• Who Can Represent Defendants in Death Penalty Cases?
• Jurisdiction -- Who's the Law Where?
• May a person be convicted of homicide if the victim's body is never found?
• Can a child testify in a criminal trial?

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 states with smaller populations, death penalty cases are less common, and it may be difficult to find a lawyer with sufficient experience who is able to take on the case. In that situation, the court may appoint an out-of-state lawyer with death penalty experience to work with an experienced local criminal lawyer.

What of a defendant who chooses to represent himself? The death penalty complicates the already messy question of pro se defense. 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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Jurisdiction -- Who's the Law Where?

A writer asks for clarification of the jurisdiction – that is, the authority – of city, county, and state law enforcement agencies. Variations abound, but a few general definitions apply:

• city law enforcement agencies, usually called the Name-the-City Police Department, have authority within the city limits. In larger cities, police departments run their own jails, while in others, detention services are contracted to the county. A very small town may contract with the county sheriff for full-time or part-time services, e.g., for weekend or vacation shifts.
  
  
• county agencies, typically called Name-the-County Sheriff’s Department or Office, have jurisdiction in the unincorporated areas of the county – that is, everywhere except the incorporated cities and towns. The term sheriff derives from the medieval English shire, or county, and reeve, or official, meaning a local official responsible for executing legal processes and court orders.
  
  
• state agencies, home to most variation. Some states have state police departments with broad investigative authority; others have highway patrol agencies, whose authority is generally limited to traffic investigations and violations. Most states also have some kind of criminal investigation agency that assists local agencies, especially those in smaller towns, or when a key member of a department has a conflict of interest.

Another option – a consolidated city-county department – works well when a city occupies the bulk of a county, leaving the county with a law enforcement obligation, often over widely scattered areas, but a limited tax base to support its budget.

In many areas, 911 and dispatch services are consolidated to avoid duplication and improve coordination of law enforcement, emergency medical services, and fire protection.

Inter-agency cooperation is a must, and takes many forms. When a chase approaches jurisdictional limits, nearby agencies are notified and asked to stand ready to assist; a suspect may be arrested in one community but turned over to another where he will be held and tried. Major case investigations often cross city or county lines. While a Seattle police officer, for example, could legally question a suspect in Bellevue, professional courtesy dictates that local law enforcement be notified – particularly helpful if the situation deteriorates into violence or requires an arrest. Other interagency cooperation is more formal, via written agreement.

Joint task forces are formed to address shared problems. Several counties in northwest Montana formed a Joint Drug Task Force to deal with regional drug manufacturing and distribution; it also includes representatives of ICE, the U.S. Customs and Immigration Enforcement agency, and tribal police.

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May a person be convicted of homicide if the victim's body is never found?

Yes. With no body, prosecutors must rely on other evidence to establish that the crime alleged occurred and the defendant committed it. Both direct evidence--such as confessions and eyewitness testimony--and circumstantial evidence--such as blood stains and testimony of related events--may be used.

The U.S. Supreme Court first acknowledged that a person could be convicted of homicide without a body in 1834. Of course, in modern cases, DNA evidence may be critical.

In a recent Montana case, prosecutors alleged that Martell severely beat the victim, Red Dog, then threw his body into the mostly frozen Missouri river. Witnesses testified to the beating. Searchers were unable to find Red Dog's body, but did find his ripped jacket and bloody sweatshirt. A hunter testified to seeing blood stains in the road where the beating occurred. Prosecutors also relied on Martell's written statement admitting that he instigated the fight and had told his partner in the beating that they "couldn't let [Red Dog] go" alive.

In another case, prosecutors alleged that Moore shot Brisbin in Moore's camper. Witnesses said Moore had called Brisbin and asked him to come to the camper; he hadn't been seen since nor his body found. Within two days of Brisbin's disappearance, Moore cleaned blood from his camper, discarded bullets and carpet, covered and repaired bullet holes, and spilled battery acid in the camper in an effort to cover and clean stains. A bullet was found under the floor of the camper. (The shooting and conviction occurred before DNA analysis became available.) On appeal, the court agreed with prosecutors that Moore's actions showed consciousness of guilt, much like evidence of flight after a crime, and the evidence was relevant to the jury's decision because it "tended to prove" both the commission of the crime and Moore's responsibility.

Other cases have turned on testimony about death threats and years of domestic abuse, blood-spatter evidence, a bloodstained revolver, bits of tissue, recent life insurance purchases on the victim, and elaborate lies told to explain the victim's disappearance.

In your stories, keep in mind that where there is no body, you must show that the crime occurred--that is, the victim is probably dead--as well as showing that your character committed the crime. The evidence you rely on must go directly to the heart of the case, the res gestae or "things done." Put the missing person in direct contact with the defendant, as with Martell's beating of Red Dog, or Moore's phone call to Brisbin. If you use physical evidence from the homicide scene, put both victim and killer together at or near the scene. Complicate matters by involving another person, as in Red Dog's murder, or with evidence suggesting that the victim often disappeared on his own for weeks at a time. Show that the killer had the opportunity to dispose of the body--or frustrate detectives with evidence that he had no time to hide it.

Because bodyless cases are hard to prove, they often turn cold. Your story may benefit from a tenacious detective or prosecutor, a forensic analyst, or a determined relative. Find ways to put your witnesses in a position where they need to talk--or need to stay silent. In real life, no body sometimes means no conviction. But in fiction, it can make for a terrific story.

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Can a child testify in a criminal trial?

Yes, but very young children must first be found competent to testify. In Idaho, Joseph Duncan was set to stand trial for murdering a woman, her boyfriend, and her teenage son, and kidnaping her two younger children for sex; he later killed the younger boy but was captured in Montana with the girl, then nine. Idaho law requires a judge to interview privately any child under ten to determine competency. Days before trial, the judge found the girl competent to testify.

Some states establish competency review requirements by statute, while others rely on case law. Most states require that witnesses under ten be interviewed to determine their competency, either before trial or during trial but outside the presence of the jury. Older children’s competency may also be challenged, if the lawyer opposing the testimony files a motion asking the court to determine competency. In the Duncan case, the nine year old is the only living witness to a triple homicide; the judge determined her competency before trial because of the potential effect on plea discussions and trial if she were unable to testify.

The issue in determining competency is whether the minor witness has the ability to 1) understand the obligation to tell the truth, and 2) to accurately relate events seen, heard, or experienced. (The same rules apply to adult witnesses whose mental capacity is in question.) Those criteria are broken down further into these elements:

• Capacity to observe.
• Sufficient intelligence.
• Adequate memory.
• Ability to communicate.
• Awareness of the difference between truth and falsehood.
• Appreciation of the obligation to tell the truth in court. Judges are trained to use age-appropriate terms and measures. A young child may say that if she lies she’ll be punished, or if he doesn’t tell the truth, God won’t love him any more. In most cases, that’s enough.

In Washington State, a three year old was allowed to testify about abuse that occurred when she was two, because she met the basic criteria for competence as to the subject of her testimony. Obviously, she could not be asked more complex questions that a seven or ten year old could understand and respond to, but she demonstrated her understanding of the difference between the truth and a lie, and the importance of telling the truth; the judge concluded that she had the necessary ability to observe and communicate what had happened to her. However, it’s entirely possible that another three year old or an older child might not be found competent.

When a child is unable to testify, their prior statements to parents, counselors, doctors, or law enforcement may be admissible at trial under some circumstances. I’ll look at that issue in another column.

As a direct result of the Idaho court’s competency decision in Duncan’s case, on the day jury selection was scheduled to begin, Duncan pled guilty in state court to three charges of first degree homicide and three charges of first degree kidnaping. He was immediately sentenced to life in prison without parole on the kidnaping charges. Federal prosecutors plan to try him on additional kidnaping and homicide charges for taking the two young children to Montana where he molested both and killed the boy. If he is not sentenced to death on the federal charges, Idaho may still seek the death penalty on the Idaho homicides. Duncan said he wanted to spare the family and community any more pain. It's unlikely that he would have pled guilty without the nine year old's testimony. Two other states are still considering charges for unrelated crimes.

The possibility that a child will testify can add a lot of drama and tension to a case. You can use that possibility, the competency evaluation, and the trial testimony to complicate your plot and add layers to your story.

The Duncan case is discussed in several Q&A in my book, Books, Crooks & Counselors.

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