Amicus Curiae Brief — Murray v. Giarratano

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$ = No. 88-411

» S

a” IN THE

ad Supreme Court of the United States

Ocroser Term, 1988

EDWARD W. MURRAY, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

— against —

JOSEPH M. GIARRATANO, et al.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF

NATIONAL LEGAL AID & DEFENDER ASSOCIATION,

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, AND CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STEVEN M. PESNER EPHRAIM MARGOLIN

Counsel of Record NicHo.tas C. ARGUIMBAU

Peter B. FRIEDMAN Law OFFICES OF

Rosert H. Pees EPHRAIM MARGOLIN

ANDERSON Russe. KILL & 240 Stockton Street

Ouick, P.C. Third Floor

666 Third Avenue San Francisco, California 94108

New York, New York 10017 (415) 421-4347

(212) 850-0738 Attorneys for Amici Curiae

Attorneys for Amicus Curiae National Association of

National Legal Aid Criminal Defense Lawyers and

& Defender Association California Attorneys for

Criminal Justice

No. 88-411

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

EDWARD W. MURRAY, DIRECTOR

VIRGINIA DEPARTMENT OF

CORRECTIONS, et al.,

Petitioners,

Vv.

JOSEPH M. GIARRATANO, et al.,

Respondents.

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

National Legal Aid & Defender

Association ("NLADA"), National

Association of Criminal Defense Lawyers

("NACDL), and California Attorneys for

Criminal Justice ("CACJ") respectfully

move this Court for leave to file the

attached brief amicus curiae in support

of respondents. Respondents have

consented to the filing of such a brief.

The consent of Petitioners was requested,

but Petitioners have withheld their

consent.

NLADA is a private, nonprofit

organization committed to the provision

of high quality legal services for poor

people in the United States. With

respect to death penalty litigation,

NLADA has promulgated Standards for the

Appointment and Performance of Counsei in

Death Penalty Litigation, publishes a

newsletter focused on trends in all

phases of death penalty litigation, and

conducts training programs for attorneys

in this area. NACDL is a membership

Organization of criminal defense

attorneys from throughout the country

dedicated -- through education,

legislation and litigation -- to protect

the constitutional rights of its members'

clients. Sharing the concerns of NLADA

and NACDL, CACJ is the criminal defense

bar for the State of California, where

almost all of the two hundred men on

California's Death Row are indigent and

require legal assistance in state post-

conviction litigation.

NLADA, NACDL and CACJ are thus

particularly well-situated to articulate

to this Court the complexities and

difficulties unique to post-conviction

capital litigation and the benefits, both

to the interests of the litigants them-

selves and to the interests of the

judicial system in efficiency and

fairness, of the presence of counsel at

all phases of such litigation. These

factors, inter alia, provided the basis

for the decision below of the United

States Court of Appeals for the Fourth

Circuit, sitting en banc.

NLADA, NACDL, and CACJ believe that

they can provide valuable insights into

these factors and illuminate other issues

that may not be stressed by the parties.

The attached brief emphasizes that

capital litigation has always occupied a

unique constitutional status,

particularly with respect to the

assistance of counsel. This unique

status, founded on the practical

difficulties of death penalty litigation,

the singular finality of the punishment

and the consequent demand for heightened

procedural safeguards in all phases of

capital litigation, requires affirmance

of the Fourth Circuit's en banc decision.

Accordingly, NLADA, NACDL and CACJ

respectfully request that their motion

for leave to file the attached brief

amicus curiae be granted.

January 13, 1989

Respectfuily submitted,

Steven M. Pesner

(Counsel of Record)

Peter B. Friedman

Robert H. Pees

ANDERSON RUSSELL KILL &

OLICK, P.C.

666 Third Avenue

New York, New York 10017

(212) 850-0738

Attorneys for Amicus

Curiae National Legal Aid

& Defender Association

Ephraim Margolin

Nicholas C. Arguimbau

LAW OFFICES OF EPHRAIM

MARGOLIN

240 Stockton Street,

Third Floor

San Francisco, CA 94108

(415) 421-4347

Attorneys for Amici Curiae

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, i388

EDWARD W. MURRAY, DIRECTOR

VIRGINIA DEPARTMENT OF

CORRECTIONS, et al.,

Petitioners,

Vv.

JOSEPH M. GIARRATANO, et al.,

Respondents.

BRIEF OF NATIONAL LEGAL AID &

DEFENDER ASSOCIATION, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, AND CALIFORNIA ATTORNEYS

National Association of Criminal

Defense Lawyers and California

Attorneys for Criminal Justice

FOR CRIMINAL JUSTICE AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ..-eeeeececes

INTERESTS OF AMICI CURIAE......+++--

SUMMARY OF ARGUMENT. ....-..eeeeeeeees

ARGUMENT ...cccccccccesccescscscsscece

I.

WITHOUT THE CONTINUING ASSIST-

ANCE OF COUNSEL, DEATH ROW IN-

MATES LACK MEANINGFUL ACCESS TO

THE COURTS... ccccccccccccccsces

. Capital Post-Conviction Pro-

ceedings, Which Are Complex

And Difficult For Lawyers

And Judges, Are Impenetrable

Mysteries For Death Row

TRMOCOS cc ccccccescccescesecces

. The Significant Constitutional

Difference Between Death And

Lesser Penalties Requires That

the Continuing Assistance Of

Counsel Be Made Available to

TRO GCOMBGMMEG . coccccceeceeeeees

Page

18

Page

II. THE FINALITY OF DEATH -- NOT

THE FINALITY OF STATE COURT

JUDGMENTS -- IS THE CONTROLLING

FACTOR IN THIS CASE.......ce00. 23

IiIl. THE PROCEDURAL SAFEGUARDS OF

THE EIGHTH AMENDMENT DO NOT

EVAPORATE WITH THE ONSET OF

POST-CONVICTION PROCEEDINGS.... 26

af bis PPPPPECERELELELELTTTrreree 31

ii

TABLE OF AUTHORITIES

Page

CASES

Beck v. Alabama, 447 U.S. 625

(1980) wc eeveeeeeceeceeseeeeeeeeeeens 1S, 22

Brown v. Allen, 344 U.S. 443 (1953). 25

Bute v. Illinois, 333 U.S. 640

(1948) cccccccee enh ncuneaneewesewese 22

Ford v. Wainwright, 477 U.S. 399

(1986). cee eee ee ener ererrerererereres 26-28

Giarratano v. Murray, 847 F.2d

1118 (4th Cir. 1988)..--eeeeeeeevees 13

Gideon v. Wainwright, 372 U.S. 335

[196 3) cccccccccccccccccvccencccecess 21-22

Hamilton v. Alabama, 368 U.S. 52

(1961) ccc cvcevevevecceeresereesseses 21

Marsh v. Chambers, 463 U.S. 783

(1983)..-eee-s ken ees'ee60bseuseesneues 19

iii

Penson v. Ohio, 57 U.S.L.W. 4020

Sere Mie We 6660606 6606066 eunienue

po PSETIET ITT ee eee

Smith v. Bennett, 365 U.S. 708

SS 0006600056066 6060640ubhewkuec

United States v. Watson, 496 F.2d

1125 (4th Cir. ye 660666664 064606

CONSTITUTION AND STATUTES

United States Constitution

The Eighth Amendment...............

The Fourteenth Amendment...........

The Sixth Amendment................

iv

Page

Statutes

Act of April 30, 1790 (codified

as amended at 18 U.S.C. § 3005)..... 18-19

MISCELLANEOUS

Allen, Schachtman & Wilson, Federal

Habeas Corpus and its Reform: An

Empirical Analysis, 13 Rutgers L.J.

SIS (ASSa) ccccccccccceccccesssscesss 14

Godbold, Pro Bono Representation of

Death Sentenced Inmates, 42 The

Record of the Association of the Bar

of the City of New York 859

(November 1987)... cece venencevees 11-12,

17

Kannar, Liberals and Crime, The New

Republic 19 (Dec. 19, 1988)......... 24

Vv

Page

Lay, Modern Administrative Proposals

for Federal Habeas Corpus: The

Rights of Prisoners Preserved, 21

De Paul L. Rev. 701 eh 23-24

Mello, Facing Death Alone: The

Post Conviction attornee Crisis

= Dea Row, 37 Am. U.L. Rev.

( 1)

513 (1981)..

ES EEE ETO 10-1l,

14

Robinson, An Empirical Stud of

Federal Habeas Revie. of State

Court Judgments 14

Schaefer, Federalism and State

Criminal Procedure, 70 Harv. L.

SE) rg rr 25

Standards for the A intment and

Performance of Scunsel in Death

Penalty Cases (National Legal Aid

& ender Association 1987)........ 9-10,

vi

In our adversarial system of

justice, the formidable complexities of

death penalty jurisprudence are often

entangled in the byzantine intricacies of

post-conviction review. In such a

system, to face death alone, without the

availability of appointed counsel, is

cruel, unusual, and a denial of

meaningful access to the courts.

Accordingly, NATIONAL LEGAL AID &

DEFENDER ASSOCIATION, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

and CALIFORNIA ATTORNEYS FOR CRIMINAL

JUSTICE submit this amicus brief in

support of the respondents.

INTERESTS OF THE AMICI CURIAE

National Legal Aid & Defender Association

Founded in 1911, the NATIONAL LEGAL

AID & DEFENDER ASSOCIATION ("NLADA") is a

private, nonprofit organization committed

to the provision of high quality legal

s-rvices for poor people in America.

NLADA has long recognized the need for

competent counsel at all stages of death

penalty cases.

In response to the need for quality

representation in death penalty cases,

NLADA recently adopted Standards for the

Appointment and Performance of Counsel in

Death Penalty Cases ("NLADA Standards").

The NLADA Standards are an attempt to

improve the representation afforded to

poor defendants in the high stakes,

complex litigation that characterizes

death penalty cases.

,

NLADA also publishes Capital Report

which periodically features articles on

trends in the trial, appellate, and

post-conviction stages of death penalty

cases. In addition, NLADA plans to

conduct a training program for attorneys

practicing in states where lawyers in

death penalty cases currently receive

little or no training.

National Association of Criminal Defense

Lawyers

Amicus NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS ("NACDL" ) and

its affiliated organizations have

approximately 20,000 members, primarily

attorneys who practice criminal defense,

from throughout the country. NACDL

strives, through public education,

legislation and litigation, to protect

the constitutional rights of its members'

clients as a class, and to assure that

the working conditions for lawyers in

this field are adequate to permit them to

protect their clients' rights in

individual cases.

NACDL believes in working for a

rational system of review of capital

judgments in which the legal issues can

be resolved in a thorough and methodical

Process at as early a stage as possible.

NACDL joins in this brief out of a

perception that the District Court's

order in this case was necessary to

preserve indigent convicts' rights and to

promote such a thorough and methodical

system of review.

California Attorneys For Criminal Justice

Amicus CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE ("CACJ") is the criminal

defense bar for the State of California.

It has approximately 2100 members. CACJ

shares the concerns expressed by NACDL

above. Virtually 100% of the

approximately two hundred men on

California's Death Row are indigent and

require legal assistance in state post-

conviction collateral proceedings from

appointed or pro bono counsel.

Counsel are routinely appointed in

California in a manner consistent with

the District Court's order in this case;

as a result, the issues are probably more

thoroughly reviewed than in other states

before cases reach the federal courts.

However, although counsel are offered an

hourly rate of $60, and California has

approximately 80,000 active attorneys in

good standing, recruitment of counsel to

handle post-conviction collateral

proceedings is still difficult, and

approximately 20 Death Row inmates are

currently unrepresented even on appeal.

Accordingly, CACJ joins with amici NLADA

and NACDL because the California

experience demonstrates that adequate

representation of capital convicts and

Systematic review of their cases in state

post-conviction collateral proceedings is

infeasible without a system of routine

appointment of counsel.

SUMMARY OF ARGUMENT

The complexities of capital post-

conviction proceedings pose formidable

difficulties for even experienced lawyers

and present virtually insurmountable

obstacles for those with little or no

legal training. For the poorly educated

inmates on America's death row, to

confront the intricate maze of death

penalty jurisprudence and post-conviction

procedure without the assistance of

counsel is noth'ing less than a denial of

meaningful access to the courts.

Both Congress and this Court have

long recognized the special need for

counsel in the unique circumstances of

death penalty litigation. With respect

to the necessity of counsel, there

remains a significant constitutional

difference between capital and non-

capital cases.

The presence of counsel in capital

habeas proceedings brings needed order to

the capital post-conviction process by

benefitting not only litigants but also

courts in capital habeas proceedings.

What is truly at stake in this case is

not the finality of Virginia's judgments

but rather the high standard of

procedural integrity necessitated by the

finality of death.

In a capital case, counsel should be

available even to those without capital.

As a constitutional matter, &@ poor man

requires the assistance of counsel not

only when he approaches the steps of the

trial courthouse but also when he is

nearest the steps of the gallows; the case, especially at the post-conviction

procedural safeguards of the eighth stage, is an extraordinarily difficult

amendment do not disappear at the stage and complicated type of litigation.

of litigation closest to the execution Amicus NLADA, for example, warns

date.

practitioners that capital post-

4

ARGUMENT conviction proceedings can be even more

Ze METNOUT THE CONTINUING ASSIST intricate and demanding than the actual

COU , ROW — , wg

MEANINGFUL ACCESS TO THE COURTS. ae,

A. Capital Post-Conviction Pro Re

- presenting 4 death-sentenced

pee My Are Complex client in post conviction

~~ i r Lawyers proceedings is as demanding as

eterite —. Impenetrable ~- or, if that is possible,

Inmates ® For Death Row even more demanding than -- the

> tasks faced by other capital

counsel. Especially when 4

death warrant has been signed,

As organizations Ceeply Semiiier counsel is subjected to demands

with the legal services afforded death vicwely ecciy,

yon teneten in Aeneten, smad sugeat Cemporaiy’ and emotional iy.

petitioners’ contention that post. Ce ae a

conviction review in capital cases is not pero ee genera

so uniquely couples cof denending os te pleadings einost,timuitaneous)Y

require representation by counsel. Amici yg ee a

have long recognized that a death penalty ay, EE

with the client will require

counsel's time and presence at

yet another location.

NLADA Standards at 13.

NLADA's perspective is widely shared

by commentators familiar with death

penalty litigation and by judges who have

dealt with post-conviction capital

proceedings; it is also supported by the

uncontradicted record below. Professor

Michael Mello, a frequent defender of

indigent death row inmates, has observed

that those clients "cannot meaningfully

pursue post-conviction litigation on

their own" and "[e]ven lawyers find

capital post-conviction to be among the

most complex, nuanced, and rapidly

changing litigation." Mello, Pacing

Death Alone: The Post-Conviction Attorney

Crisis on Death Row, 37 Am. U.L. Rev.

S13, 531 (1988) (emphasis in original).

-10-

After reviewing just some of the

complexities facing a habeas petitioner,

Professor Mello concludes that the law

“would be incomprehensible to the pro se

petitioner in the best of circumstances.

It is to many lawyers." Id. at 543.

Judges who have dealt with post-

conviction capital cases agree. The

Honorable John C. Godbold, e Judge of the

United States Court of Appeals for the

Eleventh Circuit, warns prospective

practitioners in the field that "(h]j]abeas

corpus is as unfamiliar to a lot of

lawyers as atomic physics, Godbold, "Pro

Bono Representation of Death Sentenced

Inmates, 42 The Record of the Association

of the Bar of the City of New York 859,

863 (November 1987), and that

A death penalty case will be as

difficult and demancing

litigation as you will ever

participate in. It will

require a substantial

-ll-

investment of time. The law is

difficult. It's complex. It

changes every week. Research

is tough. The case will be

emotionally draining no matter

how hard you steel yourself

against it.

Id. at 871.

The uncontradicted record amply

Supports these observations of

practitioners, judges and the court

below. At trial, plaintiffs’ expert John

C. Boger, who has monitored America's

Death Row since 1978, testified that the

complexity and difficulty of capital

post-conviction proceedings is such that

he had never known a death row inmate

capable of representing himself in such

matters (Tr. 31-32). He added:

In matters of legal research,

capital cases are particularly

difficult, and although some

clients are bright and could

understand one stage of a

proceeding sometimes, and one

facet of the criminal law, very

few can integrate the

-12-

procedural and substantive and

the constitutional questions

that are needed in order to

make accurate assessments of

what issues have merit and what

don't.

(Tr. 32-33).

yet, because of the procedural

complexities inherent in this area, an

accurate assessment of what issues have

merit and what do not is particularly

important in the state post-conviction

petition, which Mr. Boger identified as

“often the most critical single document

in the capital litigation.” (Tr. at 17)

This is particularly true in Virginia,

where all claims, the facts of which are

known at the time of filing, must be

raised in that petition or are lost

forever. See Giarratano v. Murray, 847

F.2d 1118, 1120 n.4. (1988)

Empirical data demonstrates the

necessity of lawyers in capital post-

1 3-

conviction proceedings. Although not

confined to capital habeas, one study of

habeas corpus, commissioned by the

Federal Justice Research Program,

concluded that there was a "dramatic

correlation between counsel involvement

and e petitioner's chances for winning

relief," including a success rate for

represented petitioners fifteen times

greater than that for pro se petitioners.

Allen, Schachtman & Wilson, Federal]

Habeas Corpus and its Reform: An

Empirical Analysis, 13 Rutgers L.J. 675,

746-47 (1982); see also Robinson, An

Empirical Study of Federal Habeas Review

of State Court Judgments 58 (1979)

(presence of counsel raised success rate

from 3% to 12%); Mello at 565-66; NLADA

Standards at 5.

In light of the very nature of our

adversarial system of justice, such

-14-

empirical data is hardly surprising. In

a case decided earlier this Term, this

Court stated:

The paramount importance of

vigorous representation follows

from the nature of our

adversarial system of justice.

This system is premised on the

well-tested principle that

truth - as well as fairness -

is "best discovered by powerful

statements on both sides of the

question."

Penson v. Ohio, 57 U.S.L.W. 4020, 4022

(Nov. 29, 1988) (citations omitted).

Nowhere is the need for truth and

fairness -- and hence the need for

vigorous representation -- greater than

in capital litigation. Cf. Beck v.

Alabama, 447 U.S. 625, 637-38 (1980).

"As a general matter,” the Court in

Penson stated, "it is through counsel

that all other rights of the accused are

protected." 57 U.S.L.W. at 4022.

-15-

Without the assistance of counsel, death

row inmates lack meaningful access to the

courts. For the poorly educated death

row inmate who is bereft of counsel,

habeas corpus is but an empty Latin

phrase. Just as the "need for forceful

advocacy does not come to an abrupt halt

as the legal proceeding moves from the

trial to appellate stage," Id., neither

does it come to an abrupt halt as a

capital case moves to the habeas stage.

The immense complexity, difficulty

and importance of capital post-conviction

proceedings in our adversarial system of

justice should suffice to dismiss any

notion that counsel are not crucial to

the adjudication of capital habeas

proceedings in state courts. Whether on

appeal or in a habeas proceeding, contact

with the trial attorney may be critical,

and "(tjhe court, of course, is not in

-l16-

the position to conduct such ex parte

communications." Penson at 4022 n.5.

Not only are judges ill-positioned to act

as advocates for pro se litigants, but

they also require the "powerful

statements on both sides of the question"

provided by counsel. AS Judge Godbold

explained in discussing capital habeas

cases:

wie udges] need not feel

bad dl Em rod our knowledge.

Much of this law is new_to

state trial judges, who are the

judges in the trenches trying

to apply it. The average state

trial judge wil. see a death

penalty case only rarely. I

see twelve or fifteen a year.

- The average state trial judge

may see one every two or three

years.

Godbold at 865. In short, lawyers are

necessary not only for the death row

inmate but also for the arbiter

determining his fate.

oie

B. The Significant Constitutional

Difference Between Death And

Lesser Penalties Requires That

the Continuing Assistance Of

Counsel Be Made Available to

the Condemned. 7

From both a practical and a

constitutional standpoint, death differs

from lesser punishments. Precisely

because death is different, nowhere is

the need for the continuing assistance of

counsel more acute than in capital cases.

The special need for counsel in the

unique circumstances of death penalty

litigation is not, as Petitioners

Suggest, a recent invention but can be

traced back to the birth of the republic.

In § 29 of the Act of April 30, 1790, the

First Congress provided for the

appointment of up to two counsel in

capital cases.) It is surely of no small

1. The statutory descendant of § 29 of

the Act of April 30, 1790 is 18 U.S.C.

(footnote continued)

-l18-

significance that the Congress which

proposed the Bill of Rights clearly and

unequivocally expressed a heightened

concern for the assistance of counsel in

capital cases. Cf. Marsh v. Chambers,

463 U.S. 783, 794 (1983) (discussing

practices of the "same Congress that

drafted the Establishment Clause").

When faced with the issue of the

availability of counsel, this Court has

not hesitated to recognize the unique

circumstances surrounding the imposition

of society's ultimate penalty. In Powell

v. Alabama, 287 U.S. 45 (1932), the Court

viewed with a critical eye "the casual

(footnote continued from previous page)

§ 3005. Apart from the severity and

finality of the death penalty, a P

potential reason for the enactment -- an

reenactment -- of this provision is

Congress' reelization that capital cases

are complex. See United States v.

Watson, 496 F.2d 1125, 1126 (4th Cir.

1973).

-19-

fashion" in which "the matter of counsel

in @ Capital case was disposed of." Id.

at 56. In Powell, the Court based its

holding on several facts, none of which

was more influential and controlling than

the fact that the defendants were facing

death without the benefit of counsel:

In the light of the facts

outlined in the forepart of

this opinion - the ignorance

and illiteracy of the

defendants, their youth, the

Circumstances of public

hostility, the imprisonment and

the close surveillance of the

defendants by the military

forces, the fact that their

friends and families were all

in other states and

communication with them

necessarily difficult, and

above all that they stood in

deadl ril of eir lives --

we think the failure of the

trial court to give them

reasonable time and opportunity

to secure counsel was a Clear

denial of due process.

(Ujnder the circumstances

just stated, the necessity of

counsel was so vital and

imperative that the failure of

the trial court to make an

effective appointment of

-20-

counsel was likewise a denial

of due process within the

meaning of the Fourteenth

Amendment.

Id. at 71 (emphasis added); see also

Hamilton v. Alabama, 368 U.S. 52, 55

(1961) ("When one pleads to a capital

charge without benefit of counsel, we do

not stop to determine whether prejudice

resulted") (emphasis added).

For the purposes of assessing the

need for counsel in death penalty

litigation, there is a significant

constitutional difference between capital

and non-capital cases. For example, even

before Gideon v. Wainwright established

that the Sixth Amendment's guarantee of

counsel is a fundamental right made

obligatory upon the states by the

fourteenth amendment, 372 U.S. 335

(1963), due process alone was sufficient

to require the appointment of counsel in

eZ}

Capital cases. Bute v. Illinois, 333

U.S. 640, 674 (1948). Moreover, in

Gideon, the Court did not base its

holding on the dubious assumption that

there is never a constitutional

difference between Capital and non-

Capital crimes. Justice Clark was the

“Constitution makes no distinction

between capital and non-capital cases,"

372 U.S. at 349, a position that the

Court has since explicitly rejected on

numerous occasions. See, e.g., Beck yv

Alabama, 447 U.S. 625, 637 (1980) ("AS we

have often stated, there is @ significant

constitutional difference between the

death penalty and lesser Punishments").

-22-

II. THE FINALITY OF DEATH -- NOT

THE FINALITY OF STATE COURT

JUDCMENTS -- IS THE CONTROLLING

FACTOR IN THIS CASE.

Though Virginia speculates that the

appointment of post-conviction counsel

will generate a morass of litigation

undermining the finality of its

judgments, a contrary result is far more

likely. Law professors, judges, and

practitioners have lomg recognized that

ill-prepared habeas petitions from

unrepresented prisoners clog dockets and

waste judicial time and energy. Noting

that "“[c]jourts directly benefit from the

fact that most potential litigants first

present their problems to competent

lawyers who then engage in the necessary

investigation and legal research to

properly counsel the client in the merits

of his case," Judge Lay of the United

-23-

States Court of Appeals for the Eighth

Circuit wrote that "(t)here would be much

merit if we could emulate this practice

in the area of post-conviction

litigation." Lay, Modern Administrative

Proposals for Federal Habeas Corpus: The

Rights of Prisoners Preserved, 21 De Paul

L. Rev. 701, 734 (1972).

Urging the appointment of counsel in

post-conviction proceedings, one law

professor recently stated:

+++ 95 percent of all h

cases are filed by the ees

uneducated prisoners

themselves.... Givin p

lawyers would not Sat Fetes

assure fairness, bu cout make

spe S cpses ceses clearer, a allowin

more etriciently.

ober fieathy ae , dispos

Kannar, Liberals and Crime, The New

Republic 19, 23, (Dec. 19, 1988)

(emphasis supplied).

-24-

Of course, not only courts benefit

from the assistance of counsel; the

concentration of judicial efforts on pro

se petitions, unassisted by the trained

advocates so central to our adversary

system, thwarts the vindication of the

very rights sought to be protected by

post-conviction review. As Justice

Jackson warned, "[i]t must prejudice the

occasional meritorious application to be

buried in a flood of worthless ones. He

who must search a haystack for a needle

is likely to end up with the attitude

that the needle is not worth the search.”

Brown v. Allen, 344 U.S. 443, 537 (1953)

(Jackson, J., concurring); see also

Schaefer, Federalism and State Criminal

Procedure, 70 Harv. L. Rev. 1, 25 (1956)

("it is not a needle we are looking for

in these stacks cof paper, but the rights

of a human being").

-25-

Once taken, life, unlike liberty or

property, cannot be restored. The

unequivocal finality of execution has a

constitutional dimension that cannot be

overridden by Virginia's speculations

that the finality of its judgments will

be somehow diminished. This is a case

where the finality of death -- not the

finality of state court judgments -- is

the preeminent factor.

III. THE PROCEDURAL SAFEGUARDS

THE EIGHTH AMENDMENT DO NOT.

EVAPORATE WITH THE ONSET OF

POST-CONVICTION PROCEEDINGS.

The eighth amendment regulates not

merely the substantive but also the

procedural aspects of the death penalty.

Ford +. Wainwright, 477 U.S. 399, 405

(1986) ("[T)he Eighth Amendment has been

recognized to affect significantly both

the procedural and the substantive

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aspects of the death penalty”).

Invalidating Florida's procedure for

ascertaining the sanity of death row

inmates, the result in Ford is a telling

reminder that the eighth amendment's

procedural safeguards do not suddenly

disappear after the conclusion of a

capital trial and appeal.

Contrary to the assertions of

Petitioners (Pet. Br. at 20 n.2), 4

majority of the Court in Ford did not

explicitly -- or even implicitly -- find

that the eighth amendment's procedural

protections have no application in the

context of capital post-conviction

proceedings. Though Petitioners contend

that Justice Powell's concurring opinion

in Ford explicitly rejected the

constitutionally-mandated need for

heightened procedural safeguards in the

post-conviction stages of capital cases

-27-

(Pet. Br. at 20 n.2), Justice Powell's

concurring opinion contains no such

Statement, explicit or implicit. Justice

Powell merely wrote that this Court's

decisions imposing heightened procedural

requirements at the trial and sentencing

Stages do not apply in a context where

the only question is not whether, but

when, an execution should take place:

"This question [of when an execution may

take place) is important, but it is not

comparable to the antecedent question of

whether petitioner should be executed at

all". Ford at 425 (Powell, J.,

concurring). Indeed, the reasoning of

Justice Powell's concurring opinion

reguires the application of heightened

procedural safeguards in those post-

conviction proceedings where the question

raised is whether, rather than when, an

execution may take place.

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In short, capital habeas petitions,

which typically raise the question of

whether there should be an execution at

all, are entitled to the procedural

protections afforded by the eighth

amendment, and this Court has never held

otherwise.

Although Petitioners describe "state

post-conviction review of a state

criminal judgment" as a "matter

peculiarly committed to the States'

authority,” (Pet. Br. at 17), state

post-conviction proceedings do not occupy

a realm beyond the protections of the

United States Constitution. For example,

in Smith v. Bennett, 365 U.S. 708 (1961),

the Court held that a mandatory $4 filing

fee was an unconstitutional impediment to

indigent state prisoners pursuing state

habeas corpus relief in state courts.

-29-

Though Petitioners have couched

their argument in the lofty terms of

states rights and "comity," their real

quarrel is with the fourteenth amendment

insofar as it incorporates and makes

applicable to the states the basic

protections of the Bill of Rights. The

Fourth Circuit, sitting en banc, did not

mandate a “radical departure” from

existing law. Petitioners, on the other

hand, are essentially proposing a

"radical departure” in their effort to

carve out an area of state procedure

insulated from the Constitutional

safeguards that have historically

accompanied the imposition of the death

penalty.

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CONCLUSION

For the above reasons, the decision

of the Fourth Circuit, sitting en banc,

should be affirmed.

Respectfully submitted,

Steven M. Pesner

(Counsel of Record)

Peter B. Friedman

Robert H. Pees

ANDERSON RUSSELL KILL &

OLICK, P.C.2

666 Third Avenue

New York, New York 10017

(212) 850-0738

Attorneys for Amicus

Curiae National Legal Aid

& Defender Association

Ephraim Margolin

Nicholas C. Arguimbau

LAW OFFICES OF EPHRAIM

MARGOLIN

i 240 Stockton Street,

Third Floor

San Francisco, CA 94108

(415) 421-4347

2. Jennifer Cohen, a third-year law

student, assisted in the preparation of

this brief.

Sie

Attorneys for Amici Curiae

National Association of

Criminal Defense Lawyers

and California Attorneys

for Criminal Justice

Dated: January 13, 1989

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