Amicus Curiae Brief — Murray v. Giarratano

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x ~ No. 88-411

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

EDWARD W. MURRAY, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS, et. al.,

Petitioners,

-V.-

JOSEPH M. GIARRATANO, et. al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF THE MARYLAND STATE BAR ASSOCIATION,

STATE BAR OF MICHIGAN, NORTH CAROLINA STATE

BAR, SOUTH CAROLINA BAR ASSOCIATION,

WEST VIRGINIA STATE BAR AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JOHN E. JOHNSTON

PRESIDENT

SOUTH CAROLINA BAR

P.O. Box 608

Columbia, SC 29202

(803) 799-6653

*JOHN H. BLUME

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

ATTORNEYS FOR AMICI

CURIAE

*Counsel of Record

No. 88-411

—EEEEE—E——E——————————

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

MOTION BY THE MARYLAND STATE BAR

ASSOCIATION, STATE BAR OF MICHIGAN,

NORTH CAROLINA STATE BAR, SOUTH

CAROLINA BAR ASSOCIATION, WEST

VIRGINIA STATE BAR FOR LEAVE TO

FILE A BRIEF AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

—_ Se

Pursuant to Supreme Court Rule 36.3,

the South Carolina Bar Association, the

Maryland State Bar, the State Bar of

Michigan, the North Carolina State Bar and

the West Virginina State Bar move for

leave to file the brief submitted herewith

as amici curiae. Counsel for the

Respondents have consented to the filing

of the brief, but counsel for petitioners

would not so consent.

The South Carolina Bar is an

orga»ization which consists of all persons

licensed to practice law in the state of

South Carolina. Currently, the South

Carolina Bar has approximately six

thousand, six hundred and fifty members.

Among the South Carolina Bar’s (the "Bar")

stated objectives is applying the

knowledge, experience, and ability of the

legal profession to the promotion of the

public good. Consequently, the Bar is

concerned that all indigent defendants,

and especially all indigent inmates on

death row in South Carolina, have

meaningful access to the court system. It

is the experience of the members of the

South Carolina Bar that this access can

only be realized if indigent persons are

provided with appointed counsel.

The South Carolina Bar does not

believe that relying on volunteers and pro

bono assistance provides adequate

protection for those whose lives hang in

the balance. For this reason, the state

has taken measures to assist death row

inmates in their post-conviction

proceedings. South Carolina recently

created the South Carolina Death Penalty

Resource Center (the "Center"). The

purpose of the Resource Center is to

assist appointed counsel in the

representation of indigent death row

inmates. The creation of the Center is a

realization that due to the complexity of

capital litigation, even attorneys need

the assistance of persons experienced in

this area of the law.

The North Carolina State Bar is an

organization which consists of all persons

licensed to practice law in the state of

North Carolina. Currently, the North

Carolina State Bar has approximately

eleven thousand, five hundred and seventy

nine members. Among the North Carolina

Bar’s (the "State Bar") stated objectives

is applying the knowledge, experience, and

ability of the legal profession to the

promotion of the public good.

Consequently, the State Bar is concerned

that all indigent defendants, and

especially all indigent inmates on death

row in North Carolina, have meaningful

access to the court system. It is the

experience of the members of the North

Carolina State Bar that this access can

only be realized if indigent persons are

provided with appointed counsel. To

assist death row inmates in their post-

conviction proceedings, North Carolina has

created the North Carolina Death Penalty

Resource Center. The purpose of the

Resource Center is to assist appointed

counsel in the representation of indigent

death row inmates.

The Maryland State Bar Association,

Inc., is a voluntary professional

association which consists of 13,859

member attorneys. Among the purposes of

the Maryland State Bar Association, Inc.,

are to advance the science of

jurisprudence, to promote reform in the

law, and to facilitate the administration

of justice.

The State Bar of Michigan is the

association of all licensed lawyers

engaged in the practice of law or the

administration of justice. It currently

has nearly 27,000 active members. Its

responsibilities as defined by the

Michigan Supreme Court Rules concerning

the State Bar of Michigan include the

promotion of improvements of the

administration of justice and advancements

in jurisprudence. Although this state has

never authorized the death penalty in

state proceedings, Michigan lawyers as

citizens and as members of the legal

profession are committed to furthering the

fair administration of the death penalty

in those states which authorize it in

order to prepare themselves for

participation in the debate which occurs

from time to time as to whether the

Michigan death penalty prohibition should

be rescinded. Michigan lawyers have also

volunteered to represent death row inmates

in post-conviction proceedings when it has

not been possible to secure the number of

counsel needed from among the members of

the bar of the particular state.

Recent amendments to federal law

pertaining to the sale and distribution of

controlled substances authorizing the

death penalty have now made that ultimate

penalty a reality in our state.

Consequently, the bar of Michigan will be

directly involved in issues relating to

the fair administration of justice in

death penalty cases, including the

question presented in this case of the

right of those who cannot afford to pay

for their attorney to have counsel

appointed for them.

The West Virginia State Bar is an

integrated bar with approximately 4,200

members. According to the Constitution of

The West Virginia State Bar, "the objects

of the public; to advance the

administration of justice and the science

of jurisprudence; to improve the relations

between the public and the bench and the

bar; to uphold and elevate the standards

of honor, integrity, competency and

courtesy in the legal profession; and to

encourage relations among its members."

The above Bar Associations have a

particular interest in the appointment of

counsel to represent death sentenced

inmates in state and federal post-

conviction proceedings due to the

compelling interest of all of society in

the highest degree of reliability in the

imposition of the death sentence. All

legal work is complex and difficult, but

due to the unique and irrevocable nature

of capital punishment, we should be sure

that no individual is executed until

competent counsel have presented all

available grounds for relief to the state

and federal courts.

For all these reasons, the South

Carolina Bar Association, the Maryland

State Bar, the State Bar of Michigan, the

North Carolina State Bar, and the West

Virginia State Bar believe that the filing

of this amici curiae brief is desirable

because it presents to the Court

significant information about the context

in which this case has arisen. The brief

is an amici curiae brief in the truest

sense. It provides the Court with a

unique perspective which differs from

those of the parties and wili

substantially assist this Court by

providing it with a different and

important perspective from which to

evaluate the facts of this case. With

that perspective, the Court will be in a

better position to evaluate the particular

facts about Virginia and the detailed

legal arguments which the parties are

presenting in their briefs.

Accordingly, the South Carolina Bar,

the Maryland State Bar, the State Bar of TABLE OF CONTENTS

Michigan, the North Carolina State Bar, | Page

and the West Virginia State Bar MOTION TO FILE A BRIEF AS AMICI

respectfully request the Court to grant Gmias

this motion for leave to file an amici “EE wmueeseese est :

curiae brief. TABLE OF AUTHORITIES. .....+.+ ++ iii

— STATEMENT OF INTEREST

pectfully submitted, OF AMICUS CURIAE .....+.+-.-s. 1

John H. Blume

P.O. Box 11311 SUMMARY OF ARGUMENT ......+.-.-: 7

ia, SC 29211

(803) 765-0650 pS, a a a ee ee ee 9

yea of Record I. INDIGENT —— ROW ay

or Amici Curiae ACCESS TO THE COURTS WITHOUT

THE ASSISTANCE OF COUNSEL. ... 9

January 13, 1989 A This Court held in Bounds

that prisoners

are entitled to meaningful

access to the courts... . 9

B. Because the majority of death

row inmates are either

totally or functionally

illiterate, mentally retarded

or mentally ill, they are

unable to achieve meaningful

access to the courts without

the assistance of counsel . 15

1. Illiteracy .... 16

2. Mental Retardation 18

:

.

.

:

:

3. Mental Illness .. 20

6. Even death row inmates that

-10- ,

have sufficient mental

capabilities are not able

to adequately represent

themselves in collateral

proceedings .....

1. Complexity. ..

2. Limited access to

law library...

3. The need for factual

investigation ..

4. The State is

represented by

22

22

24

25

experienced counsel. 29

Recent judicial and

legislative actions

demonstrate the realization

that even attorneys appointed

to represent indigent death

sentenced inmates need

assistance from persons

experienced in capital

litigation to adequately

represent these persons .

Volunteer counsel cannot

be relied upon to provide

indigent death sentenced

inmates with meaningful

access to the courts.

CONCLUSION.

» 44 «

30

35

38

(1965).

(1988). ..

(1967). . .

(11th Cir.

S.Ct. 2382,

(1980). .

817 (1977).

(1987).

Cir. 1980).

S.E.2d 647

399 (1986).

(4th Cir. 1

TABLE OF AUTHORITIES

; PAGE

, 470 U.S. 68

> >. >. >. >. > >. >. >. > > > * 14

108 S.Ct. 1771

Twi p ie.

, 386 U.S. 738

> >. > >. >. >. > >. * > >. . 12

, 833 F.2d 1430

1987). . . . . . . . . 28

, 447 U.S. 625, 100

2389, 65 L.Ed.2d 392 ”

Booth v. Maryland, U.S. ,

107 S.Ct. 2529 (1987) .... 14

, 430 U.S.

“ae wey SS Sa

, 479 U.S. 538

1 ee ee 14

, 627 F.2d 710 (5th 7

, 258 Ga. 527, 371

(1988) ane. ¢ 25

, 477 U.S.

“eae are . 15, 20, 21

, 847 F.2d 1118

988) ee a oe ae 13

, 428 U.S. 153

; oS 6 we . 22

(1976)...

- 411 -

Hyman v. Aiken, 824 F.2d 1405 (1987).

vobngon_y._Avery, aoe U.S. ss

(1969). .

, 655 F.Supp. 871

(W.D. Mich. 1987) . . . . . . .

, 858 F.2d 945

McDowell v. Dixon

(4th Cir. 1988) .

Murray v. Carrier, 477 U.S. 527

Sus == 6s =e 6 & « i a

, U.S

1990 (1987) .

, 832 F.24 915,

cert. granted Sth Cir. —

_.» 108 S.Ct. 2896 (1988) .

skipper v. South Carolina, 476

(1986). ma

ey 107 s§.ct.

, 852 F.2d 740

(4th Cir. 1988) b* Ow 6-0) B

, 849 F.2d 481 (11th

Cir. 1988). be2 6. & S-BCh 6 fea-<

, 650 F.2a 951

1988)...

Woodson x. Marth carolina, 42

280 (1976). dsenss

(3rd Cir.

STATUTES, GUIDELINES AND _AMENDMENTS

-

22 U.S.C.A. 3006A(d) and (e) (1987)

42 U.S.C. §1983 .

- iv «

1987 U.S.

17

>. 11

- 2S

- 23

’

1

13

-18

- 26

. 27

- 18

» 1

. 14

. 35

ee

|

|

Criminal Justice Act Guidelines,

peregraph 3.16. ... +. ++ 2e+2ees ST

H.R. 5210, 100th Cong., 2d Sess.

134 Cong. Rec, H 11, 110, H 11,173

CVGuwpe © eo 6 os — a

Eighth Amendment. ......++ ++ 23

Fourteenth Amendment. ........ 9

ARTICLES AND BOOKS

Blume, Representing the Mentally

Retarded Defendant, The Champion

31 (October 1987) .......+ . 18, 19

Cowden, South Carolina Indigent

Relief, Report prepared for the

South Carolina Law Institute

(September 1988). .... Sco e cece a

Ellis & Luckasson, Mentally

a eita (ites). . . 19

Godbold,

Death Sentenced Inmates, The Record

of the Association of the Bar of the

City of New York 859 (1987) .... . 23

R. Johnson, Condemned to Die (1981) . 22

Lewis, Pincus, Feldman, Jackson &

Bard, Psychiatric, Neurological

and Psychoeducational Characteristics

of 15 Death Row Inmates in the

, 143 Am. J. Psychiatry

838 (1986) .20

Lewis, Pincus, Bard, Richardson,

Feldman, Prichep & Yeager,

atric, Psychoeducational

Wilson and Spangenberg, State

Post-Conviction Representation

and Family Characteristics of 14 ’

Suventhes Guabeneat to Death in the (forthcoming February -

United States" (paper presented to = 29s B+ © 6 ¢ 6 «© «© © © ec s

American Academy of Child and

Adult Psychiatry, Oct. 1987). .... 20

Marcus, .

5 ete Ae el aD aa ae

Fuels Death-Penalty Debate, Wash.

Post, June 22, 1987, at Al, col. 1. . 20

Mello, Facing Death Alone:

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

Rev. 513 (1988) ....... 4.4. 197, 28

Mickenberg, Competency to Stand |

Trial and the Mentally Retarded

Defendant: The Need for a

Multi-Disciplinary Solution to

a Multi-Disciplinary Problem

Cal. W. L. Rev. 365 (1981).

, 17 | .

Sian a tee

Report prepared for the American

Bar Association by the Spangenberg

Group, “Time and Expense Analysis

in Post-Conviction Death Penalty

Cases,” February 1987 ........ 23

Summary Report of the United States

Judicial Conference Committee to

Agenda Item G-11, Criminal Justice

CO. eee eee ee eee

"You Don’t Have to Be a Bleeding

Heart,” Mikva and Godbold, 14

Human Rights, 22 (Winter 1987) ... .30

-e-e - vii -

STATEMENT OF INTEREST OF AMICI CURIAE

The South Carolina Bar is an

organization which consists of all persons

licensed to practice law in the state of

South Carolina. Currently, the South

Carolina Bar has approximately six thousand,

six hundred and fifty members. Among the

South Carolina Bar’s (the "Bar") stated

objectives is applying the knowledge,

experience, and ability of the legal

profession to the promotion of the public

good. Consequently, the Bar is concerned

that all indigent defendants, and especially

all indigent inmates on death row in South

Carolina, have meaningful access to the

court system. It is the experience of the

members of the South Carolina Bar that this

access can only be realized if indigent

persons are provided with appointed counsel.

The South Carolina Bar does not believe

that relying on volunteers and pro bono

assistance provides adequate protection for

those whose lives hang in the balance. For

this reason, the state has taken measures to

assist death row inmates in their post-

conviction proceedings. South Carolina

recently created the South Carolina Death

Penalty Resource Center (the "Center"). The

purpose of the Resource Center is to assist

appointed counsel in the representation of

indigent death row inmates. The creation

of the Center is a realization that due to

the complexity of capital litigation, even

attorneys need the assistance of persons

experienced in this area of the law.

The North Carolina State Bar is an

organization which consists of all persons

licensed to practice law in the state of

North Carolina.

Currently, the North

Carolina State Bar has approximately eleven

thousand, five hundred and seventy nine

members. Among the North Carolina Bar’s

(the "State Bar") stated objectives is

applying the knowledge, experience, and

2 Be

ability of the legal profession to the

promotion of the public good. Consequently,

the State Bar is concerned that all indigent

defendants,

inmates on death row in North Carolina, have

and especially all indigent

meaningful access to the court system. It

is the experience of the members of the

North Carolina State Bar that this access

can only be realized if indigent persons are

provided with appointed counsel. To assist

death row inmates in their post-conviction

proceedings, North Carolina has created the

Death Penalty Resource

North Carolina

Center. The purpose of the Resource Center

is to assist appointed counsel in the

representation of indigent death row

inmates.

The Maryland State Bar Association,

Inc., is a voluntary professional

association which consists of 13,859 member

attorneys. Among the purposes of the

Maryland State Bar Association, Inc., are to

F

advance the science of jurisprudence, to

promote reform in the law, and to facilitate

the administration of justice.

The State Bar of Michigan is the

association of all licensed lawyers engaged

in the practice of law or the administration

of justice. It currently has nearly 27,000

active members. Its responsibilities as

defined by the Michigan Supreme Court Rules

concerning the State Bar of Michigan include

the promotion of improvements of the

administration of justice and advancements

in jurisprudence. Although this state has

never authorized the death penalty in state

proceedings, Michigan lawyers as citizens

and as members of the legal profession are

committed to furthering the fair

administration of the death penalty in those

states which authorize it in order to

prepare themselves for participation in the

debate which occurs from time to time as to

whether the Michigan death penalty

ee oe

ee OME cee Man we wetoete e

_— ee ee

.

prohibition should be rescinded. Michigan

lawyers have also volunteered to represent

death row inmates in

proceedings when it has not been possible to

post-conviction

secure the number of counsel needed from

among the members of the bar of the

particular state.

Recent amendments to federal law

pertaining to the sale and distribution of

controlled substances authorizing the death

penalty have now made that ultimate penalty

Consequently, the

bar of Michigan will be directly involved in

a reality in our state.

issues relating to the fair administration

of justice in death penalty cases, including

the question presented in this case of the

right of those who cannot afford to pay for

their attorney to have counsel appointed for

them.

The West Virginia State Bar is an

integrated bar with approximately 4,200

members. According to the Constitution of

The West Virginia State Bar, “the objects of

the public; to advance the administration of

justice and the science of jurisprudence; to

improve the relations between the public and

the bench and the bar; to uphold and elevate

the standards of honor,

competency and courtesy in

integrity,

the legal

profession; and to encourage relations among

its members."

The above Bar Associations have a

particular interest in the appointment of

counsel to represent death sentenced inmates

in state and federal

post-conviction

proceedings due to the compelling interest

of all of society in the highest degree of

reliability in the imposition of the death

sentence. All legal work is complex and

difficult, but due to the unique and

irrevocable nature of capital punishment, we

should be sure that no individual is

executed until

competent counsel have

presented all available grounds for relief

to the state and federal courts.

For all these reasons, the South

Carolina Bar Association, the Maryland State

the State Bar of Michigan, the North -

and the West Virginia

Bar,

Carolina State Bar,

State Bar are very interested in this case,

which will address whether indigent death

sentenced prisoners may secure meaningful

access to the courts without the assistance

of appointed counsel in capital collateral

proceedings.

SUMMARY OF ARGUMENT

This case presents the question whether

inmates are

indigent death sentenced

entitled to court-appointed counsel in state

post-conviction proceedings. Basej upon the

experience of the South Carolina Bar, the

only way to provide meaningful access to the

courts to indigent individuals on death row

is through the appointment of counsel. Many

of these individuals are illiterate, some

are mentally retarded, others are--to one

degree or another--mentally ill, and thus

unable to represent themselves. Any lay

person, however, especially one confined in

@ small cell without financial resources, is

unable, due both to the complexity of the

law involved in capital litigation as well

as the need for intensive factual

investigation, to achieve meaningful access

to the courts without the assistance of

counsel. Therefore, based upon the

experience of the Bar, as well as this

Court’s prior decisions guaranteeing an

inmate the right of access to the courts,

amicus contends that the United States Court

of Appeals for the Fourth Circuit correctly

decided that there exists a constitutional

right to counsel for indigent death

sentenced inmates in state post-conviction

proceedings.

This Court held in Bounds v. Smith,

430 U.S. 817, 828 (1977), that inmates have

a “fundamental constitutional right of

Bounds was an

action, brought pursuant to 42 U.S.C.

§1983, by prison inmates in North Carolina.

access to the courts.”

These prisoners sought legal research

facilities to assist them in filing habeas

corpus petitions and section 1983 claims,

and alleged that North Carolina, by failing

to provide such facilities, denied them

access to the courts in violation of the

fourteenth amendment.

This Court agreed, holding that prison

authorities are required “to assist inmates

in the preparation and filing of meaningful

legal papers" by providing prisoners with

either adequate law libraries or assistance

from legally trained personnel. Bounds,

Supra, 430 U.S. at 6828. Rejecting the

argument that states could not be obligated

to expend funds to effectuate such a right,

the Court noted that its previous decisions

“have consistently required states to

shoulder affirmative obligations to assure

all prisoners meaningful access to the

courts." Jd.

This Court emphasized in Bounds that

mere “access to the courts” is not enough.

Rather access must be “adequate, effective,

and meaningful," and it must extend to “all

prisoners." id. at 622, 824. Indeed,

Bounds, specifically distinguished "the

access rights of ignorant and illiterate

inmates... unable to present their own

claims in writing to the courts’ from those

of “inmates able to present their own

cases." Jd. at 823-24. As an example,

e 90 «

this Court noted that for illiterate

inmates, a law library alone is not enough

-- meaningful access “required at least

allowing assistance from their literate

fellows." Id, (emphasis added).

Subsequent to Bounds, courts have

recognized that there are classes of

inmates whose special circumstances require

that they receive more than the minimum

assistance permitted by Bounds--a law

library--in order to achieve meaningful

access. See, ¢.c9., Crug vy. Hauck, 627 F.2d

710, 721 (Sth Cir. 1980) (holding that

"“(llibrary books, even if ‘adequate’ in

number, cannot provide access to the courts

for those persons who do not speak English

or who are illiterate"); Valentine vy.

Beyer, 850 F.2d 951, 956-5 (3rd Cir. 1988)

(recognizing the special needs of closed

custody, illiterate, and non-English

speaking inmates); Knop vy. Johnson, 655

F.Supp. 871, 882 (W.D. Mich. 1987) ("A

- 1 -

court, rather, must measure the adequacy of

Gefendants’ system of legal access by the

inmates’ ability to gain access to the

courts through that system. In this case,

plaintiffs {illiterate inmates) have

established a credible claim that they are

not able to gain adequate, effective, and

meaningful access to the courts through

defendants’ system.").'

‘Petitioners contend that

Pennsylvania v. Finley, _-U.S

107 S.Ct. 1990 (1987), has resolved the

constitutional question presented in this

case. In Finley, as the Fourth Circuit

recognized, this Court held that the

procedural tramework of Anders ».

California, 386 U.S. 738 (1967), did not

appiy to attorneys seeking to be relieved

in state post-conviction matters. 847

F.2d at 1121. In doing so, this Court

determined that, in general, there was no

constitutional right to counsel” for

post-conviction proceed

1993. ings. 107 S.ct. at

remedial order providing represen

creating a new right to ——=e -

Virginia and other states can similarly

oppose--no matter what the facts--every

-~ 122 -

This Court has never addressed the

question whether indigent persons under

sentence of death are a class of persons

entitled to more than minimum assistance--

access to a law library--mandated by

Bounds. A majority of the en banc court of

appeals in this case determined that they

were. Giarratano v. Murray, 847 F.2d 1118,

potential judicial determination that such

relief might be warranted. As an example

of such a remedial order, the Fourth

Circuit found, in a later proceeding in

Bounds itself, that North Carolina had

in “a decade-old pattern of

neglect and delay" to ignore or circumvent

this Court’s 1977 decision. 813

F.2d 1299, 1304-05 (5th Cir. 1987),

opinion adopted en banc, 841 F.2d 77 (4th

Cir. 1988). Because North Carolina had

failed to provide meaningful access

through adequate law libraries, the

Eastern District of North Carolina ordered

the remedy of providing North Carolina’s

prisoners with a prison legal services

program. In affirming the decision of the

district court, the Fourth Circuit

certainly did not address whether Finley

divested federal courts of their powers to

fashion such relief. Conversely, this

Court did not mention in its Finley

decision. Had this Court intended Finley

to have the far-ranging preclusiveness

Petitioners now urge, the Court would have

had to modify its decision in Bounds.

e 9 «

1122 (4th Cir. 1988). This recognition by

the Fourth Circuit was well grounded in the

prior decisions of this Court, which have

consistently underscored the "significant

constitutional difference between the death

penalty and lesser punishments." See,

©.9., Beck v,. Alabama, 447 U.S. 625, 637,

100 S.Ct. 2382, 2389, 65 L.Ed.2da 392

(1980); gee also Booth vy. Maryland

U.S. , 107 S.Ct. 2529 (1987) ("death is

a punishment different from all other

sanctions."). This difference, of course,

results from the unique and irrevocable

nature of capital punishment. Ake yv.

Oklahoma, 470 U.S. 68, 87 (1985). Because

of the finality inherent in sentencing a

person to death, this Court has maintained

a commitment to the "'need for reliability

in the determination that death is the

appropriate punishment in a _é specific

case.’" California vy. Brown, 479 U.S. 538,

543 (1987) (guoting Woodson vy. North

- 14 -

Carolina, 428 U.S. 280, 305 ((1976)). In

addition, this Court has recognized that

matters affecting an already condemned

prisoner call for "no less stringent

standards than those demanded in any other

aspect of a capital proceeding.” Ford v.

Wainwright, 477 U.S. 399, 407 (1986).

For reasons that will be set forth in

more detail below, indigent death sentenced

inmates cannot achieve meaningful access to

the courts without’ the assistance of

counsel.

There are a number of practical reasons

why death row inmates are not able to

- represent themselves in post-conviction

proceedings, even if they were provided

oe 1 «

unlimited access to adequate law libraries.

1. Illiteracy

Many inmates are totally or

functionally illiterate. In the South

Carolina prison system, for example,

seventy-five per cent of the inmates read

below the sixth grade level.* The figures

for prison systems in other states are

3

similar. There is no reason to believe

that death row inmates are any brighter than

those in the general prison population.

Thus it no exaggeration to Say that the

majority of death row inmates are totally or

functionally illiterate and thus unable to

2

Statistics provided by Meryl

Brigman, Department of Education of the

South Carolina Department of Corrections.

3

In North Carolina, approxima

seventy percent of the seumbes ny Ae

below the fifth grade level. In Maryland

ninety-two percent of the incoming inmates

read below the eighth grade level.

(Statistice provided b

y Maryland and

Carolina Department of Corrections. ) pon

e 9% «

review their transcripts for possible

issues, to do legal research, prepare

pleadings or take other steps to represent

themselves.‘ This Court itself has

previously realized that "Jails and

penitentiaries include among their inmates

a high percentage of persons who are totally

or functionally illiterate, whose

educational attainments are slight, and

whose intelligence is limited."® It should

“Intelligence and educational levels

among prisoners as a group are very low.

A 1968 study of federal and state prisons

found that in most states the average

prisoner had only eight years of

education. In states with large death row

populations, the figures were even more

troubling: 40% of Florida inmates

completed less than nine years of

education; Louisiana inmates averaged six

years of schooling; and Texas inmates had

an average educational level of 5.1 years.

In 1982 a federal district court,

following extensive evidentiary hearings,

found that more than half of Florida’s

inmates were functionally illiterate. See

Mello,

37 Am.U.L.Rev. 513 (1988).

‘Johnson v. Avery, 393 U.S. 483, 487

(1969).

- W-

come as no surprise that death row does as

well.

2. Mental Retardation

Additionally, there are a number of

mentally retarded inmates on death row in

the country.

(October 1987); see also Penry v. Lynaugh

832 F.2d 915, cert. granted 5th Cir. 1987

108 2896 (1988).

Obviously, an individual that is mentally

U.S. ’

§.ct.

retarded is unable to review the record of

his trial, identify any available grounds

for collateral relief, do even rudimentary

legal research or draft basic pleadings for

post-conviction proceedings.

Kemp,

See Smith vy.

(llth Cir. 1988)

(mentally retarded person sentenced to death

849 F.2d 481

in Georgia did not understand Miranda

warnings).

The mentally retarded prisoner is

—

usually not even capable, of assisting his

attorney(s) in conducting post-conviction

litigation, much less representing himself .°

In many instances these persons are unable

to recall details about the events of the

or details about past and

crime, their

background. their educational events.

These inabilities prevent a retarded person

from explaining to his attorney his role, if

any, in crime or the events surrounding his

trial. one retarded person

For example,

sentenced to death in South Carolina, after

a motion to vacate his death sentence was

denied by a state trial judge, answered in

*see generally Ellis & Luckasson,

Mentally Retarded Criminal Defendants, 53

Geo. Wash. L. Rev. 414, 479-84 (1985)

(describing difficulties facing mentally

retarded defendants at trial); Biume,

Mickenberg, Competency to Stand

Trial and the Mentally Retarded Defendant:

The Need for a Multi-Disciplinary Solution

- » 17 Cal.

W. L. Rev. 365, 387-401 (1981)

(enumerating essential mental abilities

for any defendant to stand trial and

noting mentally retarded defendant's

inability to reach these capacities).

- 19 -

response to his attorney’s question about |

-

how he felt, "I ain’t too sure -.-I feel

good anyway ...I got a new trial."’

3. Mental Illness

Further, many death row inmates suffer

from a variety of mental ilinesses.®

See

generally, Ford v. Wainwright, 477 U.S. 399

"Marcus, ,

-_ 7

June 32, 1987, at Alvan 1. Wie snk

of understanding of the proceedings was

further revealed during an interview

Arthur was asked what it would mean if he

were executed. He answered: "What

happens? That’s a tough one. For one

thing, that learning what I just learned

what I learned in [the penitentiary) that

would amount to nothing . - and my GED

[high school equivalency degree], I

wouldn’ .

=m... t see no GED. I wouldn’t get my |

ee =

seve, ee Pincus, Feldman, Jackson &

143 Am. J. Psychiatr é

. y 838, 840-44 (1986):

ae Pincus, Bard, Richardson, Bs mod dy

richep & Yeager, “Neuropsychiatric

rt br ae pep and Family :

aracteristics of 14 Juveniles c

to Death in the United States" —

presented to American Acad

Adult Psychiatry, Oct. 1987). ee ane

- 20 -

(1986). While the severity of the mental

illness varies among individual inmates, a

person that is sick cannot be expected to

reliably represent themselves in post-

conviction proceedings. While many of these

inmates were mentally ill prior to being

condemned, others became that way while on

Ford v. Wainwright.

mental disorders can directly affect an

death row. These

inmate’s ability to proceed pro se. For

example, it has been found that death row

inmates minimize the gravity of their legal

situation as a psychological defense

mechanism. ° Another study has found in

condemned prisoners a pattern of shock,

coupled with "a

denial, and depression,

fatalistic belief that the person is a pawn

in the process that will coldly and

*Bluestone & McGahee, supra.

=

impersonally result in his death."

Furthermore, even a death sentenced

inmate that is not illiterate, mentally

retarded or mentally ill, is not able to

adequately represent himself in post-

conviction proceedings. This is so for a

number of reasons.

1. Complexity

First, the substantive law relevant to

capital cases is complex, and difficult

enough to master for an attorney, much less

a lay person with, at best, a high school

education."' Besides being familiar with

i Johnson, Condemned to Die 94

(1981).

“This complexity is evident from the

number of capital issues resolved by this

Court in the twelve years since

Greqq v.

Georgia, 428 U.S. 153 (1976) was decided.

—

:

:

:

:

|

/

this Court’s Eighth Amendment

Jurisprudence, an inmate in post-conviction

proceedings must be sure not to engage in a

procedural default of even any kind that

might later preclude the federal courts in

a habeas corpus proceeding from reviewing

the merits of a ground for relief. See,

e.g0. Murray v. Carrier, 477 U.S. 527

(1986); see alsg Godbold, Pro Bono

Representation of Death Sentenced Inmates,

The Record of the Association of the Bar of

12

the City of New York 859, 862 (1987).

rther evidenced by studies of the

SS a aed by attorneys representing death

sentenced persons in collateral a ae

proceedings. See Report prepare re)

American Bar Association by the °

Spangenberg Group, "Time and a

Analysis in Post-Conviction Dea

f

> ary 1987; see also Brief o

pe na PE ne p< Mat et Bar Association.

t b

ian number of hours spen y

pel in state post-conviction alone was

six hundred and sixty five hours. Id.

* former chief judge of

Judge Godbold,

the united States Court of Appeals for the

Eleventh Circuit, stated:

"It [capital

punishment law] is the

- 23 =

4. Limited access to law library

Furthermore, many condemned inmates

are prohibited from gaining Physical access

to the Prison law library, which itself

often is inadequate. In South Carolina,

for example, inmates must request that

Specific legal materials be brought to

their cells. The same restrictions apply

in most other States with Persons on death

row. Such limited access makes it

impossible for an inmate even to keep

current with the complex and ever-changing

law relevant to capital cases, much less to

research Procedural issues such as

Procedural] default, exhaustion of state

remedies, and types of evidence which are

admissible and relief available.

most complex area of

the law that 1 deal

with.... It’s

difficult.

changeable. And it’s

very hard to apply."

- 24 -

:

i. The need for factual investigation

Furthermore, a great deal of factual

investigation is in most cases critical if

an inmate is to have any chance of

obtaining post-conviction relief. Most

viable post-conviction claims are not

strictly legal issues, but have to do with

after-discovered evidence or other grounds

for relief that require extensive factual

Sometimes new evidence of

See, €.g., McDowell v.

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

investigation.

innocence is found.

Dixon,

(evidence discovered during post-conviction

that eyewitness in North Carolina capital

case had originally identified perpetrator

as being white, while defendant was a black

person). In other cases factors beyond the

inmate’s control, such as mental illness,

or a childhood of extreme abuse or neglect,

may explain or mitigate the crime. See,

@.G., Curry v. Zant, 258 Ga. 527, 371

. ’

- 25 -

S.E.2d 647 (1988) (evidence of organic

brain damage discovered by counsel in state

post-conviction Proceedings). Senstines

additional evidence of a defendant’s

positive qualities is found, making it less

simple to reduce the defendant to someone

who has no right to live." Other

irregularities in the proceedings are also

frequently uncovered. See, e.g., Amadeo v.

Kemp, 108 S.Ct. 1771 (1988) (evidence at

‘“Swithout the assistance of counsel,

it is extremely unlikely that Andrew

Laverne Smith and Shelly Damon, two South

Carolina death row inmates, would have

obtained post-conviction relief in the

state courts. In both cases expert and

lay testimony regarding the individual

inmates’ adaptability to prison was

gathered and presented. On the basis of

this evidence the state post-conviction

court granted found that these

individual’s death sentences were obtained

in violation of

476 U.S. 1 (1986). It is fanciful to

believe that the inmates themselves could

have gathered or adequately presented this

evidence in a way which would have

resulted in the success achieved by

counsel.

‘

- 26 -

intentional racial discrimination in

selection of the grand jury in Georgia

capital case uncovered during collateral

852

proceedings); Stockton v. Virginia,

F.2d 740 (4th Cir. 1988) (counsel

discovered evidence during post-conviction

proceedings in Virginia capital case that

the jury at the petitioner’s capital murder

during

trial had been approached

deliberations and told they “ought to fry

the son of a bitch"). An individual

isolated in a cell without financial

resources simply cannot do the necessary

factual investigation.

Effective post-conviction litigation

requires a complete reinvestigation of the

case, with a focus on material not in the

trial transcript. What evidence was not

presented and why? What evidence was not

investigated and why? The trial transcript

provides clues, but those clues mark only

the beginning of _ the post-conviction

- 29 «

litigator’s task. Even with access to a

prison law library, inmates have little or

no access to outside sources, such as

expert witnesses (Ballistic, forensic,

medical, psychiatric), character witnesses,

and prior counsel, that may be vital to

their cases. Mello, Facing Death Alone

’

Supra at 543-48. Inmates pursuing post-

conviction relief also have difficulty

pursuing claims of ineffective assistance

of counsel. To establish an

ineffectiveness claim an inmate’ must

produce evidence of the "background,

character and reputation of appointed trial

counsel and of what [counsel] did and

failed to do," id., evidence which confined

death row inmates have no way of

b 14

obtaining. See Armstrong v. Dugger, 833

“F

or example, in Hyman v. Aiken, 824

F.2d 1405 (1987), while granting relief on

the basis of an unconstituti

instruction, the court of —

discussed in detail the inadequate

representation received by William Gibbs

Hyman, a South Carolina death row inmate.

o 2 «

F.2d 1430 (11th Cir. 1987).

4. The State is represented by experienced

counsel,

Another aspect of the unfairness in

asking death row inmates to proceed pro se

in state collateral proceedings is that the

state is in all cases represented by

competent and highly trained attorneys.

The South Carolina Attorney General’s

office, for example, employs at least four

attorneys who specialize in post-conviction

proceedings. These attorneys are very

knowledgeable regarding the substantive law

The factual basis of petitioner’s

inadequate representation was developed in

state post-conviction proceedings. The

evidence consisted of additional evidence

that could have been presented at trial

and opinions of prominent members of the

bar regarding the quality of the

representation Hyman received. If Hyman

had been forced to represent himself in

the post-conviction proceeding, he would

not have been able to adequately develop a

proper factual record.

- 29 -

on. ——————————

and procedure relevant to capitai post-

conviction proceedings. The same is true

in all other states that have the death

penalty. Thus,

under circumstances where

the state is represented by competent and

highly trained individuals, the person whom

the state seeks to execute cannot be fairly

asked to proceed without the assistance of

counsel.

Due to the complexity of capital

litigation, even competent attorneys find

it necessary to seek expert assistance.

See "You Don’t Have to Be a Bleeding

Heart," Mikva and Godbold, 14 Human Rights

afte

os ee. Me te

a OOS EP Ee) OO FN

22, 24 (Winter 1987). This need has been

realized by the judicial and legislative

branches of both the federal and state

governments. In this regard the Judicial

Conference of the United States and the

Congress have recognized the importance of

the involvement of expert legal consulting

services in federal habeas corpus

proceedings involving death sentenced

inmates. This realization was formalized

in the Criminal Justice Act Guidelines,

paragraph 3.16, which was recently added to

This section provides:

Consulting

the CJA Guidelines.

3.16

Federal Habeas Corpus

Cases. Where necessary

for adequate

representation,

subsection (e) of the

Criminal Justice Act

authorizes the

reasonable employment

and compensation of

public and private

organizations (such as

the Florida Capital

collateral

Representative and the

afte

California Appellate

Project) which provide

consulting services to

appointed and pro bono

lawyers in capital

federal habeas corpus

cases in such areas as

records completion,

exhaustion of _ § state

remedies =,

identification of

issues, review of draft

pleadings and briefs,

etc.

In February 1987, the Conference of

Chief Justices, which consists of the chief

judicial officer 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 review. The Chief Justices

resolved that each state’s judicial

leadership should quickly begin a planning

process involving executive and legislative

representatives, the organized bar, and

-32-

prosecutors and defense counsel experienced

in death penalty litigation "to establish a

regular process for appointing, 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 remedies.""

of special significance is the

creation of a number of death penalty

resource centers to provide expert legal

consulting services to counsel of record in

SResolution Ix, "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 representation 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.

-33-

death penalty cases.’ Resource Centers

have been created in thirteen states,

including South Carolina.” Without the

support of the federal and state judges in

these various states, the creation of the

would have

Resource Centers

been

impossible. Furthermore, most states, the

Resource Centers receive both state and

federal funds. The Resource Centers will

assist appointed and volunteer counsel in

the identification of available grounds for

relief, preparation of pleadings, legal

research and preparation for hearings.

Thus, the Resource Centers are a

recognition by state and federal judicial

"*Summary Report of the United States

Agenda Item G-

1, Criminal Justice Act, March 1987.

"These states are: Alabama, Arizona,

California, Florida, Georgia, Kentucky,

Louisiana, Mississippi, North Carolina,

— South Carolina, Tennessee and

xas. ‘

afin

ee

and legislative bodies that even practicing

attorneys need assistance from persons

experienced in capital litigation in these

complex and time consuming matters, and

rebut any argument that death sentenced

inmates are able to achieve meaningful

access to the courts without the assistance

of counsel."

E. Volunteer counsel cannot be

relied upon to provide indigent

death sentenced inmates with

meaningful access to the courts.

‘8congress has also taken other

important steps which underscore the need

for counsel and the complexity of capital

litigation. First, the Anti-Drug Abuse

Act of 1988 contains provisions

guaranteeing appointment of counsel for

all state prisoners under sentence of

death in federal habeas corpus

proceedings. H.R. 5210, 100th Cong., 2d

Sess., 134 H 11,110, H 11,173

(1988). Recent legislation also raised

the hourly rates of compensation in such

matters to $75 an hour, with a $750

maximum that is routinely waived.

Compensation for expenses of counsel, such

as investigation and expert witnesses was

also increased. 18 U.S.C.A. 3006A(d) and

(e) (1987).

-35-

Many states have relied--and continue

to rely on attorneys willing to volunteer

to represent pro bono indigent persons on

death row. However, because of the

increasing number of inmates under sentence

of death entering the state post-conviction

and federal habeas corpus stages of the

appellate process, this system of utilizing

volunteer counsel, who in many cases are

not compensated at all, is no _ longer

workable.

State __Post-Conviction Representation of

Defendants sentenced to death, Judicature

(forthcoming February 1989) ("the pool of

See Wilson and Spangenberg,

volunteer lawyers cannot expand rapidly

enough tc meet the growing need").'? It is

"In South Carolina, for example, even

attorneys appointed by the court to

represent death row inmates in state post-

conviction are not compensated. See

Cowden, South Carolina Indigent Defense

= , Report

prepared for the South Carolina Law

Institute (September 1988).

oft.

becoming increasingly difficult to find

persons willing to agree to spend hundred

of hours and thousands of dollars to

represent persons on death row. Thus the

only viable means of providing persons on

death row with meaningful access to the

courts is by the appointment of counsel who

will be fairly compensated for their time

and expenses.

-37-

CONCLUSION

For the reasons set forth in this

brief, amici respectfully submits that this

Court should conclude that a death

sentenced inmate cannot ac’.ieve meaningful

access to the courts without the assistance

of counsel and, therefore, requests that

the judgment of the United States Court of

Appeals for the Fourth Circuit be affirmed.

Respectfully submitted,

JOHN E. JOHNSTON

President

South Carolina Bar

P.O. Box 608

Columbia, SC 29202

(803) 799-6653

*JOHN H. BLUME

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

ATTORNEYS FOR AMICI

CURIAE

*Counsel of Record

January 13, 1989.

-38-