Its a death penalty case until someone tells a court it isnt. - PDF document

3/27/2017 “It’s a death penalty case until someone tells a court it isn’t.” ― Anon. Federal Death Penalty Resource Counsel Jean D. Barrett, Esquire Anthony L. Ricco, Esquire David A. Ruhnke, Esquire New York Law School—March 27, 2017 A de facto New York moratorium? But a new era • 2008: last capital case tried SDNY • 2003: last capital authorization SDNY • 2007: last capital case tried EDNY (except for Ronell Wilson re‐trial) • 2003: Last federal execution • 0 authorized cases in New York’s 4 federal districts • 1 authorized case in CA2: Fell retrial 1

3/27/2017 The Sovereign District of New York: is race an issue? The Donald Fell litigation (D. Vt.) As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman , the FDPA operates in an arbitrary manner in which chance and bias play leading roles . 2

3/27/2017 The Donald Fell litigation (D. Vt.) One preliminary point is important. Through two weeks of hearings, only three issues were contested through the admission of conflicting testimony and other evidence. These were bias arising from the race of the victim (Part II (B)), the effects of solitary confinement on death row (Part III (B)), and the statistical evidence of a deterrent effect on the murder rate achieved through capital punishment (Part III (D). With respect to deterrence in particular, the parties demonstrated the existence of a lively and continuing debate among statisticians, economists and social scientists about the deterrent effect of the death penalty. In all other areas, however, the evidence was one sided and came only from the defense. DOJ protocol re local submission §9‐10.080 In any case in which the United States Attorney . . . is contemplating requesting authorization to seek the death penalty, or otherwise believes it would be useful to the decision‐making process to receive a submission from defense counsel, the United States Attorney . . . shall give counsel for the defendant a reasonable opportunity to present information . . . which may bear on the decision whether to seek the death penalty. 3

3/27/2017 DOJ protocol • § 9‐10.060: Mandatory pre‐indictment review or explain why not. • § 9‐10.070: Expedited review includes (5): • Any case where the US Att’y is able to recommend that death not be sought even with no input from defense counsel. • § 9‐10.080: Non‐expedited review where US Att’y believes a submission from defense counsel helpful. Revised protocols ‐ Highlights • § 9‐10.010: Applies immediately all pending and future cases. • § 9‐10.030: Consistent even‐handed national application; cannot consider impermissible factors, e.g., race. • § 9‐10.050: Confidentiality. Not extend to whether request for expedited review made or level case is in process, e.g. still here, at committee, AG has it. 4

3/27/2017 The protocol— what (they say) matters to them • § 9‐10.140 • Not race, ethnicity or religion (§ 9‐10.030) • Fairness • National consistency • Law‐enforcement objectives • Strength of the evidence • Role of Defendant in offense • Offense intended to obstruct justice, witness‐killing, retaliation What they say . . . . • Victim also engaged in criminal conduct as relevant circumstance of the murder • Defendant history of un‐prosecuted misconduct • Already serving substantial sentence • Defendant’s conduct history while incarcerated • Acceptance of responsibility by willingness to plead to life or near‐life 5

3/27/2017 Questions from the Court “Ms. AUSA, has this case undergone the mandatory pre‐indictment review called for by the Attorney Generals’ capital case protocol?” “Mr. AUSA, please enlighten the Court as to where exactly in the authorization process this case is?” Saving Lives Since 1988: Federal Death Penalty Resource Counsel Project 503 authorized defendants 238 plea bargains 231 trials 151 life verdicts (65%) 83 death verdicts (35%) 60 on death row 3 executions 10 awaiting trial www.capdefnet.org/fdprc 6

3/27/2017 Timothy McVeigh – June 11, 2001 Juan Raul Garza – June 19, 2001 Louis Jones – March 18, 2003 Do’s and Don’ts at Start of Potential CJA Capital Case • Don’t accept the case if you are not on the capital panel; inform USMJ or USDJ • Do contact Resource Counsel and FDNY: Deirdre von Dornum in EDNY, David Patton in SDNY • Do seek appointment of learned counsel in advance of assembling a team • Do assemble a team, ABA Standards minimum: • Two attorneys, one capital‐qualified • Fact investigator • Mitigation specialist • And someone qualified to identify symptoms of mental illness 7

3/27/2017 Do’s and don’ts cont’d . . . . • Do try to diversify team; consider associate counsel • Do call Jerry Tritz to start budget process • Do visit client early and often • Do set up communication and case documentation tools • Do schedule regular team meetings • Do remember there are unique concerns and additional responsibilities if client is a foreign national Do’s and don’ts cont’d . . . . • Don’t send in a mental health professional “to see what I’ve got;” wait; unless need to document ongoing mental decompensation/psychosis • Do consider a consulting mental health expert • Do have a comprehensive, multi‐generational social history, including all available records, before any mental health evaluation • Do familiarize yourself with the tests your expert plans to administer • Don’t permit your expert to administer personality testing 8

3/27/2017 Do’s and don’ts cont’d . . . . • Do work from the presumption that client is intellectually disabled • Do insist on ample time to conduct investigation before any submission to the Government • Do seek pre‐authorization discovery of information relevant to the decision whether to seek death as punishment • Do have a plea strategy • Don’t say, “This case will never be authorized . . . .” 9