here — and since Kansas has not executed anyone since the 1994 re-enactment of its death penalty law, all those appellate costs are ongoing.  (Ten men currently sit on Kansas’ Death Row.)  

According to the DPIC, summarizing the Kansas budgetary report:

… the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases. 

 In fact, costs is one of the main concerns of the state senator that drafted this bill and introduced it to the Kansas Judiciary Committee.  State Senator Carolyn McGinn used dollars and cents as one of her major arguments in repeal of the Kansas Death Penalty.

Let’s hope the Kansas House isn’t too busy panicing over a $400 million budget crisis that they don’t stop to consider Senator McGinn’s wisdom — and let’s hope that the Governor isn’t too set in his ways. 

According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."  What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid.  The result of this financial myopia is a deepening financial crisis in Florida and across the country today.

 Applying the Constitutional Right to Counsel  

Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application.  For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression.   State courts were a different story, however. 

Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts.  Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor.  Legal Aid? Public Defender?  These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).   

Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area.  Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern.  What was at one time a stigma – that lawyers work for a profit — is an attitude that has not stood the test of time.   

Expansion of the Right to Counsel into State Courts – first, the felonies 

As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant.   While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.  

 It took almost 30 years for the 6th Amendment to be applied to state felonies that did not involve the death penalty.  With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state.  With Gideon, the High Court had spread the shade of the 6th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue. 

 Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants

 Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).

 Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process 

Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case.  Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself.   .   

Continue Reading The Expansion of Constitutional Right to Counsel by the US Supreme Court – Who Pays?

You have to read this book. 

That’s all I really need to write here, but it’s impossible to stop typing about how David Dow’s memoir is so important for anyone connected with capital punishment to read — and why this is so.

First, he provides a clear and unique perspective.  David Dow is not only a professor at the University of Houston Law Center, he’s also the head of litigation at the Texas Defender Service.   Professor Dow has been in the trenches of death penalty defense for years, and knows of what he speaks. 

Second, he’s writing a memoir this time.  Professor Dow has been published before, but his previous works were more analytical in nature.  Works like Machinery of Death: The Reality of America’s Death Penalty Regime (Taylor & Francis 2002), and Executed on a Technicality (Beacon 2005).  This book gives an inside view of what it’s like to represent clients who are facing death by execution.  Intersecting in these pages are Dow’s dealings with his young son and how appellate demands (particularly in death penalty cases) collide with family time and parenting needs.  It’s something that all capital litigators can truly understand, and it’s rare that someone reveals the razor’s edge we sometimes walk.

Third, Professor Dow gives us reality that is perhaps easier revealed via this personal perspective.  In Anatomy of an Execution, David Dow doesn’t pull any punches.  He’s showing you the underbelly of capital punishment in this country today, from the standpoint of an expert defense counsel.  From the book, you find out things such as:

  1. There was a time that he was in favor of capital punishment.  He understands the arguments of death penalty proponents. 
  2. Sometimes, he’s hasn’t liked his client — and it’s brave of him to admit this.  Of course, that hasn’t stopped his calling to stand against a client’s execution. 
  3. Money — and budgeting — are just as much a concern of the defense as it is for the prosecution.  David Dow’s story, covering a select number of representations as they dovetailed with his personal life, actually brings home the financial realities of capital punishment defense in this country:  Administrative matters and an analysis of cost vs benefit do happen in death penalty cases, and hat’s off to Professor Dow for shedding some light on the elephant in the room. 

 For more, check out a post written by David Dow, discussing how he came to write this book, over at the Huffington Post. 

 

 

 

 

With thanks to the recordkeeping of NCADP, here is a list of those doomed to die at the hands of the State between now and the first of July of this year.  Notice how many are set in Texas – and Ohio:

Feb 4: Mark Brown, OH 
Feb 16: Martin Grossman, FL 
Feb 18: Robert Melson, AL 
Feb 24: Hank Skinner, TX 
Mar 2: Michael Sigala, TX 
Mar 9: Lawrence Reynolds, OH 
Mar 11: Joshua Maxwell, TX
Mar 16: Jack Jones Jr., AL
Mar 30: Franklin Alix, TX 
Apr 20: Daryl Durr, OH 
Apr 20: Samuel Bustamante, AL 
May 13: Michael Beuke, OH 
Jun 10: Richard Nields, OH
Jun 30: Jonathan Green, TX

 

As you’ll recall, the Chief Justice for the highest criminal court in the State of Texas was on trial in August 2009 for her alleged bad acts on the day that Michael Richard was executed. 

The same day that the United States Supreme Court issued a ruling that Richard’s attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon.  Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day. 

You’ll remember — when the attorneys got to the high court, the doors were locked.   It was 20 minutes after 5.  When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk’s office always closes at 5 pm.  Nevermind that Justices were on stand-by for this motion.  Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.

Michael Richard was executed by lethal injection within hours of Chief Justice Keller’s dismissive phone response. 

So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller,  His findings then go to the state’s Judicial Commission for final disposition (removal, etc.). 

The fact-finding judge issued his report last week.  And he’s apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she’s suffered enough.  However, if you actually READ his opinion, it’s very curious.

Substantively, he’s arguing that the Chief Justice didn’t violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard’s attorneys may have been ignored.  Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk’s office closes at five"?

Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business.  Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases. 

This fact finding report is shocking.  One can only wonder what the State of Texas will do next. 

 

For other responses to Judge Berchelmann’s report:

Gamso for the Defense

Grits for Breakfast

Dallas Morning News

Houston Chronicle (great headline here, "Keller is lucky judge wasn’t just like her.")

 

 

Faced with the problem of how to provide legal counsel to those who cannot afford to hire their own attorney after Gideon v. Wainwright, states have found three different approaches to meeting this constitutional mandate: (1) public defender programs (nonprofit organizations with staff attorneys assigned to the indigent); (2) contract counsel (the contracting firm or entity agrees to take all indigent representations for a set time period); and (3) assigned, court-appointed private practice lawyers. 

They are not mutually exclusive models; for example, a state can have a public defender system as well as having court appointments of attorneys in private practice. Sometimes, things are so varied within a state that the method of providing lawyers to the indigent will depend upon the county.  No one single answer to the problem of providing legal counsel to the poor has proven efficient or cost-effective since Gideon came down. 

Indigent Defense in Florida

In Florida, every county with a population of 35,000 or more must have a public defender program. However, as the 2009 Justice Denied report by the Constitution Project revealed, county budgets across Florida have been slashed steadily over the years, and public defender programs have lost millions of dollars in these budget cuts. Some Florida counties today actually charge indigent convicts fees to cover litigation costs. Others are refusing to take on new indigent defense cases, telling the courts that to do so will be unethical (and unconstitutional) as they simply cannot provide effective counsel given their limited resources. 

The financial challenges of providing indigent defense have been serious for over a decade. They have only been exacerbated by continuing judicial expansion of the constitutional right to counsel for the indigent defendant, e.g., to include juveniles (In re Gault, 387 U.S. 1, 1967); those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 407 U.S. 25 (1972)); and indigent defendants in misdemeanor cases resulting in suspended or probated sentences ( Alabama v. Shelton,  535 U.S. 654 (2002)).

Combine the expansion of the right with the fact that the right to counsel begins the minute that an individual invokes that right, Edwards v. Arizona, 451 U.S. 477 (1981) (which most criminal defendants know is the wise thing to do before answering any questions from the police), and you have a lot of demand for effective legal counsel without enough supply. 

 

Continue Reading The Cost of a Life: Representing the Indigent Accused of Crimes in Florida Courts Today

I’m not the first one to notice the potential analogies between the current Cheshire murder case and the long ago Kansas multiple homicide made famous by Truman Capote in his masterwork, In Cold Blood. 

In fact, one author has gone so far as to capitalize on the comparisons being made, inserting Capote’s title into his own book on the Connecticut case, "In the Middle of the Night: The Shocking True Story of a Family Killed In Cold Blood."  Needless to say, his choice in titles is controversial and criticized. 

That there’s already a book on this case — published and promoted last fall, long before the trial setting — isn’t surprising.  This case has become the focus of many people across the country, looking at the case from many different perspectives.  However, given our current media culture it’s also true that once again, the danger of a trial by media rears its ugly head. 

Trial by Media?

The New York Times is giving detailed coverage of this case, as are many different media outlets.  There is no denying it is an event that bodes well for ratings. 

A quaint town in Connecticut.  Middle of the night.  A family — handsome dad (a doctor), pretty mom, two cute teenaged daughters — sleeps, unaware that two men are breaking into their New England cottage.  The father is beaten and tied up.  The mother and one of the girls are raped.   A fire is started.  The mother is strangled.  Both teen daughters die, tied to their beds, from smoke inhalation.  Only the dad survives.

This is a horrific event and no one can help but be shocked at what happened here.  Of course, the trial of the two parolees charged with these crimes will be covered by the press.  As it should be — criminal defense attorneys do not want to deny media coverage of criminal cases.  Those journalistic eyes on the process, the investigation, the procedure, etc. all aid in insuring that justice is done and we don’t have Kangeroo Courts in this country. 

However, due to the well known nature of this case, jury selection will take a long time.  It has to — to find those who can serve as jurors without bias or prejudice cannot be easy here. 

Not two days into jury selection, one potential juror already broke into tears during voir dire, just listening to the charges being read and many in the panel are being excused after telling the judge they know all about the case, "it’s all over the papers." 

Added to this media complication is the fact that this is a death penalty trial and under Connecticut law, selection of jurors is much more detailed since a man’s life is being considered as part of the sentence, should guilt be found.  Aggravating factors involving the crimes as well as mitigating circumstances involving the defendant will all come into play. 

One more complication here:  after the Connecticut legislature finalized a bill repealing the death penalty in their state, the governor vetoed the bill, giving as her sole reason for doing so — the Cheshire killings. 

Media Has Already Influenced Jury Pool – Has There Already Been a Trial by Media?

The media’s impact has already impacted jury selection – it could take months to seat a jury in the Cheshire case.  Whether or not this becomes another example of trial by media is still somewhat debatable.  Detailed national coverage of this case goes back two years. 

It’s not hard to predict that the media scrutiny will only increase once the trial actually begins.  And lots of defense folk and death penalty opponents will be watching the Cheshire proceedings as they unfold.  Because — as I written before for the Orlando Sentinel — trial by the media is wrong, and no matter how horrific the Cheshire murders were, our system cannot condone the media suplanting the jury in this, or any other, case.  Unfortunately, it may well be the case in the Cheshire proceedings that a trial by media is already a fait accompli. 

 

Robert Lee McConnell was set to die on February 1st at the hand of executioners for the state of Nevada, until yesterday when a federal court intervened, granting his motion to stay.  It’s the second time that Mr. McConnell has faced that last walk — he was previously set to be executed back in 2005.  Then, the execution was less than half-hour away when a stay was granted.  In 2005, McConnell had announced to everyone that he was ready to die. 

One wonders what that’s like — sitting on Death Row, being moved to the Carson City prison where Nevada kills its prisoners, setting your affairs in order and spending what you think are your last days on earth, only to find that they’re not your last days.  Especially when it’s happened to you twice.

Robert Lee McConnell took responsibility for a terrible mistake that he made when he murdered his ex-girlfriend’s fiance back in 2002.  He pled guilty to the crime. 

Robert Lee McConnell also represented himself, both at trial and in this latest motion for stay.  In a request that exceeded 160 pages, McConnell asked Federal District Court Judge Robert Jones to halt the execution arguing in part that the death sentence was fundementally unfair.  (McConnell seems to be somewhat a jailhouse lawyer, having had his appeals to the Nevada Supreme Court heard – and rejected – last July, where he challenged the constitutionality of the lethal injection method of execution. )

Judge Jones has granted the stay, and ordered that McConnell have one month to file the appropriate petitions as well as having legal counsel appointed to assist him in that task. 

Of some note, the American Civil Liberties Union (ACLU) was litigating the constitutionality of Nevada’s lethal injection method of execution in 2007, and Nevada took the challenge seriously enough to stay the execution of William Castillo, a man who had asked for the death penalty. Nevada was planning on upping the drug cocktail to double the standard amount, as well as giving Castillo a mandatory sedative.  It was only when the ACLU dropped its suit that Nevada started back with capital punishment.  Castillo’s case remains on appeal. (By the way, they call these folk "volunteers" when they want to die rather than live any longer in state imprisonment.  Chilling, isn’t it?)

What McConnell will argue on his latest appeal will be interesting to follow. 

Not only does he (and his newly appointed counsel) have the recent ACLU challenge to reference, as well as whatever additional appellate points they will address, they also proceed in an environment where more and more people are recognizing that powerful, powerful reality: it is simply cheaper to allow prisoners like Mr. McConnell to remain behind bars than it is to continue with capital punishment.  

The National Coalition to Abolish the Death Penalty is the only fully-staffed national organization working to abolish capital punishment in the United States.  Its annual conference starts today and runs through the weekend.   Sister Helen Prejean is the keynote speaker this year, she’s always wonderful — and if I didn’t have courtroom commitments, I would love to hear Sister Helen today. 

What’s the NCADP?

Formed in 1976 (yes, in conjunction with the reinstatement of the death penalty by the United States Supreme Court), the NCADP has grown to become a tremendous force in the efforts to stop government executions in our country.  (The NCADP also works toward ending capital punishment in other countries around the world.) 

From the hub of its wheel spring the various state Coalitions (New Mexico Coaltion to End the Death Penalty, Kentucky Coalition to End the Death Penalty, etc.), and through NCADP’s efforts, a tremendous amount of information regarding capital punishment is corraled and distributed.  Its website alone is a treasure of current news on death row events, legislative and judicial updates, and other important items of interest to those working to end the death penalty in this country. 

What’s Happening at the Conference?

This year’s conference is being held in Louisville, Kentucky, and will include the following: 

The annual meeting of the NCADP isn’t free – it’s one of the big moneymakers for the non-profit organization, in fact.  It’s definitely a worthy effort, and worth your time and money if you have any chance of getting to Louisiana over the next few days. 

Follow NCADP on Twitter as well as YouTube and its blog, Abolish the Death Penalty.

This Sunday, an interesting twist to the recent American Law Institute’s divorce from its prior recommendations regarding the death penalty occurred:  The Charlotte Observer published an editorial calling for abolishing capital punishment in North Carolina, based on the ALI’s recent determination. 

As added incentive, the Charlotte Observer did point to a Duke University study and its tally of $11,000,000 that could be saved each year by the state of North Carolina if capital punishment were to be abolished.  (The Death Penalty Information Center has a free, advance copy of Dr. Cook’s findings stored as a pdf on its website.)

What’s the big deal with the ALI about-face?  The American Law Institute’s change in position has been heralded by the Huffington Post (among others) as the biggest development regarding capital punishment in 2009.  The New York Times explains the importance of the ALI to the death penalty in this country in a well-written piece, as well. 

One has to wonder, however, as we monitor future developments in North Carolina, which is going to carry more influence in a move to abolish their death penalty:  the ALI reversal, or $11 million in the state’s annual budget?  Perhaps Dr. Cook and Duke University will prove to be the bigger powerhouse here.  If money talks, $11 million should screaming loudly in the North Carolina economy.