Overview - 15 Steps to Life

15 Steps to Life is our comprehensive strategy guide to defending a capital case. Originally written by VC3 founder Bill Geimer, the Clearinghouse has recently updated the guide and is engaged in a continuous process of tailoring it to Virginia procedures and issues.

ELIMINATING DEATH FROM YOUR CASE: THE BIG PICTURE

(Printer Friendly Versions: This Section | Entire Document)

Eliminating Death from Your Case?

Some very important personal and professional matters should be settled at the outset by anyone undertaking responsibility for the life of another. There are many good reasons not to accept a capital case, or to withdraw quickly. They include:

I have not yet tried a criminal case to a jury. My small firm cannot afford the time and expense required to provide competent, aggressive defense. I don't think I can handle the stress. I am too repulsed by what the client did. Neither I nor my firm can risk the public scorn, loss of clients, or loss of favorable working relationships with prosecutors, judges, law enforcement officers and court personnel that might be the result of providing a competent, aggressive defense. My client is indigent and the court will not provide the resources minimally necessary for a competent, aggressive defense. These include time, competent co-counsel, investigatory resources, and fees.

These very personal and practical considerations also implicate Professional Responsibility standards. For example, Virginia Rule of Professional Conduct 1.1 states that, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

However, these caveats should not discourage you from taking a capital case. Indeed, in many respects, there is no more rewarding work. Rather, you should consider these matters prior to accepting a case in order to ensure that you are prepared personally and professionally to do what it takes to save your client from a sentence of death.

These considerations regarding resources require some further explanation. Representation of an indigent client in a capital case means that your compensation will be inadequate. You must take this into account, and consider whether you are willing to spend your own funds, if necessary.

There are two resources, however, that you must not elect to do without. The first is time. When you consider the tasks outlined in these materials, we think you will agree that no capital case should proceed to trial within a year of indictment or other charging document. In fact, a year will often be insufficient.

The second is co-counsel. Keep in mind that you will be working to eliminate death from your case as you simultaneously prepare for three trials: (1) the trial to determine the client's eligibility for a sentence of death; (2) the trial to determine the client's sentence; and (3) the case before the appellate courts. Of course, you never want to reach any of these trials, and the materials found at VC3.org will help you to avoid them. But, you must prepare for all three; you can not do it alone. You need as many qualified people as possible on the defense team, but co-counsel is an absolute minimum. (Also, remember that VC3 is available to assist you.)

In fact, in the case of an indigent client charged with a capital offense, the Virginia Code specifically provides for the appointment of co-counsel. Va. Code. Ann. § 19.2-163.7. You should also be aware that, in accordance with Va. Code Ann. § 19.2-163.8(E), the Virginia Public Defender Commission set requirements for lead and co-counsel for indigent clients. For example, lead counsel must be an active member in good standing with the Virginia State Bar, must have at least five years of criminal litigation experience in the preceding seven years, and meet a minimum number of hours of specialized training. You should familiarize yourself with these requirements.

Often, the optimum time to negotiate for these resources and others—including investigators, mitigation specialists, and experts—is when the judge initially seeks to have you appointed to the case. You should remind reluctant judges that you have a constitutional and ethical duty to provide effective assistance of counsel, and that you cannot and will not do so without minimally adequate resources. (This consideration is also important to public defenders, who should also say no when overloaded.)

OK. With eyes wide open, with courage, and with at least some resources, you have accepted a capital case. Let's proceed to make it non-capital.

Some Important Differences Between Capital and Non-Capital Defense

The skills you have developed in non-capital criminal defense will not be wasted, but there are some notably different requirements in capital defense. Unfortunately, what passes for success in the majority of capital cases is winning your client the right to spend the rest of his life in a cage. Better results are sometimes possible, but getting rid of the possibility of a death sentence is the first order of business. The administration of death penalty statutes in all jurisdictions is principally a matter of politics rather than law. Consequently, you will be required to proceed quite differently in several respects than you do in providing good defense in non-capital cases. We will discuss the details of these differences as we proceed through a 15 step process of making your case non-capital. Here is an overview:

YOU ARE NOT PREPARING FOR A CAPITAL TRIAL, YOU ARE PREPARING NOT TO HAVE A CAPITAL TRIAL.

There, of course, may be a capital trial— it may be unavoidable— and you must be prepared for that trial. But it is crucial not to view this outcome as inevitable, or even likely. Our experience has been that far too many defense attorneys, judges, and prosecutors get locked into the implicit assumption that a capital trial will happen. It just seems to be a given. Your assumption, however, should be that there will be no capital trial because either (1) the client will plead guilty to a non-capital offense, or (2) a death sentence will no longer be an option when the case goes to trial. You may be surprised to see how often this "not a death case" mind-set can be communicated to prosecutors and judges.

THE TRIAL IS NOT EVERYTHING: PROTECTING THE RECORD.

For many able criminal defense lawyers, a conviction is appealed, if at all, no further than a state appellate court. That is, after all, where the constitutional right to counsel ends. In particular, thought is rarely given to the federal courts. Good appellate practice in these cases also means winnowing out weaker claims and concentrating on stronger ones. Capital defense is a different world.

A conviction and death sentence should and almost always will proceed through the entire state and federal system. This means certiorari to the U.S. Supreme Court, state collateral proceedings, and federal habeas. There is a small, but obviously important chance that a death sentence may be reversed during these proceedings, but only if you have proceeded at trial in a way that keeps that chance alive.

A complete guide to preserving the record is beyond the scope of these materials. It is important to keep in mind, however, that whether an appellate court, particularly a federal court, will even consider granting relief for the most egregious violations of constitutional rights depends almost entirely on what you have done or failed to do at the trial level. Here are some general pointers:

Learn Virginia's trial and appellate rules.

Virginia trial and appellate procedures are governed by the Rules of the Supreme Court of Virginia, Part 3:A Criminal Practice and Procedure.  Specifically, Rule 3A:9 governs pleadings and motions for trial, including defenses and objections, and Rule 3A:15 governs motions to strike or to set aside the verdict, judgment of acquittal, or new trial.  

Procedural default rules, which bar a capital defendant's appellate and habeas corpus relief and can mean the difference between life and death, are defined by Rule 5:25 and common law.  If an appellate court deems an issue procedurally defaulted, clients may lose their opportunity to attack the sentence with valid appellate and habeas claims.  For an understanding of Virginia's contemporaneous objection rule, appropriately noting an objection in the record, and correctly preserving errors for appellate review and habeas corpus proceedings, see Matthew K. Mahoney, "Bridging the Procedural Default Chasm," 12 Cap. Def. J. 305 (Spring 2000).

Everything is Federal.

In addition to applicable state law grounds for every motion, objection, submission, these issues must be raised on federal grounds also. For example, if the court is going to deny you the time you need to prepare a complete defense, you do not simply move for a continuance. In virtually all jurisdictions, the grant or denial of continuances is purely a matter of state law, left to the sound discretion of the trial judge and reviewed on an abuse of discretion standard. Your motion must claim in addition that if you are denied time to prepare, the client will be denied the right to effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution, any death sentence that results will violate the Eighth Amendment, and the entire proceeding will be fundamentally unfair, in violation of the Fourteenth Amendment. If you put your mind to it, you will soon see that virtually every unfair action or ruling can be seen as a violation of the Sixth, Eighth and Fourteenth Amendments!

To preserve an issue for appellate review, counsel should always cite the United States Constitution, as interpreted by the decisions of the United States Supreme Court and other lower courts, the Virginia constitution, state law (statutes, rules or case law), and "any other applicable law," as bases for granting relief in any motion, objection, request for jury instruction or other application to the court. Moreover, since citation to one constitutional provision does not preserve the issue if counsel tries to later present the same issue under a different constitutional ground, it is important to cite to all possible applicable clauses of the state and U.S. Constitutions.

More particularly, defense counsel also should take at least the following steps to adequately preserve an issue for appellate review: (1) counsel must raise every possible issue; (2) counsel must "federalize" all motions, pleadings and objections by citing to federal court decisions; (3) counsel must establish a factual basis for relief both in broader and more specific terms; (4) counsel must ensure that the substance of all meetings and discussions appear on the record; and (5) counsel must make sure that all grounds for objections be fully developed on the record, even if it means filing a handwritten memo with the clerk.

Because defense counsel are charged with anticipating developments in the law, the lawyer representing a person facing the death penalty must be on the cutting edge of the law. Every possible issue must be preserved at each step of the process. Counsel should contact lawyers and organizations specializing in capital representation to find out what issues are being raised in other cases, what issues are pending at the United States Supreme Court and the state supreme courts, and what new decisions have come down. Counsel should preserve anything that appears unfair or unjust even if it involves challenging accepted practices. That is the way the law changes and improves.

It is important for counsel to assert all grounds of relief, not just what seems to be the best ground. It is better to be over-inclusive than under-inclusive. Counsel should not leave out an issue simply because it has been rejected or is without precedent. Counsel must keep in mind that what is a losing issue today may be a winning issue tomorrow. Thus, counsel must assert positions that have not yet won acceptance. When precedent is lacking, counsel should make assertions based upon broad application of constitutional principles such as fundamental fairness guaranteed by the due process clause of the Fourteenth Amendment or the Eighth Amendment's requirement of heightened reliability in a capital case. Because it is impossible to anticipate new decisions years in advance, counsel must be creative in framing issues and asserting every reasonable constitutional ground in support of them.

Therefore, in stating the legal grounds, counsel should mention any applicable Amendments to the U.S. Constitution, any sections of the state constitution or law and "any other applicable law." For example, an objection to hearsay testimony should be based not only upon the state evidentiary rule against hearsay, but also upon the right to confrontation in the state constitution and in the Sixth Amendment to the United States Constitution, the Eighth Amendment requirement of heightened reliability in a capital case, and the cruel and unusual punishment clause of the state constitution. Similarly, if the judge limits what counsel can ask on voir dire, it may violate the client's rights to an impartial jury guaranteed by the Sixth Amendment and to a fair trial guaranteed by the Fourteenth. It may also violate the similar provisions contained in the state constitution, and state statutes, rules, or caselaw.

Whenever possible, in addition to state supreme court cases, counsel should cite to federal cases - United States Supreme Court, the United States Courts of Appeals, and federal district courts. (By citing a case, counsel invokes all of the principles discussed in that case.)

It is essential that counsel be familiar with capital decisions from the United States Supreme Court and the federal circuit courts of appeals and argue those cases. Cases decided by the United States Supreme Court are particularly important. Some of these cases, such as Gardner v. Florida , 430 U.S. 349 (1977), set out constitutional principles that may be used by counsel to construct arguments regarding a number of issues.

For example, anything involving the fairness of the trial raises an issue under the reliability requirement of the cruel and unusual punishment clause of the Eighth Amendment and the due process clause of the Fourteenth Amendment. Thus, counsel in a case might file a motion in limine to exclude prejudicial evidence such as other crimes or photographs based upon the Eighth and Fourteenth Amendments. At trial, counsel would assert these Amendments in an objection to any prejudicial evidence or in opposition to any objection made by the prosecution.

This is not to minimize the importance of raising all state law grounds. Indeed, it is crucial to also cite the relevant provision of the state constitution, statute or rule because the state supreme court may find a violation of the state law or constitution, even though the Supreme Court of the United States would not interpret the federal constitution in the same manner. This phenomenon has happened repeatedly.

Of course, on many occasions the federal courts have held the protections of the United States Constitution to be greater than the state protections. There is no way to know whether the state or federal grounds will save a client's life until the decision is rendered. So, counsel must assert both state and federal grounds at each stage to each court.

THE TRIAL IS EVERYTHING

How small is the chance for appellate relief described above? Very small. Recent statutory and case law developments have all but eliminated federal habeas relief. Some state courts afford meaningful appellate review, most do not. The current state of things means that you must proceed on the assumption that if the client is sentenced to death, he will eventually be executed. And, in case you need a little more motivation (or pressure) most capital trials result in death sentences. That is why the focus of these materials is: do not have a capital trial.

THE BIGGEST DIFFERENCE: MITIGATION

The greatest departure from non-capital defense involves finding and using whatever it is about the client, his life, or the circumstances of the charge that will avoid a death sentence. This is a massive task. It must be undertaken as early as possible. It usually takes priority over preparation related to guilt or innocence, though both tasks must be conducted simultaneously. (See absolute requirement of co-counsel.) Finally, the case in mitigation is likely to be less effective if it must be presented at trial. That is in part because your effort to tell a powerful human story will have to be crammed into the stilted legal devices of direct and cross examination, exhibits, arguments, etc. That is why we focus on the formation and use of mitigation evidence before trial.

MORE CREATIVITY AND A THICKER SKIN

These attributes are certainly useful in non-capital defense. They are vastly more important to capital defense. Capital cases are driven by political considerations. Once the train gets moving, creative efforts to slow or derail it may not be well received. Good relationships formed over time in the court system with decent people may be jeopardized.

A good example of creative capital defense that can provoke strong negative response even as it is vital to the client is motions practice. The most valuable part of your state's criminal procedure system may very well be the rule or statute providing that anything except the ultimate question of guilt or innocence can be the subject of a pretrial motion. We will provide some guidance for creative motions practice. (See Step 8) You must open your mind to be even more creative. You must also be prepared to take the heat for slowing down the train. Civility is a legitimate and valuable aspect of trial practice so long as it is in the interest of the client. In a capital case, however, it is important to be on guard against being co-opted by the system. Keep always in mind that the state is trying to kill your client. On the subject of creativity in any event, "my judge won't let me do that" is not an acceptable excuse.

These are only some of the differences between good non-capital practice and effective capital defense. You may not encounter the obstacles or hostility suggested by these highlights. If you do not, count yourself fortunate. In any event, do not "go along" with anything at the client's expense.

Now let's move on to the 15 step program to get death out of the case.