[David George is a law clerk to the Honorable Harold R. DeMoss, Jr. of the U.S. Court of Appeals for the Fifth Circuit. A practicing lawyer, David received his B.A. from Baylor University and his J.D. from the Baylor University School of Law. The opinions expressed in this article are his personal view alone and do not in any way represent the opinon of the court or any judge on the court. If you wish you may contact the author via e-mail.]
In his new film Dead Man Walking, Tim Robbins examines the death penalty through the eyes of Sister Helen Prejean, a New Orleans nun. The film does not focus on the legal issues; instead, it dwells on the human side of the death penalty -- from both the killer's and the victim's family's perspectives. However, the legal aspects of the death penalty are woven throughout the film. I'll try to walk you through the mechanics of death penalty litigation.
On the whole, Dead Man Walking accurately portrays death penalty law. However, it left a few things out. One common misconception about the death penalty, and one Dead Man Walking did not dispel, was that there are multiple rounds of "appeals." This is not exactly correct. A person is convicted in state court and sentenced to death. The conviction is then appealed in the state system. After the state appeals are exhausted, the ball is in the prisoner's court. The prisoner will file a state court habeas corpus petition -- a civil suit filed by the prisoner against the person confining him (the warden or the head of the prison system). Essentially, the prisoner is asking the court to make the warden prove that he is imprisoning him legally. Habeas corpus is known as the "Great Writ," because of the protection it affords us -- it allows a person to challenge a wrongful imprisonment.
Even if the prisoner loses the state court habeas corpus petition, he still has options. He can go to federal district court and file another habeas corpus petition, saying that his imprisonment violates the U.S. Constitution. This petition is then appealed to the Court of Appeals (in Texas, Louisiana and Mississippi, where the movie is set, such cases go before the Fifth Circuit in New Orleans). Finally, the prisoner can appeal to the U.S. Supreme Court.
The prisoner must be careful in writing his petition for habeas corpus -- he will only get one real chance. If a prisoner loses on federal habeas corpus and his appeals are exhausted, he can't just file another petition. Successive petitions will be dismissed unless the prisoner can prove that he had a very good reason for not raising earlier whatever new issues he includes in his second petition. A prisoner can't delay the process indefinitely by raising one issue after another.
If the execution date is near and the court wants more time to look at the case, it will issue a stay. This stops the execution. Once a stay is issued and the execution date passes, it takes a while to set a new date. Thus, prisoners often time their petitions carefully. For example, they might file it one day before the execution. If this is the prisoner's first petition, the court will almost always issue a stay. If the prisoner filed his petition a while before his execution date, it might be decided by the time the date comes up -- and then he would have no more options.
In Dead Man Walking, Sean Penn's character presents two legal arguments for why his case should be reversed: (1) that although he was present when the killings happened, he was not the "triggerman"; and (2) that the lawyer who represented him at his trial was incompetent. These are typical arguments raised by death row inmates.
Here's another problem with the film: Dead Man Walking implies that a person who did not actually pull the trigger cannot be executed. That is not so. A non-triggerman can be executed if his role in the killing was substantial. However, the jury can consider the non-triggerman status in deciding whether to sentence someone to death. If the judge at trial made a mistake and kept out evidence showing whether someone was a triggerman, that might be enough to reverse a case.
A criminal defendant is entitled to have a lawyer at his trial. The Supreme Court has interpreted this to mean that defendants have the right to a minimally competent attorney. A conviction must be reversed if the lawyer did such a bad job that it was essentially the same as having no lawyer at all. This is called "ineffective assistance of counsel." Ineffective assistance is a very common argument, but it's incredibly hard to prove -- it almost never works. Great deference is given to the lawyer who tried the case, and the fact that the lawyer made bad tactical decisions is not enough to reverse a case. Instead, the prisoner has to show that the attorney's conduct fell below an acceptable level and that this made a difference in the verdict.
In Dead Man Walking, Sean Penn's lawyer was a tax attorney who had never tried a criminal case before. He took only four hours to pick a jury (it usually takes much longer) and only made one objection. This is not a good performance by the lawyer, but it would probably not be considered ineffective assistance.
Remember, the purpose of habeas corpus is not to retry the case. The question is not whether the defendant had the best trial possible; instead, the court only has to determine whether the trial was so bad that the defendant's constitutional rights were violated. Unless his constitutional rights were violated, he is not entitled to a new trial.
