Vol. 9, No. 1, Pg. 14. Fair and Prompt: Post Conviction Relief and Federal Habeas Corpus.

AuthorBy Robert F. Daley Jr. and. Donald J. Zelenka

South Carolina Lawyer

1997.

Vol. 9, No. 1, Pg. 14.

Fair and Prompt: Post Conviction Relief and Federal Habeas Corpus

14Fair and Prompt: Post Conviction Relief and Federal Habeas CorpusBy Robert F. Daley Jr. and. Donald J. ZelenkaThe public . . . has a vital in terest in the fair and prompt conclusion of habeas corpus petitions m the federal courts, particularly when they involve a serious crime prosecuted by one of the states. Spann v. Martin, 963 F.2d. 663, 673 (4th Cir. 1992).

Justice requires that in each instance capital punishment be imposed with maximum assurance of scrupulous legality. But justice equally demands an assurance that such punishment be imposed when the minds of men still retain memory of the crime committed. Brogdon v. Butler, 824 F.2d 338, 344 (5th Cir. 1987), cert. denied, 483 U.S. 1040 (1987).

After years of complaints and criticism by the public regarding the successive nature of and the delay in resolving appeals, post conviction relief (PCR) applications and federal habeas corpus petitions in both death penalty cases and other criminal cases, last year ushered in numerous changes to the way courts resolve criminal defendants' attacks on their convictions. This article will briefly summarize and explain some of these changes.

SOUTH CAROLINA EFFECTIVE DEATH PENALTY ACT OF 1996

The South Carolina Effective Death Penalty Act of 1996, 1996 S.C. Acts No. 448, became effective on June 18,1996. An underlying reason for the proposal was-to take advantage of expedited federal habeas review procedures and standards being considered in Congress, which eventually became part of the federal Antiterrorism and Effective Death Penalty Act of 1996. Another consideration was to review the entire collateral review process and develop new procedures to streamline the entire system. The Act makes several important procedural and substantive changes to the way state courts handle death penalty cases and all PCR actions.

Instructions to Jurors About Discussion of Verdict. The first change is the addition of S.C. Code Ann. § 16-3-21, which was suggested after a number of capital jurors complained about post-verdict contact by representatives of defendants. This section provides that in all cases in which a defendant is sentenced to death, the trial judge is to charge the jurors about their right to discuss or not discuss the verdict. Pursuant to this section, the state Supreme Court promulgated the following charge: After your service in this trial has concluded, you have the right to either refuse to discuss the verdict you have rendered or to discuss the verdict to the extent you so desire. If you choose to discuss the verdict, you are free to terminate any such discussion at any point. If the person with whom you are speaking continues to pursue a discussion of the verdict after you have communicated a desire to terminate the discussion, or if a person continues to harass you after you have refused to discuss the verdict, you should report that person to_______________ (name, address, phone number).

Order re: South Carolina Death Penalty Act of 1996, dated October 3, 1996. In addition to giving this charge verbally, the trial judge is also required to provide a written copy to each juror. S.C. Code Ann. § 16-3-21(C); Order re: South Carolina Death Penalty Act of 1996, dated October 3, 1996.

Although this section only applies to juries in;capital cases, nothing prevents a trial judge from giving this charge or a similar one in a non-capital case. In fact, several trial judges have done so. In either case, it is clear that such a charge is beneficial because it helps protect the privacy interests of jurors and the integrity of the jury system by preventing the potential intimidation and harassment of jurors by those dissatisfied with the jury's verdict. See Ex parte: The Greenville News, S.C. _ , 482 S.E.2d 556 (1997) (recognizing that preserving juror privacy is a significant interest to the state).

The practice of repeatedly questioning jurors about their verdict can discourage citizens' willingness to serve on juries. Furthermore, questions of jurors concerning their deliberative processes should not be permitted at all because they will not lead to admissible evidence. See

16 Rule 606, South Carolina Rules of Evidence. But see State v. Hunter, 320 S.C. 85, 463 S.E.2d 314 (1995). This section of the Act will help ensure that jurors understand their rights.

Ineffective Assistance Claim Waives Attorney-Client Privilege. The Act also makes clear that in all PCR actions when the applicant

alleges ineffective assistance of prior trial counsel or appellate counsel as a ground for PCR or collateral relief under any procedure, the applicant shall be deemed to have waived the attorney-client privilege with respect to both oral and written communications between counsel and the defendant, and between retained or appointed experts and the defendant, to the extent necessary for prior counsel to respond to the allegation.

S.C. Ann. '§ 17-27-130. The waiver is automatic upon the filing of the ineffective assistance claim, and the PCR court need not enter an order waiving the privilege. Counsel alleged to be ineffective is then free to discuss and disclose any aspect of the representation with the state representatives, to the extent necessary for prior counsel to respond to the allegation. S.C. Ann. § 17-27-130.

While this section clarifies the law, it does not change it. Every court that has addressed this issue has determined that trial counsel can reveal any information necessary to address the ineffective assistance of counsel claims_raised by a former client. See, e.g., Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975); Scruggs v. Missouri, 839 S.W.2d 51, 52 (Mo. Ct.App. 1992); Harris v. Kentucky, 688 S.W.2d 338 (Ky. App. 1984); Arizona v. Moreno, 625 P.2d 320 (Ariz. 1982).

Furthermore, the Rules of Professional Conduct allow counsel to reveal confidential information in order to address ineffective assistance of counsel claims. Rule 1.6(b)(2), South Carolina Rules of Professional Conduct.

In Strickland v. Washington, 466 U.S. 668, 691 (1984), the Supreme Court explained that "inquiry into counsel's conversations with a defendant may be critical to a proper assessment of counsel's investigative decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions." In (Larry Gene) Bell v. State, S.C. C.Ct. Order dated May 29, 1990, Justice Toal, in denying a supersedeas petition in a death penalty PCR proceeding, recognized that "when a client-litigant puts the effectiveness of his trial counsel at issue . . . he waives the attorney-client privilege."

This section was proposed to protect and assure trial counsel that they would not be subject to any grievance actions if they revealed information to the Attorney...

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