Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor\u27s Council Report

Sullivan, Michael J.

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The Process of the Governor\u27s Council

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 80 | Issue 1 Article 7Winter 2005The Process of the Governor's CouncilMichael J. SullivanU.S. Attorney, MassachusettsFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, Criminal Law Commons, Judges Commons, and the State andLocal Government Law CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationSullivan, Michael J. (2005) "The Process of the Governor's Council," Indiana Law Journal: Vol. 80: Iss. 1, Article 7.Available at: http://www.repository.law.indiana.edu/ilj/vol80/iss1/7INDIANA LA WJOURNALAnd, finally, I want to say a word about compensation. The Report says that thereought to be adequate compensation for defense counsel in death penalty cases. And ofcourse, there should, but the Report doesn't really go beyond this brief statement. Thereality in this country is that indigent defendants in criminal cases everywhere arerepreseited by lawyers who are paid at a discount. We just don't provide adequatecompensation! Ironically, in Massachusetts there are terrible problems in providingcounsel for defendants in criminal cases right now, largely because the compensationpaid to defense counsel is so inadequate. There is litigation right now before theMassachusetts Supreme Judicial Court on this issue. The fees paid to assignedcounsel-the lawyers upon whom Massachusetts relies very heavily-are $30 an hourin District Court, $39 an hour in Superior Court, and $54 an hour in murder cases. Andincreasingly, assigned counsel have been refusing to handle criminal cases. Therefore,what you need to do is make certain that you have compensation that is far above whatis now being paid in criminal cases in Massachusetts. And we have learned that whenyou don't have adequate compensation the best lawyers won't take the cases.In the study that I did in the nineties here in Indiana I interviewed a number of thebest criminal defense lawyers in the state who also have private practices. And theytold me they would not take a capital case in the state of Indiana. At that time Indianawas paying $70 an hour in capital cases. They said they might be willing to defend acapital case in federal court, which was paying $125 an hour, but they were not sure.We need to understand that the billing rates among the best lawyers in this country, onthe average, in a study reported a couple of years ago by Altman and Weil, are $275 anhour for a partner. That's an average throughout the United States for a partner in amajor law firm. When you're asking lawyers to defend a capital case-the mostimportant kind of work they can undertake in the criminal area-it is absolutelyshameful that they are not better compensated.The defense of a capital case can take upwards of 500 to 1,000 hours just for thetrial itself. That is a half year's work or more for a criminal defense lawyer. I genuinelywonder whether Massachusetts, which thus far has been unwilling to fund defensecounsel at reasonable rates of compensation in other criminal cases, will be willing todo so in the capital area. In Indiana we have increased, incidentally, from $70 an hour.We have a cost of living adjustment built into the rule so that beginning January 1,2005, the state will pay the grand sum of $96 an hour. And that's much better thanmost states around the country.THE PROCESS OF THE GOVERNOR'S COUNCILMichael J. SullivanAs a member of the Governor's Council I want to briefly touch on the process wewent through in producing this Report. First, it was a collection of attorneys, bothdefense and prosecutors. The judiciary was represented, as was the scientific and thelegal scholar community. Professor Hoffmann mentioned that he is not sure even todaywhich members of the Council were death penalty proponents and which members ofthe Council were adamantly opposed to any type of death penalty proposal inMassachusetts. Quite candidly, I'm not sure either. You might be able to get a sense ofthis during the course of discussion about the number of aggravating circumstances that[Vol. 80:35PANEL ONE-THE CAPITAL CRIMEshould be considered, or how broad or how narrowly defined the list should be, buteverybody's objective ultimately was to ensure, as best as humanly possible, that onlythose who are guilty could ever be sentenced to death in the Commonwealth ofMassachusetts.Even though there has not been much debate about the oversight by the StateAttorney General amongst the eleven elected District Attorneys in the Commonwealthof Massachusetts, it would clearly be new and unusual from the independently electedDistrict Attorneys' perspective. I think people recognize that it is important to havesome level of consistency in the death penalty's application; it should be narrowlydefined and consistently applied so that one area of the state is not going to be treateddifferently because of either political or philosophical considerations by an electedDistrict Attorney. It will be interesting to see, if this provision is fully debated, whetheror not the District Attorneys as a body believe that the State Attorney General is theproper reviewing office or if some other system of review can achieve the samebalance.The other area that I think is quite interesting and potentially controversial is thelimited scope of the death penalty under this proposal. Of all the homicide cases inMassachusetts, very few would be eligible under this proposal. In fact, one could arguethat the murders that the public become most enraged about, oftentimes murder of themost vulnerable, are the ones that are least represented in these proposals. And whenyou're thinking about enacting legislation in a state that does not presently have a deathpenalty, it appears to me that this proposal does not have any natural constituencygroups, whether it's law enforcement or victim's families, that would be advocates forthis death penalty. I find that very interesting and potentially controversial as well.I greatly enjoyed the experience. And I really have to compliment ProfessorHoffmann and Dr. Bieber for the tremendous leadership that they provided to a verydiverse group. The Report suggests eleven members, but, you know, clearly theGovernor's Deputy Chief Legal Counsel, Bill Meade, was a critically important partnerin the process as well, and I think he deserves equal recognition also. Thank you.THE PSYCHOLOGY OF CAPITAL PUNISHMENTThe Honorable Sheila M. MurphyThe work in Massachusetts is very interesting and important. However, I hope thatthe death penalty will not be enacted in Massachusetts. I hope that Massachusettsremains free of the death penalty for a number of reasons. First, to do any deathpenalty, and give it just a modicum level of fairness, would require a great amount ofmoney. It costs almost as much money for the factual investigation as for attorneys.This fact is largely neglected.Yesterday I received a copy of the police notes of a lineup, as a result of repeatedfreedom of information requests to Houston on the capital case involving DominiqueGreen, who faces execution on October 26th. The witness to the lineup said, "I can'tidentify the person. It's either two or four in the lineup. The man who had the gun andstuck me up had a hood. Would you have either number two or number four put on thehood?" And so they had Dominique Green put on the hood. Guess who was chargedwith the capital crime?20051

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The Process of the Governor\u27s Council

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