Authors: Helen Prejean
He laments the courts’ turn to the right in recent years. “They’re so interested in speeding up executions that it doesn’t seem to matter that they’re running roughshod over people’s constitutional rights,” he says. “They keep tightening procedural requirements so that it’s harder and harder to get a hearing in these death-penalty cases. Our clients might have the most substantial issue in the world — even new evidence of innocence — but the courts say, ‘Sorry, filed too late’ and refuse to hear the case.”
Later, the issue of procedural requirements for federal appeals in death-penalty cases will be played out with dramatic force in the case of Roger Keith Coleman, convicted in Virginia of murdering his sister-in-law. His attorneys filed his post-conviction appeal to the Virginia Supreme Court
one day late
— violating a procedural requirement, which the state court said precluded an evidentiary review of the case even though new evidence suggested the possibility that Coleman may not have been the murderer.
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The federal courts refused to overturn that ruling, and Coleman was executed in May 1992.
And more radically, on May 4, 1992, in
Keeney v. Tamayo-Reyes
the U.S. Supreme Court gutted federal habeas appeal when it ruled that federal courts are not required to hold evidentiary hearings where state courts did not hold hearings, even if the prisoner can show that inadequate counsel prevented crucial parts of the case from being heard — despite the fact that federal judges find constitutional errors in at least 40 percent of the death-penalty cases they review.
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Millard explains that he’ll raise the issue that Pat’s attorney was
ineffective, but he doesn’t have much hope that the courts will agree with him. It’s rare nowadays in capital cases, he says, for the courts to concede that defense attorneys are ineffective. “I mean, there are cases where defense attorneys in capital cases have actually shown up for trial drunk, or so ill prepared they told the judge they didn’t know what they were doing, and even then the appeal courts wouldn’t concur on ineffectiveness of counsel.”
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He points out that public defenders, especially in Southern states, have so many clients to defend they can scarcely manage to interview them before trial, much less do the time-consuming investigation that capital cases require.
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It’s not a fluke, Millard says, that 99 percent of death-row inmates are poor. “They get the kind of defense they pay for.” He explains that the high court’s stringent standard of judging ineffectiveness of counsel now puts the burden of proof on a defendant’s appellate attorney to demonstrate that defense counsel blunders directly affected the jury’s verdict, and that minus those blunders the jury would have returned a different verdict. “But how are you going to demonstrate that, of all the variables in a case, a mistake of the defense counsel caused the jury to render a certain verdict? The court just comes back and says that the attorney’s mistakes were ‘harmless error’ and the jury would have returned a guilty verdict anyway. Every person is supposed, to have a constitutional right to effective assistance of counsel, but the courts, by imposing such impossible procedural strictures have reamed out that right to an empty shell.”
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Pat’s trial attorney failed him most of all during the sentencing part of the trial, Millard says. “That’s when you want to try to get family, friends, employers, clergy, who know your client, to speak for him. If the jury can see your client as a human being, no matter what terrible crime he or she may have done, your client has a chance to live.” In Pat’s first trial, he says, other than the attorney, there was no one to speak for his life — only a photocopied report of a psychologist who wasn’t even in the courtroom.
“And then, during the second trial for sentencing,” he says, “when the attorney had a whole new chance to do it right, instead he reintroduces guilt and innocence all over again by getting Eddie up there, who claimed he did it, not his brother, which was not credible to anybody and probably made the jury angry.”
I had always thought that the lengthy appeals process virtually assured fair review of these cases. Now I’m learning just how much depends on the skills of defense attorneys. There’s now not a doubt
in my mind that if Millard had been Pat’s defense attorney, Pat wouldn’t now be facing the electric chair.
We are wending our way to Angola. I do not much notice the scenery. I am thinking of Millard Farmer and how much he knows and wondering what it is going to take to keep Pat Sonnier alive. I am looking across the front seat of the car at this impassioned man and wondering what makes a man like this — obviously an excellent lawyer who could be making an awful lot of money — defend people like Pat Sonnier. I ask him.
He tells me that when he studied law there was a block called “poverty law,” and he began going into housing projects and jails and “just talking to people, you know what I mean?” (He says “you know what I mean” a lot.) There he witnessed case after case ‘of black men tried by all-white juries, and he asks me if I know that here in Louisiana every juvenile that has been executed has been a black whose victim was white and who had an all-white jury
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and that every man executed for rape in Louisiana has been black (the death penalty for rape was declared unconstitutional by the U.S. Supreme Court in 1977).
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When a black defendant is on trial in these capital cases, he explains, even though the Constitution promises a right to a jury of one’s peers, it’s common practice for prosecutors to try to eliminate blacks from the jury because blacks are less likely than whites to impose death, and unless there’s a strong defense attorney the prosecutor will succeed.
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I say that at least Pat, who is white, doesn’t have to contend with racism.
But Millard says the crucial race factor in Pat’s case is that his victims were white. “The sad, terrible truth,” he says, “is that if he and Eddie had killed two black kids, chances are they would never have been sentenced to death.”
He asks if I’ve ever heard of the Gaskin case in Bossier Parish here in Louisiana. I haven’t.
The case, he says, has to do with a crime that happened in 1980. Three young men with juvenile records of violent crime, including several armed robberies, kidnapped a fourteen-year-old girl, Virginia Smith, beat her, robbed her, forced oral sex on her, and while giving a Confederate yell, slit her throat, stabbed her numerous times and left her to bleed to death in the woods. Two of them got life sentences and one got thirty years.
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Virginia Smith was black. Her assailants were white.
He contends this is not an isolated case and explains that prosecutors, judges, and juries, most of whom are white, are far more
outraged when white people are murdered than when black people are. “White people identify more with other white people, you know what I mean?” he says.
Later, when I become involved with victims’ families I will find out just how true this is. Survive, a group for families of murder victims in New Orleans, composed mainly of indigent black women, will find little passion in the predominantly white D.A.’s office to prosecute black-on-black homicides. Of the forty or so members of the group, only one or two will see the killer of their loved one brought to trial.
The U.S. Supreme Court, after being presented with irrefutable evidence from an extensive study of two thousand capital cases in Georgia,
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admitted in
McCleskey v. Kemp
(1987) that there exists in capital sentencing “a discrepancy that appears to correlate with race.” Faced with similar empirical evidence of discrimination in housing and employment, the Court upheld legislative remedies, but in the arena of capital punishment they shrugged off disparities in sentencing as “an
inevitable
part of our criminal justice system.” Prisoners facing execution, unlike plaintiffs claiming job or housing discrimination, must show intentional bias, which is very difficult to demonstrate.
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Millard explains that because public defender offices in Louisiana can’t handle the large load of cases, judges often appoint attorneys in private practice to take on capital cases, even though many of them practice only civil law. “They may never have cracked a single book on criminal law, and yet they are asked to defend a person’s life and to master a highly complex body of law in a short period of time,” he says. In Louisiana the only statutory requirement for an attorney to defend someone accused of capital murder is five years’ practice in law — any kind of law.
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“They don’t call Southern states the ‘Death Belt’ for nothing,” Millard says. Four states — Louisiana, Georgia, Texas, and Florida — carry out two thirds of all U.S. executions.
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He explains that in Louisiana the maximum reimbursable amount indigent defenders can spend to prepare for trial is $1,000.
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“Chicken feed,” he says because one expert witness can cost that much. He says that if Pat Sonnier had lots of money, he would have gotten himself a crackerjack attorney, who would hire top-notch investigators, a ballistics expert, a psychologist to compile profiles of “desirable” jurors, “and you can be sure he wouldn’t be sitting on death row today. That’s why you’re never going to find a rich person on death row.”
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And often, he says, if a D.A. knows he’s up against a top-notch defense attorney, he’ll think twice about prosecuting for the “max” and maybe losing, and so be much more amenable to a plea bargain — reducing the charge in exchange for admission of guilt — and there won’t even be a trial.
Millard says the application of the death penalty is like a lottery because such a small percentage of murderers get the death penalty — 1 or 2 percent of the thousands who commit homicide every year. And of those receiving death sentences, only a fraction are executed.
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“Most people think this 1 or 2 percent who go to death row must have committed the most heinous, premeditated, cold-blooded murders, but you see in many, many of these cases panic murders by defendants who have a history of child abuse or have had head injuries or who are mentally retarded or outright insane. Or kids. Some juveniles get caught in the net too.”
In
Penry v. Lynaugh
the Supreme Court ruled that the “cruel and unusual punishment” provision of the Eighth Amendment does not prohibit the execution of the mentally retarded.
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In
Thompson v. Oklahoma
the Supreme Court ruled that sixteen-year-olds can be executed.
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In
Ford v. Wainwright
the Supreme Court ruled that the Eighth Amendment does prohibit the execution of the insane, but provided no criteria for determining insanity.
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The Court held that should an insane death-row inmate be made sane through therapy or medication — a judgment rendered by the
state’s
medical examiner — his or her execution would then be allowed.
Florida death-row inmate Gary Alvord, judged to have become insane while on death-row, was transferred to a mental hospital, where health-care professionals were asked to restore him to sanity so he could be killed.
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And recently Louisiana courts had to decide whether death-row inmate Michael Owen Perry could be forcibly injected with antipsychotic drugs to make him sane enough for execution.
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Finally, Millard says, summing it all up, race, poverty, and geography determine who gets the death penalty — if the victim is white, if the defendant is poor, and whether or not the local D.A. is willing to plea-bargain.
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The public has no idea, he says, how much discretionary power the D.A. has in determining indictments. Grand juries, he adds, which state constitutions provide to guarantee that the charge matches the crime, generally go along with the indictment the D.A.
wants. At grand jury hearings only government witnesses appear, defense is excluded, and the presentation of exculpatory evidence — evidence that points to innocence — is not required.
Millard explains that in 1972 the U.S. Supreme Court in
Furman
had found the death penalty “arbitrary and capricious” in its application and hence unconstitutional. “Well,” he says, “I’d like for anyone to show me how it is any less arbitrary and capricious today.”
I am disturbed at what I am learning. I hardly know what to feel — except overwhelmed. Thank God, I think, that at least now Pat has someone of Millard’s caliber to represent him. Maybe as Millard talks to Pat he’ll uncover a big, glaring legal issue that the courts will be forced to look at.
Millard points and says, “Hey, look at that.” He is seeing a sign nailed high up in a tree that I now take for granted: “Do not despair, you will soon be there.”
“Somebody knows this road real, real well,” he says.
We come to a sharp S-curve in the highway which means we’re just about a mile from the prison.
As we go into death row Millard deposits twenty dollars into Pat’s inmate account. “They need cigarettes, coffee,” he says. “I think smoking is bad, but in prison cigarettes are about all inmates have to take the edge off.”
Pat comes into the visiting room. As always he is shaven, his hair is combed. I have been telling him about Millard.