# Amicus Curiae Brief — Gibson v. Head

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0559%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 946

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0559%3A6. Public record. Not legal advice.