Law and Reality in the Capital Penalty Trial

Introduction

Challenging the death penalty in the next decade will require a significant redirection of resources, research, debate, and scholarship toward the capital trial, and a renewed focus on the penalty trial. In the past, the need to make the most effective use of inadequate resources virtually dictated that those resources be concentrated at collateral review stages. There was simply too great a shortage of funds and of qualified people to confront every death sentence at the trial level. This “backstop” strategy was more cost-effective than trial work because, for several years, federal habeas courts redressed with some frequency the injustices that are common to capital trials. But recent cases limit federal habeas corpus review. In the nineties, legislatures will seek to expand the reach of the death penalty, the reach of federal jurisdiction, and the number of capital crimes. These and other judicial and legislative developments require that the backstop strategy be re-evaluated and modified. The most pressing problem will be confronting the judicial and legislative efforts to mask the death penalty. Survival of the death penalty has long depended upon insulating the public from the penalty’s operational reality as opposed to its conceptual appeal.4 One way to shield the death penalty from public scrutiny is to restrict meaningful appellate review, thereby limiting the possibility of decisions that narrow the death penalty’s application. As a result, each case receives only passing attention in the community in which it is tried, and media interest dissipates after trial. If executions are not to be accepted as part of the social reality, defense resources must be used to challenge the death penalty not only on appeal but also at trial.

The dismantling of habeas review is well under way. In Teague v. Lane, the Supreme Court limited the applicability of favorable precedent at federal habeas corpus review, in most instances, to the law as it existed at the time the petitioner’s direct appeal became final. For a brief time, it appeared that Teague would be construed to allow meaningful habeas review of death penalty procedures. However, the Court’s decisions in Butler v. McKellar and Saffle v. Parks legislated a change of the Teague “new rule” scheme, making development of the law through habeas review constrained, to say the least. In Sawyer v. Smith, the Court recently added a gratuitous nail to the habeas review coffin. These judicial efforts to permit executions despite non-harmless trial errors of constitutional magnitude are complemented by legislative proposals, stemming from the report of the Powell Committee, to limit habeas corpus review.

Procedural limitations on habeas review already abound, comprising a well-developed body of law on procedural default. Indeed, most capital post-conviction litigation addresses the preliminary issue of whether possibly or even presumably meritorious claims presented on appeal or collateral review will be heard at all.  The growing collection of procedural default holdings works in tandem with the new Teague restrictions to shut the door to federal habeas corpus. Finally, the standard for assessing the effectiveness of trial counsel is the last in a trilogy of rules that undermine meaningful appellate review. The standard would be laughable if its results were not so tragic–relief is denied even in instances of gross incompetence. It is cruelly ironic that the federal government has seen fit to increase resources at the habeas corpus level for prisoners sentenced to death at the very time the significance of those proceedings is fading.

All these developments mean that in the nineties challenging death penalty verdicts beyond the trial level will be more difficult. Post-conviction relief, to the extent that it will be available, will depend, even more than in the past, on what was done or not done at trial. The damage posed by these areas of bad law can be minimized only by better trial advocacy.

Unfortunately, these developments have not been accompanied by an increase in the number of capable trial attorneys or the resources available to them. The only way to diminish the number of death sentences is to devise a means of insuring compliance with the law at hundreds of trials across the country. The remainder of this Article will focus on one aspect of the challenges and opportunities that are presented at the trial level – the penalty trial.

The necessity thrust upon us, challenging the death penalty at the trial level, also creates an opportunity to educate the public about the horror of capital punishment. The proper conduct of a capital trial defense can and should produce the most frustrating, expensive, and disillusioning experience ever undergone by a local community. Given the particularized consideration required in each death penalty case, the capital trial can be a powerful vehicle for focusing a community’s attention on the injustice of the death penalty. There is no way to conduct a proper capital defense without exposing fundamental errors – not only errors of law, but basic unfairness that will be apparent to lay persons. To soundly defeat the death penalty, we must challenge itnot only at the trial level, but also at its roots – the ignorance and indifference of ordinary people to the evil wrought in their names.

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