Money for your case; When your client prefers to die; Making the Case for Life


	Print or Email This Page Death Watch August 2002, Page 8 Money for your case; When your client prefers to die; Making the Case for Life By *Chris Adams* Money for your case A wonderful new opportunity is available to help win justice in capital cases. The European Union (EU) has provided a two-year grant to Hands Off Cain (HOC) and the International Criminal Justice Law Clinic at Gonzaga University School of Law (ICJLC). The EU is donating a total of $45,210 to help attorneys in the United States in defending clients on death row or facing capital charges. The grant will be distributed this year and next in two equal installments. The primary focus of these funds will be to assist foreign nationals in the U.S. Having a foreign national client is not a prerequisite, and all cases will be considered. ICJLC and NACDL will be assisting (pro bono) in the appropriate and efficient distribution of these funds. The funds are not available to compensate attorneys but may be used for investigation and expert fees, per diem, and travel. In order to assist the greatest number of cases, the awards will usually be limited to $2500 per case. It is po s s i ble to receive up to $5000 upon showing a specific need . How do you get the money? Gonzaga School of Law has placed the money in a separate account. A committee, composed of Elisabetta Zamparutti for HOC, Professor Speedy Rice for ICJLC, and me for NACDL, will review all applications for funds. Please e-mail me for an application and spread the word to your affiliates. When your client prefers to die There may be no greater challenge to a capital defense attorney than representing a client who claims she prefers death to life and who instructs you that no mitigation will be presented . We cannot sit idly by and add legitimacy to our client’s choice to commit suicide-by-jury. We know our client’s psychiatric illnesses combine with sensory - deadening prison conditions to erode her will to fight for life. A client, who today voices the choice to die, will tomorrow blame us for not get ting a life verdict. We know that mitigation evidence is painful and embarrassing for our clients and their families. The attorney - client relationship breaks down if we cannot get past this hurdle and somewhere out there lurks troubling ethical issues. However, there are no easy answers . A recent case and a new resource offer help in approaching this thorny issue. The case is U.S. v. Davis, decided March 11, 2002, 285 F.3d 378, (CA5). Len Davis, a former New Orleans policeman, was sentenced to death for federal civil rights murder of a witness against him in a drug conspiracy case. Upon remand for a new sentencing hearing, Davis waived counsel and instructed the court he would present no mitigating evidence and make no argument for life. U.S. District Court Judge Ginger Berrigan found that this would deprive the jurors of the opportunity to make a meaningful, individualized sentencing determination as required under the Eighth Amendment. Consequently, Judge Berrigan appointed “independent counsel” to represent the “interest of the public” by presenting mitigation on behalf of Davis, arguing for Davis’ life if he refused to do so, and ensuring the jurors received a full and fair sentencing hearing. A Fifth Circuit panel reversed Judge Berrigan’s courageous ruling. Being they are the Fifth Circuit (famous for their ability to cut and paste the phrase, “ we uphold the Texas death sentence. . . .” ) , this is not too surprising. What is encouraging is that in dissent Judge Dennis argues that the majority decision turns a capital sentencing hearing “ into a charade.” Id . at 385. Judge Dennis vigorously defended the trial judge and cited to the NACDL amicus brief written by Steve Singer. Hopefully, the dissent’s reasoning will carry the day in other courts. As to the new resource, “Volunteers for Execution; Analysis and Recommendations,” published by Professor Speedy Rice and the ICJLC is a thoughtful 58-page paper, part legal brief and part position paper, written to Washington Govern or Gary Locke . Of four Washington inmates executed since there institution of the death penalty, three were volunteers . The arguments presented in the paper may be used anywhere. The paper argues that by allowing volunteers to change the sentencing phase into a suicide phase, volunteers circumvent the traditional role of the jurors, frustrate legislative intent, deprive the prosecutor of any meaningful screening process, contravene public policy, and place the defense lawyer in an untenable ethical quandary. The conclusion proposes four policy changes that will aid in ensuring the death penalty is applied only to the worst of the worst, rather than to the defendants who fight the least. First, a mitigation specialist must be appointed in every death-eligible case. Second, a mandatory cooling-off period, preferably 120 days or more, must be inserted between the decision to seek death and the actual trial date. This would allow the defendant to consider all his options, let passions cool, and enable defense counsel to gather mitigation and present it to the prosecutor, etc . Third, if the defendant refuses to submit mitigation evidence, the court should direct the mitigation specialist to present the case for life. Fourth, either defense counsel or independent court’s counsel shall be required to argue for the defendant’s life. The full report is available at http://law.gonzaga.edu/icjlc/ and click on to Volunteers for Execution, Executive Summary or Full Presentation in the left-hand column. Making the Case for Life “Making the Case for Life,” NACDL’s annual death penalty seminar, is being held September 27-29, 2002, at the Sheraton Capital Center Hotel in Raleigh, NC. The program, focusing on capital voir dire and uncovering and presenting mitigation themes, is geared toward new and experienced capita lawyers and their investigators, social workers and other team members. The faculty includes Dick Burr, Russ Stetler, Natman Schaye, Scharlette Holdman, Mary Ann Tally, Jim Boren , mitigation specialists and many others sharing their insights. The price is less than $200 and you get a year’s worth of CLE. Fliers and registration forms have been sent out . If you need forms, e – mail me today. Please join us in Raleigh!
	National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org