Term Paper: Death Penalty in Michigan

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[. . .] Nature and Volume of Federal Death Cases

Among other factors that affect the cost of representation, the prosecution's decision to seek the death penalty and whether or not to accept a plea agreement to a sentence less than death are the most particularly significant. First of all, the volume of federal death penalty cases depends on the decision to prosecute on a federal rather than in a state court. The federal volume has vastly increased, especially since the enactment of the Federal Death Penalty Act as part of the 1994 bill. The average total cost per federal death penalty representation in the last decade was $142,000 (U.S. Courts). However, it is the prosecution's decision as to seek the death penalty that spells that difference in the cost of representation.

The Attorney General of the United States normally authorizes the decision. The average cost of representation was approximately $218,000 as compared with only $55,000 when the decision was not authorized. It could be reduced to only $145,000 if the decision was withdrawn before trial. Costs could further be reduced with a plea of guilty for a lesser crime (U.S. Courts).

Three factors affect the scope and cost of defense representation: the two-part trial in a death case, the complexity of the guilt phase, and the scope of the penalty phase. The first part is the guilt phase, where the jury decides whether the prosecution has proven the commission of the crime, punishable with death, beyond reasonable doubt. In the second part, the jury considers additional facts or aggravating circumstances that will warrant the imposition of the death sentence, along with the defense's evidence of mitigating circumstances. The defense counsel must prepare for both parts of a death case trial. His preparation for the guilt phase must already take the penalty phase into account. Unlike in non-capital cases, what the jury may find insignificant in the guilt phase may be significant in the penalty phase (U.S. Courts). An example is in the securing of expert opinion by both the prosecution and the defense.

The penalty phase of the trial includes a wide range of inputs on the defendant, the victim and the nature of the offense not admissible in the guilt phase. The defense lawyer must investigate these, obtain as much information as possible and be very familiar with all the details. At this phase, the jury accepts other information offered by the prosecution, which requires the defense lawyer to be extra-prepared for additional "non-statutory aggravating circumstances" in the case, specifically that the defendant will be dangerous in the future. The jury may also conduct a further "trial" to determine if the same defendant some other crimes. These mini-trials entail additional cost, time and other resources to prosecute and defend.

In addition to these, the defense lawyer must plan out and present a case for a lesser sentence. He must invoke the defendant's constitutional right to present any mitigating circumstance to reduce the sentence. This requires a broad investigation into the defendant's life history and a revelation, for the jury's consideration, of those "compassionate circumstances of human frailty." It is the defense counsel's failure to investigate and present mitigating circumstances that is the most frequent reason why the death penalty is set aside.

There are also special obligations incurred by the defense counsel in a death penalty case. The average number of hours spent on non-capital homicide cases is 117 as against 962 in (1,464 in authorized) death cases. Consultation with the defendant requires immensely more time for death cases than in non-capital cases. The accused must reveal more details of his life - mental illness, substance abuse, social and academic failures, other family secrets - that can help explain his misconduct. He must also be convinced to enter a plea of guilty for a lesser crime, and for this to happen, a great deal of trust must develop between him and his counsel. Another time-consuming factor is the stress that both of them go through in confronting the risk of a death sentence. Each must handle their situation with care so that the counsel will not withdraw from the relationship, as this will delay the trial.

One more issue to contend with is that circuit courts of appeals have decided only on a handful of federal death penalty cases, as these are time-consuming to litigate (U.S. Courts). Many judges said that they and their law clerks devote months to prepare federal death penalty cases. A defense lawyer has that ethical duty to challenge the conduct of the guilt and penalty phases. Furthermore, many issues may arise in a single case. In one multi-defendant case on record, almost 3,000 legal pleadings were filed by the parties.

Defense also incurs the huge cost of expert witnesses in death cases. A study revealed that 19% of defense expenses went to services other than counsel, primarily mitigation specialists and jury consultants, who are typically highly educated and paid by the hour.

The competence of a defense counsel, needless to say, is of paramount significance in death penalty cases. The First Judiciary Act of 1789 already provided for the appointment of a "learned" counsel especially in capital cases (U.S. Courts). The Supreme Court today expressly requires the appointment of two lawyers, at least one of whom should be knowledgeable about capital punishment. The American Bar Association summarized the requirements on a defense counsel in a death case as dealing not only with the most serious crime in the most difficult circumstances, but also knowing and understanding the complex constitutional issues and unusual procedures applying to non-criminal cases. A "learned" counsel "does it right the first time" and thus minimizes draining and time-consuming post-conviction proceedings. This demands high-quality representation at trial level and this consists both of knowledge of the extensive and complex body of law governing capital punishment and the complexities of federal criminal practice and procedure (U.S. Courts). There are differences between state and federal practice too. The lawyer must have both prior capital experience and prior federal criminal trial experience so that he will be familiar with federal sentencing guidelines, the speedy trial act, rules of evidence and procedure and the specifics of the federal death penalty law. It is also an advantage if he has specialized area of practice, such as drug crimes.

Judges boast of state counsels they appoint especially to death cases as more competent than those in the federal level according to norms. Many learned counsels accept appointments after their first federal death penalty cases and they are generally regarded as more efficient because of the experience. The Department of Justice centrally supports the work of federal prosecutors nationwide and avails them of training, advice, legal research and brief writing assistance, sample pleadings and supplemental staffing. In contrast, private lawyers are mostly sole practitioners or partners in small law firms, consisting in turn of less than a dozen lawyers. And although federal defender organizations are centrally funded (U.S. Courts), their representation work is completely decentralized. In addressing the problem of improving the quality of representation and the cost effectiveness of defense services, the judiciary established the Federal Death Penalty Resource Counsel Project (RCP) in 1992. RCP consists of three experienced capital litigators who support the counsel and provide inputs to the Administrative Office on part-time basis. Resource counsels divide their work regionally and so are able to provide assistance to defense counsel in federal death cases. Their legal advice and pleadings have been quite useful in preventing lawyers from needing to "reinvent the wheel" and earned the praise of judges, defense counsels, administrative office staff and the Department of Justice. Their work has helped develop and implement case budgeting procedures and in the discharge of the Administrative Office's and federal public defenders' duties in recommending competent counsel for appointment. Moreover, they provide training opportunities for counsel and help monitor prosecution decisions and crucial statistical information and policy advice to the Administrative Office (U.S. Courts).

A defendant (to a death case) is entitled to two lawyers according to law. The judge may appoint two private or panel lawyers to be paid on an hourly basis, or in a district with a federal defense organization or FDO, a lawyer employed by this FDO may be appointed in most cases.

An FDO is currently unable to provide representation to many federal death penalty cases but it has in its employ a few lawyers with prior death penalty experience gained in state court. Most of its lawyers are also deficient in experience in homicide cases because few of these are raised to federal courts. Even the few who have the experience feel not at par with learned counsels with capital experience. Trial experience in non-capital cases cannot substitute for it. In almost all death cases wherein the judge appoints an… [END OF PREVIEW]

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Death Penalty in Michigan.  (2004, April 15).  Retrieved April 19, 2019, from https://www.essaytown.com/subjects/paper/death-penalty-michigan/1307216

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"Death Penalty in Michigan."  Essaytown.com.  April 15, 2004.  Accessed April 19, 2019.
https://www.essaytown.com/subjects/paper/death-penalty-michigan/1307216.