Amicus Curiae Brief — Gibson v. Head

MOTION FILED

sep - 8 199

|

Wy

No. 99-77

IN THE

Supreme Court of the United States

Exzavious Lee Gibson,

Petitioner,

Vv.

Tony G. Turpin, Warden,

Georgia Diagnostic and Classification Center,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Georgia

MOTION OF THE AMERICAN BAR ASSOCIATION

TO FILE BRIEF AS AMICUS CURIAE AND BRIEF

OF AMICUS CURIAE IN SUPPORT OF PETITIONER

WILLIAM G. PAUL, PRESIDENT

AMERICAN BAR ASSOCIATION

750 NORTH LAKE SHORE DRIVE

CHICAGO, ILLINOIS 60611

(312) 988-5000

ATTORNEY FOR THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE

OF COUNSEL:

DAVID W. DEBRUIN

SEPTEMBER 8, 1999

No. 99-77

IN THE

Supreme Court of the United States

Exzavious Lee Gibson,

Petitioner,

V.

Tony G. Turpin, Warden

Georgia Diagnostic And Classification Center,

Respondent.

MOTION OF THE AMERICAN BAR ASSOCIATION

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

The American Bar Association (“ABA”) respectfully

moves for leave to file the accompanying brief as amicus

curiae pursuant to Rule 37.2(b) of the Rules of this Court.

Petitioner has consented to the filing of this brief. Respondent

has refused consent.

INTEREST OF THE

AMERICAN BAR ASSOCIATION

The ABA is a voluntary national membership organization

of the legal profession. In several different ways, the ABA has

taken a very active role in capital punishment issues. Although

it has not taken a position on the constitutionality of the death

2

penalty in cases not involving juveniles or the mentally

retarded, the ABA has made the right to effective assistance of

counsel in al/ capital cases and the preservation of habeas

corpus a priority. The ABA promulgates standards and

guidelines for the effective representation of criminal

defendants, with particular emphasis upon representation in

capital cases. See, e.g., ABA Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases (1989);

ABA Standards for Criminal Justice (2d ed. 1980).

The ABA has adopted policy statements and issued reports

urging specific reforms in federal and state post-conviction

procedures. In 1989, an ABA task force conducted a

nationwide study of death penalty habeas practice and

procedures. Based upon the task force’s report and

recommendations, the ABA adopted in 1990, by overwhelming

vote, a comprehensive policy statement urging legislative

reform of habeas procedures, both state and federal, to make

them more efficient and better able to address the merits of the

fundamental claims many post-conviction petitions raise in

capital cases. See Ira P. Robbins, Toward a More Just and

Effective System of Review in State Death Penalty Cases, 40

Am. U. L. Rev. 1 (1990) (task force report).

Simultaneous with this review, the ABA House of

Delegates adopted Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases, to “amplify

previously adopted Association positions on effective

assistance of counsel in capital cases.” These Guidelines were

intended to “enumerate the minimal resources and practices

necessary to provide effective assistance of counsel.”

Resolution of the ABA House of Delegates 122 (1989).

On February 3, 1997, the ABA House of Delegates

adopted a resolution calling for each jurisdiction that imposes

3

the death penalty to impose a moratorium on executions until

the jurisdiction implemented policies and procedures --

including, inter alia, adherence to the Guidelines for the

Appointment and Performance of Counsel in Death Penalty

Cases -- to ensure that the death penalty is administered fairly

and impartially and to minimize the risk that innocent persons

may be executed. See Resolution of the ABA House of

Delegates 107 (1997).

The issue in this case is whether it was constitutional for

the State of Georgia to provide no counsel to an indigent, death

row inmate for his first state habeas proceeding, where he

sought to raise claims that could not have been raised on direct

appeal. That issue is of particular and immediate concern to the

ABA. The ABA is directly involved in efforts to secure

competent counsel for death row inmates in post-conviction

proceedings. In 1983, several Sections of the ABA jointly

requested and received programmatic approval for an ABA

“post-conviction death penalty representation project” designed

to help provide volunteer legal representation for indigent death

row inmates. The goals of the resulting ABA Death Penalty

Representation Project are to better inform the bar and the

public about the lack of representation available to death row

inmates, to address this urgent need by recruiting competent

volunteer attorneys, and to offer training and assistance to those

attorneys. The Project is the only organization working on a

nationwide basis to help secure post-conviction counsel for

indigent death row inmates. The ABA thus is in a unique

position to provide information to the Court concerning the

lack of availability of counsel to assist death row inmates in

connection with the critical claims at issue in this case: initial

state habeas claims that could not have been brought on direct

appeal.

4

CONCLUSION

For these reasons, the ABA respectfully urges the Court to

grant this motion for leave to file the accompanying brief as

amicus curiae in support of the position of the Petitioner.

Respectfully submitted,

William G. Paul, President

American Bar Association

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorney for the American Bar

Association as Amicus Curiae

Of Counsel:

David W. DeBruin

September 8, 1999

TABLE OF CONTENTS

ENTEMEOE OF AMICUS ow. oc cecccccccccccsveccece. l

SUMMARY OF ARGUMENT ...................... 2

T&S aon ei ha Bee heh coe eo 5

THE COURT SHOULD GRANT THE PETITION TO

DETERMINE WHETHER AN INDIGENT DEATH

ROW INMATE HAS A CONSTITUTIONAL RIGHT

TO COUNSEL IN INITIAL STATE HABEAS

SUN whe odd bhy U8 cde cies cock. 5

1. Certain Constitutional Claims Can Be Raised Only

in State Post-Conviction Proceedings, and Many

Death Row Inmates Currently Have No Lawyer to

Assist Them with Such Claims. .................. 6

A. For certain constitutional claims, state

collateral review is the equivalent of

B. Many death row inmates currently do not

have counsel for the preparation and

prosecution of initial state habeas claims. .... 8

If. There Is a Substantial Constitutional Basis for

Recognition of a Right to Counsel for the Pursuit of

Initial State Habeas Claims in Death Penalty Cases. . 12

A. Recognition of a right to counsel for an

indigent party generally is dependent on

the nature of the underlying interest and

the importance of counsel to a fair

determination of the proceedings. .......... 13

B. The nature of the underlying interest and

the importance of counsel in the setting

presented here provides a compelling

basis for an exception to the Finley rule

a Gee GUUS ook vicc cecaateuwedewesens 17

CAULEY 6 bc be ve ccetecteutuvenesukesmuanes 20

ili

TABLE OF AUTHORITIES

CASES page

Amadeo y. Zant, 486 U.S. 214 (1988) ........... 7

Berry v. State, 422 S.E.2d 861 (Ga. 1992) ........ 6

Brady v. Maryland, 373 U.S. 83 (1963) ......... 7

Coleman v. Thompson, 501 U.S. 722 (1991) . passim

Douglas v. California, 372 U.S. 353 (1963) 5, 13, 14

Ford v. Wainwright, 477 U.S. 399 (1986) ....... 12

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ..... 5, 16

In re Gault, 387 U.S. 1 (1967) ............. 15, 16

Godfrey v. Georgia, 446 U.S. 420 (1980) ....... 17

Gregg v. Georgia, 428 U.S. 153 (1976) ........ 17

Jackson v. Mississippi, 732 So. 2d 187

Es a ee 18

Kimmelman v. Morrison, 477 U.S. 365

SNUG eae uae GG EOL bie re 4, 6,18

Lankford v. Idaho, 500 U.S. 110 (1991) ........ 17

Lassiter v. Department of Social Services,

EE PE a cian oie Scksdd doce 5, 16

M.L.B. v. S.L.J., 519 U.S. 102 (1996) .... 13, 16, 19

McFarland v. Scott, 512 U.S. 1256 (1994) ....... 8

Murray v. Giarratano, 492 U.S. 1 (1989) ... passim

Pennsylvania v. Finley, 481 U.S. 551 (1987) . 13, 14

Ross v. Moffitt, 417 U.S. 600 (1974) ........... 14

State v. Freeman, 605 So. 2d 1258 (Ala. Crim. App.

SO ain Pa CUR ah a aia os ovo 7

Strickland v. Washington, 466 U.S. 668 (1984) ... 7

Strickler v. Greene, 119 S. Ct. 1936 (1999) ....... 7

Trop v. Dulles, 356 U.S. 86 (1958) ............ 12

United States v. Galloway, 56 F.3d 1239 (10th Cir.

DO Ta Sea ells ch CECE Bes nce 6

Woodson v. North Carolina, 428 U.S. 280 (1976) 17

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RULES

Be TE. odd ec eweeceducdueeevees 18

EE vce cveepeeeetciuseveds 9

pop ne oT ees fe ee 10

Be Ce EE OS cb deccccecctivevcess 10

Fe Ee I eee occ tiie ckbicseeces 11

Ariz. Rev. Stat § 13-4234(D) ... ccc ccccccccee 9

Ns ee ree 7

Be GE GE, PU UP EEID cece cevbccedesee 9

Okla. Stat. tit. 22 § 1089(D)(4) ................ 6

Tex. Crim. P. Ann. art. 11.071 § 4(a) .......... 10

Va. Code Ann. § 8.01-654.1 ........ccccccees 10

Se ey OE Nis cvovwecvestweveecens 10

LEGISLATIVE MATERIAL

Anti-Terrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 .. 4,9

Pub. L. No. 104-91, 110 Stat. 7 (1996) .......... 9

MISCELLANEOUS

ABA Guidelines for the Appointment and

Performance of Counsel in Death

Pe Cee 6 beh der we eed decesss l

ABA Standards for Criminal Justice (2d ed. 1980) 1

Resolution of the ABA House of Delegates (1979) 12

BRIEF OF AMICUS CURIAE

AMERICAN BAR ASSOCIATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The American Bar Association (“ABA”) is a voluntary

national membership organization of the legal profession.' Its

more that 400,000 members include prosecutors, public

defenders, private lawyers, legislators, law professors, law

enforcement and corrections personnel, law students and a

number of “non-lawyer” associates in allied fields.’

Although the ABA has not taken a position on the

constitutionality of the death penalty in cases not involving

juveniles or the mentally retarded, the ABA has made the ri ght

to effective assistance of counsel in all capital cases and the

preservation of habeas corpus a priority. The ABA

promulgates standards and guidelines for the effective

representation of criminal defendants, with particular emphasis

upon representation in capital cases. See, e.g., ABA Guidelines

for the Appointment and Performance of Counse! in Death

Penalty Cases (1989); ABA Standards for Criminal Justice (2d

ed. 1980).

‘Counsel for a party did not author this brief in whole or in part and

no person or entity, other than the amicus curiae, its members, or counsel

have made a monetary contribution to the preparation or submission of the

brief.

*Neither this brief nor the decision to file it should be interpreted to

reflect the views of any judicial member of the American Bar Association.

No member of the Judicial Division Council has participated in the adoption

or endorsement of the position in this brief, nor was it circulated to any

member of the Judicial Division Council prior to filing.

2

The issue in this case is whether it was constitutional for

the State of Georgia to provide no counsel to an indigent, death

row inmate for his first state habeas proceeding, where he

sought to raise claims that could not have been raised on direct

appeal. That issue is of particular and immediate concern to the

ABA. As described further below, the ABA is directly

involved in efforts tc secure competent counsel for death row

inmates in post-conviction proceedings. In 1983, several

Sections of the ABA jointly requested and received

programmatic approval for an ABA “post-conviction death

penalty representation project” designed to help provide

volunteer legal representation for indigent death row inmates.

The goals of the resulting ABA Death Penalty Representation

Project are to better inform the bar and the public about the lack

of representation available to death row inmates, to address this

urgent need by recruiting competent volunteer attorneys, and to

offer training and assistance to those attorneys. The Project is

the only organization working on a nationwide basis to help

secure post-conviction counsel for indigent death row inmates.

The ABA thus is in a unique position to provide information to

the Court concerning the lack of availability of counsel to assist

death row inmates in connection with the critical claims at

issue in this case: initial state habeas claims that could not

have been brought on direct appeal.

SUMMARY OF ARGUMENT

On September 12, 1996, a death row inmate named

Exzavious Gibson stood alone in a Georgia courtroom.’ The

occasion was a state habeas corpus hearing that represented his

first opportunity to present evidence in support of several

constitutional claims. One of the most significant of those

*The ABA adopts the statement of proceedings in the petition for

certiorari.

3

claims was a Sixth Amendment claim of ineffective assistance

of trial counsel that Gibson could not have brought on direct

appeal. Because no volunteer lawyer had been found to assist

him, Gibson’s claims were presented in a form petition having

nothing to do with the facts of his case. Because a lawyer still

had not been found by the time of the hearing, and because the

state judge would not grant a continuance to allow the Georgia

Resource Center additional time to assume the representation,

Gibson was forced to act as his own lawyer at the hearing. He

presented no evidence. He asked no questions of the only

witness. He made no objections and offered no argument.

After the hearing, the judge adopted the State’s proposed

findings verbatim and dismissed the petition. For all practical

purposes, Gibson’s post-conviction claims have never been

heard.

This case presents a narrow but critical question: whether

an indigent death row inmate has a constitutional right to

counsel to pursue initial state habeas claims, particularly

where, as here, those claims could not have been raised on

direct appeal. Exzavious Gibson could not secure a lawyer to

pursue such claims: he could not afford to hire one, the State

did not provide one, and he was unable to find volunteer

counsel. The question in this case thus was not answered in

either Murray v. Giarratano, 492 U.S. 1 (1989), or Coleman v.

Thompson, 501 U.S. 722 (1991). Writing separately (and

casting the deciding vote) in Giarratano, Justice Kennedy

emphasized that “[{i]t cannot be denied that collateral relief

proceedings are a central part of the review process for

prisoners sentenced to death,” and that “[t]he complexity of our

jurisprudence in this area . . . makes it unlikely that capital

defendants will be able to file successful petitions for collateral

relief without the assistance of persons learned in the law.”

Giarratano, 492 U.S. at 14 (Kennedy, J., concurring in the

judgment). The facts in Giarratano, however, revealed that

4

“no prisoner on death row in Virginia has been unable to obtain

counsel to represent him in postconviction proceedings.” /d.

(Kennedy, J., concurring in the judgment). Similarly, in

Coleman, where the Court reserved the precise question

presented by this case, the death row inmate had been able to

secure counsel for his initial state habeas proceeding.

Coleman, 501 U.S. at 755.

It is the experience of the ABA that petitioner is not alone

in his inability as a death row inmate to secure counsel to

pursue inital state habeas claims. As a result of Congress’

recent withdrawal of federal funding from the death penalty

“resource centers,” and its enactment of the Anti-Terrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214, there is a critical shortage of counsel for death row

inmates once direct appeal has concluded. Many States have

‘ailed to establish an appointment mechanism to provide

qualified lawyers, and it is increasingly difficult to find

volunteer lawyers. There are now numerous persons on death

row who do not have a lawyer to help them file their initial

state habeas petitions. The consequences are enormous. One

of the most significant claims generally raised for the first time

on habeas -- ineffective assistance of trial counsel -- cannot be

evaluated without a lawyer. See Kimmelman v. Morrison, 477

U.S. 365, 378 (1986). And habeas claims have been successful

in a staggering percentage of death penalty cases. See

Giarratano, 492 U.S. at 24 (Stevens, J., dissenting).

There is a substantial constitutional foundation, arising

from both the equal protection and due process jurisprudence

of this Court, for recognition of a nght to counsel for death row

inmates to pursue initial state habeas claims. Nowhere is that

right more compelling than where, as here, the claims could not

have been raised on direct appeal and the indigent death row

inmate has never had a lawyer to pursue them. Each of the

——

5

Court’s decisions concerning the rights of indigent parties to

counsel reflects an assessment both of the importance of the

underlying interest at stake and the extent to which counsel is

necessary to protect the rights of the indigent party. See, e.g.,

Douglas v. California, 372 U.S. 353, 356-58 (1963); Lassiter

v. Department of Social Servs., 452 U.S. 18, 27-28 (1981);

Gagnon v. Scarpelli, 411 U.S. 778, 785-87 (1973). Employing

that framework here, recognition of a right to counsel in the

circumstances presented by this case is compelling: there are

few interests more substantial than the fair administration of the

death penalty, and few instances in which the assistance of a

lawyer is more indispensable than the pursuit of initial state

habeas claims, including ineffective assistance of counsel, that

could not have been raised on direct appeal. The ABA

therefore urges the Court to grant the petition.

ARGUMENT

THE COURT SHOULD GRANT THE PETITION TO

DETERMINE WHETHER AN INDIGENT DEATH ROW

INMATE HAS A_ CONSTITUTIONAL RIGHT

TO COUNSEL IN INITIAL STATE HABEAS

PROCEEDINGS.

The ABA urges the Court to grant the petition because this

case presents a constitutional question of critical importance to

the fair administration of our nation’s capital punishment

system.

6

I. Certain Constitutional Claims Can Be Raised Only in

State Post-Conviction Proceedings, and Many Death

Row Inmates Currently Have No Lawyer to Assist

Them with Such Claims.

A. For certain claims, state collateral review is the

equivalent of direct appeal.

Because he was represented by his trial counsel on direct

appeal, Exzavious Gibson was barred from raising his Sixth

Amendment ineffective assistance of counsel claim until state

collateral review. See Berry v. State, 422 S.E.2d 861, 863 (Ga.

1992). Such procedural bars are common. See, e.g., Okla. Stat.

tit. 22, § 1089(D)(4)(b) (1-2). Indeed, as a practical matter, it

is virtually always the case that ineffective assistance of

counsel claims cannot be raised until collateral review. As this

Court has recognized, “[iJn general, no . . . meaningful

opportunity exists for the full and fair litigation of a habeas

petitioner’s ineffective-assistance claims at trial and on direct

review,” Kimmelman, 477 U.S. at 378 n.3, and “collateral

review will frequently be the only means through which an

accused can effectuate the nght to counsel.” /d. at 378. As

explained in United States v. Galloway, 56 F.3d 1239 (10th Cir.

1995) ‘en banc), ineffective assistance of counsel claims

brought om direct appeal “are presumptively dismissible”

because “\a} factual record must be developed.” /d. at 1240.

‘Aber important constitutional claims also typically require

investigation outside the trial record and cannot be brought on

direct appeal. Indeed, “some irregularities, such as

prosecutorial misconduct, may not surface until well after the

direct review is complete.” Giarratano, 492 U.S. at 24

(Stevens, J., dissenting). In Georgia, a defendant does not have

a right to review prosecution and law enforcement files, where

evidence of a failure to disclose exculpatory evidence is most

7

likely to be found, until direct review is complete. See Ga.

Code Ann. § 50-18-72(4); see also Brady v. Maryland, 373

U.S. 83, 90-91 (1963) (requiring the state to disclose

exculpatory evidence); Amadeo v. Zant, 486 U.S. 214, 216-17

(1988) (upholding finding that claim of prosecutorial

misconduct was not reasonably discoverable prior to collateral

review). Similarly, claims of jury misconduct or tampering

often cannot be discovered until after trial. See, e.g., State v.

Freeman, 605 So. 2d 1258 (Ala. Crim. App. 1992) (juror

misconduct found on collateral review, based on post-trial

investigation).

Thus, for certain constitutional claims, collateral review is

the equivalent of direct appeal; it is the first time a reviewing

court may consider a particular constitutional challenge to the

conviction and sentence. Moreover, the claims that typically

fall into this category are among the most significant in

maintaining the integrity of the judicial process in cases where

the ultimate punishment of death is sought. These claims,

when found to have merit, necessarily implicate the integrity of

the trial outcome. See, e.g., Strickland v. Washington, 466 U.S.

668, 694 (1984) (requiring “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.”); Strickler v. Greene, 119 S. Ct.

1936, 1952 (1999) (requiring, for Brady claim, a “reasonable

probability that the result of the trial would have been different

if the suppressed [material had been] disclosed to the defense’’).

These claims thus are not concerned with mere technicalities or

procedural niceties; rather, they relate directly to the reliability

of the underlying verdict and death sentence.

And experience has proved that these claims are

meritorious in an alarming number of capital cases. As Justice

Stevens noted in Giarratano, a 1988 study found that the

success rate in federal habeas proceedings in capital cases

8

ranged from 60% to 70% during the first decade following the

reinstatement of the death penalty in 1976. 492 U.S. at 24

(Stevens, J., dissenting); see also McFarland v. Scott, 512 U.S.

1256, 1263 (1994) (Blackmun, J., dissenting from denial of

certiorari) (“Of the capital cases reviewed in federal habeas

corpus proceedings between 1976 and 1991, nearly half (46%)

were found to have constitutional error.”). There can be no

serious dispute that first-time state habeas claims in capital

cases are critically important. In an increasing number of

cases, however, there are no lawyers available to help death

row inmates investigate, prepare, or prosecute their claims.

B. Many death row inmates currently do not have

counsel for the preparation and prosecution of

initial state habeas claims.

Exzavious Gibson is not alone in his inability as an

indigent death row inmate to find a lawyer to assist him in the

preparation and prosecution of initial state habeas claims.

Many States provide little or no legal assistance to individuals

on death row following trial and direct appeal. And, although

volunteer counsel often have been found, there is an increasing

number of inmates on death row who do not have, and never

have had, a lawyer to represent them in connection with initial

state habeas claims.

The ABA is in a unique position through its Death Penalty

Representation Project to assess the availability of counsel for

persons on death row following their direct appeal. In early

1998, the Project renewed its efforts to recruit volunteer

counsel and made that goal its highest priority. Since that time

it has enlisted more than 40 law firms to serve as volunteer

counsel in post-conviction capital cases. In addition, the

Project now funds five “resource counsel” at non-profit capital

representation offices in four states and will shortly fund a

9

“resource counsel” in a fifth state. Unfortunately, these efforts,

and those of other non-profit organizations working in

particular States, do not begin to meet the enormous need for

counsel. This is particularly true as a result of recent legislative

changes that have reduced resources for capital representation

projects and have made it increasingly difficult for volunteer

counsel to handle a capital case.

Between 1988 and 1995, Congress provided federal

funding for 20 capital post-conviction resource centers. That

appropriation substantially increased the number of trained

lawyers providing direct representation to death row inmates in

collateral review proceedings, and was particularly effective in

supporting the efforts of volunteer and court-appointed counsel.

In 1996, however, Congress eliminated all federal funding for

the resource centers, see Pub. L. No. 104-91, 110 Stat. 7

(1996), and most closed their doors by mid-year. To the extent

these offices exist today, the overwhelming majority operate

with a skeleton staff and little or no financial assistance from

the States.

The situation became even more urgent with the passage

in April 1996 of the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214

(1996). Among other things, the AEDPA provides a one-year

statute of limitations for the filing of federal habeas actions. 28

U.S.C. § 2244(d)(1). For many inmates presently on death

row, the clock now is ticking under the AEDPA and no post-

conviction petition has yet been filed. Although a state court

habeas filing tolls the AEDPA statute of limitations, many

States have enacted filing deadlines even more rigorous than

the AEDPA. See, e.g., Ill. Comp. Stat. 725 § 5/122-1 (post-

conviction petition generally must be filed within 45 days of

filing of defendant’s direct appeal brief); Ariz. Rev. Stat. § 13-

4234(D) (post-conviction petition must be filed only 60 days

10

after disposition of direct appeal); Tex. Code Crim. P. Ann. art.

11.071 § 4(a); Va. Code Ann. § 8.01-654.1.

The AEDPA also tightens the relationship between state

and federal habeas, and makes the assistance of counsel in state

habeas critical to the entire post-conviction review process.

The AEDPA provides that “a determination of a factual issue

made by a State court shall be presumed to be correct.” 28

U.S.C. § 2254(e)(1). This presumption may be overcome only

by clear and convincing evidence. /d. See also id. § 2254(d)

(providing that federal habeas relief shall not be granted with

respect to any claim adjudicated on the merits in state court

proceedings unless that adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States” or “resulted in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding”).

As a result of these legislative developments, it is

increasingly difficult to find volunteer counsel willing to

assume responsibility for a post-conviction death penalty case.

For volunteer counsel, the investment of time -- which amounts

to hundreds, if not thousands, of hours -- now must often be

compressed into a very short time period, and there is far less

support available from experienced death penalty resource

centers. As a result, there currently are many death row

inmates in several States who have no lawyer to assist them in

connection with their initial state habeas claims. For example:

° In Georgia, the loss of federal funding for the

Georgia Resource Center in 1996, and the enactment at the

same time of a new state rule expediting post-conviction

proceedings in capital cases, see Ga. Super. Ct. Rule 44

(effective Jan. 11, 1996), have had a dire impact on the

ny Se eT ee ae

11

availability of counsel to assist death row inmates. This is

demonstrated most dramatically by the instant case, where

Exzavious Gibson was forced to stand alone at his post-

conviction hearing, offering little more than “I don’t know

what to plead.” Gibson v. Turpin, No. 95-V-648, Transcript of

Hearing, 2-3 (Sept. 12, 1996, Superior Court of Butts County,

Georgia). By the end of the year, there will be no fewer than

eight death row inmates who have completed direct review and

will be without counsel for state post-conviction proceedings.

° In Alabama, there are approximately 186 prisoners

sentenced to death. While the elimination of the state resource

center has made it impossible to track precisely the number of

death row inmates currently without lawyers, it is fair to say

that there are at least 30 individuals who are, or within the next

six months will be, in jeopardy of running the federal statute of

limitations without counsel to file state post-conviction

petitions. State resources for indigent capital representation are

virtually non-existent, and appointment of counsel is wholly

discretionary. See Ala. Code § 15-12-23. In addition, in those

cases where counsel is appointed, fees are capped at $1000. /d.

° In Pennsylvania, an extreme shortage of resources

has made it impossible to track the number of death row

inmates without lawyers. About half of Pennsylvania’s 200

death row inmates lacked counsel even before the state

resource center lost its federal funding in 1996. The crisis has

only deepened since then. In 1997, the Pennsylvania

legislature defeated a measure to provide state funding for post-

conviction representation of indigent death row inmates. The

capital resource center briefly managed to subsist on private

funding, but on June 15, 1999, it permanently closed its doors

due to lack of funds.

12

In sum, the constitutional question raised by Exzavious

Gibson has broad impact beyond this case.

Il. There Is a Substantial Constitutional Basis for

Recognition of a Right to Counsel for the Pursuit of

Initial State Habeas Claims in Death Penalty Cases.

It is the position of the American Bar Association that the

contemporary standards of decency encompassed within the

Eighth Amendment, see 7rop v. Dulles, 356 U.S. 86, 101

(1958), dictate that no person should face the executioner

alone: attendant to the State’s power to impose the ultimate

punishment of death is the obligation to ensure that counsel is

available for the condemned at all proceedings where the

inmate’s substantial rights are determined, however those

proceedings may be defined by state and federal law. See

Resolution of the ABA House of Delegates 102B (1979) (urging

adoption of a rule “providing for appointment of counsel to

prepare petitions for discretionary review of state court

convictions, including appropriate post-conviction or clemency

petitions, if necessary, in death penalty cases where the

defendant cannot afford to hire counsel’). Indeed, certain

constitutional rights of the condemned are not implicated, and

therefore remain at issue, until the time of execution. See Ford

v. Wainwright, 477 U.S. 399, 409-10 (1986) (Eighth

Amendment forbids execution of one who is mentally

incompetent at the time of execution). At least 80 people

sentenced to death since the reinstatement of capital

punishment have been exonerated, many of them long after

their direct appeals were complete.

This case, however, involves a much narrower right. The

issue here is whether an indigent death row inmate may be

executed where critical constitutional claims that go directly to

the reliability of the underlying conviction and death sentence

13

have never been heard with the assistance of counsel. The

ABA submits there is a substantial constitutional basis for a

limited exception to the rule of Pennsylvania v. Finley, 481

U.S. 551 (1987), which held there is no general right to counsel

in post-conviction proceedings.

A. Recognition of a right to counsel for an indigent

party generally is dependent on the nature of

the underlying interest and the importance of

counsel to a fair determination of the

proceedings.

“Courts have confronted, in diverse settings, the ‘age-old

problem’ of ‘[p]roviding equal justice for poor and rich, weak

and powerful alike.” MLB. v. SLJ., 519 U.S. 102, 110

(1996) (quoting Griffin v. Illinois, 351 U.S. 12, 16 (1956)).

Although the Constitution may not guarantee a particular form

of state review, “once a State affords that right, Griffin held, the

State may not ‘bolt the door to equal justice.”” M.L.B., 519

U.S. at 110 (quoting Griffin, 351 U.S. at 24 (Frankfurter, J.,

concurring in the judgment)).

In certain circumstances, the right of meaningful access to

the courts guaranteed by the Equal Protection Clause

encompasses a right to the assistance of counsel. In Douglas

v. California, 372 U.S. 353 (1963), the Court held that an

indigent criminal defendant may not be denied the assistance of

counsel in connection with his first appeal as of right, on the

ground that “there can be no equal justice where the kind of an

appeal a man enjoys. ‘depends on the amount of money he

has.””” Jd. at 355 (quoting Griffin, 351 U.S. at 19). The Court

emphasized the difference between prosecuting a criminal

appeal with the benefit of counsel, and doing so without:

14

[T]he rich man . . . enjoys the benefit of counsel’s

examination into the record, research of the law, and

marshaling of arguments on his behalf, while the indigent

... iS forced to shift for himself. The indigent, where the

record is unclear or the errors are hidden, has only the right

to a meaningless ritual, while the mch man has a

meaningful appeal.

Douglas, 372 U.S. at 357-58. The Court noted that “[a]bsolute

equality is not required; lines can be and are drawn and we

often sustain them.” /d. at 357. But the Court emphasized that

“‘where the merits of the one and only appeal an indigent has as

of right are decided without benefit of counsel, we think an

unconstitutional line has been drawn between rich and poor.”

Id. (emphasis in original).

Since Douglas this Court has continued to view the “initial

appeal as of right” as distinct in terms of the State’s obligation

to provide counsel to ensure meaningful access. See Ross v.

Moffitt, 417 U.S. 600, 615 (1967) (no right to state-provided

counsel on discretionary review to state supreme court); Finley,

481 U.S. at 556 (no right to state-provided counsel on state

collateral review). Both Ross and Finley emphasized that the

defendants in those cases already had been assisted by counsel

in pursuing the same claims during a previous appeal, and thus

were likely to have access to a transcript from their trial, an

appellate brief on their behalf, and an opinion disposing of their

case. See Ross, 417 U.S. at 614-15; Finley, 481 U.S. at 557.

More recently, in Coleman, the Court again addressed an

inmate’s right to counsel in state habeas proceedings. It found

no right to counsel to pursue an appeal of an adverse ruling of

the state habeas trial court, even though the claims at issue

were first-time habeas claims that could not have been brought

on direct appeal. Coleman, 501 U.S. at 752. The Court rested

15

that ruling, however, on the ground that the decision of the state

habeas trial court was itself the equivalent of an “appeal” of the

underlying criminal conviction, and the petitioner had been

afforded the assistance of counsel in connection with that

“appeal.” As explained by the Court: “Coleman has had his

‘one and only appeal,’ if that is what a state collateral

proceeding may be considered. ... What Coleman requires

here is a right to counsel on appeal from that determination.

Our case law will not support it.” /d. at 756 (emphasis in

original).

Crucial to the Coleman decision, therefore, was that

counsel had been provided in the state Aabeas trial court.

Exzavious Gibson had no counsel at that stage. Thus, the

Court in Coleman expressly did not decide the question

presented here, i.e., whether “there must be an exception to the

rule of Finley and Giarratano in those cases where state

collateral review is the first place a prisoner can present a

challenge to his conviction.” Coleman, 501 U.S. at 755.

Where, as here, those initial state habeas claims could not have

been brought on direct review, and therefore the initial state

habeas hearing is the equivalent of the inmate’s “one and only

appeal,” the decisions from Douglas through Coleman compel

the conclusion that counsel must be afforded to an indigent

death row inmate.

This Court’s due process jurisprudence also supports

recognition of a right to counsel in the first state habeas

proceeding in a capital case. For example, in /n re Gault, 387

U.S. 1, 41 (1967), the Court held that the Due Process Clause

requires appointment of counsel for a child in a juvenile

delinquency proceeding that may result in confinement, despite

“the ‘civil’ label-of-convenience which has been attached to

juvenile proceedings.” /d. at 50. The Court again relied upon

the critical importance of cums! in this setting: “The juvenile

16

needs the assistance of counsel to cope with problems of law,

to make skilled inquiry into the facts, to insist upon regularity

of the proceedings, and to ascertain whether he has a defense

and to prepare and submit it.” /d. at 36. In other settings

involving important underlying interests, the Court has

recognized a conditional right to counsel dependent upon the

nature and complexity of the particular case. See, e.g., M.L.B.,

519 U.S. at 117 (characterizing Lassister, 452 U.S. at 31-32, as

recognizing a due process right to counsel in parental

termination cases “when warranted by the character and

difficulty of the case”); Gagnon, 411 U.S. at 790 (recognizing

a due process nmght to counsel in probation and parole

revocation hearings when dictated by “fundamental fairness”’).

As this Court has recognized, cases involving rights of

access to judicial processes ““cannot be resolved by resort to

easy slogans or pigeonhole analysis,” M.L.B., 519 U.S. at 120

(quoting Bearden v. Georgia, 461 U.S. 660, 666 (1983)), but

two factors pervade the analysis. First, is an assessment of the

importance of the underlying interest. See, e.g., In re Gault,

387 U.S. at 36 (child may be “subjected to the loss of his

liberty for years”); Lassiter, 452 U.S. at 27 (“[a] parent’s

interest in the accuracy and justice of the decision to terminate

his or her parental status is . . . a commanding one”). Second,

the Court has considered the extent to which counsel is

necessary to protect the rights of the indigent party. Compare

Douglas, 372 U.S. at 358 (without counsel, first appeal is “a

meaningless ritual”), with Gagnon, 411 U.S. at 787-88

(recognizing a right to counsel in some, but not all, probation

and parole revocation proceedings because in many cases the

alleged violation is already established and there is less need

for counsel). Employing that framework, the Court should

recognize a right to counsel in the limited context at issue here.

17

B. The nature of the underlying interest and the

importance of counsel in the setting presented

here provides a compelling basis for an

exception to the Finley rule in capital cases.

This case presents a particularly compelling basis for

recognition of an indigent party’s right to counsel: there are

few interests more substantial than the fair administration of the

death penalty, and few instances in which the assistance of a

lawyer is more indispensable than the pursuit of post-

conviction claims, including ineffective assistance of counsel

claims, that could not have been raised on direct appeal.

This Court long has recognized that “death as a

punishment is unique in its severity and irrevocability.” Gregg

v. Georgia, 428 U.S. 153, 187 (1976) (plurality opinion); see

also Lankford v. Idaho, 500 U.S. 110, 125 (1991) (same). This

fundamental difference creates a greater “need for reliability in

the determination that death is the appropriate punishment in a

specific case.” Woodson v. North Carolina, 428 U.S. 280, 305

(1976) (plurality opinion).

Imposition of the death penalty also “places special

constraints on the procedures used to convict an accused of a

capital offense and sentence him to death.” Giarratano, 492

U.S. at 8 (plurality opinion). Perhaps most notably, although

there generally is no constitutional right to appeal a criminal

conviction, “meaningful appellate review” in capital cases

“serves as a check against the random or arbitrary imposition

of the death penalty,” Gregg v. Georgia, 428 U.S. 153, 195,

206 (1976) (plurality opinion), and is an integral component of

a State’s “constitutional responsibility to tailor and apply its

law in a manner that avoids the arbitrary and capricious

infliction of the death penalty.” Godfrey v. Georgia, 446 U.S.

420, 428 (1980) (plurality opinion). Thus, the interest in

18

ensuring the validity of a death row inmate’s conviction and

sentence is of the highest magnitude.

In addition, the claims sought to be raised in these initial

state habeas proceedings cannot be brought successfully

without a lawyer, both because of the nature of the underlying

claims and because of the complexities of post-conviction and

death penalty law. First, with respect to the underlying

ineffective assistance of counsel claims that are often at issue,

this Court has recognized that a “layman will ordinarily be

unable to recognize counsel’s errors and to evaluate counsel’s

professional performance.” Kimmelman, 477 U.S. at 378.

Second, the complexities of habeas corpus and death penalty

law also create a special need for the guiding hand of counsel.

See Giarratano, 492 U.S. at 14 (Kennedy, J., concurring in the

judgment) (“The complexity of our jurisprudence in this area

... makes it unlikely that capital defendants will be able to file

successful petitions for collateral relief without the assistance

of persons learned in the law.”).

In sum, it is hard to imagine a proceeding for which

counsel is more necessary. It is noteworthy that Congress has

recognized these principles in creating a statutory right to

counsel in federal habeas proceedings in death penalty cases.

See 21 U.S.C. § 848(q)(7) (expressly noting “the seriousness of

the possible penalty and . . . the unique and complex nature of

the litigation”); see also Jackson v. Mississippi, 732 So. 2d 187,

188 (Miss. 1999) (holding that “the nature of death penalty

litigation in the courts of this State, coupled with the ultimate

penalty the State seeks to impose,” requires recognition of a

constitutional right to counsel in capital post-conviction

proceedings).

Recognition of a right to counsel in this setting would not

necessarily dictate the manner in which counsel is provided.

19

This Court frequently has emphasized that States must be

afforded flexibility in ensuring that indigent litigants are

afforded meaningful access to the courts. See, e.g.,M.L.B., 519

U.S. at 112 n.5 (right to meaningful access does not impose an

inflexible requirement that a State provide a full trial

transcript); Giarratano, 492 U.S. at 13 (O’Connor, J.,

concurring) (States have “considerable discretion in assuring ...

meaningful access to the judicial process”); id. at 14 (Kennedy,

J., concurring in the judgment) (“The requirement of

meaningful access can be satisfied in various ways .. . .”).

States may be able to satisfy their obligation to ensure death

row inmates access to the courts by funding resource centers

and public defender organizations to work with the private bar

to provide representation to indigent death row inmates. But,

as this case illustrates, it cannot be constitutional for the State

to do nothing, leaving an indigent death row inmate like

Exzavious Gibson totally alone to prosecute his “one and only

appeal” of first-time habeas claims. If that result is

constitutionally permissible, it too readily may become the

norm for all capital cases, even in States that presently provide

some level of support.

For these reasons, the ABA submits that an indigent death

row inmate must be afforded counsel to pursue his initial state

post-conviction claims. The ABA urges the Court to grant the

petition and consider this important constitutional question,

which is critical to the integrity of our capital punishment

system. Nothing will be served by allowing an increasing

number of these cases to flounder through the state courts

without counsel, creating new problems for federal habeas and

potentially prolonging the ultimate resolution of these cases

before the issue finally is resolved by this Court.

20

CONCLUSION

The ABA respectfully urges the Court to grant the petition.

Respectfully submitted,

WILLIAM G. PAUL, PRESIDENT

AMERICAN BAR ASSOCIATION

750 NORTH LAKE SHORE DRIVE

CHICAGO, ILLINOIS 60611

(312) 988-5000

ATTORNEY FOR THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE

OF COUNSEL:

DAVID W. DEBRUIN

SEPTEMBER 8, 1999