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Intentionally Delaying and Overpricing the Death Penalty

On April 29, the Pennsylvania Supreme Court decided a fairly typical state postconviction capital case in Commonwealth v. Spotz, No. 576 CAP.  Spotz is a spree killer, and he is clearly guilty of multiple homicides.  The majority opinion is 131 pages long, and it slogs through numerous arguments, finding them all without merit.

The remarkable opinion here is the concurrence of Chief Justice Castille.  He is severely critical of the Federal Defender in this case and other capital cases.  There are two themes here.  One is the institutional question of why the Federal Defender is representing clients on state collateral review at all.  The second is a problem with capital appeal/habeas representation culture generally throughout the country, although the Chief Justice's criticism is directed specifically at the Federal Defender.  Many, perhaps most, of the people doing this work have come to believe that it is not only ethically permitted but even required that they spam the courts with a blizzard of paper raising every conceivable claim.

But that is not correct.  As I noted in my recent report to the Connecticut General Assembly,
In Jones v. Barnes, the United States Supreme Court held that briefing every conceivable issue is not only not required, it is not good advocacy."Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." [463 U. S. 745, 751-752 (1983).]  And no, despite the loud protests of the capital defense bar, death is not different in this regard. In Smith v. Murray, a capital case, the high court said, "This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." [477 U. S. 527, 536 (1986) (quoting Jones).] 

The appellant in a capital case has a right to effective appellate advocacy. He does not have the right to consume unlimited time and resources. Writing a phonebook-sized brief and taking three years to write it is not effective appellate advocacy. It is delay for delay's sake. Tolerating such delays is not constitutionally required, and it is not good policy. The fear that a miscarriage of justice could result from a meritorious argument being barred in the future by the procedural default rule can be allayed by making an appropriate exception to that rule, as described further below.
As Chief Justice Castille outlines, the role of capital appeal/habeas counsel has morphed from providing adequate representation of the individual defendant into participating in a global strategy to bring down the death penalty itself.  Intentionally delaying and overpricing the proceedings is part of that strategy.

Three actions are called for.  First, all courts handling capital cases, state and federal, need to be far less indulgent with page and time limitations.  Give counsel sufficient latitude to represent the appellant/petitioner competently along the lines that the Supreme Court outlined in Jones and Smith and no more.

Second, capital appeals and habeas need to be removed from the core of anti-death-penalty crusaders and turned over to people who will simply provide competent representation without obstruction.  The hard core "true believers" should not have a monopoly on representation, and they should have no control over who is appointed.

Third, Congress needs to investigate what federal defenders are doing with the limited federal dollars they have available.  Their primary mission is defending indigent defendants in federal criminal cases and related proceedings.  See 18 U.S.C. §3006A(a)(1), (a)(2)(A).  A secondary mission is representing both state and federal prisoners in habeas cases in federal court under 28 U.S.C. §§ 2241, 2254, and 2255.  See 18 U.S.C. §3006A(a)(2)(B).  That's it.  Congress has never authorized federal defenders to represent state defendants on state collateral review. If they are spending resources on cases they are not supposed to be doing, they must necessarily not be spending those dollars on the cases they are supposed to be doing.

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