The Fourth Circuit\u27s Doube-Edged Sword : Eviscerating the Right to Present Mitigating Evidence and Beheading the Right to the Assistance of Counsel

Even before the sea change of Gideon v. Wainwright, the Supreme Court recognized not only an indigent’s right to the assistance of counsel in capital cases, but also his right to the effective assistance of counsel in capital cases. Since those auspicious beginnings, the Court has dramatically broadened the right to present mitigating evidence in the sentencing phase of a capital trial, thereby increasing the need for the guiding hand of counsel in capital sentencing. Thus, it is particularly tragic that the Fourth Circuit’s swiftly evolving approach to the prejudice prong of the ineffective assistance of counsel standard precludes capital defendants from winning ineffective assistance of counsel claims in the very cases where informed and effective assistance would have been most likely to have made a difference. According to the Fourth Circuit, all psychologically based mitigating evidence is a “two-edged sword,” because “although ‘evidence of a defendant’s mental impairment may diminish his blameworthiness for his crime,’ it also may ‘indicate that there is a probability that he will be dangerous in the future.” Thus for habeas petitioners in the Fourth Circuit, the possibility, however remote, that a jury would focus on dangerousness rather than culpability precludes ever winning an ineffective assistance of counsel based upon the failure to present psychologically-based mitigating evidence, no matter how compelling the neglected evidence is, or how derelict counsel was in failing to present that evidence. As this Article will demonstrate, the double-edged sword doctrine is wrong-headed in several respects. This Article hopes to persuade the reader that despite its newness, it is a doctrine already ripe for overruling—or reversal, if necessary. Part I briefly describes the capital defendant’s right to have available mitigating evidence presented to the sentencing body; the real dimensions of this right can properly be understood only by considering both the breadth of the abstract right to present mitigating evidence and the limitations imposed by the interaction of that right with the ineffective assistance of counsel doctrine. Part II describes how the Fourth Circuit’s double-edged sword doctrine departs from established doctrine and diminishes established rights. Part III presents the conceptual and empirical fallacies of the Fourth Circuit’s approach

AEDPA: The Hype and the Bite

On April 24, 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Thus, the AEDPA era began. While Clinton\u27s presidential signing statement paid lip service to meaningful federal court review of state court convictions, AEDPA\u27s supporters knew better. The fix was in, and happy habeas days were here again. But, as the old saying goes, What if you gave a revolution and nobody came? As I will argue, that is in many (but not all) respects what happened. In this Article, I have argued that AEDPA was, in many respects, more hype than bite. For the most part this is true because by the time AEDPA\u27s habeas reform measures were enacted, there was very little habeas left. Beginning in the 1970s, a conservative Supreme Court systematically limited the scope of the writ by erecting procedural barriers that made it difficult for state court inmates to thread the habeas needle. Thus, AEDPA may not have been too little, but it was too late

An Introduction to Post-Conviction Remedies, Practice and Procedure in South Carolina

The purpose of this article is to discuss various aspects of an inmate\u27s available post-conviction remedies in South Carolina. Very little has been written about this topic, perhaps because post-conviction is considered by many to be the redheaded stepchild of the legal system. Despite the importance of post-conviction remedies as a safeguard against unjust, unconstitutional, and erroneous confinements, this systemic devaluing of the importance of the post-conviction process is widespread. Convicted persons in South Carolina raising post-conviction challenges rely almost exclusively on appointed counsel, most of whom have little experience in this area of the law. Counsels\u27 enthusiasm for the cases also varies widely, but many appointed lawyers devote little time to investigating available grounds for relief and in preparing the cases for trial. This is especially unfortunate because, in most cases, the state post-conviction process will be the inmate\u27s last chance to raise any additional challenges to his conviction or sentence. This article will outline the law, practice, and procedure surrounding the pursuit of post- conviction remedies in South Carolina. While a systematic discussion of the tactical considerations that play a critical role in successful post-conviction representation is beyond the scope of the article, it will address some of these concerns. Similarly, this article will not attempt a detailed discussion of the panoply of substantive claims that one can raise in post-conviction proceedings. Rather, this article is written primarily to give to lawyers representing inmates seeking post-conviction relief, and to provide inmates proceeding pro se, an overview of the mechanisms of the various post-conviction remedies available in South Carolina. The information should also prove useful to members of the judiciary, their clerks, and others involved directly or indirectly in this aspect of the judicial process

An Introduction to Post-Conviction Remedies, Practice and Procedure in South Carolina

The purpose of this article is to discuss various aspects of an inmate\u27s available post-conviction remedies in South Carolina. Very little has been written about this topic, perhaps because post-conviction is considered by many to be the redheaded stepchild of the legal system. Despite the importance of post-conviction remedies as a safeguard against unjust, unconstitutional, and erroneous confinements, this systemic devaluing of the importance of the post-conviction process is widespread. Convicted persons in South Carolina raising post-conviction challenges rely almost exclusively on appointed counsel, most of whom have little experience in this area of the law. Counsels\u27 enthusiasm for the cases also varies widely, but many appointed lawyers devote little time to investigating available grounds for relief and in preparing the cases for trial. This is especially unfortunate because, in most cases, the state post-conviction process will be the inmate\u27s last chance to raise any additional challenges to his conviction or sentence. This article will outline the law, practice, and procedure surrounding the pursuit of post- conviction remedies in South Carolina. While a systematic discussion of the tactical considerations that play a critical role in successful post-conviction representation is beyond the scope of the article, it will address some of these concerns. Similarly, this article will not attempt a detailed discussion of the panoply of substantive claims that one can raise in post-conviction proceedings. Rather, this article is written primarily to give to lawyers representing inmates seeking post-conviction relief, and to provide inmates proceeding pro se, an overview of the mechanisms of the various post-conviction remedies available in South Carolina. The information should also prove useful to members of the judiciary, their clerks, and others involved directly or indirectly in this aspect of the judicial process

Deadly Force in Memphis: Tennessee v. Garner

On October 3, 1974, officers Hymon and Wright of the Memphis Police Department responded to a call about a burglary in progress. When they arrived at the address, a woman standing in the door told the officers that she had heard glass breaking and that someone was breaking into the house next door. Officer Hymon went around the near side of the house. When he reached the backyard, he saw someone run from the back of the house. With his flashlight, he found a person crouched next to a fence at the back of the yard, some thirty to forty feet away. Hymon identified himself as a police officer and ordered the person to halt. The young man ignored the command and attempted to jump the fence. Hymon fired, striking him in the head; the young man fell, draped over the fence. The unarmed suspect, fifteen-year-old Edward Eugene Garner, died shortly thereafter on the operating table. Officer Hymon was acting pursuant to both the law of Tennessee and the policy of the Memphis Police Department. A Memphis police officer is authorized, and instructed, to use deadly force to apprehend a fleeing felon after other reasonable means to apprehend that person have been exhausted. Police are taught to shoot to kill, rather than merely to wound. Thus, there is little doubt that Garner\u27s death was not an accident. In 1975, Garner\u27s father filed a civil rights action against the Memphis Police Department, the City, the Mayor, the Director of Police, and Officer Hymon. The suit alleged that Hymon violated Eugene Garner\u27s constitutional rights under the fourth, eighth, and fourteenth amendments when he shot and killed Garner. The other defendants were sued on the grounds that their failure to exercise due care in the hiring, training, and supervision of Hymon made them equally responsible for Garner\u27s death. Trial was held in August of 1976. At the close of the plaintiffs case, the district court granted a motion for a directed verdict in favor of the City and the Police Department. The court later found for the remaining defendants on all issues. On appeal, the Sixth Circuit affirmed that part of the district court\u27s decision dismissing the case against each of the individual defendants. The court, however, remanded with respect to the City in light of Monell v. Department of Social Services, an intervening Supreme Court decision holding that municipalities could be subject to liability under the United States Code, title 42, section 1983. The district court was instructed to consider whether the municipality was entitled to qualified immunity because its policies had been set in accordance with state law, and if not, whether the use of deadly force to capture nondangerous fleeing felons was constitutionally permissible. On remand, the district court found that the Tennessee deadly force statute was neither unconstitutional on its face nor as applied. Because the district court found that Garner had not been deprived of any constitutional right, it did not reach the immunity issue. An appeal again was taken to the Sixth Circuit. The appellate court determined that the Tennessee deadly force statute violated the fourth and fourteenth amendments of the Constitution. The United States Supreme Court granted certiorari in March 1984 and recently heard oral arguments. Analysis of the deadly force rule in the context of the mandates of the fourth, eighth, and fourteenth amendments clearly indicates that the use of deadly force against a nonviolent fleeing felon is unconstitutional. In the event, however, the Court finds that the fleeing felon rule does not violate the fourth or fourteenth amendments and reverses the Sixth Circuit, opponents of deadly force will be left with two options: to accept the Court\u27s ruling or find a new constitutional theory with which to attack the laws. An argument may be made that killing the fleeing felon who has not committed a crime of violence, and does not pose a threat of violence, violates the ninth amendment

Killing the Willing: Volunteers, Suicide and Competency

When my client Robert South decided to waive his appeals so that his death sentence could be carried out, I understood why he might make that choice. Robert had a brain tumor that could not be surgically removed. Though not fatal, the tumor disrupted his sleep/wake cycle and had other negative physical consequences, including severe headaches, for his daily existence. He also had chronic post-traumatic stress disorder ( PTSD ), resulting from a profound history of childhood physical, emotional and sexual abuse. Robert suffered from daily recurrent flashbacks of the abuse. He had been on death row for almost a decade, and his children were grown. In his own words, he was tired, and he no longer wanted to go on. Even though he almost certainly would have obtained a new sentencing trial, and a life sentence seemed clearly obtainable, I did not view his choice as irrational. But it was suicidal. As a consequence, my feelings about his waiver were mixed; perhaps respect for him as a person should have led me to defer to, rather than resist, his choice. Rightly or wrongly, I opposed his choice, arguing that he was not competent to waive his appeals. But he was deemed competent, and, truth be told, correctly so. Despite my legal opposition to his choice, Robert asked me to be his witness at his execution, and I held his hand while the state took his life by means of lethal injection

The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted

This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might give, the jury would infer that they were guilty based on their prior misdeeds. Because the current legal regime discourages defendants, even factually innocent defendants from telling their story at trial, the law should be changed. Only prior convictions for perjury should be potentially available for impeachment purposes

Killing the Willing: Volunteers, Suicide and Competency

Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment. This article takes a different approach. It asks how, and how often, volunteers are in fact similar to suicidal persons and offers some empirical comparisons between the characteristics of death row inmates who have waived their appeals and been executed with those of people who commit suicide in the “free world.” The demographic and epidemiological similarities between death row volunteers and free world suicides strongly suggest that the present legal standard for assessing the legitimacy of a death sentenced inmate’s desire to waive his appeals–the competency standard–has turned a blind eye to the possibility that many waivers are motivated by the inmate’s desire to commit suicide. Thus, this article proposes a standard for assessing waiver which both attempts to insure that a death row inmate is not permitted to use the death penalty as a means of committing state assisted suicide, and which protects the right of a mentally healthy inmate to forego further appeals when motivated by acceptance of the justness of the punishment