Ahem, and now back to our regularly scheduled program. That would be the law, in case you are keeping score. This article should be read in conjunction with my earlier article, Does A Seven-Year-Wait-Behind-Bars Violate The Sixth-Amendment Right To A Speedy Trial?
I practiced law in the State of Washington where a judge imposes the sentence in all criminal cases, except death penalty cases. In most cases, the sentencing occurs approximately 6 weeks after the defendant pleads guilty or is found guilty by a jury. During the 6-week period, the Probation Office prepares a presentence report for the sentencing judge and the defense prepares for the sentencing by conducting a mini-mitigation investigation and arranging to have a defense expert evaluate the client, if there is a possible mental illness or impaired functioning issue due to an underlying alcohol, drug, or sexual deviance problem.
Federal court works the same way.
Death penalty cases are different because the jury that heard the evidence and convicted the defendant also sentences the defendant. Jury sentencing, in other words.
In death penalty cases, the courts proceed to sentencing within a day or two after receiving the guilty verdict, rather than recess the trial for six weeks pending the sentencing hearing. Therefore, the mitigation investigation must take place before the trial starts, which is putting the cart before the horse since a mitigation investigation must necessarily proceed from the assumption that the client is guilty.
Picture this: Very few people can afford to retain counsel in a death penalty case. Therefore, almost all death penalty lawyers are private counsel appointed by the court and paid at public expense, or they are public defenders. With few exceptions, clients charged with a death penalty offense figure that a court appointed lawyer or public defender is not a ‘real’ lawyer. Clients typically presume the lawyer is really working for the prosecutor and does not give a damn about them or their case.
Okay, let me now introduce you to Mr. Hyde. He is charged with 5 rape-murders and the prosecution is seeking the death penalty. He claims he is innocent and he is convinced that you are lower than pond-scum, unfit to sleep with the dogs, and you are going to sell him out. Greet him with your brightest smile and explain that you need some information from him to get your mitigation investigator started.
And, for God’s sake, don’t forget to duck.
Now that you understand the importance of delay . . .
Judges are concerned that it would be practically impossible to reassemble the jury following a long break after it returns a guilty verdict in a death case and they are not going to sequester jurors for six weeks with nothing to do in order to prevent them from seeing or reading anything about the case and to assure that they show-up for the sentencing hearing. That would be too expensive and impossible to police. They know that most jurors want to get on with their lives and would resent and be distracted while facing a decision to sentence a defendant to death or life without parole. Some jurors might even run away to avoid making the decision or sicken and die from stress-related causes. Sending the police out to find missing jurors would waste time and divert overstretched resources. In addition, judges know that proceeding with less than 12 jurors would raise issues about whether the defendant’s right to trial by jury was compromised. Meanwhile, retaining alternate jurors for the duration of the trial and a 6-week continuance for a sentencing hearing is impractical.
Prosecutors like to shorten the break ‘to strike while the iron is hot,’ so to speak. That is, while the jurors are still emotionally affected by the horror of the crime and more likely to vote for the death penalty. Theoretically, however, death-penalty verdicts should not be vengeance based, right? How is that for an understatement?
Defense counsel always want to lengthen the break as much as possible hoping that the delay will cool tempers and increase the possibility that the jury will return a verdict of life without parole. The more extreme members of our select fraternity and sorority of life savers, would prefer the sentencing hearing be continued for ten or more years, if not indefinitely. I include myself in that select category, just so you know where I am coming from.
In reality, we are lucky if we get more than 48 hours before we have to face a stern and hostile jury. You do not know what constitutes a tough sell until you try to convince a jury to spare your client’s life.
Death penalty trials take a long time. In the cases that I tried, for example, jury selection averaged 3 weeks (attorney conducted voir dire of prospective jurors individually out of the presence of the other prospective jurors) and the evidentiary portion of the guilt phase lasted from 6 weeks (my shortest) to 9 months (my longest).
In practice, because the client’s life is at stake, the mitigation investigation in a death-penalty case is far more extensive and intensive compared to the ordinary case.
I say ‘ordinary’ because there is no comparison to the intensity of a death penalty trial.
Mitigation investigation begins with collecting all available documents concerning your client, starting with medical reports regarding the mother’s pregnancy and your client’s birth. Then we want all medical, school, military, employment, and institutional records concerning the client.
After assembling all available records, we identify, locate, and interview every living person who had a significant relationship with the client and every person for whom he performed a favor or did something nice that he did not have to do.
We are looking for evidence of what we call “a hole in the head.” That is, evidence of an organic brain disorder or injury that impaired functioning and might have caused or contributed to the commission of the crime or crimes with which the client is charged.
We are also looking for evidence that the client might have been abused sexually, psychologically, or physically as a child. As you might well imagine, clients and families often would rather die than open up and talk about that sort of deeply personal, embarrassing, and humiliating information to strangers. We often find that they so deeply suppress or spin memories of abuse to excuse the abuser that it practically takes a miracle to break through the denial and get at the truth. And we have to dig for that information without planting false memories.
We search until we find something.
Because we honor and never judge our clients, no matter what they have done in their lives, and we do everything possible within the boundaries of the law to save their lives.
We call it God’s work.
And most of the time the money we are paid for doing this work does not even cover our monthly overhead.