Brian Stull, Capital Punishment Project
This user hasn't shared any biographical information
Homepage: http://www.aclu.org/blog
Posts by Brian Stull, Capital Punishment Project
Saluting Justice Stevens’ Principled Decisions in Capital Cases
originally posted by Brian Stull, Capital Punishment Project for Blog of Rights: Official Blog of the American Civil Liberties Union [click here]
June 28, 2010 - 11:00 am
Posted in Uncategorized | No comments
(Originally posted on ACS Blog.)
"Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusua…
Jerry Guerinot: Most Dangerous Defense Attorney Ever?
May 19, 2010 - 7:32 am
Posted in Uncategorized | No comments
An article in Monday’s New York Times underscores an observation we have made before: one of the biggest predictors of who gets sentenced to death has nothing to do with relevant factors such as the heinousness of the crime, the culpability of the accused, or the life history of the accused. Rather, the quality of the lawyer representing the accused very often predicts who lives and who dies.
The Times reported that Jerry Guerinot has represented 20 people sentenced to death in Texas, more people than on death row in half the 35 states that have the death penalty. The article begins with this horrifying fact: "A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you."
Guerinot’s horrible record stems from his "failure to conduct even rudimentary investigations," say Texas death penalty experts who have examined his work. "He doesn’t even pick the low-hanging fruit which is hitting him in the head as he’s walking under the tree," said David Dow, litigation director of the Texas Defender Service (and my co-counsel in the Max Soffar case). Dow has represented former Guerinot clients before.
One of the 20 unlucky people to have been assigned Guerinot as counsel is Linda Carty, a British national on Texas’s death row. The Times article illustrates some of Guerinot’s abysmal failings in the Carty case. You can support Carty by petitioning against her execution or to ask Texas Governor Rick Perry to spare her life.
Horseshoes, Hand Grenades, and Habeas
May 6, 2010 - 10:03 am
Posted in Uncategorized | No comments
Imagine you or someone you loved were accused of a crime and tried in state court. Our federal constitutional rights give us certain protections in these state trials, but imagine your trial was an unfair one. Imagine the state court did not uphold your constitutional rights, for whatever reason: maybe your trial judge faced a tough election and wanted to look tough on crime; maybe the judge was lazy; maybe he or she simply did not understand the law. And imagine you were then convicted in this unconstitutional trial and sent to prison, or worse, sentenced to death.
Traditionally, if the state court failed to correct the federal constitutional error, you could go to a federal court seeking "habeas corpus" review. If a federal judge agreed that the state court violated your constitutional rights, the federal judge could order the state to release you or provide a new trial. In a decision released Monday in Renico v. Lett concerning the constitutional right to be free from double jeopardy (that is, being prosecuted twice for the same offense) — the Supreme Court of the United States reaffirmed previous rulings that a federal court may not order habeas relief merely because the state court violated your constitutional rights. Buried in footnote three of its decision, the court said it would not decide if the petitioner’s constitutional right to be free from double jeopardy had been violated, only that the question was a "close" one.
The court then stated that if a state court ruling is "close" enough on the Constitution — the state court had made a credible effort, even if they got it wrong — a federal judge’s hands are tied. If it’s close enough, the federal judge is powerless to correct the injustice.
In deciding Renico, the court was interpreting a 1996 statute known as the Anti-Terrorism Effective Death Penalty Act (AEDPA). Ridiculous as it sounds, AEDPA effectively requires that federal judges ignore constitutional violations in "close" cases. This mandate on "close" cases conflicts with the famous holding in Marbury v. Madison that "It is emphatically the province and duty of the [judicial branch] to say what the law is."
Because AEDPA effectively strips judges of the power to decide whether a person’s rights were violated, many federal judges have suggested that AEDPA violates the constitutional requirement known as "separation of powers," and is therefore unconstitutional. The Renico decision, however, did not address AEDPA’s constitutionality.
When I was growing up in Michigan, where horseshoes was a favorite game, if I failed to meet one of my responsibilities but came close, my parents or teachers might say, "Close only counts in horseshoes and hand grenades." With yesterday’s decision, we can add "habeas corpus" to the list. Until the Supreme Court resolves the constitutionality of AEDPA or Congress repeals it, state courts may often get away with "close enough" when it comes to our constitutional rights.
Good and Bad Lawyers Determine Who Lives and Who Dies
originally posted by Brian Stull, Capital Punishment Project for Blog of Rights: Official Blog of the American Civil Liberties Union [click here]
March 10, 2010 - 10:46 am
Posted in Uncategorized | No comments
In a separate post yesterday, I addressed how a person on death row’s life can be decided on a technicality, an issue to be decided by the Supreme Court in Holland v. Florida. Today’s post addresses another issue the Holland case raises — the role of attorney competence in deciding who gets executed in the United States.
Prosecutors seeking the death penalty for "capital" crimes, which are crimes eligible for the death penalty, don’t always prevail. Many people found guilty of capital crimes receive the severe sentence of life imprisonment without the possibility of release. One of the biggest predictors of who gets sentenced to death has nothing to do with relevant factors such as the heinousness of the crime, the culpability of the accused, or the life history of the accused. Rather, the quality of the lawyer representing the accused very often predicts who lives and who dies.
With rare exceptions, persons facing capital charges cannot afford a lawyer, and rely on court-appointed counsel. Whether the appointed lawyers are competent and sufficiently funded depends largely on geography and luck. In a few states, such as North Carolina, recent reforms require both competent lawyers for persons facing capital charges and funding sufficient to raise a serious defense. In the majority of death-penalty states, however, standards of competency are lacking, and funding is anemic. Even in jurisdictions in which the standard of capital-defense lawyering is generally adequate, an unlucky defendant can be appointed a lawyer missing the talent and/or dedication needed to defend a capital case competently.
The quality of the defendant’s counsel continues to have an outsized role even after a person has been sentenced to death. Among other reasons, many death sentences are set aside because a federal court finds the lawyer who represented the accused at his first trial in state court was so incompetent that the accused’s constitutional right to effective counsel was violated (PDF). But success in challenging a death sentence on this constitutional ground depends on the death-sentenced inmate having a quality representation (by different lawyers) in their habeas corpus appeal to the federal courts, which assesses the case for violations to the U.S. Constitution. And not just any lawyer will do. Federal habeas corpus appeals are known as the "brain surgery of the legal profession." Yet beyond the first appeal to federal court, people fighting their death sentences have no constitutional right to a lawyer, and the quality of available counsel can be even more abysmal in these appeals than at the trial level.
In Holland v. Florida, the Supreme Court will decide whether the “gross negligence” of an attorney can cut off the defendant’s chance at federal habeas corpus review. If Holland loses, it will mean that people sentenced to death in state court because of attorney incompetence may never get a chance to prove that claim in a federal court if they are also unlucky enough to have been appointed a grossly negligent attorney in their appeal to federal court.
That would be unfortunate, and would show that our court system itself is too negligent to trust in the fairness of the death sentences it allows.
Executing on a Technicality
originally posted by Brian Stull, Capital Punishment Project for Blog of Rights: Official Blog of the American Civil Liberties Union [click here]
March 9, 2010 - 2:45 pm
Posted in Uncategorized | No comments
When a person accused of a crime goes free, we often hear the refrain, "He got off on a technicality." In reality, these technicalities often involve a violation of a person’s constitutional rights. In the case of Holland v. Florida, argued before the Supreme Court last week, a technicality may determine whether Albert Holland lives or dies.
In the Holland case, the court will decide a technical question about the rules that govern federal habeas corpus review, which is a federal court appeal of a death sentence handed down in state court. A federal habeas corpus review assesses a case for violations of the U.S. Constitution. Every death-sentenced defendant has the right to this review, and it’s crucial, because studies show (PDF) that in 37 percent of cases, federal courts throw out death sentences after finding serious constitutional violations.
The first thing to know about federal habeas corpus review is that there are many complexities to filing a petition. There are rules about precisely when, where, and how a federal constitutional claim must be raised in the state courts. And those rules are also bound by Supreme Court case law and federal law. If a lawyer violates any of these rules, the client risks execution even if his death sentence violates the federal constitution.
One such rule took Albert Holland to the Supreme Court. Albert Holland was assigned an attorney by the State of Florida to appeal his death sentence (also known as a "capital appeal"). Florida has a statute saying attorneys assigned in such cases must be "competent." But Holland’s appointed attorney was far from competent: despite Holland’s repeated requests to his attorney to file the petition and keep him updated on the status of his case, his attorney failed to file the petition in a timely manner, prompting the federal district court to dismiss the petition without deciding its merits. Holland even attempted to have the attorney removed from his case because he appeared to be incompetent and unconcerned, and Holland made every possible effort to obtain necessary information about his case so that he could file the petition himself.
In the Supreme Court, Holland argued that he should not forfeit his right to federal review based on his attorney’s gross negligence. We supported his argument with a friend-of-the-court brief demonstrating that the deadline should be forgiven in certain narrow circumstances. But this case presents a more basic question of fairness: why should a death-sentenced inmate who does everything he possibly can to follow these complex rules, lose his life due to the gross negligence of an attorney assigned by the state? At Thursday’s oral argument (PDF), the lawyer representing the State of Florida suggested that only in instances of "extreme attorney incompetence" should missing the federal deadline be forgiven. This suggestion prompted Chief Justice Roberts to ask, "[W]hy isn’t it extreme attorney incompetence to miss a deadline?"
For Albert Holland, much hangs on how the court answers the Chief Justice’s question. Whether a federal court ever rules on the merits of his constitutional arguments against his death sentence should not depend on a technicality. We can only hope the Supreme Court agrees.