Are you an attorney looking for inspiration? Are you a client who disagrees with your criminal defense lawyer’s tactics even though you see she’s working hard on your case? Run, don’t walk to pick up a copy of Vanity Fair, or read online Mark Bowden’s piece on death penalty defense lawyer Judy Clarke. It was just the motivation I needed for the middle of a tough week doing this job.

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

Continue Reading Harvard Medical Professor would Take Firing Squad over Lethal Injection

The Economist reports that executions are on the decline and that fewer Americans support the death penalty today than they did in 1994. In fact, most death penalty sentences are handed down in narrow areas of the country:

Earlier this month a vote to repeal the death penalty narrowly failed in New Hampshire, but similar measures succeeded in six states between 2007 and 2013, reducing the number of capital-punishment states to 32. Among those states, 15 have carried out no executions since 2010. Just four—Texas, Virginia, Oklahoma and Florida—are responsible for roughly 60% of the executions since 1976. Texas alone carried out 37% of the total. Within capital-punishment states, a mere 15 counties are responsible for 30% of executions. (Although capital punishment is state law, generally the decision to seek the death penalty is made by district attorneys at the county level.)

60% of the executions in the country are carried out in just four states and merely 15 counties are responsible for 30% of the executions.

Continue Reading The End of the Death Penalty / The Rise of Deaths in Prison

Andrew Cohen at The Atlantic Monthly has a post up on how Georgia’s legislature created a law that spared the life (so far) of Warren Lee Hill, a man that the State has been trying to kill. It’s a must read if you are trying to teach someone the concept of irony.

This past year, the legislature enacted a law that made the identity of companies that provide drugs for execution a state secret. The problem came when Lundbeck, the Denmark Company that makes pentobarbital, a key component in the cocktail of drugs administered during lethal injection, refused to distribute the drug if it would be used in an execution. The supply that the Department of Corrections had on hand was set to expire.

Efforts the Georgia Department of Corrections have undergone to get its hands on drugs to kill Georgia inmates have proven to be a source of embarrassment in the past. In 2011, federal drug agents seized Georgia’s stockpile of sodium thiopental obtained from a shady British supplier that was “operating from the back of a driving school in England.” The stockpile had also come under scrutiny when it was alleged that state corrections officials violated federal law by not registering its shipment of the drug with the DEA.

The obvious way for the Georgia DOC to avoid embarrassment in the future would be to stop obtaining drugs from shady suppliers. The legislature decided not to go that route. Instead, to stop future such stories, the legislature decided to make the identity of the supplier a state secret. Supporters of the bill claimed that the purpose was to prevent the harassment of such companies. An alternate explanation is that secrecy would allow the Department of Corrections to seek out other shady suppliers without the fear of future embarrassment.

When a challenge to the state secrets law was heard in a trial court, “the judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all the relevant components of a planned execution?” How can the court system evaluate an 8th amendment claim to the death protocols of the DOC if the judge cannot know what those protocols are?

Because the court reporter did not have the transcript prepared in time for the case to make its way to the Supreme Court of Georgia, this matter could not be reviewed before Mr. Hill’s death warrant expired.

This past year I participated in my first hearing before the House Judiciary Committee to speak out against some unrelated legislation. The Atlantic Monthly writer is absolutely correct in his analysis of how the sausage is made. When I spoke and offered comments that I had researched and thought out I might as well have been Charlie Brown’s teacher. By contrast, the representatives of the Prosecuting Attorneys’ Counsel were treated like ex officio members of the committee.

In this case, they should have been careful what they wished for.

A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

  • In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
  • The age of the defendant may bias some jurors.
  • There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

Alyson Palmer at the Fulton Daily Report has noted the passing of David C. Baldus. Mr. Baldus authored a study in 1986 showing that, in 2,000 murder cases in Georgia in the 1970s, defendants accused of killing white victims were more than four times as likely than defendants accused of killing black victims.

That study figured prominently in McClesky v. Kemp, a 5-4 decision in favor of Mr. McClesky’s conviction and death sentence. Justice Powell later noted that his vote in that case was the one he wished he could change.

The New York times also reports his passing.

Music is replete with songs about people who had some bad stuff happen to them at their trial and who need an appellate lawyer. So, I am kicking off a weekly series featuring songs about people who need a good criminal appeals or habeas lawyer. To kick things off, let’s listen to Steve Earle from 1991, singing “Billy Austin.” Billy needed a good appellate lawyer, and now it’s a little late. As you listen, see what issues you can spot. There’s a pretty good ineffective assistance of counsel claim in here, and it also appears that some mitigation got left on the table. He called the police on himself — acceptance of responsibility. But maybe it just makes him sound more cold. 

We find out pretty quickly that Billy wasn’t tried in Georgia. One, he got a “court appointed lawyer,” which we don’t really fund for death penalty defendants in Georgia. Also, his “trial was over quickly.” Defendants in death cases in Georgia don’t really get a speedy trial. They languish in the county jail.




Smackdown.jpgI’ve been talking about the Democratic side of the Attorney General election for too long. But what about the Republic side? Georgia is such a red state, that the Democratic ticket is largely irrelevant anyway. Meanwhile, the Republicans are in a run-off. And, as Republicans are apt to do when they square off, the candidates are starting to compete to see who is more enthusiastic about killing criminal defendants.

Austin Rhodes, an Augusta, Georgia, conservative talk show host published a letter from Barry Fleming, legal counsel to the Georgia House of Representatives, to Sam Olens, Preston Smith’s rival for Georgia Attorney General. In the letter, Fleming tells Olens that Smith blocked passage of a bill that would have allowed juries to recommend a death sentence by less than a unanimous vote from the jury.

Fleming alleges that Smith “killed the bill in his committee” (Not kidding. He said “killed”) by waiting until Republican senators left the committee room to call it for a vote where democrats could vote against it.

Smith maintains that the bill would have created expensive litigation in death penalty cases over the law’s constitutionality — particuarly given the fact that the bill would have allowed the judge to decide whether to impose the death penalty in the event of a non-unanimous death verdict.  The bill would also have put Georgia in a minority of states that allow the death penalty to be imposed after a non-unanimous verdict. Of the 35 States that have the death penalty, few allow for non-unanimous death verdicts. Georgia lost a rare opportunity to distinguish ourselves as being politically more conservative than Alabama.

While it is fun for Republicans to compete to see who loves the death penalty more, they don’t seem to want to talk about the fact that life for a Georgia death penalty defendant in Georgia involves more or less taking up permanent residence in a county jail for years at a time with a lawyer the State refuses to pay. The constituency these guys are competing for think that it’s silly that the State pays for the lawyer anyway.

So, Senator Smth’s death-cred has been called in to question. When Republicans start attacking each other this way, bad stuff can happen.

I’m going to take this opportunity to predict what Smith will do next to get his death-cred back:

  1. He will try to get an actual execution set before the run-off, where he will stand in as a substitute to administer the lethal dose to the inmate — the ultimate red state photo op
  2. He will photo-shop himself into Leni Riefenstahl’s Triumph of the Will, to win back all the Tea Party Republicans who were likely swayed by Fleming’s letter. Sure, it was filmed in 1934, but most of those people think that the universe is only 4000 years old anyway. So, the date won’t be a huge problem. A little sleight of hand will be all it takes to get around the date problem.

Of course, none of the above may be necessary if cooler Republican heads prevail such as Bob Barr, who wrote an a letter to the editor of the Fulton Daily Report supporting Smith stance on non-unanimous verdicts.

Man, this general election is going to be fun between Hodges and allegations that he monkeyed around with a grand jury proceeding involving a police officer who shot an unarmed man and these Republicans who want to compete to see who is more in favor of killing defendants than the other.

This whole thing is going to make life fun for me in future habeas proceedings and murder appeals no matter which person wins this election.



iStock_000004482335XSmall.jpgAdam Liptak’s recent editorial in the New York Times will provide comfort for those of us who have watched the legislature and governor gut indigent defense in Georgia and attack the judiciary systematically. At the same time, it is a little embarrassing to read about the system that I love so much and wonder what the rest of the world must think of us. Reading national press on Georgia during the civil rights movement must have been like this. At the same time, the heroes in this story, such as those with the Southern Center for Human Rights are Georgia appellate lawyers working to make a difference. So, there’s a good bit to be proud of, too.

In fact, the Jamie Weis story demonstrates the difference appellate lawyers can make for the client and to the very system that has so far undermined him. It makes me proud to be a Georgia criminal appellate lawyer.

So, in case you missed it, here’s the story. Jamie Weis was indicted for murder in the Griffin Judicial Circuit. He has been in jail awaiting trial since 2006. August of that year, he was noticed with the intent to seek the death penalty. By March, 2007, the lawyers who had represented him for the beginning couldn’t get any more money to fund the defense. The State has adequate funding to try to convince a jury to kill Mr. Weis. But when the money ran out, the prosecutors were allowed to pick their opponent. They convinced Judge Caldwell — yep, that Judge Caldwell — to replace the lawyers with salaried public defenders. On its way to issuing a  4-3 Decision (PDF) determining that it was okay to substitute cheaper lawyers chosen by the State, one of the justices suggested at oral argument that defense counsel should work for free. He never suggested that the judge or prosecutor should work for free.

The damage has continued. Recently the Court dodged a similar challenge out of Cobb County, Phan v. State (PDF) where it had another opportunity to declare that indigent defense in Georgia is broken. They punted the case back to the trial court to make a determination that it had already made. Phan is to Weis what those two little girls are to each other in the Overlook Hotel in The Shining — not quite identical but really disturbing.

But there is hope in the combination of Georgia Appellate Lawyers, the U.S. Supreme Court, and recent media attention. Hopefully, all of those forces can overcome the other two branches of government in the Georgia political establishment (see the reference to the girls from The Shining).