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Who Can Represent Defendants in Death Penalty Cases?

A writer reminds me that a subplot in the movie “My Cousin Vinnie” involves the qualifications of an out-of-state lawyer hired to represent the defendant in a death penalty case. So, she asks, what are those qualifications?

Federal courts and most states with the death penalty require that when a defendant is charged with a crime eligible for the death penalty, at least one member of the defense team meet certain standards. Although prosecutors are not required to declare whether they will seek the death penalty when they file charges, the American Bar Association’s 2003 Guidelines recommend that qualified counsel be appointed as soon after arrest as possible – even before the defendant has been formally charged or found eligible for a public defense. As far back as 1932, the U.S. Supreme Court acknowledged that a person facing criminal charges “requires the guiding hand of counsel at every step in the proceedings against him.”

Why? Because the stakes are never higher. The primary goals, of course, are to make sure that the process is fair, that convictions are reliable, and that the sentence imposed is appropriate. A great deal of recent publicity has underscored the too-frequent inequities and outright errors in capital – or death penalty – cases. Those cases involve many of the same decisions and issues as other criminal cases – issues of witness credibility, forensics, aggravating and mitigating factors in sentencing. But in capital cases, those issues may be more acute, and others also arise. Should the defendant undergo a psychiatric examination? How should potential jurors be questioned about their attitudes toward capital punishment? Should the method of execution be challenged?

As the law evolves – and it always does – keeping up gets harder. Capital cases often involve psychiatric issues not present in other cases. Prosecutors and defense counsel need a working knowledge of both mental competence – the defendant’s ability to understand the charges and help with his own defense – and mental illness. A high percentage of capital defendants suffer from some degree of mental illness. Lawyers on both sides – and judges – have to evaluate whether mental illness is a defense in the case, a factor in sentencing, both, or neither.

The enormous responsibilities of defending capital cases place huge pressures on counsel – emotional and psychological pressure, as well as the need to organize their time, case files, and staff efficiently.

Such highly specialized skills can be hard to find. In a current Montana case, prosecutors may seek the death penalty against the two suspects in a triple murder in a small town near Missoula. But our low population means death penalty cases are uncommon, and sufficient experience hard to find. So, each defendant was appointed an out-of-state lawyer with death penalty experience to work with an experienced Montana criminal lawyer.

What of a defendant who chooses to represent himself? I’ve written about pro se defendants before (see the Questions of the Month on my website), but the death penalty complicates the issue. The defendant’s mental status and competence to represent himself is crucial – and for that reason, pro se capital cases are rare. Backup or standby counsel will be appointed to assist and advise the defendant, and take over if necessary.

So what is required to be a capital defense lawyer? The federal courts have adopted a specific procedure for certification, as have many states, following the ABA Guidelines. I can’t begin to summarize the various rules, but at the minimum, they involve the following considerations:

• experience preparing, negotiating, and trying complex criminal cases, preferably including other capital cases;
• knowledge of the applicable law, both substantive and procedural;
  
• experience and skill working with expert witnesses, especially on issues such as  forensics, DNA, ballistics, and psychiatry;
  
• skill in research, analysis, and drafting documents, and in oral advocacy;
  
• skill in investigating, preparing, and presenting evidence on mental status;
  
• experience managing complex cases, including staff (other lawyers, investigators, and clerical personnel), physical evidence, and documentation;
  
• experience investigating and presenting mitigating factors – those aspects of a case and a life that warrant a sentence less than death;
  
• ability to work and communicate with a client who may be mentally impaired or socially dysfunctional;
  
• a limited workload.

And, I would add, empathy, unquestionable ethics, and a passion for justice.

The ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (rev. 2003) are at http://www.abanet.org/deathpenalty/resources/docs/2003Guidelines.pdf.

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