Human Rights Commentator
| Pages | 381 |
| Publication year | 2021 |
68 CBJ 381. Human Rights Commentator
It has sometimes been called the "June Crunch." (fn1) It is the last month of the Supreme Court term. Major decisions involving "hard cases" invariably are delayed until the start of summer. Were the late Oscar Hammerstein, II, a Supreme Court observer, he would likely say that "June is bustin' out all over." (fn2)
The 1993-1994 term of the U.S. Supreme Court followed the pattern. In a matter of a few days in June, there were seminal decisions handed down in such diverse areas as habeas corpus, (fn3) Miranda rights, (fn4) capital punishment, (fn5) voting rights, (fn6) church and state, (fn7) local regulation of land use, (fn8) and several First Amendment cases. (fn9)
For the human rights practitioner, the June Crunch offers a cornucopia of juridical delicacies. Like the young boy in the old-style candy store, deciding which to choose is both agonizing and salivatory. But, given a limited "allowance" by my editor, choices must be made.
Now that the Connecticut Supreme Court has placed its stamp of constitutional approval upon the state's capital punishment law, (fn10) the June decisions involving capital punishment deserve special attention. The Connecticut capital defense bar, predictably public defenders for the most part, will have to develop a fair amount of fluency with such cases and their forbears in order to render effective assistance in their clients' life-and-death struggles. The majority of our Supreme Court having decided that Connecticut's death penalty is not "cruel," there is no doubt that defense counsel will (indeed, ethically must) do all in their power to make it "unusual." A trilogy of cases involving capital defense commands attention. They are instructive not only as to the evolving and tortuous path onto which Connecticut courts are about to be led; they reflect a death-penalty compass whose needle never ceases jumping.
1. McFarland v. Scott
In McFarland v. Scott, (fn11) by a 6-3 vote, the U.S. Supreme Court held that a capital defendant need not have filed a formal habeas corpus petition in order to invoke his right to counsel. Habeas corpus, the "Great Writ," being guaranteed by the federal constitution, (fn12) has become an essential tool to insulate capital defendants against the imposition of the death penalty where such extreme punishment is unwarranted by law. The crucial role which federal habeas corpus continues to play in guaranteeing fundamental fairness in the imposition of capital punishment (fn13) is reflected in the fact that Congress has, by statute, (fn14) provided indigent capital defendants with the mandatory right to qualified legal counsel in any federal postconviction proceeding. (fn15)
Construing this right-to-counsel statute in light of its related statutory provisions, the Court (Blackmun, J.) concludes that the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition." (fn16) The Court recognizes the assistance of counsel at this early stage to be crucial"(fn17) because "[t]he complexity of our jurisprudence in this area ... makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law." (fn18)
As Justice O'Connor pointed out in her concurrence, (fn19) the right to qualified counsel would be robbed of any real meaning if the lawyer were only made available subsequent to the filing of the habeas petition. To begin with, the habeas petition, in order to avoid peremptory dismissal, (fn20) must meet heightened pleading requirements. It must comply with the Court's doctrines of procedural default and waiver. (fn21) Moreover, should a capital defendant's pro se petition be dismissed, any subsequent habeas petition filed by counsel may be subject to dismissal not on its merits but on grounds of waiver or "abuse of the writ." (fn22) With these procedural pitfalls in mind, Justice Blackmun concludes:
Requiring an indigent capital petitioner to proceed without counsel in order to obtain counsel thus woul[d] expose him to the substantial risk that his habeas claims never would be heard on the merits. Congress legislated against this legal backdrop in adopting § 848(q)(4)(B), and we safely assume that it did not intend for the express requirement of counsel to be defeated in this manner. (fn23)
The Connecticut Supreme Court having now upheld the state's death penalty law in Breton (fn24) and Ross, (fn25) the rugged, unfamiliar terrain of capital habeas corpus will hereafter need to be explored by human rights practitioners. A decision such as McFarland takes on added significance within the increasingly constricted habeas corpus framework recently carved out by the Court.
Most notably, in the recently decided Summerville v. Warden, (fn26) the Court decided that a habeas petitioner who demonstrates that he or she is probably innocent is not entitled to a new trial. In addition, the decisions by our Supreme Court in Simms v. Warden (fn27) and Carpenter v. Meacham, (fn28) have further chilled our state habeas corpus practice by holding that, if the habeas court denies a petition and thereafter the certification to appeal, (fn29) the petitioner is barred from bringing a writ of error to obtain review of the denial of the habeas petition. (fn30)
Despite the rejection of the petitioner's appeals in Simms v. Warden, (fn31) Chief Justice Peters, speaking for the Court, attempted to spell out what constitutes a "nonfrivolous" habeas corpus appeal. Citing Lozada v. Deeds, (fn32) the Court held that the habeas petitioner "must make a substantial showing that he has been denied a federal constitutional right," which showing is satisfied
by demonstrating: "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (fn33)
These decisions have led to the issuance of the following warning by dissenting Justice Berdon, made all the less hyperbolic by the decision in State v. Ross (fn34) - namely that "the best way to expedite the business of putting people to death is to limit severely the right to appeal in habeas corpus proceedings." (fn35)
As a practical matter, an unsuccessful Connecticut habeas petitioner whose certification petition under § 52-470(b) has been denied may still have recourse to federal habeas corpus. (fn36) At that juncture, the right-to-counsel construction of 21 U.S.C. Sec. 848 in McFarland might loom very large indeed.
2. Tuilaepa v. California
On the same date that McFarland was decided, the U.S. Supreme Court handed down its decision in Tuilaepa v. California. (fn37) This case involved an appeal by a deatb-sentenced prisoner challenging three of the penalty-phase factors (fn38) under the sentencing scheme of the State of California (fn39) as being unconstitutionally vague under the "Cruel and Unusual Punishment" Clause of the Eighth Amendment. The California capital punishment statute enumerates eleven factors and authorizes the jury to treat any of them as aggravating circumstances warranting the imposition of a sentence of death. (fn40)
But the jurors in Tuilaepa were given no guidance on how to consider the "factors" at issue. The petitioners' vagueness
challenge focused on three statutory sentencing guidelines: (a) the "circumstances of the crime," (b) "the presence or absence of criminal activity" by the defendant involving "force or violence," and (i) the defendant's age at...
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