Effective performance guarantees for capital state post-conviction counsel: cutting the gordian knot.

AuthorHammel, Andrew
  1. INTRODUCTION

    Flaws in America's death-penalty justice system have received a great deal of attention lately. The steady trickle of death row exonerations, (1) former Illinois Governor George Ryan's blanket commutation of all Illinois death sentences, (2) and the eighty-five recommendations of the commission he created have focused attention on the death-penalty process. (3) Public concern centers on high-profile, obvious breakdowns in the death-penalty justice process: innocent inmates exonerated by DNA, (4) sleeping-lawyer ineffectiveness claims, (5) or misconduct by prosecutors. (6) The issues get attention because they are easy to understand: Journalists can write about them for a general audience.

    Yet one weak link in the chain of "super due process"(7) that is claimed to ensure reliable death sentences has received comparatively little public attention. Incompetent habeas corpus representation occurs all too frequently in death-penalty appeals--especially in Southern states, which are less than eager to spend public funds to ensure adequate representation to indigent inmates. The issue of incompetent habeas representation is not one for the masses: Understanding the vital role post-conviction plays, and the arcane rules that control it, takes legal training.

    However, post-conviction proceedings are, after trial, perhaps the most common and effective means of forestalling substantive injustice in capital cases. The American Bar Association, in its recently updated Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, (8) observes that post-conviction claims are generally driven not by issues the layman might call "technicalities" but by

    information concealed by the state, ... witnesses who did not appear at trial or who testified falsely, [inadequate investigation by the original] trial attorney, ... new developments [that] show the inadequacies of prior forensic evidence, ... [and] juror misconduct. The importance of competent counsel in these critical appeals is growing. The Supreme Court's jurisprudence in the area, coupled with recent reforms such as the AEDPA (10) and changes in state post-conviction laws, have removed the already-tattered safety nets hanging below post-conviction litigators. A state post-conviction lawyer must now discover and present all potential claims in the first habeas corpus petition or waive them forever. These recent changes place an incalculable premium on competent representation by talented, adequately funded lawyers.

    By way of review, it is important to note that the Sixth Amendment standard for effective assistance of counsel has been construed by the Supreme Court to require provision of competent, but not error-free, representation. The leading decision, Strickland v. Washington, (11) articulates a two-step burden in establishing a constitutional violation. The party challenging counsel's performance must first demonstrate that the attorney performed deficiently and not as a result of an objectively reasonable strategy or matter of tactics. (12) The challenger must then "demonstrate that but for counsel's defective performance, there was a reasonable probability of a different outcome in the proceeding. (13)

    The Court's Strickland test has been applied to counsel's performance at trial, including those cases resolved by guilty plea, (14) and to sentencing proceedings, (15) including capital sentencing proceedings. (16) The test also applies to representation on direct appeal. (17) However, the Sixth Amendment guarantee has been limited only to representation of the criminal defendant in the trial and direct-appeal process. Because the Constitution does not recognize any requirement for post-conviction process, (18) even for a defendant sentenced to death, (19) the Court has rejected the argument that counsel's ineffectiveness in representing the defendant in post-conviction litigation represents a constitutional violation. (20) Consequently, the issues of competence and effectiveness in post-conviction representation on the state level are matters of state law, rather than federal constitutional right.

    This Article will first survey the steps that states are taking to ensure that inmates actually receive high-quality representation. The survey will show that state habeas regimes can be divided into three categories. In the first are those that both recognize a standard for effective assistance of counsel that requires competent performance and that provide remedies for ineffective performance by state post-conviction lawyers. In the second are states that do not recognize a general right to competent performance by appointed post-conviction counsel, but that may provide relief in certain cases of manifest injustice. In the third category are states that may pronounce standards for appointed habeas counsel competency, but that offer no remedy for poor performance. Texas, which has become a charnel-house of constitutional protections, is the most prominent member of this last group.

    Next, I will assess the trends in guaranteeing competent performance by state post-conviction counsel. The only meaningful guarantee of competent performance, I will argue, is the traditional remedy of oversight of an appointed lawyer's performance. Although many states have taken this step, I will argue that recent developments demonstrate no discernible movement towards enforcing a guarantee of competent performance where it is most desperately needed: the large states of the Deep South that have collectively carried out the overwhelming majority of post-Furman executions). (21) Nor is there any discernible doctrinal trend that would empower a federal court to require these states to provide such a guarantee. Next, I will assess two recent proposals for reform that have lately attracted scholarly attention. I will finally propose a potential reform that is conceivably politically workable in that it can be portrayed as streamlining the death-penalty system: collapsing post-conviction appeals and direct appeals into one unified proceeding. I will then sketch out the consequences of this move, using Idaho's existing combined-appeal system as an example.

  2. TRENDS IN STATE-LEVEL GUARANTEES OF EFFECTIVE PERFORMANCE.

    1. Introduction

      Every state now offers inmates some form of post-conviction review. (22) These review schemes go under a bewildering variety of rubrics and have structures which are "too diverse and protean for easy generalization." (23) However, at the most general level, virtually all state post-conviction schemes share the following characteristics:

      * They occur separately from, and often after, the prisoner's direct appeal.

      * They permit the prisoner to develop extra-record evidence through traditional fact-development techniques such as expert consultation, discovery, depositions, and evidentiary hearings.

      * Generally, jurisdiction in state post-conviction is limited to claims of a constitutional, rather than statutory, dimension.

      State post-conviction proceedings are governed by widely varying procedural rules and restrictions. Although the scope and force of these rules vary widely from state to state, they all stem from a common decisional lineage and can be grouped into general categories:

      * An inmate who could have raised a claim on direct appeal (for instance, because all evidence necessary to decide the claim was already present in the record) may not raise the claim in post-conviction proceedings. (24)

      * An inmate who already has raised a claim (either in a previous post-conviction petition or on direct appeal) may not raise the same claim again.

      * An inmate who has already filed one state habeas corpus petition and received an adjudication of it may not file another petition unless he can demonstrate good cause for bringing additional claims before the court. Cause generally tracks the Supreme Court's definition of that term, which requires a factor "external to the defense" (i.e., prosecutorial misconduct, or newly established law) that excuses the failure to raise the claim earlier.

      This last rule, generally known as a "successor bar," is the most important for our purposes. Prisoners need some forum in which to protest the ineffectiveness of a prior habeas attorney, but state post-conviction proceedings are themselves the "end of the line" of the state court appellate process. Therefore the proper forum for such a claim, if it is to be recognized, is generally assumed to be a successive habeas corpus application raising the ineffectiveness of prior habeas counsel. In the next Part, I will survey the current answers states have given to the question of whether ineffective assistance of post-conviction counsel can be "cause" for failing to properly raise a claim in a previous post-conviction application.

    2. Differing State Approaches

      I will focus exclusively on the question of whether the state in question actually guarantees competent performance by appointed state post-conviction counsel. Although there are other potential benchmarks for state performance in this area, I believe, as I will argue later, that actual guarantees of competent performance, coupled with remedies for their breach, are the only realistic benchmark. Thus the focus of the following survey will be on what steps states have taken to create procedurally enforceable guarantees of actual competent performance on the part of capital post-conviction counsel.

      1. Full Guarantee

        By "full guarantee," I mean states that confer upon inmates a guarantee of effective performance of counsel that is analogous to Strickland's general guarantee. That is, these states guarantee that counsel must do more than simply show up in court or file a document on time. The substance of their representation must be competent. The states also provide some procedure by which inmates can invoke the powers of the court to review counsel's performance. States that offer this level of...

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