Some Bizarre Death Penalty Laws

Recently I had a Federal judge reject my attempts to keep a client on death row from being executed. I was appointed to represent the defendant after he had lost his trial; lost his appeal in state court; and lost his attempt to convince the trial judge to find his case constitutionally flawed pursuant to a “writ of habeas corpus.” I was appointed, as Federal law provides, to represent him in relation to his final “appeals” to Federal court.

After I was appointed to represent him I asked the judge to let me have investigators and the funds to thoroughly review his case. Eventually the court agreed to let me do this. The evidence of guilt was overwhelming but the investigation revealed that the trial attorneys had failed to put on hardly any evidence in the phase of the trial in which the jury is supposed to hear all the evidence relevant to the question of whether he should live or die. The Supreme Court has made it increasingly clear over the years that it is unconstitutional in this day and age to execute someone unless the jury is provided a complete overview of the defendant’s life. The good, the bad and the ugly. Yet this clearly did not happen in this case. Easy answer right? Just retry the defendant on the question of whether he should be executed. Wrong!

The problem is I did not find out all of this information until it is too late. The law provides that if an allegation is made that the trial lawyers failed to do something it has to be raised in the first state writ of habeas corpus. If it wasn’t raised then it may never be considered again. Why wasn’t the evidence presented in the first state writ of habeas corpus? The defendant had a lawyer didn’t he? Yes, but one that worse than having no lawyer at all. The trial court appointed a lawyer who had just graduated from law school and had no experience in death penalty litigation. It appears she simply had no idea what she was supposed to do because she raised no meaningful issues in the state writ of habeas corpus. Well, in that case the courts should just allow the defendant another chance to file a state writ of habeas corpus right? Wrong again. The courts are afraid that if the failures or inadequacies of state habeas counsel could result in “do overs” the death penalties appeals really would never come to an end. So if state habeas counsel drops the ball, to bad, so sad,” for the defendant.

Consider the upshot of all this for a moment. The defendant is guilty. As a practical matter the only question is whether he should spend the rest of his life in prison or be executed. The Supreme Court says no automatic death penalty. The jury must here all relevant evidence about the defendant before it can make such a momentous decision. The court appoints the defendant a lawyer who fails to put even a fraction of all the relevant evidence before the jury. The first appeals lawyer can’t do anything about it, even if he knew about it, because the law says in the first appeal the lawyer can only talk about things that were before the court at trial and the whole point is the trial lawyer did not place any of this information before the court. The court then appoints an inexperienced lawyer who has no idea what she is supposed to do to prepare and file a state habeas petition. She does no investigation and thus makes no mention of the failure of the first attorneys to present any of this evidence. Then the courts appoint the defendant a new attorney and tell that attorney that he is limited to carrying forward the frivolous claims of the first habeas attorney. When he informs the court of all the important evidence the jury never heard, the court then responds, “the defendant failed to raise these issues in the first habeas corpus and thus cannot raise them now.” Really? The nearly retarded defendant with a fourth grade education on death row? He didn’t do anything but sit in his cell. The courts initially failed to appoint competent attorneys for the defendant. The attorneys that the court assigned to the defendant failed him and the public, who would like to believe that before people are executed, the jury that imposed the death sentence was making an informed decision. In reality, the courts are far more responsible for the failure of this evidence to presented to the jury than the defendant himself. In fairness to the judges the law provides for this “Catch 22,” but sometimes the law promotes more injustice than justice.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.