Kaine stays Edward Bell's execution

by: cvllelaw

Wed Apr 02, 2008 at 00:28:28 AM EDT

Rather, I am writing about Kaine's decision to stay all executions, which have been stayed by the Supreme Court since September 25, 2007, when the Court granted certiorari in the case of Baze v. Rees in order to consider the constitutionality of using lethal injection as a method of execution.  Kaine wrote today:

There has been no execution carried out in the United States since that date, as courts around the country await the Supreme Court's ruling, which will likely be issued at some time before the middle of July.   Approximately 30 execution dates in 13 states have been stayed in the interim, either by actions of the Supreme Court, lower federal courts, state courts or gubernatorial action.  In one of these cases, the Supreme Court issued a stay of the October 17, 2007 scheduled execution of Christopher Scott Emmett in Virginia.

In order to await the Supreme Court's ruling in Baze, and respecting the national legal consensus that no execution go forward until that time, I grant a temporary reprieve of the execution date for Edward Nathaniel Bell, currently scheduled for April 8, until July 24, 2008.  This temporary reprieve will allow for issuance of the Supreme Court decision and consideration of whether its outcome has any effect upon the merits of Mr. Bell's legal claims or request for clemency.

Stays in the final hours before an execution can take an emotional and physical toll on those who must prepare for the execution, including the family members of the victim or victims.  In order to provide guidance to courts, litigants and the public, it is my intention, for the reasons expressed here, to grant a temporary delay of any execution date in Virginia that has been set after the conclusion of federal habeas corpus review and that is scheduled to occur before the Baze decision is rendered, unless the Supreme Court, by other ruling or action, specifies that executions may commence once again.

While I recognize the clear authority of the Governor to grant reprieves to death-row inmates, and understand the rationale for his decision today in Bell's case, that decision is premature due to Bell's pending request for a stay in the United States Supreme Court. The question of whether a stay should be granted is first and foremost a legal decision to be made by a court. The Governor appropriately waited for the United States Supreme Court to rule on a request for a stay last October in Christopher Emmett's case and I see no legal reason why Bell's case should be treated differently.

Further, I respectfully disagree with the Governor's decision to impose a blanket moratorium on all executions in Virginia. This moratorium will pre-empt the United States Supreme Court's ability to decide whether other Virginia capital murderers present sufficient legal grounds to stay an execution. Additionally, other death-row inmates affected by the Governor's actions have yet to select a method of execution as Virginia law provides, and only lethal injection cases are at issue in the Baze case. Finally, without knowing the date on which the United States Supreme Court will rule in Baze, a moratorium may unnecessarily delay justice in other Virginia cases.

It is for these reasons that I disagree with today's actions by the Governor.

Let me put this whole thing in context.

When someone is convicted of a crime, and particularly when they have received a death sentence, there are a total of 8 steps possible in an appeal (actually, you can have more than that if the process gets screwed up, but stick with me here).

When the trial court imposes a death sentence, the first appeal goes to

1.  the Virginia Supreme Court.  This is the only time that the appeal MUST be heard; every other step in the process is a discretionary appeal, meaning that the appeals court could decide not to even look at the issues.

2.  If the Virginia Supreme Court upholds the conviction or sentence, the case can go by a Petition for Writ of Certiorari to the U.S. Supreme Court.  This Petition asks the Supreme Court to agree to listen to the case.  99.5% (that's not off by more than about .1%) of these Petitions are denied without any judge or law clerk ever looking at more than the Petition.  

3.  Then the case goes back to state court for consideration of a Petition for Writ of Habeas Corpus.  That is an effort to persuade the court that the initial trial was unconstitutionally unfair.  As a practical matter, the only issues that can be considered are issues that could not have been the subject of the earlier appeal -- usually prosecutorial misconduct for hiding evidence, or ineffective assistance of counsel, or sometimes if it is learned that the jurors actually decided the case by throwing darts, or some other jury-related issue.  

The Petition for Writ of Habeas Corpus must be filed in the Virginia Supreme Court; the Supreme Court then sends it back to the trial court to have a hearing to develop the evidence necessary to decide the question of ineffective assistance, or whatever the new issue(s) may be.  The trial judge in 98% of the cases says, "No, I got it right the first time."  

4.  The decision of the trial judge on the Petition for Writ of Habeas Corpus is then appealed to the Virginia Supreme Court, which has never overturned the conviction and death penalty at this stage of the proceedings.  In most cases, they don't even review anything in the habeas corpus case except the appeal briefs.

5.  The decision is then again followed by a Petition for Writ of Certiorari to the United States Supreme Court.  The Supreme Court has granted relief at this stage of the proceedings only VERY rarely -- I believe the record stands at 2 cases in the last 50 years.  But if you skip that step, the client dies.

6.  Then the case gets to United States District Court for another habeas corpus petition, now in federal court.  This was once the place where there was at least some chance for a reversal and for the application of a more national standard in the application of the death penalty, but the Supreme Court and Congress (in two bills signed by Bill Clinton in 1994 and 1996) have gutted the federal habeas process.  So in the last twelve years, virtually no one has a sentence overturned at this stage.  (I think it is 0 for 12 years, but I am not sure.)

7.  Then the case gets appealed again to the United States Court of Appeals for the Fourth Circuit, which affirms the District Court virtually every time -- usually without anything more than a cursory look at the pleadings.

8.   Finally, one last Petition for Writ of Certiorari is submitted to the United States Supreme Court.  The odds of success here are again slim, but the Court has reversed a fair number of Virginia cases over the years at this stage.

Why is the process so long?  Why does it require so many obviously ineffectual steps?  Surely this is the fault of the ACLU or liberals in general?  Well, actually, the process requires so many wasted steps because the United States Supreme Court, starting in 1977, turned habeas corpus from a process to decide if the defendant received a fair trial into a process to decide if the defendant had a good lawyer.  And Congress made it worse -- but I digress...

At every stage, when the decision is made by the court, the state asks that an execution date be set.  This has four effects -- it raises everyone's blood pressure, it makes everyone respond to a deadline, it gives the prosecutor or the Attorney General the right to posture for the TV cameras, and it drives up the costs of the entire process (there is a reason why it costs from $1.5 million to $3 million to kill someone).

Typically, if a defendant's death sentence is affirmed in April, the trial court will set an execution date in about October.  Then the defense lawyer has to go through the process of filing a Petition for a Stay.  The government responds, the Court considers the Petition and issues a stay.  Then the newspapers go to the family of the victim and ask them how they feel about the stay of execution, and they decry the unfairness and callousness of the process -- a cycle that will be repeated 7 more times.

I read a newspaper interview with a family member of a victim of one of my clients.  He said that every time he saw in the newspaper that there was another stay of execution, it was like someone had ripped off the scab of a wound that had almost healed.  By the time the process was done, and the defendant had exhausted his last appeal, the victim's brother said, "I don't care any more.  I just want it to be over.  I want to be able to go pick up my morning newspaper without seeing this case on the front page.  I want to be able to let my sister rest in peace.  I don't even care any more whether XXXXXXX lives or dies.  I just want it to be over."

When there is an execution date pending, the inmate is moved to a special part of the prison.  He is under 24-hour watch.  Security is heightened.  Lawyers cancel vacations.  Judges and law clerks remain available for last-minute hearings to consider stay requests.  The Governor must remain within telephone distance of the prison, in case there is a last-minute reprieve.  The inmate gets his last meal.  Witnesses are lined up, and may be ready and waiting.  And then the stay comes down, and everyone but the inmate goes home, only to do it again a few months from now.

On May 2, 1985, I was representing Willie Lloyd Turner, who was set to be executed that night at 11:00 PM.  The trial court had set the execution date months earlier, and the decision of the Fourth Circuit had come down in April, 1985.  Fortunately, the Fourth Circuit had granted a stay of execution, but the State filed a request with the U.S. Supreme Court that they dissolve the stay.  The Supreme Court gave us just a couple of days to file our Petition for Writ of Certiorari, and I went down to the Virginia State Prison on Spring Street in Richmond on May 2 to wait for the word as to whether the stay would hold.  I sat with Willie all afternoon as they prepared him for the electric chair.  There were triple the usual number of guards, guarding one man who sat in his cell behind bars while he talked with me and a paralegal.  Guards and janitors cleaned the death chamber, just 30 feet away.  The Death Squad (which, and I am not making this up, was led by a Sergeant Dye) tested the generator that provided the current to the electric chair; when the generator came one, the hum was audible and the dimming of the lights was visible.   Guards would look at Turner every fifteen minutes and make detailed notes in a bound book -- why, I have no clue.  Finally, at about 6:30 PM, the word came that the stay would hold, and the execution was canceled.  I went back to Charlottesville.  The Death Squad went home.  The clerk of the U.S. Supreme Court whose job it was to field last-minute appeals could go to a dinner party with his wife that night (this was before the era of the cell phone).  Willie still got to eat his "last meal" -- he was so anxious about the whole thing that his "last meal" was chicken noodle soup.  A few days later, we learned that the Supreme Court had decided to accept Turner's case for review; the following April they issued a decision in Turner v. Murray that reversed Turner's death sentence on the ground that the trial judge had not allowed questions to the jury about racial attitudes in a case where a white man was killed by a black man.  

When Governor Kaine acknowledges the anxiety and pain that a pending execution inflicts on everyone, he is surely thinking of the family of the victim, as with the family of the victim who likened every new execution date to tearing off a scab.  He is surely thinking of the stress on participants in the court system, from lawyers to clerks to judges and guards.  He may even be thinking of the family of the man who is about to be executed -- innocent people who do not deserve more pain either.

When Bob McDonnell writes about preserving the right of the Commonwealth to seek execution dates rather than to sit back and wait until July to execute Bell or others, he seeks to avoid the apparently too awful consequence -- that we feed Edward Bell for another 3 months.