Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 24, 2006

Death Penalty Appeals

The B'Ham news recently interviewed the guber candidates (the state sanctioned ones anyway) about their views on sentencing, including capital sentencing. More than one blogger has already pointed out how homogeneous the answers were. I am only going to comment on Roy Moore's opinion about the appellate process in death penalty cases:

"I don't think there are too many avenues of appeal; I think there are too many frivolous appeals. I think sometimes these appeals are frivolous and should be ruled on very quickly. There are some on death row right now (that) we tried when I was an attorney, and that was a long time ago."

I agree with him that in the average death penalty appellate brief, the majority of the issues presented are frivolous. By frivolous, I mean the attorney who presents them knows they have little to no chance of success. What I want to do is explain why we present frivolous issues on appeal.

There are lots of reasons not to present weak issues. They distract the court from the strong issues. They undercut the attorney's credibility. They waste the court's time, and as an officer of the court the attorney ought not waste the court's time. They use up the attorney's time and pages, resources the attorney could better use on the strong issues. So, in a civil case, or a non-capital criminal case, good appellate attorneys will cut out the weak issues in favor of two or three strong ones.

But death, as they say, is different. Your client is going to lose much more than just money, or freedom. He is going to lose his life. Hence, when an issue is borderline, you'll err on the side of inclusion. That is not all. Issues not presented in the first brief are forever waived. You want to preserve every possible argument. You never know when Scotus may do something crazy, suddenly making what was a weak issue strong. So you throw them all in, hoping the law may change during the appeal.

There is also the bigger picture. Maybe you don't oppose the death penalty itself, but you think it ought to be used very carefully. So you force the appellate courts to sift through every possible error, ensuring that the process was fair. Doing so also increases the costs to the state, giving them reason to refrain from bringing capital charges unless the crime truly deserves it.

And I should be honest, sometimes the goal is simply to keep the client alive as long as possible. You, the attorney, were not there when the crime occurred. Probably you did not represent the client at trial, so your knowledge of that comes from the record. You do know the client, you've sat with him in jail, talked to him, shook his hand. You've met his family, heard them cry. You look at this guy and think, but for the grace of God. You realize he has no shot at winning the appeal, but you want these folks to have some hope. Manipulating the system? Sure. Excusable? You decide.