Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


Mitigation Investigation And Jury Sentencing In Death Penalty Cases

March 14, 2012

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.

Why?

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.


Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

March 9, 2012

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.


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