Archive for March, 2010

Nobody disputes the fact that there is significant and a very troubling racial disparity in how the United States military applies the death penalty.  Currently, there are seven persons on death row at the Fort Leavenworth Disciplinary Barracks (DB).  Of those,

- five (5) are African-American;

- one (1) is a Pacific Islander;

- one (1) is Caucasian.

On a national level, approximately 50 percent of the death row inmates are members of a minority.   By comparison, the military has an 86 percent minority death row population.

The attached article provides an outstanding historical analysis of the role of mitigation specialists in the military justice system.  The thrust of the article is consistent with the position advanced by the Hasan Defense Team. 

 Death Is Different- By LT J. Michael Montgomery

Several weeks have now passed and Colonel Lamb still has not acted on the Defense Team request for reconsideration of his refusal to authorize retainer of the mitigation specialist requested by the Defense.   Army prosecutors – who are also providing legal advice to Colonel Lamb – have been asked to inform the Defense when Colonel Lamb will act on this important issue. 

Prejudice to the Defense is clear and substantial.   The Article 32 hearing is currently scheduled to commence on June 1st.  At that time, it is anticipated that the trial counsel (prosecutors) will present evidence that they consider to be “aggravating factors” associated with the charged offenses.  Indeed, Colonel Lamb has also directed the Investigating Officer (Colonel Pohl) to consider if such aggravating factors are present.  Colonel Lamb’s directive is clearly one-sided.  To ensure a full, fair and complete investigation, the Investigating Officer should also be directed to consider the presence of “mitigating evidence” – particularly since that is the countermeasure to the presence of “aggravating evidence”.  Support for the Defense position may be found in Rule for Court-Martial (RCM) 405 which specifically provides, “The defense shall have full opportunity to present [at the Article 32 hearing] any matters in defense, extenuation, or mitigation.”   Against this background, the refusal to grant the defense request for its mitigation specialist constitutes a denial of procedural due process.   The net effect of Colonel Lamb’s refusal is to render Major Hasan’s defense team “ineffective”, as that term has been construed by the appellate courts.  See Pamela Blume Leonard, A New Profession for an Old Need: Why a Mitigation Specialist Must Be Included on the Defense Team, 31 Hostra L. Rev. 1143, 1146 (2003). 

In capital cases, “the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”  Woodson v. North Carolina, 428 U.S. 280, 304 (1976).  in order to properly present the client’s character and other relevant information . . . . the defense must develop a comprehensive biography of the client.  In capital cases, that biography is sometimes called a social or psychosocial history.  A social history is “a multi-generational inquiry aimed at identifying the genetic predispositions and environmental influences which molded the client’s life and defined his or her range of choices.”  See Russell Stetler, Mitigation Evidence in Death Penalty Cases, 23 The Champion 35, 38 (1999). 

In the penalty phase, the prosecution will focus on whether  thecrime committed deserves the death penalty.  It is the      defense counsel’s job – indeed, their ethical responsibility – to refocus the inquiry on whether this particular human being, considering the circumstances and events that shaped his life and behavior, is so hopelessly irredeemable and wicked that he must be “eliminated from the human community.”  Stephen B. Bright, Developing Themes in Closing Argument and Elsewhere: Lessons from Capital Cases, 27 No. 1 Litig. 40, 42 (2000). 

The Defense Counsel’s duty to investigate mitigation is clear.  As the United States Supreme Court has recognized, defense counsel has the duty to “discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”  Wiggins v. Smith, 539 UI.S. 510, 524 (quoting ABA Death Penalty Guidelines section 11.4.1.(C)(1989)); see also Williams v. Taylor, 529 U.S. 362 (2000)(counsel ineffective in capital sentencing for failure to perform the necessary investigation into the defendant’s life).   Defense Counsel’s duty requires investigating:

the client’s life history, and emotional and psychological make-up, as well as the substantive case and defenses.  There must be an inquiry into the client’s childhood, upbringing, education, relationships, friendships, formative and traumatic experiences, personal psychology, and present feelings.  The affirmative case for sparing the defendant’s life will be composed in part of information uncovered in the course of this investigation.  The importance of this investigation, and the thoroughness and care with which it is conducted, cannot be overemphasized. 

See Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 323-324 (1983). 

The duty to investigate survives even a client’s request that no mitigating evidence be presented.  Rompilla v. Beard, 125 S. Ct. 2456 (2005)(even when capital defendant and his family have stated that no mitigating evidence is available, defense counsel had duty to make reasonable efforts to obtain and review court file of prior conviction that counsel knew would probably be relied upon as evidence of aggravation at penalty phase).   Without knowing the full story of the client’s life and background, defense counsel cannot advise the client about what is being forfeited by foregoing mitigation evidence.  See Hardwick v. Crosby, 320 F.3d (1127, 1190 n.215 (11th Cir. 2003)(“Even if Hardwick did ask [counsel] not to present witnesses at the sentencing proceeding . . . .  [counsel] had a duty to Hardwick at the sentencing phase to present available mitigating witnesses as Hardwick’s defense against the death penalty.”); Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir. 1991)(counsel ineffective for “latching onto” client’s assertions he did not want to call penalty phase witnesses and failing to conduct an investigation sufficient to allow their client to make an informed decision to waive mitigation; see, e.g. Kimmelman v. Morrison, 477 U.S. 365, 385 (1986)(“viewing counsel’s failure to conduct any discovery [regarding suppression motion of seized items] from his perspective at the time he decided to forgo that state of pre-trial preparation and applying a ‘heavy measure of deference’ to his judgment, we find counsel’s decision unreasonable, that is, contrary to prevailing professional norms.”

A “half-hearted” effort to investigate mitigation will not do.  Wiggins, 539 U.S. at 526.  “In assessing the reasonableness of an attorney’s investigation, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”  Id. at 527. 

Against this background, it is patently obvious why Colonel Lamb’s initial denial of the Defense request was misplaced.  The Defense request for reconsideration affords him the opportunity to reverse course and ensure that Major Hasan is accorded procedural due process and effective defense counsel.    Both the law and simple notions of fundamental fairness support the Defense position.