If there ever was an indication that the law is an ever changing tool with which we use to govern society, one need only look at the rulings in Death Penalty law. For those of us who sharpened our legal teeth in states with no death penalty, we sometimes overlook the gravity of the slightest turn of phrase… yet it may ultimately cost, or save, lives. To think lives can hang in the balance of a phrase is as it has always been, with the emperor giving the thumbs up or down.
Presumably we have gotten beyond the whims of a frothy crowd as to whether the guilty are to live or die, and this is why the Sentencing phase of capital trials is its own phase of proceedings with its own body of law, where the jury is charged with sentencing someone to death… or not. This year a pivotal case is making its way through the courts, with a split decision in the Ninth Circuit Court of Appeals regarding the effectiveness of counsel. In Samayoa v. Ayers, the crucial question is this: How responsible is an attorney in presenting the evidence that may save a man’s life?
Richard Samayoa is a man with one of the worst criminal records imaginable, presenting a challenge for anyone on the fence about the death penalty. But the law, and decisions of life or death, should not be dealt with lightly. They require a close inspection, with an appreciation for psychology, sociology, philosophy, and the like. If we are to presume Richard Samayoa is an animal, or a monster, we need to come to understand how he got this way.
How It Came Down to This…
The role of the attorney in the Penalty Phase of a capital trial is to present mitigating evidence, to explain why a defendant did what they did and how it might be understandable. If the actions are still beyond comprehension, the attorney’s role is to elicit some sympathy in a plea for mercy. I am not aware of a case where the attorney presented evidence that possibly condemned their client further, but if we follow the dissenting opinion of Judge Reinhardt in Samayoa, his lawyer did exactly that.
The attorney presented several experts in a failed attempt to show brain damage. This was a novel defense and with Samayoa’s prior record so damning, it is unremarkable that the defense would feel obliged to grasp at straws. As it turned out, the defense experts were summarily discredited for lack of training, previous errors, and inability to describe a diagram of the brain.
On appeal into the federal court system is the question of what else the defense could have raised, regarding Samayoa’s abusive upbringing, and whether the attorney did a reasonable job to investigate this other evidence. The issue is Ineffectiveness of Counsel, a common one in a field where a person’s life is in the balance, where the law is esoteric to the public, and attorneys are strapped for resources. This is also the field where sleeping and drunk lawyers have been deemed competent by the courts, as hardly any level of ineffectiveness can slip through the eye of Strickland v. Washington’s needle. Strickland is the case that holds the standard.
Since the 1996 enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts have substantially narrowed their review of state court decisions. The U.S. Supreme Court has been called upon to interpret many procedural elements of AEDPA, and continues to do so fifteen years after enactment. Further complicating the Act, and its application, is the dual standard: one section regarding death penalty cases, and one regarding those without the punishment of death. The instant case centers on §2254, as a death sentence was imposed upon Samayoa by the state of California.
Death Penalty cases get increased scrutiny, and it is likely that the Ninth Circuit will give this case a second glance- particularly given the language and rationale of the dissenting judge. An 11-member en banc review is drawn randomly from over 28 active judges. The Ninth Circuit is by far the largest federal circuit, and has had to develop its own bulky rule system. Whoever loses at the larger “En Banc” phase, be it Samayoa or the state, will naturally want the U.S. Supreme Court to weigh. But would they?
The Ninth Circuit’s Three-Judge Decision
The two-judge majority (which includes Ninth Circuit Chief Judge Alex Kozinski) ruled that it did not matter if the lawyer was ineffective or not because the more persuasive arguments, the brain damage, did not save Samayoa’s life. It is interesting to note that the Court refused to weigh whether the attorney’s lapse in presenting all evidence was “ineffective” or not (so they presumed it was, without ruling it so). This is because Strickland is a two-prong test: (1) Did the attorney’s conduct fall below a reasonable standard, and (2) If so, does this undermine the confidence in the jury’s verdict? The second prong is known as the “prejudice” test, and if there is no prejudice (i.e., the decision would have clearly been the same, regardless) then it doesn’t matter. No harm no foul.
The Court appears to have jumped to the second prong because it appeared the easy way out. They clearly felt the second prong was obvious, even if the first prong was a bit fuzzy. The record is mixed about how much investigation the lawyer, or his employees, conducted. He did put Samayoa’s mother and sisters on the stand, who expressed that they loved him, yet one actually told the jury she would “understand” if they executed him. The Court gives great credence to the Organic Brain Disorder defense, yet manages to overlook the attorney’s absolute failure in presenting it.
The Strickland analysis (which can’t be fully appreciated without also reading Judge Thurgood Marshall’s scathing dissent) is based on whether an attorney’s strategic decisions were reasonable at the time. It also must factor in one’s ability to implement this strategy. Although the Organic Brain Disorder may have been a new strategy, one could conceivably find it rational and reasonable, as it is an attempt to bring the case into the Diminished Capacity realm. Entirely overlooked is an assessment of this strategy if one’s experts are reduced to amateurs before the jury- and this was not lost on the Dissenting judge.
Richard Samayoa might have put forth evidence that his family physically fought in ways considered very brutal, that sexual abuse was rampant in his family, that his own drug abuse was started within his family at a young age, and his mother was emotionally distant and failed to protect her young son. Such evidence of intense dysfunction would need to sway but one juror to spare him and the Dissent believes this is a question for the jury- not one which two Circuit Court judges, even with the wisdom of Solomon, can decide. Thus, the “prejudice” test is not so easy in this case.
I Respectively Object, Your Honor
What would a jury do if they were presented with scientific evidence that a man is an uncontrollable killer? If they were “proven” to have an organic brain disorder that indicates they cannot be safely around other human beings? It is quite likely they would have a very easy time putting this person to death. It would be confirmed, by science, that this person lacks humanity. If the strategy Samayoa’s lawyer was going for was to “prove” he is organically different, it is a likely only ever to result in Death for a client.
Even if the attorney had put up an iron clad Organic Brain Disorder mitigation strategy, it would truly only be mitigating if shown that this disorder came about through no fault of Richard Samayoa. That he was in a car accident, had a brain tumor from cancer, was beaten into it by an abusive family, or the like. Without this, the jury is simply left staring at an animal in the dock. In this case, it is quite likely that the larger Ninth Circuit will decide that the abusive family evidence was necessary to have reasonably presented this questionable strategy.
Without having a ruling on ineffectiveness to rely upon, the Ninth Circuit will decide that de novo, or they will remand it to be decided. Or they too could presume ineffectiveness and affirm, or overturn, based on the “prejudice” prong. Regarding the latter, it is difficult to imagine the Circuit accepting their colleague’s belief that they can speak for the jurors, about whether or not this jury could be swayed by the evidence of abuse.
If the jury did not buy into the Organic Brain Disorder (which is quite reasonable, considering the terrible testimony), they needed something to rely on to spare Richard Samayoa. They received nothing. The attorney even attempted to present Samayoa’s family as being typical and loving, as if they could relate better to the defendant.
The Court oversteps their bounds as jurists in this case, venturing into the waters of psychologists and mind readers. It is impossible for them to know what impact the failed Brain Disorder defense had on the minds of the jurors. The Court believed it was a good defense, the best one Samayoa could have raised, and yet it failed. However, there is no evidence that this strategy has ever worked. The Court ignores the fact that the “Terrible Family” strategy (for lack of a better phrase) has in fact worked. Any self-respecting attorney litigating a capital trial should know this.
More Than One Man in One Case
The U.S. Supreme Court is more than picky when it comes down to the roughly 100 cases it reviews from thousands of petitions. One cardinal rule is that if you can’t convince the Justice who oversees your Circuit, fuhgettaboutit. Justice Anthony Kennedy is responsible for the Ninth Circuit, and is generally portrayed as a wild card in any dispute- a trait that is admirable in itself. His reversal on Juvenile Death Penalty (which is difficult to say with any sense of humanity), is why it has finally been discarded. He has opposed executions for the mentally ill and cases where there was no murder (capital crimes include more than murder, though it is rare). But do not take anything for granted, as Kennedy has supported many restrictions on Habeas Corpus and given wide leeway to the actions of the police.
This prospective SCOTUS case, regarding both the death penalty and the right to effective counsel, poses important questions for the new “Roberts” Court. Chief Justice Roberts, along with Justices Kagan, Sotomayor, and Alito should all be considered wild cards at this juncture of their fresh tenures. Other than Alito, who spent 16 years on the Third Circuit bench, none have experience presiding over death penalty decisions. The Third Circuit includes Pennsylvania, home of America’s most famous death penalty prisoner (Mumia Abu Jamal). Samayoa may prove a decisive moment as the Court matures.
One analysis on Justice Alito proposes his predictability, stating in part:
In his 15-year career on the U.S. Court of Appeals for the Third Circuit, Judge Samuel Alito has participated in 10 capital cases. Five were decided unanimously by three-judge panels. The other five provoked strong disagreement between Judge Alito and his colleagues. In each of the five contested cases, Judge Alito ruled against the inmate. His opinions, which we examine in detail, show a disturbing tendency to tolerate serious errors in capital proceedings. They reveal troubling perspectives on federalism, race, and due process of law, and they have worrisome implications for the protection of individual liberties in the war on terror.
Samayoa presents systemic questions as well, ones which may never be answered in its litigation. Did Samayoa’s attorney feel economic pressures as a court appointed attorney? Is this why the non-experts were put on the stand, or why the family investigation only skimmed the surface? Meanwhile, the prosecution is able to present true experts, have unlimited investigation (the police), and is able to control the proceedings as the government only can… in what is designed as an equal system of adversarial justice.
In 1996, with the smoke barely clear from the Oklahoma City Bombing, the U.S. Government implemented the Anti-Terrorism and Effective Death Penalty Act. It was essentially a severe restriction on Habeas Corpus with a few new elements tossed in about weapons and explosives as a token to the news of the day. Like the Patriot Act five years later, who could vote against it? Who had time to read it? Fortunately for Richard Samayoa, he may continue to get his day in court. But as for all of those not sentenced to death, they are often barred from even presenting evidence of the actual killer. When the courts, or the legislature, would prefer that the actual killer remain at large for the sake of finality: we have a true crisis of morality in the law.