Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA.
An NACDL Director, he has served people facing the death penalty at trials,
on appeals and in post-conviction proceedings since 1979. He has taught courses on
capital punishment, criminal procedure and international human rights at Yale, Harvard,
Georgetown, Northeastern, Florida State and St. Mary's law schools; and has
testified extensively before the U.S. Congress and many state legislatures.
One of the most fundamental duties of an attorney defending a capital case at trial is the preservation of any and all conceivable errors for each stage of appellate and post-conviction review. Failure to preserve an issue may result in the client being executed even though reversible error occurred at trial. The death penalty was upheld by the Supreme Court in 1976 based in part on the assurance that state courts would scrutinize the record for errors and correct even those that had not been preserved, but reviewing courts found that so many convictions and death sentences were obtained in violation of the Constitution that numerous cases had to be reversed.
Faced with a choice of ensuring constitutional trials or ignoring constitutional violations in order to satisfy political pressures to allow more executions, courts began to find waiver as a way to avoid correcting constitutional error. Today, courts scrutinize the record not to find constitutional violations, but to avoid ruling on constitutional issues. Usually, they accomplish this by finding that issues were waived by defense counsel. A finding of procedural default has become the gateway to the execution chamber.
For example, John Eldon Smith was executed by Georgia even though he was sentenced to death by a jury selected from a jury pool from which women were unconstitutionally excluded. His codefendant was also sentenced to death by a jury chosen from the same pool. Smith's lawyers did not preserve the issue; the federal courts refused to consider the issue; he was executed. The issue was preserved in the codefendant's case; the codefendant's conviction and death sentence were vacated; at the new trial, the jury imposed a sentence of life imprisonment.1
Thus, defense counsel must be sure to avoid waiving any possible grounds for later reversal of the conviction or death sentence in the state or federal courts. Because of the final and irrevocable nature of death, counsel must be more vigilant in preserving error in these cases than in any other cases. Failure to make an objection for fear of alienating the judge or jury may be a valid consideration in a case in which there is a good chance of acquittal or the length of the sentence will be so short that appellate review will be irrelevant to the client. But in a capital case, it may deprive the client of a life-saving reversal on direct appeal or in habeas corpus proceedings.
The courts have placed immense and unrealistic burdens on counsel to preserve error. This column summarizes some of the ways in which courts avoid reaching issues and describes ways in which counsel can insure that the client will receive full review of all issues in the case.
How Courts Avoid Correcting Errors
Courts most often avoid reversal by finding that defense counsel has waived the issue by failing to comply with a state procedural rule, such as the contemporaneous objection rule, at trial, on appeal or in state post-conviction proceedings. A finding of waiver by a state court will, in most instances, bar review of the issue by the federal courts on habeas corpus review.2 Waiver -- or "procedural default" -- may occur in one of several ways:
1. Failure to Raise in a Timely Manner at Trial
The state supreme court may find an issue waived because of lack of a contemporaneous objection at trial, failure to file a motion or to request for a jury instruction, or lack of compliance with some other procedural requirement established by state statute, rule, or case law. Thus, counsel must know and follow the state procedural requirements for issue preservation.
2. Failure to Raise the Issue on Appeal
Even if the issue has been raised at trial, if it is abandoned on direct appeal, further review of the claim will be barred.3 Thus, each issue raised at trial, must be raised on appeal if it is to be considered by the state supreme court and, thereafter, by the federal courts.Also, issues which are appropriately raised for the first time in state post-conviction proceedings, such as failure of the prosecution to disclose exculpatory evidence or ineffective assistance of counsel, may be waived if not properly raised in accordance with state procedural rules in state post-conviction proceedings and on appeal from denial of state post-conviction relief.
3. Failure to Assert the Same Legal Basis
Even if an issue has been preserved, a reviewing court may refuse to consider a different legal theory than the one put forward at a previous stage of the process.For example, a federal court may refuse to consider a federal constitutional claim where only a state law ground was asserted in the trial court or on direct appeal in the state courts.
In Anderson v. Harless,4 the U.S. Supreme Court held that the federal courts were barred from reviewing a violation of the Due Process Clause of the federal constitution because defense counsel had in the state courts relied upon only the Due Process Clause of the state constitution. Had counsel asserted in the state courts the due process protections of both the state and federal constitutions, the issue would have been preserved and the court would have granted relief.
Even where counsel has asserted one of several possible federal grounds in the state courts, federal courts will limit their review to the grounds asserted in the state courts. For example, there are numerous cases in which courts have refused to consider an assertion that a statement was taken in violation of the Sixth Amendment right to counsel because it was argued in the trial court only that the statement was obtained in violation of the Fifth Amendment protection against self-incrimination.
Thus, counsel should always cite to any arguable applicable provision of the United States Constitution, the state constitution, and state law (statutes, rules or case law) as bases for granting relief in any motion, objection, request for jury instruction or other application to the court.
4. Failure to Assert the Factual Basis
A reviewing court may refuse to consider a different factual basis for the claim than was previously presented at trial. As a general rule, counsel cannot add facts in support of a claim at later stages of review.All of the relevant facts must be presented at the time the motion or objection is heard in the trial court. An appellate court may even decline to review facts that appear in the record if counsel did not rely on those facts at the time of the motion or objection.
For example, if counsel objects to one part of the prosecutor's closing argument but not another part, only the part objected to may be reviewed by the appellate court or a federal court in habeas review.
5. Failure to Anticipate Developments in the Law
The Supreme Court has held, quite unreasonably, that lack of precedent to support a claim at the time of trial or direct appeal will not excuse the failure to preserve an issue.If a claim is being litigated by other defense lawyers in other states and recognized by judges in some part of the nation, even in dissents, counsel is charged with knowledge that the "tools to construct a constitutional claim" exist and is expected to raise the issue no matter how futile it may be in the court considering the defendant's case.5 In other words, counsel has a duty to preserve issues in anticipation of changes in the law.
The failure to raise a "losing" issue to the Virginia Supreme Court on behalf of Michael Smith a few years ago illustrates the point. Counsel did not raise an issue because there was a Virginia Supreme Court case directly on point holding the issue was without merit. However, the United States Supreme Court later decided the same issue had merit in a Texas case. Smith then raised the issue on federal habeas corpus, but the Supreme Court held that the issue could not even be considered because it had not been preserved on direct appeal to the Virginia Supreme Court when it was a complete loser.6 Smith was executed.
Thus, counsel must preserve every issue except those that have been clearly resolved by the United States Supreme Court, in order to protect the client from a fate similar to Michael Smith's. Winnowing issues for appeal may be good practice in routine cases, but Smith's case demonstrates the consequences in a capital case.
Preserving Errors for Review
In presenting the legal bases for each assertion of error, counsel should rely on any arguably applicable provisions of the United States Constitution, as interpreted by the decisions of the U.S. Supreme Court and lower courts, the state constitution, state statutes, state rules and state case law.It is important to raise all state law grounds 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. A number of state supreme courts have refused to follow U.S. Supreme Court decisions which restrict the scope of provisions of the Bill of Rights, finding that the analogous state constitutional provision offers broader protection than its federal counterpart.
Once a state supreme court has rejected all the issues presented to it, the client's only hope is to obtain relief in the federal courts based upon a violation of the United States Constitution. The jurisdiction of the federal courts is limited to the federal constitution. They cannot correct errors of state law. Federal courts will review the conviction and sentence only after the constitutional claims have been presented to and rejected by the state courts. An argument based exclusively on state law throughout the state courts cannot be turned into a federal claim in federal court. Thus, whether the federal court will review the issue and perhaps reverse the conviction or sentence often depends upon whether the United States Constitution and cases interpreting it were cited to the state courts in support of the defense position at trial and on direct appeal.
The following are a few guidelines for preserving issues at state capital trials and on direct appeal to the state supreme court.
1. Raise Every Issue
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. Failure to make an objection at trial may be fatal.Counsel should preserve anything that appears unfair or unjust even if it involves challenging well accepted practices. Counsel must keep in mind that what is a losing issue today may be a winning issue tomorrow and assert positions that have not yet won acceptance. That is the way the law changes and improves.
Where precedent is lacking, assertions should be based upon application of constitutional principles recognized by the Supreme Court or other courts, but not yet applied to the particular fact situation presented by the case. For example, any issue involving the fairness of a capital trial raises issues under the requirement for heightened reliability in capital cases contained in the Cruel and Unusual Clause of the Eighth Amendment as well as the fairness concepts of the Due Process Clause of the Fourteenth Amendment. Counsel may want to include in a motion or memorandum a paragraph such as the following:
The United States Supreme Court has repeatedly emphasized that because of the exceptional and irrevocable nature of the death penalty, "extraordinary measures" are required by the Eighth Amendment to ensure the reliability of decisions regarding both guilt and punishment in a capital trial. Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (O'Connor, J., concurring). See also Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49L.Ed.2d 944 (1976); Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 51 L. Ed. 2d 393 (1977); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct.2382, 65L.Ed.2d 392 (1980).
Counsel should consult manuals and 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 U.S. Supreme Court and the state supreme court, and what new decisions have come down.
2. Assert All State and Federal Grounds
Counsel should assert all possible grounds in support of a motion, objection or request for an instruction. Asserting only the best ground may omit a possible basis for relief from a reviewing court. Of course, it is good practice to emphasize what seems the best ground at the time the motion or objection is made, but all possible grounds should be asserted.If in doubt as to whether a particular constitutional provision applies to an issue, it is better to be overinclusive than underinclusive. For example, a pre-trial motion might include the following grounds in the opening paragraph:
The accused, John Client, pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and [the applicable provisions of the state constitution, any state statutes or rules] and other applicable law, moves this Court to . . .
Whenever possible, counsel should cite to federal cases as well as state supreme court cases. 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 U.S. Supreme Court and the federal circuit courts of appeals and argue those cases.
Counsel should also preserve all grounds in making any objections, motions and applications during trial. 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 of witnesses 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 clause of the state constitution.
Preserving all grounds can be very difficult in the heat of battle during trial. For that reason, counsel may want to file written motions in limine prior to trial raising any issues that can be anticipated during trial. All of the grounds can be set out in the motion. Another way to be sure that all legal grounds are preserved is to file a trial memorandum that states that all objections are based upon a long list of constitutional provisions and cases summarized in the memorandum. Counsel can then incorporate the memorandum by reference in objections: "I object based on the grounds set out in my trial memorandum."
The legal grounds for an issue may also be preserved by relying upon a case involving the constitutional provision in making an objection or asserting a right to do something at trial. For example:
Judge, we are entitled to ask the juror about his racial attitudes under the U.S. Supreme Court's decision in Turner v. Murray, [476 U.S. 28 (1986)]. We move that we be allowed to so question the juror.
Counsel would of course also want to rely on any applicable state constitutional provisions or statutes, which could be interpreted to guarantee the right of an accused to inquire about potential areas of juror bias. However, citing a case does not incorporate other relevant legal principles which may not be discussed in the case cited. In order to be absolutely sure that the federal constitutional rights of the client have been protected, counsel should state that any objection is based upon the trial memorandum or the "Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution."
Obviously, such objections should be made out of the presence of the jury whenever possible, but on the record. However, they must be made, regardless of whether the jury is present. Counsel should also cite both federal and state authority in support of proposed jury instructions and in objection to any instructions which are opposed. Conferences regarding jury instructions should be on the record. The record must be clear as to what instructions were requested by the defense and what objections were made by the defense to the instructions given.
For example, the defendant may be entitled to an instruction on a lesser included offense under state law. However, the failure to give the lesser included instruction may also violate the Supreme Court's decision in Beck v. Alabama,7 which held that failure to give an instruction on a lesser included offense violates the Eighth and Fourteenth Amendments of the U.S. Constitution. Of course, the state supreme court may reverse based on either the violation of state or federal law. But a federal court can reverse only if the federal constitutional grounds were preserved. Thus, counsel will want to preserve both grounds at trial and present both on appeal by including something along these lines in the request to charge:
The accused, John Client, moves the Court pursuant to the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and [applicable state law], to give the attached instruction on the lesser included offense of manslaughter. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); [state cases].
When objection to an instruction during a charge conference, counsel might state:
DEFENSE COUNSEL: We object to giving instruction No. 5. The instruction does not properly guide the jury's decision making in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, [the state constitution, and the state death penalty statute], and as otherwise required by state and federal law. In particular, [describe how the particular instruction is defective.]
Once the court has charged the jury, counsel should renew any requests and objections in accordance with the state rules regarding preservation of jury instruction issues.
3. Establish a Factual Basis for Relief
Issues are not preserved unless facts in support of them are pled and presented. Thus, counsel must thoroughly investigate all of the facts and present them all in support of every motion, application, and objection.For example, counsel may be barred from asserting on appeal or in federal habeas review that a mentally retarded client did not understand Miranda warnings if the only evidence presented at the pre-trial suppression hearing involved the adequacy of warnings given by the police and did not include evidence of the client's mental limitations. The facts regarding the mental limitations of the client must be presented to the trial court as one of the grounds for suppressing the statement. The fact that Miranda warnings were not properly given by the police should of course still be asserted as a separate ground, as well as any other grounds. But facts must be developed with regard to each ground for suppression.
It is particularly important that an extensive, client-specific and case-specific presentation of the facts be made in support of any application for funds for expert or investigative assistance for an indigent client.8
It is good practice to assert factual allegations both broadly and more specifically. For example, in making a motion for a mistrial based upon improper prosecutorial argument, counsel may interrupt the prosecutor's argument with several specific objections and move each time for a mistrial. At the conclusion of the argument, counsel should approach the bench and move for a mistrial on the grounds that the entire argument violated the client's constitutional rights. For example:
DEFENSE COUNSEL: Your honor, we renew our motion for a mistrial and our previous objections to this closing argument. In addition to those parts of the argument that I have objected to previously, the prosecutor's argument in its entirety violated my client's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, and [any applicable state law].
This approach serves two purposes. First, if when preparing the appeal, it is found that counsel failed to object to a critical instance of impropriety in the prosecutor's argument, the error can still be argued based upon the "catchall" assertion that the entire argument violated the Constitution. Second, if the constitutional law changes with a new appellate decision and what was previously an acceptable prosecutorial argument becomes impermissible, counsel can assert that the issue was preserved by the objection to the entire argument.
4. Get It on the Record
It is essential that counsel make objections on the record. It is equally essential that the record be clear with regard to critical facts such as, with regard to an objection to the discriminatory peremptory strike of a juror, that the prosecutor struck a particular juror, the race of the juror, and the race of every other member of the venire.Some judges continue to have chambers conferences without a court reporter to discuss important matters in the case, such as the jury instructions, and some court reporters fail to record bench conferences or arguments of counsel. Nothing that occurs in these sessions is on the record so they are not preserved for review.
Counsel should make objections and motions on the record, preferably at a sidebar out of the presence of the jury. If the judge refuses to allow counsel to come to the bench or to excuse the jury for legal arguments, counsel should object to the practice as a denial of the right to a fair trial and effective assistance of counsel.
Even if the judge refuses to allow counsel to approach the bench or to excuse the jury, it is still necessary to make objections and motions for a mistrial contemporaneously with the prejudicial conduct. Counsel should point out the prejudice of making a legal argument before the jury and request the opportunity to make further arguments at the bench. Counsel should also make notes and supplement the motion for mistrial or objection at the first opportunity when the jury has been excused, pointing out the impossibility of curing the objectionable matter because of the court's unwillingness to hear the argument in a timely manner.
If at any time the judge refuses to give counsel an opportunity to state his or her objection or the grounds for it, counsel should be sure that the refusal is on the record. This can be accomplished by asking, "May I be heard on that?" and being denied or even threatened with contempt. If the answer is "no," counsel should supplement the argument the first time there is an opportunity to address the court in the absence of the jury, moving for a mistrial or reconsideration of whatever ruling the court has made.
If all else fails, counsel should put the grounds in writing, even in longhand, and file it with the clerk. What is critical is that counsel attempts to give the trial court all grounds for the objection so that no one will later accuse counsel of withholding them.
Counsel must make sure that all relevant facts appear in the record. For example, in Woods v. Dugger9 the conviction and death sentence were overturned because counsel introduced evidence through photographs of the prejudicial impact of an overwhelming number of uniformed prison guards in the courtroom at the trial of a person accused of killing a guard. If these facts had not been included in the record, the court would not have set aside Woods' conviction and sentence.
Similarly, emotional reactions to the testimony by relatives of the victim in the audience, improper behavior by jurors or bailiffs, and other prejudicial occurrences must be put on the record by defense counsel. Where necessary, counsel should call witnesses to establish the facts through testimony. Counsel should take exception and prove the facts through evidence when the judge or prosecutor make representations on the record attempting to minimize what has occurred.
5. Ask for a Remedy
Counsel should always ask for a sufficient remedy -- usually a mistrial -- for any error that has occurred and point out the inadequacy of any less effective remedy taken by the court.Judges often attempt to deal with misconduct or error by instructing the jury to disregard it. Often this remedy is completely inadequate and counsel should renew the motion for a mistrial and point out the prejudicial nature of the error that occurred and the impossibility of following an instruction to disregard it.
6. Get a Ruling
Some judges try to avoid ruling on issues so as to deny appellate review of errors. Judges also attempt to coerce defense counsel to acquiesce in their rulings or to reach compromises. Going along with such an approach only deprives the client of full appellate and post-conviction review. Counsel must insist on rulings and make objections and exceptions to those rulings on the record.
Life Insurance
One can never know with assurance whether a jury will render a verdict for the defense at either stage of a capital case. Preservation of legal issues may provide the life insurance that results in a new trial for the client condemned to die. The Supreme Court has placed enormous burdens on counsel to recognize and preserve error, but the challenge must be accepted and every step taken to avoid wavier of any issue so that the client receives complete review of any proceedings in which death is imposed.
Notes
1. See Smith v. Kemp, 715 F.2d 1459, 1476 (11th Cir. 1983) (Hatchett, J., dissenting).2. Wainwright v. Sykes, 433 U.S. 72 (1977) (holding that where defendant failed to comply with contemporaneous objection rule at trial, federal court is barred from addressing issue). Although federal courts will address the issue if the defendant can show "cause" for the procedural default and "actual prejudice" as a result, or that a miscarriage of justice occurred, these exceptions are so narrow that they are hardly ever satisfied. The narrow exceptions to the waiver rule will not be discussed in this column because of space limitations. The purpose of thus column is to assist lawyers in preserving error in the first instance in order to avoid any issue of waiver.
3. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).
4. 459 U.S. 4, 103 S.Ct. 276, 74 L.E.2d 3 (1982).
5. Engle v. Isaacs, 456 U.S. 107, 133, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
6. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).
7. 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
8. See, e.g., Messer v. Kemp, 831 F.2d 946 (11th Cir. 1987) (en banc); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987) (en banc); Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988), all cases in which funds were denied for critical expert assistance -- a mental expert in Messer, a forensic expert in Moore, and a ballistics expert in Stephens -- and the reviewing court held that counsel had failed to make an adequate showing of need.
9. 923 F.2d 1454 (11th Cir. 1991).