Fact Issues - Death Penalty

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The Dubose Brothers death penalty trial continues this week in Jacksonville, and the liveblog has survived a legal challenge.

As posted last week, the Times-Union and Jacksonville.com are live-blogging the trial as it happens.  This is a great thing — a phenomenal way for those interested in death penalty matters to follow the case online…

This week, Adam LIptak of the New York Times has taken the great light that is the New York Times, using it to shine into dark corners of corruption, and revealed as story that’s been talked about in defense circles are awhile.  And his efforts can’t be noticed without also pointing out the efforts of…

For over seven (7) years, D’Andre Bannister has sat behind the bars of a Florida jail cell, awaiting trial on the charges that he murdered his stepson.  That’s right.  He’s never been tried. 

This week, an evidentiary courtroom battle began on whether or not the State of Florida can now — today — seek the death penalty…

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?

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:

11/3/2009–Introduced.
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.
Continue Reading House Bill 3986 – The Proposed Death Penalty Appeals Act and the Need to Include Adequate Funding for Indigent Defense Counsel

In yesterday’s New York Times, Professor Linda Greenhouse gives us a thought-provoking analysis of the “selective empathy” of the current U.S. Supreme Court as she compares the recent decisions in Porter v. McCollum (Porter lives) and Bobby v. Van Hook (VanHook dies).  After discussing in detail both opinions, Greenhouse concludes:

Setting the Porter and the

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