Amicus Curiae Brief — Murray v. Giarratano

EDWARD W. MURRAY, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

— against —

JOSEPH M. GIARRATANO, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Attorney for the American Bar

Association as Amicus Curiae and

Counsel of Record

RonaALD J]. TABAK

Georce H. KEnDALL

SaRA-ANN DETERMAN

Currorp D. STROMBERG

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT .. .

ARGUMENT .. .

I.

MEANINGFUL ACCESS TO STATE

POST-CONVICTION COURTS RE-

QUIRES CAPABLE AND PROPERLY

COMPENSATED COUNSEL... .

A. State Post-Conviction

Proceedings In Capital

Cases Are Extremely

Significant And Extraor-

dinarily Complex ..

B. Pro Se Death Row Inmates

Cannot Be Expected To

Prepare Petitions Stat-

ing Their Meritorious

Claims

l. The Existence Of

Many Meritorious

Claims Cannot Be

Determined From

Death Row...

PAGE

10

10

10

13

l4

2. Substantial Numbers

Of Death Row Inmates

Are Incapable Of

Articulating Even

Those Meritorious

Claims Which Do Not

Require Additional

Investigation... .

Volunteers Cannot Solve

The Meaningful Access

PUGMeGM cece eee ee o

1. ABA Studies High-

light The Enormous

Burdens Which Limit

The Number Of Volun-

teer Attorneys

Available To Handle

State Post -Con-

viction Proceedings .

2. There Are, And Will

Be, Insufficient

Volunteers To Repre-

sent Death Row In-

mates In State Post-

Conviction Proceed-

a . = 6 6 6 e «

For Meaningful Access To

The Courts, Death Row

Inmates Must Have Prop-

erly Qualified, Compen-

sated, Assisted And

Monitored Counsel ....

PAGE

26

29

29

38

40

Il. VIRGINIA

A. The Judiciary, The Bar

And Congress Have Acted

To Provide Death Row

IS

A RARE EXCEP-

TION TO THE GROWING TREND

TOWARDS PROVIDING DEATH ROW

INMATES WITH MEANINGFUL

ACCESS TO THE COURTS

Inmates With Counsel

B. Virginia Is Virtually

Unique In Failing To

Move Towards Providing

Death Row Inmates With

Meaningful Access To

The Courts...

CONCLUSION

- ji131 -

PAGE

42

42

54

59

TABLE OF AUTHORITIES

CASES PAGE

Agan v. Dugger, 835 F.2d

1337 (ritk Cir. 1987),

cert. denied, 108 S.Ct.

gg gal ee 23n, 27n

Ake v. Oklahoma, 470 U.S.

68 (1985) .* — . . . . . >. > 27n

Amadeo v. Kemp, 108 S.Ct.

. . . . . _ . . 15

Armstrong v. Dugger, 833

F.2d 1430 (Iith Cir.

ees i

28

Berryhill v. Zant, 858 F.2d

633 (llth Cir. 1988) .... 15n

Bowen v. Kemp, 832 F.2d 546

(ilth Cir. 1987) (en

banc), cert. denied, 108

=. 2) 9) '\ ga 27n

Coleman v. Kemp, 778 F.2d

1487 (iith Cre. 1985),

cert. denied, 476 U.S.

a Se -- . «se 6 6s 23n

Curry v. Zant, 258 Ga. 527,

374 S.E.2d 647 (1988) ... 20-21 &

n, 27n,

28

Eddings v. Oklahoma, 455

a an canny 4 = » 6 e@ @ 27n

- iv-

CASES PAGE

CASES PAGE

Lindsey v. King, 769 F.2d

Evans v. Lewis, 855 F.2d 1034 (5th Cir. 1985) .... 16-17 &

631 (Sth Cir. 1988) .... 20n n, 27n

Evans v. State, 441 So.2d Machetti v. Linahan, 679

(Miss. 1983), cert. F.2d 236 (lith cir.

denied, 467 U.S. 1264 1982), cert. denied, 459

- ¢ 2 6 6 «© o.6 6-6 « l3n i nee Cn =< « 6 6 6 «6 15n

Ford v. Wainwright, 477 Magwood v. Smith, 791 F.2d

U.S. 355 T198e) Tee a Te (lith Cir. 1986) ... 27n

Furman v. Georgia, 408 U.S. McC res hey v. Kemp, No. C87-

. . . . . . . . . 56, 58 A N.D. a. Dec. 23,

1987) . . >. . . . . al > . . 17

Hor sored w State: 257 Ga.

620, -E. 794 McDowell v. Dixon, 858 F.2d

(1987) . a . . . . . . . . . 27n . _— 945 (4th Cir. 1988) . . . . 17n

Hooks v. Wainwright, 536 F. Middleton v. Dugger, 849

~ Supp. 1330 (M.D. Fla. F.2aq 491 iTith Cir. 1988) . 22n

1982), rev'd on other

rounds, 775 F.2d 1433 Penry v. Lynaugh, cert.

tTith Cir. 1985), cert. granted. 108 S.Ct. 2896

denied, 479 U.S. 933 : . . . . . . . . - . . 27n

T1586) > > >. >. . . . . >. > >. 26 & n

Profitt v. Waldron, 831

Johnson v. Mississippi, 108 F.20 1245 (5th Cir. 1987) . 27n

= 8 ie aeengl 24 & nr

Ruffin v. Kemp, 767 F.2d

Jones v. phigpen, 788 F.2d 748 (lith Cir. 1985) .... 20n

t

ir. 1986),

cert. denied, 107 S.Ct. Smith v. Wainwright, 799

DT en « 6 <6 ¢ =e @ « 22n, 27n, F.20 1442 (litt Cir.

28 | a a a ae 20n

Kimmelman v. Morrison, 477 Smith v. Zant, 855 F.2d 712

<> ge aa 19n etl B- (4). |) eee 23n, 27n

-vi-

CASES PAGE

Spraggins v. State, 258 Ga. OTHER AUTHORITIES PAGE

, . . 61 (1988) . 27n

Godbold, Pro Bono Represen-

Stephens v. Kemp, 846 F.2d tation of Death Sentenced

TY (lith Cir. 1988) . ... 20n, 27n Inmates, 42 The Record of

; the Association of the

Strickland v. Francis, 738 Bar of the City of New

" t ir. York 859 (1987) eeseese ll éoa,

a? « & =..6¢ 6 6 &e 6 6 e 27n 12 & a,

38-39 &n

Strickland v. Washington, ;

466 U.S. 668 (i584) see « 19 Letter from Michael Millman

) to Gail Lambert

Thomas v. K , 796 F.2d er me Bee 6 6 6 © © « 48n

1322 titth Fir. 1986) ... 22n, 27n

Lewis, Killi the Killers:

Tyler v. Kemp, 755 F.2d 741 A post Varun P rman Profile of

(lith Cir. 1985) (per Florida's Condemned,

0 a ee Crime and Deling. 200

aepeee eee weecee ee 26-27 & nr

U.S. ex rel. Lewis v. Lane,

; (7th Cir. Mello, Facing Death Alone:

ee a ae 24 The past tenvtetion At-

torney Crisis on Death

Wallace v. Kemp, 757 F.2d STi +e Am. U.L. Rev. 513

1102 Tiith oH T1588) ‘

* | ae 27n

e« 24n, 26n,

28n

STATUTES AND STATUTORY GUIDELINES ~ Memorandum from Administra-

tive Office of the United

Guidelines for the Adminis- States Courts (March 24,

tration of the Criminal re a a a 47n, 48n,

Justice Act, 18 U.S.C. 49n

& £ awe ee we ee ee 7-8, 47,

49 & an, Mikva and Godbold, Dia-

Sléon logue: “You Don't Have To

Be A Bleeding Heart,”

28 U.S.C. § 2254 .. - w~ we. 53 (ABA 1986 Midyear Meet-

- Was © = Vass ©

OTHER AUTHORITIES PAGE OTHER AUTHORITIES PAGE

ing), 14 Human Rights 22 Report of the Proceedings

(Winter, 1987) ....... 1264, of the Judicial Confer-

39n, 42- ence of the United States

43 in (March 17, 1987) ....s#s-s 47n, 49n

Chief Justice Robert C. Resolution IX, “Representa-

Murphy, Court of Appeals, tion of Death Row Inmates

Maryland, State of the In Post-Conviction Pro-

Judiciary Reseege rag~ A (Adopted at the

an. , oa 6 @ 6 < 12-13 & A 10th Midyear Meeting of

the Conference of Chief

NAACP al Defense and Justices, February, 1987) . 43-44 & n

Educational Fund, Inc.,

Death Row U.S.A. Resolution 102B, approved

(Dec. 20, 1968) ...... 56 & nn, by ABA House of Delegates

58 in (1979 Midyear Meeting)... 5-6 & nn

Justice Lewis F. Powell, Resolution 112D, approved

Jr., Remarks at Eleventh by ABA House of Delegates

Circuit Judicial Confer- (1982 Annual Meeting “a 6én

ence, Atlanta, GA

(May 12, 1986) ....24+s+-s-s 38 & Oh, Resolution 125, approved by

43 in ABA House of Delegates

(1988 Midyear Meeting)... 6-7 & n,

Pub. L. No. 100-690, 102 50 & n

Stat. 4161, Title X, c.I,

reprinted in 134 Cong. Smethurst, “Knapp Update:

Rec. H 11,216 (Daily Ed. ‘Innocent Man,'” American

Oct. 23, 1996) . «© «© se we @ « 52 én Lawyer (April 19867) .... 18n

Pub. L. No. 100-690, 102

Stat. 4161, Title VII,

Sec. 7001(b), reprinted

in 44 Crim. L. Rep. (BNA)

3001 (Wov. 2, 1968) .... 52-53 & n

- } ¥ -

OTHER AUTHORITIES PAGE OTHER AUTHORITIES PAGE

"Study of Representation in United Press Int'l,

Capital Cases in Virgin- Dec. 22, 1987 story (Lex-

ia" (November 1988), is, Nexis Library, Cur-

Prepared by the Spangen- rent File) a! OF FP le Set a oe 18n-19n

berg Group ..+-+ +s ° 24-25 &

n, 336 "Why Death Row Needs Law-

n, 346 ers,” 14 Human Rights 27

.« ™ 35, Winter 1987) ee ee eee 45-46 & n

36-37 &

n, 40n, Wilson and Spangenberg,

ss in Po onviction

"Time and Expense Analysis : 3 to Death,

in Post-Conviction Death y plished manu-

Penalty Cases,” Compila- script, Dec. \ ) ee 40 & nr,

tion and Analysis Per- 52n, 54-

formed by the Spangenberg 55 é& vn,

Group (February 1987) ... 30 & A, 56 & On,

31 6&4, 57 & nn

32 & OO,

33 &

"Time and Expense Analysis

in Post-Conviction Death

Penalty Cases in North

Carolina", Prepared by

the — ert

(June 19 ee — oe 33 & A,

35-36 én

United Press Int'l,

Feb. 14, 1987 story (Lex-

is, Nexis Library, Cur-

rent File) ..+«+s++e«-se«e##e#-s 18n

sopgttetl

SUPREME COURT OF THE UNITED STATES

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDWARD W. MURRAY, DIRECTOR VIRGINIA

DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vv.

JOSEPH M. GIARRATANO, et al.,

Respondents.

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

The American Bar Association

("ABA") submits this brief as amicus curi-

ae to provide the Court significant infor-

mation about the national context in which

this case hes eérisen. The consents of

both the petitioners and the respondents

have been obtained and are on file with

this Court.

The ABA is @ voluntary, national

membership organization of the legal pro-

fession. Its more than 350,000 members,

from each state, territory and the Dis-

trict of Columbia, include prosecutors,

public defenders, private lawyers, trial

and appellate judges from the state and

federal courts, legislators, law profes-

sors, lew enforcement and corrections

personnel, law students and a number of

"non-lawyer” associates in allied fieids.

Since its inception over a century ago,

the ABA has taken an active interest in

promoting the availability and effective-

ness of counsel as 4 crucial element in

ensuring fundamental fairness in our ad-

versary system of criminal justice.

The ABA hes taken no position

regarding the propriety or constitutional-

ity of the death penalty, and it does not

discuss herein the specific constitutional

law which the parties’ briefs are address-

ing. The ABA has, however, been working

to ensure that the death penalty is not

imposed without the most careful consider-

ation and full compliance with defendants’

constitutional and legal rights. To this

end, the ABA initiated in 1986 a Death

Penalty Post-Conviction Representation

Project. The project attempts to locate

volunteers to represent death row inmates

and supports efforts to create an orga-

nized structure for providing qualified,

compensated counsel in capital post-

conviction proceedings. The ABA has also

over the past several years commissioned

several studies on the actual experiences

of counsel handling post-conviction death

penalty cases. Hence, to the extent that

the constitutional issue in this case

turns on what actually constitutes "mean-

ingful access” to the courts for death row

inmates in state post-conviction proceed-

ings, the ABA believes it can provide the

Court with important insights.

The ABA has concluded that if

state post-conviction proceedings are to

help ensure that no person is put to death

following a trial tainted by serious con-

Stitutional error, capable attorneys must

be provided to death row inmates before

their post-conviction petitions are filed.

The ABA has also concluded that there

simply are not, and will not be, enough

volunteers to represent properly the ever-

increasing numbers of death row inmates

whose cases are proceeding into state

post-conviction proceedings. Hence, even

while trying to find volunteers to handle

cases aS a@ stop-gap measure, the ABA has

recognized that the only feasible way to

provide death row inmates with meaningful

access to the courts is the implementation

in each state which imposes capital pun-

ishment of a governmentally-funded system

under which qualified, compensated attor-

neys represent death row inmates in state

post-conviction proceedings.

The ABA's’ current intensive

efforts to encourage the creation of such

a system in each death penalty state is a

logical outgrowth of prior ABA actions,

including its House of Delegates’ adoption

of three resolutions in the past decade.

In 1979, the ABA proposed “that the United

States Supreme Court adopt a rule provid-

ing for appointment of counsel to prepare

petitions for discretionary review of

state court convictions, including appro-

priate post-conviction or clemency peti-

tions, if necessary, in death penalty

cases where the defendant cannot afford to

hire counsel * * *,"! In 1982, the ABA

resolved to “support the prompt availabil-

ity of competent counsel for both state

and federal court proceedings" in post-

conviction and habeas corpus. The ABA

also stated that counsel handling such

proceedings “should be trained to present

in the state courts the facts and legal

precedents which form the basic federal

constitutional issues raised by the cause”

and should be compensated "at a fair rate

of payment * * *,"2

Most recently, in 1988, the ABA

urged “each federal district and circuit

court to adopt and each federal circuit

. Resolution 102B, approved by ABA House of

Delegates at 1979 Midyear Meeting. Should

the Court be interested, the ABA would be

willing to lodge with the Clerk of the Court

a copy of Resolution 102B and the other

sources cited in this brief.

: Resolution 112D, approved by ABA House of

Delegates at 1982 Annual Meeting.

judicial council to approve a plan for

providing representation in federal habeas

corpus death penalty proceedings which

includes” a variety of provisions designed

to ensure that trained, experienced and

pre-screened attorneys (a) are appointed

to represent death row inmates, (b) are

properly compensated, (c) are provided

with investigative, expert and other ser-

vices, and (d) are advised by state and

regional resource centers.’ The 1988 ABA

resolution became the basis for the new

Paragraph 2.01G to the Guidelines for the

Administration of the Criminal Justice

. Resolution 125, approved by ABA House of

Delegates at 1988 Midyear Meeting. Resolu-

tion 125 also urged the federal courts “to

consult extensively with appropriate state

Criminal justice leaders to ensure the maxi-

mum extent of coordination and consistency

concerning the standards and procedures gov-

erning appointment of counsel in state and

federal post-conviction proceedings involving

death penalty cases.”

Act, 18 U.S.C. § 3006A, which was approved

by the Judicial Conference of the United

Stetes in September 1988.

SUMMARY OF ARGUMENT

The ABA believes that death row

inmates cannot meaningfully articulate or

litigate their factually and legally com-

plex claims in state post-conviction pro-

ceedings without representation by capable

counsel. The existence of many signifi-

cant claims cannot be determined from

Geath row. Moreover, many death row in-

mates lack the mental capacity to formu-

late even bare-bones post-conviction peti-

tions. Where the consequence of failing

to uncover and argue effectively about

serious constitutional violations is the

prisoner's death, the injustice is espe-

cially harsh. Meaningful access to state

post-conviction remedies can Be achieved

only if the state government provides the

prisoner with properly qualified, compen-

sated, assisted and monitored counsel.

The judiciary, the organized bar

and Congress have all taken actions de-

signed to provide counsel to death row

inmates, and substantial progress has been

made in many states. However, Virginia is

almost ‘unique in having failed to make any

movement towards a system for providing

its death row inmates, through qualified

counsel, with meaningful access to state

post-conviction courts. In the absence of

such access, there is a grave risk that

persons will be subjected to the ultimate

penalty despite convictions or sentences

imposed through fundamental constitutional

error.

Argument

-

MEANINGFUL ACCESS TO STATE POST-CONVICTION

COURTS REQUIRES CAPABLE AND PROPERLY

COMPENSATED COUNSEL

A. State Post-Conviction Proceedings

In Capital Cases Are Extremely

Significant And Extraordinarily

Complex

Post-conviction proceedings in

capital cases are both tremendously impor-

tant and highly complex. They are often

essential to the vindication of a capital

defendant's rights to a fair trial and to

a reliable capital sentencing proceeding,

since they frequently concern issues which

could not reasonably have been raised at

trial or on direct appeal. Their signifi-

cance is evident from the large percentage

of cases in which convictions or sentences

have been set aside in federal habeas

corpus proceedings because of fundamental

constitutional error -- following exhaus-

tion of the constitutional claims in state

- 10 -

courts. Former Chief Judge Godbold said

in 1987 that in the Eleventh Circuit,

which generally “handles more habeas death

penalty cases than ail the other circuits

in the United States combined,"* the writ

had been granted in half of the first 56

capital cases to come before the District

or Circuit Court, and he guessed "that

probably now a third of the cases have

constitutional error of such dimension

that the petitioner is entitled to an

order.">

Judge Godbold has also stressed

the enormous complexity of these cases,

stating, "the body of law that exists is

complex. It's difficult. It's change-

: Godbold, Pro Bono Representation of Death

Sentenced Inmates, 42 The Record of the Asso-

ciation of the Bar of the City of New York

859, 862 (1987).

. Id. at 873.

- ll -

SS ————————

able. And it's very hard to apply."®

Indeed, he has stated that, "it is the

most complex area of the law I deal

with,"? and that “the average trial law-

yer, no matter what his or her expertise,

doesn't know any more about habeas than he

does about atomic energy."®

Increasingly, state judges, too,

have come to recognize the tremendous

complexity of capital litigation. For

example, Maryland Court of Appeals Chief

Justice Robert C. Murphy stated in his

1987 annual message to the General Assem-

bly that the proper application of capital

punishment statutes

° Id. at 865.

, “You Don't Have To Be A Bleeding Heart,”

dialogue between Judge Abner J. Mikva and

John C. Godbold at the Conference of Southern

Bar Presidents held at the ABA 1986 Midyear

Meeting, 14 Human Rights 22, 24 (Winter

1987).

. Id.

proved extremely difficult and

complicated, resulting in a high

incidence of appellate reversals

* * * because the Constitution

of the United States, or the

provisions of the death penalty

statutes themselves, were vio-

lated in a way that mandated

that new trials or resentencing

hearings will be held.’

B. Pro Se Death Row Inmates Cannot

Be Expected To Prepare Petitions

Stating Their Meritorious Claims

Death row inmates cannot reason-

ably be expected to prepare state post-

conviction petitions setting forth consti-

tutional claims which, if properly articu-

lated, would immediately be recognized as

° Chief Justice Robert C. Murphy, Court of

Appeals, Maryland, State of the Judiciary

Message, Jan. 28 1987, delivered to a Joint

Session of the General Assembly of Maryland,

at 12-13. See also Evans v. State, 441 So.

24a 520, 528 (Miss. 1983) (Robertson, J.,

dissenting), cert. denied, 467 U.S. 1264

(1984) (As “frequently" occurs, “numerous

important and highly technical death penalty

issues" which are wholly unfamiliar to “the

average Mississippi criminal defense lawyer”

were “not raised" although “[mjost * * * have

resulted in death sentences being vacated in

other cases.").

substantial and ultimately be held merito-

rious. This is so because of (1) the

nature of many such claims, whose very

existence cannot be determined from death

row and (2) the inability of many death

row inmates -- due to such problems as

illiteracy, mental retardation and mental

illness -- to articulate even those claims

which theoretically could be formulated

from death row.

1. The Existence Of Many

Meritorious Claims Cannot

Be Determined From Death Row

Experience has demonstrated that

many meritorious constitutional claims

cannot possibly be pleaded, even in a

primitive way, by a pro se death row liti-

gant. Determining that there is a factual

basis for these claims requires the col-

lection and evaluation of facts outside

the existing record.

For example, without the assis-

tance of counsel, the petitioner in Amadeo

v. Kemp, 108 S.Ct. 1771 (1988), could not

have known, much less alleged, that his

conviction and death sentence were uncon-

Stitutional. The fact that the prosecutor

had deliberately but surreptitiously in-

duced the jury commission to underrepre-

sent blacks and women in jury pools was

uncovered by counsel in an unrelated case,

and evidence supporting Amadeo's claim for

relief was then marshalled and litigated

by volunteer counsel for several years.'»”

79 Other capital convictions and sentences have

also been held unconstitutional on the basis

of racial discrimination whose existence

could not have been determined from death

row. The discrimination has been uncovered

only through volunteer counsel's laborious

review of jury lists to identify the race and

sex of thousands of jurors. See, e.g., Ber-

ryhill v. Zant, 858 F.2d 633 (llth Cir. 1988)

(unconstitutional underrepresentation of

women); Machetti v. Linahan, 679 F.2d 236

(llth Cir. 1982), cert. denied, 459 U.S. 1127

(1983) (women unconstitutionally excluded in

grand and petit jury selection procedure).

- 15 -

A frequently meritorious claim

which could not be formulated from death

row is that the prosecution withheld at

trial information that was either exculpa-

tory or else showed that a prosecution

witness had struck a deal as a price for

testifying. Determining that such uncon-

Stitutional prosecutorial conduct has

occurred requires careful investigation

which a death row inmate cannot undertake.

For example, the conviction and

death sentence were reversed in Lindsey v.

King, 769 F.2d 1034 (5th Cir. 1985), after

it was established that the prosecutor had

withheld evidence that a key eyewitness --

who at trial had positively identified

Lindsey as the assailant -- had told the

police shortly after Lindsey's arrest that

he could not identify the perpetrator.

The facts supporting this claim were de-

veloped in state and federal post-

- 16 -

conviction proceedings in which Lindsey,

who was mentally retarded, was represented

by counsel. Id. at 1038-40.!!

Similarly, counsel's post-

conviction investigation uncovered uncon-

stitutional prosecutorial misconduct di-

rected against Warren McCleskey. The

federal district court held, on the basis

of this new evidence, that state authori-

ties unconstitutionally planted a w.-ness

in the cell next to McCleskey's and ac-

tively solicited information’ from the

witness long after McCleskey had obtained

counsel. McCleskey v. Kemp, No. C87-1517A

(N.D. Ga. Dec. 23, 1987).

a8 The Fifth Circuit said its “reading of the

evidence shows there is a real possibility

that the wrong man is to be executed." 769

F.2d at 1043. See also McDowell v. Dixon,

858 F.2d 945 (4th Cir. 1988) (failure to

disclose reports raising questions about

reliability of the identification violated

due process).

- 17 -

In other cases, counsel working

On post-conviction proceedings have uncov-

ered facts which have raised such serious

doubts about death row inmates' guilt or

innocence that their convictions have been

overturned. In a recent example, John

Henry Knapp was released in 1987 after

spending 12 years on Arizona's death row.

His pro bono attorneys, who worked more

than 3,000 hours and spent over $75,000 in

out-of-pocket expenses, presented expert

testimony that the fire which killed

Knapp's children could have been caused by

the children's playing with matches. At

trial, the prosecution's experts had tes-

tified that only a flammable liquid could

have caused the fire,.?}2

os See Smethurst, "Knapp Update: ‘Innocent

Man,'" American Lawyer (April 1987), at 80;

United Press Int'l, Feb. 14, 1987 story (LEX-

IS, Nexis library, current file). The murder

charges against Knapp were subsequently dis-

missed without prejudice. See United Press

(Footnote continued)

- 18 _

Ineffective assistance of coun-

sel is another constitutional claim for

which the essential factual predicates

have often been uncovered only in coun-

sel's post-conviction investigations.!:

Many death row inmates represented by

counsel have been able to meet the heavy

burden imposed by Strickland v. Washing-

ton, 466 U.S. 668 (1984), by establishing

(Footnote 12 continued from previous page)

Int'l, Dec. 22, 1987 story (LEXIS, Nexis

library, current file).

28 As this Court has recognized, “collateral

review will frequently be the only means

through which an accused can effectuate the

right to counsel," because "“({a} layman will

ordinarily be unable to recognize counsel's

errors and to evalute counsel's professional

performance” * * * {and thus} will rarely

know that he has not been represented compe-

tently until after trial or appeal, usually

when he consults another lawyer about his

case.” See Kimmelman v. Morrison, 477 U.S.

365, 378 (1986) (citation omitted).

both the ineffectiveness and prejudice

necessary to prevail on such claims,!4

In most cases, the petitioner

must present substantial evidence from

outside the trial record in order to set

forth a viable Sixth Amendment claim. An

example is Curry v. Zant, 258 Ga. 527, 371

S.E. 2d 647 (1988).

Curry's trial counsel failed to

seek an independent psychiatric evalua-

tion, although the trial judge had said he

would allow one. A state psychiatrist had

concluded that while Curry suffered from

Organic brain damage and aé_ borderline

personality disorder, Curry might be ma-

lingering and manipulating. After plead-

a¢ See, e.g., Evans v. Lewis, 855 F.2d 631, 636-

39 (9th Cir. 1988); Stephens v. Kemp, 846

F.2d 642, 651-55 (llth Cir. 1988); Smith v.

Wainwright, 799 F.2d 1442 (llth Cir. 1986);

Ruffin v. Kemp, 767 F.2d 748, 752 (llth Cir.

1985); Tyler v. Kemp, 755 F.2d 741, 744-46

(llth Cir. 1985) (per curiam).

ing guilty and then being sentenced to

death, Curry sought post-conviction re-

lief. In state habeas proceedings, volun-

teer counsel presented evidence from three

mental health experts and other witnesses.

They established that Curry was mentally

retarded, suffered from severe mental

illness, was incapable of waiving his

constitutional rights, and either could

not tell right from wrong or else could

not control an impulse to act wrongfully.

Id., 258 Ga. at 528-29, 371 S.E. 2d at

648-49, The Georgia Supreme Court held

that the Sixth Amendment was violated by

the failure to secure and present an accu-

rate account of Curry's mental disabil-

ities. Id., 258 Ga. at 530, 371 S.E. 2d

at 649,15

ins Curry exemplifies numerous cases in which a

meritorious Sixth Amendment claim has been

meaningfully presented only because volunteer

counsel was available. Another example is

(Footnote continued)

- 21 -

Many other types of substantial

constitutional claims have succeeded only

because of counsel's exhaustive post-

conviction investigations which could not

have been done from death row. These

include showings that pretrial publicity

(Footnote 15 continued from previous page)

Armstrong v. Dugger, 833 F. 2d 1430 (llth

. Gig. 19867). Trial counsel was held to have

been ineffective after post-conviction coun-

sel presented, inter alia, an expert who

testified that -- unbeknownst to the trial

jury -- Armstrong was mentally retarded and

had organic brain damage. See also Jones vy.

Thigpen, 788 F.2d 1101, 1103 (llth Cir.

1986), cert. denied, 107 S. Ct. 1292 (1987)

(trial counsel held ineffective for failing

to present any mitigating evidence on behalf

of defendant, whom expert testimony in feder-

al habeas showed was mentally retarded and

emotionally disturbed). Most decisions hold-

ing trial counsel constitutionally ineffec-

tive have been based on substantial evidence

demonstrating both ineffectiveness and preju-

dice. E.g., Thomas v. Kemp, 796 F.2d 1322,

1325 (llth Cir. 1986) (psychiatric, family,

employment and school witnesses supported

Sixth Amendment claim); Middleton v. Dugger,

849 F.2d 491, 493-95 (llth Cir. 1988) (com-

prehensive psychiatric history evidence in-

troduced).

oe 22 @

rendered the trial fundamentally unfair'®

and that a capital defendant was too men-

tally limited to have intelligently waived

his constitutional rights to silence and

counsel,!’ Moreover, without counsel to

litigate in and obtain information from

courts in other states, death row inmates

would not even have known -- much less

alleged and proved -- that their sentences

were partially based on inaccurate infor-

eg E.g., Coleman v. Kemp, 778 F.2d 1487 (llth

Cir. 1985), cert. denied, 476 U.S. 1164

(1986) (granting relief on claim based on

pre-trial publicity, in view of substantial

evidence collected and presented in habeas

corpus proceeding).

’ E.g., Smith v. Zant, 855 F.2d 712 (llth Cir.

1988) (granting relief in view of expert

witness who testified in habeas corpus hear-

ing that Smith was mentally retarded and

under severe stress when waiving his Miranda

rights). See also Agan v. Dugger, 835 F.2d

1337, 1339 (llth Cir. 1987), cert. denied,

108 S.Ct. 2846 (1988) (case remanded for

hearing on Agan's competence, in view of

evidence -- presented by habeas counsel --

of a history of mental problems dating back

to Agan's youth).

- 23 - \

mation about supposedly valid prior con-

victions, and thus were unconstitutional.

See Johnson v. Mississippi, 108 S.Ct. 546

(1988); U.S. ex rel. Lewis v. Lane, 832

F.2d 1446 (7th Cir. 1987).38

The need for post-conviction

counsel to uncover meritorious constitu-

tional claims whose factual predicates

have been totally unexplored by trial

counsel may be particularly great in Vir-

ginia. Several respondents in a recent

Study on capital cases conducted for Vir-

ginia bar and legislative groups said the

fact that Virginia is “at or near the

bottom for attorney fees paid across the

ies Collateral litigation, such as that which led

to the granting of relief in Johnson, is also

often required to obtain discovery of (a)

proceedings concerning co-defendants and (b)

pretrial media coverage. See Mello, Facing

Death Alone: The Post-Conviction Attorney

Crisis On Death Row, 37 Am. U.L. Rev. 513,

545 (1988).

country” has led to inadequate representa-

tion by trial counsel.'* Articulating the

general frustration of Virginia trial

counsel, one attorney said, "the most

dedicated lawyer can only do so much with

no help -- no investigators, no

experts."2° Moreover, the study found

that Virginia has no formal or specific

qualifications for trial lawyers in capi-

tal cases ond that they received "quite

limited training.”?!

li See “Study of Representation in Capital Cases

In Virginia” (November 1988), prepared for

Criminal Law Section, Virginia State Bar and

Joint Subcommittee Studying Alternative Indi-

gent Defense Systems, Virginia General Assem-

bly; prepared by the Spangenberg Group (cited

hereinafter as “Virginia Study"), at 25.

se Id. at 28. Several respondents said support

services and back-up resources were “largely

unavailable.” Id. at 27.

sls Id. With respect to criminal cases generaily,

the study found that “by all measures, Vir-

ginia remains at or near the bottom in expen-

ditures, cost per case and assigned counsel

fees for indigent defense * * * [and) has

slipped even further behind the rest of the

nation [than in 1982] by 1986." Id. at 55.

-~- 25 -

2. Substantial Numbers Of Death

Row Inmates Are Incapable

Of Articulating Even Those

Meritorious Claims Which Do Not

Require Additional Investigation

As a recent law review article

explains, many death row inmates cannot

articulate even those meritorious claims

which do not require further factual in-

vestigation, because they "are illiterate,

uneducated, mentally impaired or any com-

bination of the three."?22 A Florida fed-

eral district judge found in 1982, after

extentive evidentiary hearings, that over

half of Florida's overall prison popula-

tion were functionally illiterate and 22%

had 1.Q.s under 80.23 A 1979 study of

Florida's death row inmates found that

their mean educational level was approxi-

a2 See Mello, supra note 18, at 548.

oe See Hooks v. Wainwright, 536 F. Supp. 1330,

1336-37 (M.D. Fla. 1982), rev'd on other

grounds, 775 F.2d 1433 (llth Cir. 1985),

cert. denied; 479 U.S. 913 (1986).

- 26 -

mately the 9th grade and that 15% had

I.Q.s under 90.24

This Court?> and the lower

courts?® have frequently decided cases

involving inmates suffering from mental

ie Lewis, Killing the Killers: A Post-Furman

Profile of Florida's Condemned, 25 Crime and

Deling. 200, 211 (1979).

ag See Eddings v. Oklahoma, 455 U.S. 104, 107

(1982) (severe emotional disturbance); Ake v.

Oklahoma, 470 U.S. 68 (1985) (mental ill-

ness); Ford v. Wainwright, 477 U.S. 399

(1986) (severe mental illness). In a case

presently before the Court, Penry v. Lynaugh,

cert. granted, 108 S. Ct. 2896 (1988), there

is substantial evidence suggesting that the

petitioner is mentally retarded.

“9 See Lindsey, Curry, Armstrong, Jones and

Agan, discussed supra; see also Smith vy.

Zant, 855 F.2d 712 (llth Cir. 1988); Stephens

v. Kemp, 846 F.2d 642 (llth Cir. 1988); Bowen

v. Kemp, 832 F.2d 546 (llth Cir. 1987) (en

banc), cert. denied, 108 S.Ct. 1247 (1988);

Profitt v. Waldron, 831 F.2d 1245 (Sth Cir.

1987); Magwood v. Smith, 791 F.2d 1438, 1449-

50 (llth Cir. 1986); Thomas v. Kemp, 796 F.2d

1322 (llth Cir. 1986); Wallace v. Kemp, 757

F.2d 1102, 1108 (llth Cir. 1985); Strickland

v. Francis, 738 F.2d 1542, 1551-52 (llth Cir.

1984); Spraggins v. State, 258 Ga. 32, 33,

364 S.E. 2d 861, 863 (1988); Holloway v.

State, 257 Ga. 620, 621, 361 S.E.2d 794, 796

(1987).

- 27 -

retardation or other substantial mental

disabilities.

Inmates with mental disabilities

frequently have difficulty assisting coun-

sel who seek to protect their interests.

They are hardly capable of formulating

meaningful pro se petitions in the absence

of counsel.?’ Moreover, as illustrated by

Curry, Armstrong and Jones, discussed

Supra, the post-conviction cases of men-

tally disabled death row inmates often

involve claims concerning their mental

disabilities and require consultation with

various types of medical and mental health

professionals. Meaningful articulation

and development of these claims requires

competent counsel.

ald See Mello, supra note 18, at 550-52.

- 28 -

C. Volunteers Cannot Solve

The Meaningful Access Problem

1. ABA Studies Highlight The

Enormous Burdens Which Limit The

Number Of Volunteer Attorneys

Available To Handle State

Post-Conviction Proceedings

Over a period of over two years,

the ABA's Bar Information Program and

other ABA and state bar and legislative

groups have sponsored several comprehen-

Sive surveys of attorneys who have repre-

sented death row prisoners in state post-

conviction (and federal habeas corpus)

proceedings. These studies demonstrate

that due to the enormous complexity of

state post-conviction capital proceedings,

attorneys have expended huge amounts of

time and money and have become emotionally

drained. Accordingly, the ABA is con-

vinced that it is, and will continue to

be, impossible to find sufficient volun-

teer attorneys tc handle these cases on a

pro bono basis.

- 29 -

A 1987 survey for the ABA of

attorneys handling post-conviction pro-

ceedings in capital cases in 24 states

revealed that the attorney hours were

"extremely high" and the out-of-pocket

expenses for state post-conviction plus

federal habeas averaged well over

$10,000.28 In state post-conviction pro-

ceedings (encompassing trial level, state

supreme court and certiorari), the median

time for the entire sample of lawyers was

os See “Time and Expense Analysis in Post-

Conviction Death Penalty Cases" (February

1987), at 15, 20, prepared for ABA Post-

Conviction Death Penalty Representation Pro-

ject, ABA Section of Individual Rights and

Responsibilities, ABA Standing Committee on

Legal Aid and Indigent Defendants, Bar Infor-

mation Program; Data Compilation and Analysis

Performed by the Spangenberg Group, a nation-

al criminal justice research and consulting

firm. The median expenses were $4,000 for

the entire sample of lawyers and $13,556 for

those who could document their time. The

average expenses were $11,887 for the entire

sample and $20,068 for those with documenta-

tion. See id. at 20.

- 30 -

665 hours. For those who could document

their time, the median was 963 hours.?°

Many of the volunteers who re-

sponded to this ABA survey commented on

the substantial time commitments and com-

plexity involved in handling these cases.

One attorney, who has been involved in

several types of major, protracted civil

litigation, said:

No case I have ever handled

compares in complexity with my

Florida death penalty’ case.

* * * [T]here is nothing more

difficult, more time consuming,

more expensive, and more _ emo-

tionally exhausting than han-

dling a death penalty case after

conviction, 3°

Another attorney said that death penalty

litigation is unique in “every aspect of

the case: research, investigation, time,

a Id. at 13-14. Hundreds of additional hours

were found to have been spent on federal

habeas corpus proceedings. ld.

ins Id. at 22.

- 31 -

length of pleadings, etc.” and that the

"emotional costs * * * border on the imhu-

mane." 3} A third lawyer said that his

firm's great expenditures had "led to a

real opportunity to win this case,” but

added that, although he would like to take

on a similar case in the future, "I will

unfortunately be unable to do so because

of the enormous potential expenses."32 A

fourth attorney said that he had never

handled a case involving more work, and

that “despite the tremendous number of

hours expended thus far, I believe that I

easily could have productively spent at

least 50 percent more time on this matter

than the exigencies of my practice and

court schedules have allowed."33 A fifth

lawyer said he had “never seen such a

os Id. at 23.

- 32 -

logistical nightmare, in the midst of the

most difficult and -.ime consuming case

that I have handled in over 20 years of

practice,"34

In 1988, two additional studies

using virtually the same methodology as

the ABA's 1987 nationwide study focused on

North Carolina and Virginia. +6 The

Virginia results for state post-

conviction, and the comparable results

concerning median attorney hours nation-

wide, in North Carolina and in Florida

(for which figures were obtained as part

of the nationwide study), are as

o¢ Id.

ts “Time And Expense Analysis In Post-Conviction

Death Penalty Cases In North Carolina” (June

1988), sponsored by ABA Bar Information Pro-

gram; prepared for Administrative Office of

the Courts, North Carolina; prepared by the

Spangenberg Group (cited hereinafter as

“North Carolina Study").

ng Virginia Study, supra note 19.

follows:3?

7 Post- Post- Cert. Total

Conv. Conv. from State

Trial State Post- Post-

Level ~~ ¥ Conv. Conv.

Avg. Hours: Va. 633 235 124 992

Med. Hours: Va. 450 210 120 780

Med. Hours: Nat'l 400 200 65 665

Med. Hours: N.C. 482 92 38 612

Med. Hours: Fla. 500 240 77 817

The Virginia study also estimat-

ed the expenses for the first phase of

State post-conviction, i.e., the trial

level Circuit Court proceeding, but

stressed that these estimates could be too

low. The median expense was estimated at

$2500 for that phase and the average ex-

pense at $3686.38

oe See id. at 37, 39. Total State Post-

Conviction hours are the sum of the three

Other columns.

—_ See id. at 47-49.

a4 °

As in the nationwide study, the

North Carolina and Virginia studies quoted

attorneys’ descriptions of their experi-

ences in representing indigent death row

inmates in post-conviction proceedings.

Attorneys described these cases as com-

plex, exhausting, emotionally and finan-

Cially devastating and extraordinarily

time-consuming. Three typical descrip-

tions (the first two regarding North Caro-

lina, the third concerning Virginia) fol-

low:

- Post-conviction cases can have a

devastating effect on an attor-

ney both financially and emo-

tionally. It consumes’. over-

whelming amounts of time, energy

and work. * * * For example,

preparing the Motion for Appro-

priate Relief in state trial

court took two full weeks of my

time, that is, working all day,

evenings, and weekends for two

weeks on one case. The reason

it takes such a lot of time is

that you're scared to death that

if you leave out an isSte which

a federal court in another dis-

trict may decide favorably on

- 35 -

the next day, you have waived

the issue forever.* * *

+ * . x x

We are accused by judges and

prosecutors of engaging in delay

or dilatory tactics, but this is

Simply not true. They don't

understand how much time and

work it takes to locate a wit-

ness. In some cases they are

Gispersed all over the country.

They could be anywhere. Then

once you've located the witness

it can take two or three trips

to see him in order tc convince

him to answer your questions

because somebody's life is at

stake. 39

* * * * *

These are horrible cases --

thankless cases. I had no idea

how many hours I would have to

spend when I got in on the case.

There are so many needs in this

area that it is mind boggling --

money, decent library, comput-

ers, tracking, full-time attor-

neys, investigators, brief bank.

With no compensation there is no

incentive for a lawyer to take a

case. On the other hand, the

Attorney General's Office has

whatever resources it needs.

3

North Carolina Study, supra note 35, at 20-

22.

- 36 -

They will pay whatever it takes.

This is grossly unfair.#*°

It iS apparent from these vari-

Ous studies that capital post-conviction

litigation makes extraordinary demands on

counsel -- professionally, financially and

emotionally -- and that, as a result, many

attorneys are unwilling to undertake such

representation as volunteers.

But only

qualified, dedicated and properly guided

lawyers can provide death row inmates with

meaningful access to the courts. #!

Virginia Study, supra note 19, at 50.

Unfortunately, experience has shown that

“constraints of time and finances” have

caused many volunteers to do a poor job in

handling post-conviction proceedings for

death row inmates. (See Jt. App. 78.) But

where the volunteers have had enough time,

resources and guidance from attorneys with

expertise in this area of the law, they have

been able to do the serious factual and legal

research which has frequently enabled them to

demonstrate constitutional errors. (See Jt.

App. 55-60, 67, 75-78.)

2. There Are, And Will Be,

Insufficient Volunteers To

Represent Death Row Inmates

In State Post-Conviction

Proceedings

Distinguished jurists have rec-

ognized, consistent with the various stud-

ies discussed above, that volunteers will

not represent the growing numbers of death

row inmates with cases entering state

post-conviction and then federal habeas

corpus proceedings. Justice Powell has

noted that Florida began providing death

row inmates with state-funded counsel in

State post-conviction and habeas corpus

proceedings "because of the inadequacy of

using volunteer lawyers * * *,"42 Judge

Godbold has pointed out that the demands

on existing “volunteers became so heavy

and the pressure of cases so intense that

¢2 Remarks of Justice Lewis F. Powell, Jr. at

Eleventh Circuit Judicial Conference, Atlan-

ta, Ga. (May 12, 1986), at 8-9.

- 38 -

these traditional sources [of volunteers

have] seriously diminished."*3 He _ has

also summarized several important reasons

why volunteers have been increasingly

difficult to find in capital cases:

Taking a habeas death case

is not something most lawyers

want to do. In the first place,

it's hard. It is the most com-

plex area of the law I deal

with. In the second place, it's

often done on an emergency ba-

sis. Third, the death penalty

just isn't imposed on people for

trivial things. The community

is often inflamed. The press is

often inflamed. The state trial

judge is often inflamed if you

question what he did. The trial

counsel is often inflamed if you

must question what he did. Your

client seldom appreciates what

you do and may end up accusing

you of being ineffective coun-

sel. And there isn't any glory

in it.% # #4664

Thus, as the several recent

studies for the ABA and other bar and

legislative groups show:

¢3 Godbold, supra note 4, at 866.

ee 14 Human Rights (see supra note 7), at 24.

- 39 -

(T]he pool of volunteer lawyers

cannot expand rapidly enough to

meet the growing need. As all

[the] studies demonstrate, the

time and effort required for the

representation of the indigent

defendant on death row is enor-

mous, and the rewards are intan-

gible. No study can document

the emotional cost associated

with the representation of a

person whose sole lifeline may

be the volunteer attorney. Com-

ments submitted by volunteer

attorneys * * * reflect the

frustration and disenchantment

of some of these practitioners.

While a valuable asset to repre-

sentation of death row inmates,

a system of volunteer counsel

cannot be a long-term

solution. #5

D. For Meaningful Access To The

Courts, Death Row Inmates Must

Have Properly Qualified, Compensated,

Assisted And Monitored Counsel

The ABA believes there are four

essential requirements for according death

row inmates meaningful access to _ state

es Wilson and Spangenberg, State Post-Conviction

Representation Of Defendants Sentenced To

Death, (as-yet unpublished manuscript, Dec.

1988), at 19.

- 4U -

post-conviction courts. First, following

direct appeals, qualified attorneys should

be appointed to represent death row in-

mates in filing and litigating state post-

conviction petitions. Second, the attor-

neys should be fairly compensated for both

their time and their expenses, as should

investigators, expert witnesses and others

whose assistance is reasonably required

for proper representation. Third, if

these attorneys are not themselves experts

in handling state post-conviction proceed-

ings for death row inmates, they should be

provided, at government expense, with

guidance from attorneys who are experts in

this area. Fourth, those experts should

be responsible for monitoring the perfor-

mance of the appointed attorneys, to en-

sure that they undertake sufficient factu-

al investigations and appropriate legal

- 4] -

research and prepare competent pleadings

and briefs. +6

Il.

————

—_—_—_— OO OOO OO

THE COURTS

A. The Judiciary, The Bar And

Congress Have Acted To Provide

Death Row Inmates With Counsel

The judiciary, the organized bar

and Congress have all recently taken ac-

tions designed to provide death row in-

mates with competent counsel in state

post-conviction and federal habeas corpus

proceedings.

Perhaps the first federal cir-

cuit court to do so was the Eleventh Cir-

cuit, which “got involved in it because we

ran out of lawyers to file habeas peti-

$e The experts should notify the court if an

appointed attorney's work is inadequate.

- 42 -

tions in death cases in the federal sys-

tem."4? Justice Powell complimented the

Eleventh Circuit for its efforts in this

area in 1986 and stressed thet “perhaps

the most critical need is an organized

program for the representation by counsel

of death row prisoners."*®

In February 1987, the Conference

of Chief Justices, which consists of the

chief judicial officers of every state and

territory and the District of Columbia,

urged the judicial leadership in each

state having the death penalty to take

action to assure that death row inmates

receive competent legal representation in

post-conviction proceedings. The Chief

Justices resolved that each state's judi-

«7 .4 Human Rights (see supra note 7), at 23.

¢8 Remarks of Justice Powell, supra note 42, at

8.

- 43 -

cial leadership should quickly begin a

planning process involving executive and

legislative representatives, the organized

bar, and prosecutors and defense counsel

experienced in death penalty litigation

"to establish a regular process for ap-

pointing, providing expert guidance for,

and fairly compensating competent counsel

to prepare and pursue state post-

conviction petitions for all state death

row inmates wishing to pursue such reme-

dies *x* * x "as

¢9 Resolution 1X, “Representation of Death Row

Inmates In Post-Conviction Proceedings,”

adopted at the 10th Midyear Meeting of the

Conference of Chief Justices on February 5,

1987, in Gleneden Beach, Oregon (emphasis

added). The Chief Justices also proposed

that each state's judicial leadership enter

into a dialogue with representatives of the

federal courts “to assure continuity of rep-

resentation of death row inmates in state and

federal post conviction proceedings and an

equitable apportioning of the costs of such

representation between the state and federal

judicial systems.” Id.

The ABA has recognized the need

for the organized bar to play an active

role in the creation of the kind of pro-

gram which Justice Powell and the Confer-

ence of Chief Judges have advocated. Fol-

lowing a vote of its Board of Governors in

August 1986, the ABA has committed signif-

icant resources to the ABA Death Penalty

Post-Conviction Representation Project.

This project, which many sections of the

ABA co-sponsor,*>® is attempting to find

volunteers on aé_ short-run basis while

mounting "a nationwide educational cam-

aign to convince state legislatures,

courts, the Congress, bar associations and

the public generally that the long-term

ing The project is co-sponsored by the Section of

Individual Rights and Responsibilities, the

Criminal Justice Section, the Litigation

Section, the General Practice Section, the

Senior Lawyers' Division, the Young Lawvers'

Division and the Standing Committee on Legal

Aid and Indigent Defendants.

- 45 -

Systemic solution is * * * adequate state

and federal public funding for this pur-

pose."5!

The adoption of a system of

government funding is essential because

there simply are not, and will not be,

enough qualified volunteers to. handle

these cases properly. That is clear both

from the experiences of the ABA's Post-

Conviction Death Penalty Representation

Project in attempting to find volunteer

lawyers and from the ABA's studies dis-

cussed above. The ABA has found that,

notwithstanding the generosity of many

volunteer lawyers, the extraordinary bur-

densomeness and complexity of capital

post-conviction proceedings make it infea-

Sible to rely primarily on volunteers to

°s "Why Death Row Needs Lawyers," 14 =Human

Rights 27 (Winter 1987).

- 46 -

handle these cases. The ABA also believes

that the quality of post-conviction peti-

tions and supporting briefs will be en-

hanced by an organized system to provide

qualified counsel. This should benefit

the courts and the criminal justice system

generally, as well as death row inmates.

In March 1987, paragraph 2.14B

of the Guidelines for the Administration

of the Criminal Justice Act was amended to

make it easier to assure "continuity of

counsel throughout the state court and

federal habeas corpus proceedings

se 8,83 In proposing this amendment,

the Judicial Conference Committee to Im-

plement the Criminal Justice Act clearly

ti See March 24, 1987 memorandum from Adminis-

trative Office of the United States Courts to

all federal appellate and district judges,

magistrates, clerks, court executives and

federal public/community defenders, at 5;

Report of the Proceedings of the Judicial

Conference of the United States, March 17,

1987, at 38.

- 47 -

envisioned that well-qualified counsel

would represent death row inmates in state

post-conviction proceedings. > 3

Also in March 1987, the Judicial

Conference of the United States recognized

the value of such state-funded offices as

the California Appellate Project in pro-

viding assistance to appointed counsel.

The California Appellate Project provides

appointed attorneys with resource materi-

als, reviews of transcripts, ongoing con-

Sultation and comments on their draft

pleadings, and it makes recommendations to

the courts on attorneys' fees and ex-

penses.5* Relying, inter alia, on reports

from state court officials on the benefits

from using organizations such as the Cali-

33 See March 24, 1987 memorandum, Supra note 52,

at 5.

Letter from Michael Millman to Gail Lambert

of Washington and Lee Law School (March 19,

1987), at 2.

- 48 -

fornia Appellate Project, the Judicial

Conference Committee to Implement’ the

Criminal Justice Act successfully

proposed** an amendment to the Guidelines

for the Administration of the Criminal

Justice Act, which now provide:

Where necessary for adequate

representation, subsection (e)

of the Criminal Justice Act

authorizes the reasonable em-

ployment and compensation of

public and private organizations

(such as the Florida Capital

Collateral Representative and

the California Appellate Pro-

ject) which provide consulting

services to appointed and Pro

bono lawyers in capital federa

habeas corpus cases in_- such

areas as records completion,

exhaustion of state remedies,

identification of issues, review

of draft pleadings and briefs,

etc.>°

3% March 24, 1987 Administrative Office memoran-

dum, supra note 52, at 6-7.

36 See id. at 7, quoting paragraph 3.16 of the

Guidelines for the Administration of the

Criminal Justice Act; Report of the Proceed~

ings of the Judicial Conference of the United

States, March 17, 1987, at 38.

- 49 -

AS mentioned above, the ABA in

February 1988 urged the federal courts to

approve plans for appointing trained,

experienced and pre-screened attorneys to

represent death row inmates in federal

habeas corpus proceedings. The ABA said

that under such plans, the attorneys

should be (a) properly compensated, (b)

provided with investigative, expert and

other services and (c) advised by state

and regional resource centers. The ABA

also urged the federal courts "to consult

extensively with appropriate state crimi-

nal justice leaders to ensure the maximum

extent of coordination and consistency” in

the provision of counsel to death row

inmates in state and federal post-

conviction proceedings.’

adied Resolution 125, approved by ABA House of

Delegates at 1988 Midyear Meeting, at 3.

- 50 -

In September 1988, the Judicial

Conference of the United States urged

federal judges, districts and circuits to

take essentially the same actions as the

ABA had urged in its February 1988 resolu-

tion.>&

Meanwhile, the ABA and the fed-

eral courts were working to encourage the

creation of resource centers that, if

funded with both state and federal funds,

would provide expert legal consulting

services to counsel representing death row

inmates in state post-conviction and fed-

eral habeas corpus proceedings. In June

1988, the ABA's’ Post-Conviction Death

Penalty Representation Project, in con-

junction with the Administrative Office of

the United States Courts, held a planning

os See Paragraph 2.01G to the Guidelines for the

Administration of the Criminal Justice Act,

18 U.S.C. § 3006A.

conference to encourage applications for

the funding of such centers.*?®

Resource centers in eight states

hed received federal funding by autumn

1988. Thereafter, Congress enacted the

Anti-Drug Abuse Act of 1988, which provid-

ed federal funding for resource centers in

five additional states.*°

Congress took another important

action in passing the Anti-Drug Abuse Act.

It mandated, inter alia, that any indigent

State prisoner under sentence of death

"shall be entitled to the appointment of

one or more” experienced attorneys and,

when reasonably necessary, with “investi-

gative, expert or other services” for

ss

See Wilson and Spangenberg, supra note 45, at

6.

*’ See id.; Pub. L. No. 100-690, 102 Stat. 4181,

Title X, c.1l, reprinted in 134 Cong. Rec. H

11,216 (Daily Ed. Oct. 2], 1988).

- 52 -

federal habeas corpus proceedings under 28

U.S.C. § 2254 and any subsequent post-

conviction and clemency proceedings. ®'

The statutory policy of this

provision of the Anti-Drug Abuse Act will

be frustrated if death row inmates lack

qualified counsel in state post-conviction

proceedings. Exhaustion of federal con-

stitutional claims in state courts is a

prerequisite to federal habeas corpus

review, but without competent counsel in

State post-conviction proceedings, death

row inmates will frequently fail to raise

meritorious claims in state court.®*?

Thus, in order to effectuate Congress'

legislative intent, competent counsel must

ee See Pub. L. No. 100-690, 102 Stat. 4181, Tit.

VII, Sec. 700l1(b), to be codified at 21

U.S.C. § 848 iq) (4)-(10), reprinted in 44

Crim. L. Rep. (BNA) 3001, 3018-19 (Nov. 2,

1988).

$3 See discussion at pages 13-28, supra.

- 53 -

be provided to death row inmates in their

state post-conviction proceedings.

B. Virginia Is Virtually Unique

In Failing To Move Towards Pro-

viding Death Row Inmates With

Meaningful Access To The Courts

The most recent ABA-sponsored

study indicates that Virginia is virtually

unique in failing to move towards provid-

ing death row inmates with meaningful

access to state post-conviction courts.

While many other states have not yet suc-

ceeded in providing meaningful access in

such proceedings, almost all of them --

unlike Virginia -- are moving towards

doing so.

Of the thirty states in which

death penalty cases have been the subject

of state post-conviction proceedings,

fourteen provide primary representation

"either by a statewide public defender

appellate unit or an independent state

appellate program.” In eight states,

- 54 -

"local trial public defenders or contract

programs" are the primary source for rep-

resentation. Virginia is one of only

seven states which use volunteer lawyers

as a primary source of representation. ®:

Five of those seven states (Alabama, Geor-

gia, Louisiana, Mississippi and Texas)

"have begun operation of resource centers

with a combination of federal, state and

private funds."** These resource centers

will endeavor to find counsel to represent

death row inmates in state post-conviction

proceedings and may, in a few instances,

provide such representation themselves. ®>*

Of the other two states -- Vir-

ginia and Arkansas -- Arkansas has not

$3 Wilson and Spangenberg, supra note 45, at 10-

12, 19 and Table 2.

oe Virginia Study, supra note 19, at 70.

adi See id.; Wilson and Spangenberg, supra note

at

13.

- §55 -

executed anyone since before Furman v.

Georgia, 408 U.S. 238 (1972). Virginia,

however, has carried out seven post-Furman

executions.** Thus, Virginia is the only

-State which primarily relies on volunteer

lawyers, has no resource center, and has

nevertheless been executing death row

inmates.

The ABA has also recently exam-

ined “the practice of providing counsel

before the filing of a state post-

conviction petition in capital cases."*’

The study found that of the thirty states

where death row inmates have had state

post-conviction proceedings, seventeen

"provide counsel pre-petition in all cases

adi See NAACP Legal Defense and Educationai Fund,

Inc., Death Row, U.S.A. (Dec. 20, 1988),

at 3.

adi See Wilson and Spangenberg, supra note 45,

at 12.

- 56 -

either through the requirements of state

law or as a matter of practice."** Six

additional states provide counsel pre-

petition “in ‘most cases’ or ‘'frequent-

ly.'"**% Information was not yet available

on Utah, Arkansas and Texas, but Texas

does have a resource center which will

presumably endeavor to find counsel pre-

petition.’® Only four states -- Pennsyl-

vania, Nebraska, Nevada and Virginia --

were reported not to have any system "to

assure provision of counsel prior to the

filing of @ post-conviction petition.”’!

Of those four states, only Vir-

ginia has carried out involuntary execu-

ied Id.

o9 id. at 12-13

ve See id. at 13

"s Id.

- 5] -

tions after Furman.’? Indeed, since Fur-

man, it has executed more death row in-

mates than all but four other states.’

In the two states for which there is no

information and which do not have resource

centers, there has been only one involun-

tary execution (in Utah).’*

Hence, Virginia is the only

state to have involuntarily executed death

row inmates which has no system to assure

the provision of counsel prior to the

filing of state post-conviction petitions

in capital cases.

v6 See NAACP Legal Defense and Educational Fund,

Inc., Death Row, U.S.A. (Dec. 20, 19886),

at 3. Nevada has executed two inmates who

voluntarily gave up appeals. Id.

7c See id.

ve See id. Utah has also executed two inmates

who voluntarily gave up appeals. Id.

- 58 -

CONCLUSION

Meaningful access to a state

post-conviction court in 4 Capital case

requires the provision of capable and

properly compensated counsel prior to the

filing of the post-conviction petition.

Dated: January 13, 1989

Respectfully submitted,

ROBERT D. RAVEN

President

American Bar Association

750 N. Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorney for the

American Bar

Association AS

Amicus Curiae And

Counsel of Record

RONALD J. TABAK

GEORGE H. KENDALL

SARA-ANN DETERMAN

CLIFFORD STROMBERG

Of Counsel

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