A Criminal Enterprise

Autobiography of an Execution

Posted in Uncategorized by Sophie Cull on February 12, 2010

Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”

Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.

Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.

My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.

Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.

My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.

I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.

At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.

We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.

I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.

Publisher: Grand Central Publishing; Date: February 2010

You can hear an interview with David Dow about the book here (see Feb 9):

http://www.abc.net.au/rn/lifematters/

Advertisements

Court-Watching: Smith v. Spisak

Posted in Cases, News by Bidish J. Sarma on October 21, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Spisak case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

The State’s cert petition to the Supreme Court raised two issues for the Court to resolve: (1) Whether the Sixth Circuit’s ruling that the trial court’s jury instructions violated Mr. Spisak’s constitutional rights contravened the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) Whether the Sixth Circuit’s ruling that the defense lawyer’s closing argument rendered his assistance ineffective contravened AEDPA.  When the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.  See Hudson v. Spisak, 128 S. Ct. 373 (2007) (noting that three liberal Justices – Justice Stevens, Justice Ginsburg, and Justice Breyer – would deny the petition for writ of certiorari).  By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.

To the extent facts about offenders influence how courts view the legal issues presented in a case, Mr. Spisak has effectively made himself as unsympathetic as possible.  The State’s brief on the merits highlights some of the key facts from the notorious Ohio case:

Respondent Frank G. Spisak, Jr. killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. . . . He said that his actions were motivated by his hatred of gay people, blacks, and Jews, and he specifically targeted the campus of Cleveland State University. . . . During his days-long testimony, Spisak . . . identified Hitler as his spiritual leader. . . . Other cues during the trial reinforced the depravity of Spisak’s beliefs. Before trial, Spisak grew a moustache and shaved it to resemble Hitler’s. And on cross examination, after the prosecutor read into evidence a violent letter from Spisak that was laced with racist epithets, Spisak declared “HeilHitler” and performed the corresponding salute.

With these facts in the background, Richard Cordray, the Attorney General of Ohio, began his oral argument on behalf of the State.  He first addressed the Sixth Circuit’s ruling that the trial court’s jury instructions violated the rule set forth by the Supreme Court in Mills v. Maryland.  Justice Sotomayor immediately asked the first question, pointing out an oddity to the Sixth Circuit’s ruling:

JUSTICE SOTOMAYOR: Why? I — I have been trying to figure out why the State court would know in its decisionmaking that Mills commanded a different result when Mills was issued after the State denied its petition for rehearing.

MR. CORDRAY: It’s a bit of a conundrum, Your Honor, because Mills was issued after the Ohio Supreme Court’s decision here, but before it became final on direct review when cert was denied by this Court in March of 1989.

Kent Scheidegger over at Crime & Consequences elaborates on the conundrum here (http://www.crimeandconsequences.com/crimblog/2009/10/spisak-new-rules-and-justice-s.html), and appreciates the signal that Sotomayor may be willing to enforce AEDPA “vigorously.”

As the argument proceeded, Mr. Cordray explained why the State believes the Sixth Circuit’s ruling is a new extension of the rule enshrined in Mills.  One might wonder if Mills itself is in trouble with this Court, or if the Court will give a green light to states that want to stop the practice of instructing the jury about the effect of one juror holding out on a death sentence:

MR. CORDRAY: At the time, the instructions pushed the jury toward unanimity one way or the other. Do the aggravators outweigh the mitigators or do they not? Since that time, the Ohio Supreme Court as a matter of practice has been willing to go further and instruct the jury, or have the jury be instructed, that if a single one of you feels that the aggravators do not outweigh the mitigators, that will preclude a death sentence. But that has never been constitutionally required by this Court. It is an extension of Mills v. Maryland that has never been so held by this Court, and in fact is a source of a — of a significant overwhelming majority of circuits the opposite way.

The State’s argument proceeded on to the second issue – the defense counsel’s closing argument.  Based on the questions the Justices asked Respondent, it seemed that the State’s argument here was well-received by most Justices.

Mr. Michael Benza argued on Mr. Spisak’s behalf.  At the outset, Chief Justice Roberts and Justice Scalia jumped on his claim that the defense counsel’s closing argument constituted ineffectiveness assistance.  Even Justice Breyer seemed to endorse the trial counsel’s strategy to agree that his client was a cold-blooded and unsympathetic murderer, but argue that he is clearly mentally ill and therefore should not be executed:

JUSTICE BREYER: What would you have done? I mean, I’m — I’m not experienced in this. But I mean, I have heard the other side and I have read the argument. And it makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: I’m going to kill a lot more. He sounds totally bonkers. And — and he says to the jury, I can’t tell you that what he did was not aggravating; it was terrible. I can’t tell you that there’s anything here that should make you feel better about him; there is nothing. But we are a nation of people who are humane and our law says don’t put a person to death when he fills with his nuttiness that third prong, which is a lower standard of insanity than I had to meet. But it’s clearly met and here are the experts; I point to their testimony, and that’s what they said. So be humane.

In what seems to be a rare occurrence, Justice Scalia agreed with Justice Breyer, and went even further: “I thought it was a brilliant closing argument. . . . This was an extraordinary trial, and it seems to me that the — that the technique that — that counsel used to try to get mercy for this fellow was — was the best that could have been done.”

After Mr. Benza defended his position, he and the Justices were sidetracked for several minutes on an interesting question about AEDPA deference.  I explore this discussion below.  That peripheral discussion became so involved that Justice Ginsburg had to remind the Respondent that he had a limited amount of time: “Mr. Benza, you might want to use what time is remaining to deal with the other issue, which we haven’t talked about at all.”

On the Mills issue, Mr. Benza gave a straightforward answer to the timing conundrum originally raised by Justice Sotomayor:

Teague says that the decision for application of a newly established law or a new established constitutional rule is predicated on the denial of direct appeal, which in this case would be the cert denied by this Court of the direct appeal of the case, which happened in 1989, a year after the decision in Mills was handed down.

He then argued that the Ohio jury instructions were confusing because they would lead a reasonable juror to believe that there must be unanimity on the existence of a mitigating factor before it could be considered and given effect by any juror.

As this AP article points out, “most of the justices were skeptical of Benza’s arguments.”  There is little doubt about how this case will come out.

Although not central to the dispute in this case, Mr. Cordray raised a suggestion that later became the source of a major discussion between the Justices and Mr. Benza.  In arguing that appellate courts must give deference to trial court decisions under AEDPA, Mr. Cordray explained why the trial court’s summary disposition of the ineffective assistance claim warranted deference under the two-prong Strickland test:

If the court simply gives a summary affirmance or summary disposition and doesn’t specify which prong, I think the Court has to give deference under both prongs, because the alternative would be to give deference under neither prong, which is inconsistent with the — the AEDPA statement that we have to did defer to an adjudication on the merits by a State court.

Mr. Benza, however, argued that the trial court’s summary adjudication did not trigger AEDPA’s deference requirement:

MR.BENZA: We have no idea whether they decided that there was deficient performance, but no prejudice — that there was, in fact, deficient performance, but no prejudice, that this was not deficient because it was reasonable strategy. It is also possible that the lower courts were misapplying [the law].

I found this line of argumentation fascinating because it implicates the vast majority of decisions made by trial courts in habeas review.  Rather than give detailed reasons for their rulings, many trial courts deal with claims summarily.  I have always found it troubling that such cursory explanations become essentially unreviewable on appeal.  Apparently, the Respondent’s lawyer in this case agrees.  Justice Scalia does not, however:

JUSTICE SCALIA: When we — when you don’t know what a lower court has done, the rule is you assume the best, not the worst. Isn’t that the standard rule of review?

But, Mr. Benza elaborated on the problem as it applied to this case: “The problem that you have in that is, when you try to apply AEDPA to this particular claim, you don’t know how the state court, in fact, decided this case.”

Justice Breyer explained that the Respondent’s position has far-reaching implications:

JUSTICE BREYER: How — how does that work? Certainly, it’s a fairly common thing, that the defendant will make — let’s say, 20 arguments, maybe he would even number them. And it’s fairly common to find a court of appeals in a state that says, as to argument number 17, and then they characterize it, we reject that argument.

Mr. Benza took the (gutsy) position that:

MR. BENZA: I would — I think the issue then would become that, when a state court chooses to summarily deny, without evaluation, an explanation of the merits of the claim, that, when it comes to habeas review, the constraints of AEDPA are lifted.

The Justices took exception with this proposition, and worried that it would overburden lower courts to require that they elaborate on all of their decisions.  Yet, if giving reasons for rulings is the essence of providing justice, Mr. Benza’s proposition does not seem so crazy to me.

Court-Watching: Padilla v. Kentucky

Posted in Cases, News by Bidish J. Sarma on October 20, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Padilla case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

According to his merits brief to the Supreme Court, the Petitioner, Jose Padilla, arrived in the United States in the 1960s and is a permanent resident here.  In 2001, Padilla was arrested and charged with felony trafficking in marijuana after he was pulled over with more than 1,000 pounds of marijuana in his commercial truck.  When he asked his defense lawyer if there were any immigration consequences to pleading guilty to the felony, the attorney said that he “did not have to worry about immigration status since he had been in the country so long.”  The crime, however, is a deportable crime that subjects Padilla to deportation.

In his petition to the Supreme Court, Jose Padilla raises the question of whether the Sixth Amendment right to the effective assistance of counsel protects him from his attorney’s misadvice.

The heart of the dispute is whether the Sixth Amendment right to the assistance of counsel in all “criminal” prosecutions includes a guarantee of effective assistance in advising the client on the collateral consequences of that prosecution.  In American law, immigration matters are considered ‘civil’ in nature, even though they can lead to deportation.  Here, the Petitioner argues that the current standard that governs ineffective assistance of counsel claims (Strickland) evaluates the misadvice claim based on if the counsel’s performance is deficient and prejudicial to the client.  The deficiency prong of the Strickland is met when the counsel’s actions are objectively unreasonable.  The State, however, argues that civil collateral matters fall beyond the scope of the Sixth Amendment, and that misadvice on collateral matters does not give rise to a claim of ineffective assistance.

In addition to the two parties slated to appear, the U.S. government made a (somewhat surprising) appearance.  Though the government supported ‘affirmance’ of the ruling below in favor of Kentucky, the argument demonstrated that the government did not support the Respondent’s legal reasoning.

Stephen B. Kinnaird of the firm Paul, Hastings argued the case for Mr. Padilla.  In a clear effort to pitch to the Roberts’ Court purported affinity for judicial minimalism, he began by articulated the “narrowest ground” for the resolution: “The narrowest ground on which this Court may reverse the Kentucky Supreme Court is to hold that mis-advice claims are cognizable under the Sixth Amendment.”  Justices Roberts, Alito, and Ginsburg all immediately asked questions about what conduct this principle covers – for example, does it extend to advice on whether the defendant should take the stand?  The concern is how the Court should decide which consequences receive Sixth Amendment protection and which do not.  Mr. Kinnaird said, “Your Honor, the issue here is simply the legal standard that applies to any of — any of these claims, and it would be the same two-part standard under Strickland v. Washington.”

Justice Kennedy raised a distinct concern – he worried that the court had no means to insulate its proceedings from ineffective assistance.  Drawing on principles in contract law, he asked whether the court could require the defendant to assume the risk of collateral consequences by including a warning in the colloquy that happens when the defendant pleads guilty:

You take the risk of any mis-advice, any misunderstanding, with respect to collateral conduct. That’s your risk, and it’s part of the guilty plea. If we said that, would that foreclose this kind of argument in your case?

Kinnaird maintained that the Sixth Amendment right to counsel put unique duties on the lawyer that do not similarly bind the trial court.  This response didn’t seem to satisfy Kennedy, who said, “Well, then there is no way the government or the court can protect itself against the — these consequences . . . .”

Justice Alito raised the last major strand of concerns with the Petitioner’s argument.  He worried that public defenders who handle hundreds of cases each year will have trouble remembering exactly what advice they gave their clients when they are hauled in to testify on ineffective assistance hearings.  Alito seemed particularly worried in the context where the defendant decided to plead guilty because there is no trial proceeding to refer to.  Mr. Kinnaird insisted that these proceedings would look like other Strickland hearings.

After the Petitioner closed, Michael Dreeben appeared on behalf of the United States.  He took the position that the Sixth Amendment does not impose upon defense counsel a duty to advise his client about collateral consequences, but that “mis-advice given by defense counsel on a material collateral consequence to a defendant” is a different concern. In a back-and-forth exchange with Dreeben, Chief Justice Roberts probed this position.  He posed the following question:

CHIEF JUSTICE ROBERTS: Won’t — won’t your test result in a net loss to defendants? I assume if this is adopted as a rule, the affirmative misrepresentation rule, then every lawyer is going to say what you said they should say: I’m here for the criminal case; I’m not telling you anything about anything else, as opposed to saying, sitting down and saying: Here’s what you need to know. And in most cases we expect the lawyer to do a professional job. If you have got an alien, he is going to tell him: Well, what — you know, this will cause you to be deported. Instead, every lawyer now is going to say: I’m not giving you any advice about anything else.

Dreeben responded,

No, I don’t think that it will lead to sort of defensive malpractice type of counseling where lawyers do not do the job that they feel that they should do, and experience tends to support that.

Alito riffed off of the Chief Justice’s question, arguing that indigent immigrant defendants will meet with public defenders who will tell them to go hire an immigration lawyer to answer their immigration questions.  Essentially, the conservative justices tried to spin economic arguments that undermined the liberal concern with the well-being of indigents on their own terms.

Once Mr. Dreeben finished on behalf of the U.S. government, Mr. Wm. Robert Long, Jr. argued for Kentucky.  The questions to the Respondent noticeably came from the ‘liberal’ Justices.  Justice Sotomayor – who had been silent until this point – fired the first question.  At the same time, she demonstrated her understanding of the considerations at play in a criminal prosecution:

Counsel, a plea is something more than: I’m guilty. It is a strategic decision not to put the government to its burden of proof. Your definition of voluntariness suggests that there is only one component to it, do I know what my rights are, as opposed to, do I know what they are and making an informed decision to waive those rights.  Your articulation of the rule leaves out the second component: Am I making an informed decision to waive those rights?

Justice Breyer attempted to corner Mr. Long by getting him to concede that had he been the lawyer and knew his client would be deported, he would have given informed his client.  As usual, Justice Scalia took the chance to clash with Breyer at oral argument:

JUSTICE SCALIA: Well, but assuming it’s a norm and that all lawyers do it [tell the client of the consequences], including those that know diddly about immigration law, the norm is to give bad advice. And here — here the norm was met, right?

After this line, Justices Stevens and Ginsburg asked a few more questions about what the State means when it says the Sixth Amendment does not apply to “collateral” consequences.  The bench then cooled, and the State finished the final few minutes of its presentations with relatively few questions.

In his rebuttal, Mr. Kinnaird may have made a statement that could snipe one of the conservative Justices and win a narrow opinion in his client’s favor:

CHIEF JUSTICE ROBERTS: So you can make a claim when the lawyer disavows the knowledge on the question? In other words, he is trying to be helpful, but he also warns the defendant.

MR. KINNAIRD: Yes. Under the broader rule, you would have a Strickland claim. It would be very hard to prevail on that because you would have to show that it was unreasonable for him not to investigate . . . .

Essentially, the Petitioner’s rebuttal was a timely reminder that Strickland is not exactly the easiest standard for defendants to meet.  Maybe that reminder will be enough to satisfy those Justices concerned that the floodgates to ineffective assistance will be opened if the Court recognizes that the Sixth Amendment imposes some obligations on defense attorneys to understand collateral consequences of a criminal prosecution.

My initial take from the oral argument was the same as Adam Liptak’s.  As he wrote in this piece in the New York Times:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

Others have also commented on the oral argument.  SCOTUSblog’s take is here; law.com’s review is here.

I find this case extremely fascinating because it has implications in a number of important contexts:

  1. It directly implicates the scope of the Sixth Amendment right to counsel.  After listening to Chief Justice Roberts emphasize the importance of the attorney-client relationship (in the corporate context) in the Mohawk oral argument, I wonder how this Court will treat that same relationship in the criminal (and collateral) context.
  2. This case might turn out to touch on how we think about the rights of immigrants and whether we believe they can access a panoply of rights in the U.S. Constitution.
  3. Padilla could also have serious implications for immigrants in new communities in the U.S.  As immigrant populations continue to grow in parts of the country that are historically unfamiliar with cultural diversity, a ruling in Mr. Padilla’s favor will create a stir for local defense bars.  On the other hand, if the Court rules in Kentucky’s favor, immigrants will become more vulnerable to unfair policing practices that could result in their deportation.
  4. The outcome in this case will also give insight into whether the Constitution entails some notion of client-centered advocacy.  If the Court recognizes that the Sixth Amendment right to effective assistances governs Mr. Padilla’s claim, there will be (at least a limited) constitutional command for client-centered advocacy that recognizes that “collateral” issues have constitutional significance.
  5. Finally, a ruling in Mr. Padilla’s favor could cast some official doubt on the farcical notion that immigration proceedings are merely civil/administrative in nature.  It is this notion that underpinned the Supreme Court’s ruling in INS v. Lopez-Mendoza that an immigrant does not have the right to counsel at deportation proceedings.  Though we may never see that decision revisited, we could see an emergent recognition that immigrants deserve more serious protection under our Constitution and laws.  (For more on the civil/criminal distinction as applied to immigration cases, check out this post).

This Week at the Supreme Court

Posted in Cases, News by Bidish J. Sarma on October 13, 2009

This Tuesday and Wednesday, I’ll be watching four oral arguments at the Supreme Court (assuming I can get in line earlier enough both mornings).

Professor Berman the Sentencing Law and Policy blog notes in this post that it will be a big week for sentencing followers:

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

To be argued Wednesday, October 14:

  • Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in “big” ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.

Strickland Prejudice: What Would One Juror Do?

Posted in Uncategorized by Robert Smith on September 23, 2009

I finally read the 5th Circuit’s recent decision in Linda Carty’s case. (fifth circuit opinion here, Clive Stafford Smith’s Op-ed in the Guardian available here, StandDown Texas post here and here ). My major beef is not with the court’s final decision (I don’t know the facts well enough to know if this was the right outcome), but with how courts in general handle the question of whether a defendant was prejudiced by the ineffective assistance of her counsel (the same goes for Brady “materiality” and Brecht “harmless error”).

In reviewing Carty’s ineffective assistance of counsel claim, the Fifth Circuit concluded that, yes, counsel was deficient, but

Carty bears the burden of showing a reasonable probability of a different result had Corona not testified. Although this is a close case, she has not made the requisite showing that his testimony rendered her conviction “fundamentally unfair or unreliable.”

Although the proffered testimonies would have given more detail and more focus to the mitigating evidence, in light of the totality of the evidence presented at trial, they were not of sufficient quality and force to establish a reasonable probability that, had the jury heard them, it would have elected to impose a life sentence.

[The improperly admitted] testimony provided nuance to the case but did not alter the entire evidentiary picture.

Carty has not shown that but for trial counsel’s deficient failure to advise Corona of his marital privilege there was a reasonable probability that she would not have been convicted of capital murder.

The Strickland standard turns on what a jury would have decided (guilt/innocence or life/death) absent the ineffective assistance. For example, when evaluating whether a death sentence should be overturned due to penalty phase ineffective assistance of counsel, the standard is whether a reasonable probability exists that, absent the errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not warrant death.

Question: How do three judges on the Fifth Circuit know what a jury would have decided? Or, put differently, what decisional guideposts do courts use to decide whether a jury (in most cases, one juror–since one juror’s decision is enough to change the outcome) would have reached a different conclusion.

Answer: There are no set standards.

The Fifth Circuit in this case looked at the “overwhelming evidence of guilt” and whether the new evidence was merely “cumulative” to other evidence presented at the penalty phase.

But shouldn’t appellate judges know how actual juries decide issues (setting aside for a moment the alternative option that SCOTUS can decide instead to do away with the charade and change the standard to whether or not the outcome is now objectively unreliable)?

For example, while the degree to which new evidence is cumulative is relevant, how it is relevant differs based on the facts of a case. In Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004), the Ninth Circuit explained that “a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” The Third Circuit took a similar approach in Jermyn v. Horn, concluding that although child abuse evidence was presented at the penalty phase, “strong and specific testimony about a horrific home” presented at the post-conviction hearings evidenced abuse of an “entirely different weight and quality.” 266 F.3d 257, 310-311 (3d Cir. 2001).

The approach taken by the Ninth and Third circuits accord with the weight of social science research (including studies of capital jury decision-making and interviews with actual capital jurors). Evidence that is more vivid and comprehensive can do more than “provide[] nuance to the case” and in fact can “alter the entire evidentiary picture”

Who delivers the message (lay, expert, lay AND expert? Family member?) can also make a difference in the outcome of a case, especially when the only other mitigation evidence comes from the defendant. As Judge Cole wrote, dissenting from the Sixth Circuit’s 2006 opinion in Slaughter v. Parker,

The [majority’s] holding presumes a defendant’s self-serving testimony—even when he testifies to spare his own life—has the same impact regardless of whether other witnesses corroborate it. That conflicts with the Supreme Court’s recognition in Skipper v. South Carolina, 476 U.S. 1, 8 (1976), that a defendant’s testimony is inherently suspect and a jury will naturally discount it.” Slaughter v. Parker, 467 F.3d 511, 513 (6th Cir. 2006) (Cole, J., dissenting).

Again, social science research confirms Judge Cole’s intuition: simply adding another supporting  voice to the chorus  may enhance the credibility of a position.

I am not advocating (at least not here) for any specific criteria. But I think it would be nice to tether appellate determinations about what a juror would do to something more than whatever the judge would do if she was to sit on the new jury.

I also think it is important to abandon  “linear” or  “additive” models, as scholars have long done. Justice Souter in Old Chief came close to making the case:

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict

Note: My thoughts on this issue stem from an amicus brief that Charles Ogletree and I wrote shortly after I graduated from law school. That case, Jeffrey Leonard’s (known only as “James Earl Slaughter” until after he was convicted and sentenced to death), is a prime example of how excluding new evidence that isn’t different in kind can be the equivalent of treating a stick figure of a woman and the Mona Lisa as being the same. Our amicus in that case is embedded below and Judge Cole’s unforgettable dissent from the denial of rehearing en banc is here (and is absolutely worth a read, and I cannot resist including his intro at the very end of this post).

View this document on Scribd

JUDGE COLE:

We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as “James Slaughter,” approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court’s seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact. Accordingly, I dissent from the denial of rehearing en banc.