Representing death-sentence appellants.

• Date: 22 September 2003
• Author: Blackmar, Charles B.

1. INTRODUCTION

   Most of the nations which share our political and cultural traditions have done away with the death penalty. There was a period during the middle of the twentieth century when executions in the United States became less and less frequent, and some thought that the death penalty would become a thing of the past here too. Then there came an abrupt turnabout with widespread belief that crime was getting out of control and that the law should "get tough," so death sentences were pronounced more often. When the Supreme Court made it clear thirty years ago that most, if not all, existing death-sentence statutes had constitutional infirmities, (1) quite a few states were quick to respond with modified statutes. Executions have in consequence become more frequent, and hundreds of prisoners languish on death rows throughout the nation.

   Defendants in capital cases are often unable to employ counsel. Many capable lawyers specialize in criminal law, but few capital defendants, or their families, can afford those lawyers' customary fees and expenses. The practice of appointing private counsel to serve without compensation is used less frequently today than it was in the past, and so the burden of defending death-sentence cases falls primarily on public defenders or lawyers who volunteer their services.

   It is to these public lawyers and volunteers--and to those who might consider joining their ranks--that I direct the material that follows. Defense of a death-sentence case presents a great challenge to the advocate. Almost all cases in which the prosecution seeks a death sentence involve shocking scenarios, widely publicized. Most prosecutions are in the hands of highly competent professionals with adequate resources. Yet lives are at stake, and there is always a chance that the death penalty can be avoided. The task of the lawyer who undertakes to represent a defendant sentenced to death is to win that reprieve for his client by acquittal, new trial or mitigation of sentence. My advice is offered in the hope that it will help at least a few of those lawyers succeed.

2. BACKGROUND

   When I was admitted to the bar in 1948, I thought that I would have a busy civil practice with minimal involvement in the criminal law. I had no reasonable expectation that I would be involved in death-sentence litigation. In the late 1950s, however, United States District Judge (later Justice) Charles E. Whittaker appointed me, along with another lawyer, to defend a man charged with a shocking kidnap-murder under the Lindbergh Law. Our client pleaded guilty and said that he wanted to be executed. We had him examined to determine whether he was competent to defend himself. Then we advised him that he had the right to plead guilty, but that we could not assist him in his expressed desire to be executed, and that we felt obliged to argue against the death penalty.

   Our efforts were unsuccessful. On the last day we called on our client in the jail, advised him that we thought there were grounds for appeal, and asked whether he wanted us to file notice of appeal. He instructed us not to appeal, and we determined that, inasmuch as he had been found legally competent to assist in his defense, we were bound by his instructions. We visited with the judge, who agreed with our analysis. So our client was executed, the federal government borrowing the state's gas chamber for the purpose.

   The experience of seeing and talking with a man whose life was later taken from him by government authorities had a profound effect on me and, since that time, I have been an opponent of capital punishment.

   This opposition, however, did not prevent me from arguing for affirmance of death-sentence judgments under Missouri's pre-1978 law, in my capacity as Special Assistant Attorney General of Missouri. I am a professional advocate, and I have always felt justified in representing my client's interest without regard to my personal beliefs. I secured several affirmances, but the sentences were later set aside as violative of the Furman principle. (2)

   After Missouri modified its death-penalty statute, I briefed and argued one death-sentence appeal under the revised law, and the Supreme Court of Missouri reduced the sentence to life imprisonment in accordance with its duty of proportionality review. (3) Then, in my nine-plus years as a judge of the Supreme Court of Missouri, I sat on dozens of death-sentence cases. I did not believe that my personal views about the death penalty prevented me from applying the law to the record in these appeals. In most cases I voted with the majority in upholding death sentences, (4) writing for the court when I drew the opinion. I felt very strongly that the Court did not at that time fully perform its duty of proportionality review, and so I filed quite a few lone partial dissents and separate concurrences. (5)

   When I retired from the Supreme Court of Missouri in 1992, I did not think that, in any homicide case I had heard, there was substantial doubt that the defendant was guilty of the charged homicide. Recent events have, however, caused me to reassess that conclusion.

   In 1987, I voted with the majority to affirm the death sentence in State v. Amrine, (6) a case in which an inmate was found guilty of the murder of another inmate while both were confined in the state penitentiary. The conviction was supported by the testimony of three other inmates, and I concluded when the case was before the Court that the jury had the right to believe them. In the intervening years, however, all three recanted their testimony. The Supreme Court of Missouri issued a writ of habeas corpus, and, by vote of four to three, ordered a new trial. (7) The prosecuting attorney made a careful investigation and determined that he could not make a case on retrial, and so Amrine, whose initial sentence had expired in the meantime, was released. The possibility that an innocent man might have been executed after a trial which had appeared to be free of legal error has weighed on me ever since, affecting all of my recent thinking about the death penalty.

3. GENERAL ADVICE

   My experience, especially on the Supreme Court of Missouri, has left me with some thoughts which might be helpful to lawyers assigned to brief and argue death-sentence appeals. To keep the length of this essay within reasonable bounds, I have imposed several limitations on myself as I write: (1) All my experience has been with Missouri law, and so I shall assume in the discussion that follows that Missouri procedural and substantive law applies, with the conviction that most of what I suggest can be readily transferred to other settings by attention to local statutes and court rules; (2) I shall assume that appellate counsel has had no part in the trial or in post-trial motions, but rather has been designated after final judgment in the trial court; (3) I will not treat of post-conviction proceedings or collateral proceedings in the federal courts, with which I have no experience, and which are in any event deserving of separate consideration; and (4) I will not deal with formal matters such as preparation of the record on appeal and the format of briefs, except to suggest that the governing rules should be carefully studied and strictly adhered to.

   1. The Preliminary Question: Is Separate Counsel Necessary on Appeal?

      There has been a debate for many years as to whether the lawyer who has tried a case should have primary responsibility for the processing of the appeal. When I was in practice, I liked to brief and argue my own appeals. If I won a case, I thought that nobody could do a better job in preserving my victory. If I lost, I wanted to be able to expose the resulting judicial outrage in the studious atmosphere of the court of appeals. Some argued that trials and appeals are separate species, and that appeals should be handled by a specialist. Some who so argued held themselves out as appellate specialists. Their arguments did not persuade me. In capital cases, however, I now believe that the arguments preponderate in favor of separate counsel on appeal, although there is no legal requirement to this effect. My reasons relate to the probability of post-conviction proceedings in state and federal courts.

      The lawyer who tried the case will undoubtedly be accused of incompetence after the judgment of conviction has become final. This circumstance might have a subconscious effect on the processing of the appeal if the same lawyer continues to handle the case. A lawyer may hesitate to argue for plain-error review on points which were not raised before the trial court, and may be harassed by the appellate judges if unpreserved points are argued. I suggest, then, that at the very minimum, another lawyer be assigned to assist in the appeal by studying the record in depth and consulting with trial counsel. If a decision is made to have new counsel on appeal, the trial counsel should likewise be available for consultation. The ultimate decision on the question of new counsel is up the client, following careful explanation of the available alternatives. I understand that it is the practice of the Office of the Public Defender in Missouri to assign new counsel for capital appeals, and I endorse this procedure.

   2. The First Steps in Undertaking the Appeal

      There is little difference between capital appeals and other appeals in connection with the appropriate preparatory steps to be taken after being assigned an appeal. The lawyer should read the record in careful detail and should study the motion for new trial. There should be consultation with the lawyer who tried the case. Both should then visit with the client to explain the further proceedings and answer any questions. Careful research of the law is essential, and should continue throughout the case because of the continuing flow of new decisions.

      The lawyer should then formulate a tentative idea of the points to be raised. An...