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Volume 22, Number 1 (1997) reprinted by permission Oklahoma City University Law Review I WANT TO LIVE! FEDERAL JUDICIAL VALUES IN DEATH PENALTY CASES: PRESERVATION OF RIGHTS OR PUNCTUALITY OF EXECUTION? TEREE E. FOSTER* relationship between the judiciary, the criminal justice system, and the society that these institutions influence and shape. Barbara was the quintessential free spirit--vivacious and belligerent. As the film opens, Barbara incurs a misdemeanor charge for prostitution.3 Soon thereafter she graduates to felony offenses and receives a year-long prison sentence after she commits perjury in order to provide an alibi for two cronies she depicts as "nice guys."4 Upon being released from prison, Barbara engages in petty hustles to make a living. She then marries Henry ("Hank") Graham, her fourth husband, a freeloading heroine addict whom she abandons a year after the birth of their baby, Bobby. She passes bad checks, breaks parole by consorting with known criminals, and runs out on her landlord. Broke and without ready options, she moves in with Emmett Perkins and John R. Santo, two hoodlums from her "party days." She leaves Bobby with Hank's mother while hiding out in an abandoned warehouse, but inadvertently divulges the location of the hideout when she is followed after one of her regular visits to Bobby. All three are arrested and charged with the March 9, 1953 fatal beating and robbery of Mrs. Mabel Monaghan, a disabled Burbank widow. Barbara is interrogated by the police for more than 16 hours without food or respite. Her demands to see a lawyer are ignored. She is offered a deal--full immunity in exchange for a confession concerning Perkins' and Santo's participation in the robbery and murder of Mabel Monaghan. Adamant in proclaiming her innocence, Barbara contemptuously rejects the deal. Although she claims not to have been present at the crime, she is indicted for murder, along with Perkins, Santo and Bruce King, a hoodlum Barbara had previously refused to date. King later claimed Barbara was the actual killer. Barbara demands to be represented by the Public Defender, as she is convinced that an impartial lawyer, unconcerned with her inability to pay a fee, will provide her the most vigorous representation. Instead, she is provided with a court-appointed attorney, Mr. Tibrow, who advises her that unless her unsubstantiated alibi--that she was home alone with Hank and Bobby--is corroborated, her conviction for murder is a virtual certainty. Hank has disappeared. A fellow inmate, Rita, approaches Barbara in prison, preys upon Barbara's fear that a jury would discredit her unsubstantiated alibi and suggests that Barbara's only hope for acquittal lay in the invention of a false alibi. Rita informs her that a friend, Ben Miranda, is in need of money and might be able to help Barbara with her alibi. "You're in for manslaughter," Barbara says suspiciously to Rita. "Why would you want to do this for me?" "You're a friend in need," Rita responds. Reluctant, but desperate, Barbara finally agrees. A poetry aficionado, she employs a line from The Rubiyat of Omar Khyyam as a password for her meeting with Ben.5 Together, Barbara and Ben concoct a cover story. He tells her he is concerned that if anyone saw her on the night in question, his testimony could subject him to a perjury charge. She insists that she was home, but admits she cannot prove it. He attempts to get her to say she was with Perkins and Santo at the crime scene. She offers to double his payment. He refuses, insisting she admit that she was at the Monaghan home. Apprehensive, she finally acquiesces to his demand: "You really have the hammer locks on me! Have it your way." At trial, Bruce King testifies that Barbara perpetrated the killing and beat Mrs. Monaghan's face with a gun she held in her right hand. The prosecution's second witness is Ben Miranda, who is actually a Los Angeles undercover police officer assigned to work on the Monaghan murder. Barbara's lawyer requests permission to withdraw, which the court denies. Her taped conversation with Ben Miranda, who was wearing a wire, is played for the jury. Barbara is shattered, distraught.6 Barbara testifies in her own defense and claims she was at home with Hank and Bobby at the time of the murder. She swears that she was desperate when she urged Ben Miranda to devise the fabricated alibi. She concedes under prosecutorial questioning that she had previously been convicted of perjury. Hank appears as a witness, but his testimony as to her whereabouts on the night in question is murky. Perkins, Santo, and Barbara are convicted. King is freed. The court denies Barbara's motion for a new trial based upon the use of Officer Ben Miranda's testimony, although the court admonishes the police for their questionable tactics. All three are sentenced to death. Barbara is transported to the prison at Corona.7 She is examined by Carl Palmberg, a criminologist/psychologist, who pronounces her "totally amoral, a compulsive liar with no regard for law and order or the conventions of society." However, he also believes she is innocent, abhorrent of physical violence. He then reveals what her lawyer, the prosecutor, and the journalists had ignored--Barbara is left-handed and could not have beaten Mrs. Monaghan with a gun held in her right hand. Palmberg explains to Al Matthews, Barbara's new lawyer, and to Edward S. Montgomery, a reporter who has been following the case, that Perkins and Santo deliberately "kept her out front" during the prosecution, believing the Governor would eventually commute the sentence of a young, attractive mother. Tactically, Perkins and Santo reasoned that if the alleged actual killer were to elude execution, the accomplices would not be executed in her stead. Conversely, if the State of California pursued execution of the accomplices, the purported actual killer, a young, attractive mother, must first be executed. Barbara is a pawn in a strategic campaign between her co-defendants and the prosecution. Palmberg, Matthews, and Montgomery, all persuaded of her innocence, team to construct an appeal, which is denied.8 The execution is scheduled for December 3, 1954. Bobby is brought to visit Barbara four days before her scheduled execution date. Barbara plays a game with him that she created, but soon breaks down. "Anything, anything," she laments to the friend who is caring for Bobby. "I could stand anything but losing him. Sometimes I think everything inside me is going to bust wide open, as though someone is pulling out my guts with their hands." Barbara is notified that the United States Supreme Court has granted her a stay of execution. She writes to Palmberg, "I do want to live, Carl. Life seems very dear to me, and you are my greatest hope." But Palmberg's health is fragile, and he dies in the hospital. The Supreme Court denies her petition for a writ of certiorari.9 Her new execution date is June 3, 1955. Barbara is transported to San Quentin penitentiary for her last days. Montgomery requests an interview with Perkins, and waits all night at the prison, intending to persuade him to clear Barbara. Perkins refuses to see Montgomery. Meticulously, the guards prepare the gas chamber. Barbara waits for the appearance of her lawyer and hopes for a stay. A priest brings Barbara a medal of St. Jude, the "saint of the impossible," and she makes her confession. "I'm not afraid to die," she insists. "I think it would be rather nice to come face to face with the one person in all the world who knows that I am innocent." When the priest responds, "None of us is wholly innocent or guilty in the eyes of God," her rejoinder is, "I meant Mrs. Monaghan." Matthews visits and informs Barbara he has filed a petition for a habeas corpus writ in federal court, which will be argued the following morning. "Just this once," opined Barbara with understated irony, "I wish it wasn't 'Ladies First.'" Matthews tells her there is a good chance of getting the order of executions switched so that Perkins and Santo are executed first. His hope is that they might clear her under those circumstances. Barbara is unpersuaded. Matthews further tells her that the Governor has denied her plea for clemency, but that he will charter a plane to Sacramento if the Governor would agree to see him. "No," Barbara responds with quiet conviction. "Anything in the court is Okay, but don't beg for my life. Don't beg for my life!" At 8:00 a.m., final preparation of the gas chamber is accomplished. Perkins and Santo persist in refusing to meet with the reporter, Montgomery. At 9:15 a.m., as Barbara touches up her make-up, the telephone rings, its presence as tangible as a flesh-and-blood character. The Governor has granted a stay. "Does this mean that I might get to live?," she queries haltingly. The warden explains that the stay is merely a delay, to permit her attorney time to present her argument to a federal judge. "We wouldn't want you to think . . . ." Her spunk restored, Barbara interrupts, "That I'm not going to be executed? I like that word much better than gassed; don't you?" Barbara waits, smoking and touching her St. Jude medal. The ubiquitous telephone again rings. Her petition has been denied, and the stay has been vacated. The execution is rescheduled for 10:45 a.m. Barbara dresses, for the last time. She has kept with her throughout her confinement a miniature toy tiger of Bobby's. She presents this toy to the nurse who provided Barbara companionship throughout her last night. After being told she must walk barefoot to the chamber, Barbara defiantly refuses to remove her spiked heels. "I look better with them on." She walks to the gas chamber. As she walks to the gas chamber, the telephone rings. Barbara claps her hands to her ears and emits an agonized scream. An indefinite stay has been granted so that the California Supreme Court can consider an amended petition filed by her lawyer. "Oh Father," she plaintively asks the priest, "why do they torture me? Why do they torture me?" She waits in her cell, holding the St. Jude medal. At 11:28 a.m., the telephone again rings. The execution is rescheduled for 11:30 a.m. Barbara requests a mask. "I don't want to look at people. I don't want to see them staring at me." Guided by the priest and a guard, she is led to the chamber. "Father, I didn't do it," she murmurs to the priest as she enters. The guard who straps her in the chamber chair tells her, "When you hear the pellets drop, count to ten, then take a deep breath. It's easier that way." Spirited to the last, she replies sardonically, "How do you know?" The chamber door is bolted. Cyanide tablets are dropped into sulfuric acid. Fumes pervade the chamber. Barbara breathes deeply, and as her lips silently form a count, she slumps forward, then bolts erect. Her fists knot, then relax. It is over. The State has amassed its power, has obliterated a human life, and thereby, ostensibly, has served the cause of justice. In a later scene, Barbara cradles Bobby on her lap in the days before her scheduled execution. She truncates the visit, unable to bear the reality of leaving her defenseless infant. Hours before she is executed, her thoughts are of Bobby, and she rails against the reports--which her attorney assures her are false--that Bobby will be adopted by strangers and not by his grandparents. Both scenes invoke a portrait of maternal love. The film's most striking series of images appear near the conclusion. Barbara, still vital and vivacious and only a few feet from the gas chamber, reacts to the intrusive ring of the telephone as it postpones for a few more moments the inevitable execution. She clamps her hands over her ears, her face scrunched to project an anguished scream. Finally, after all appeals and avenues for legal relief are exhausted, she enters the gas chamber. She sits isolated, masked, powerless, and shrunken, a trenchant image of the utter inconsequentiality that accompanies termination of a human life. Barbara Graham's trial occurred almost a decade prior to the assault of the Warren Court on a plethora of egregious police tactics that had become accepted as the sine qua non for vigorous law enforcement. During the 1960s, the Supreme Court breathed vitality into constitutional protections for criminal accuseds found in the Fourth, Fifth, Sixth, and Eighth Amendments. Decisions of the Warren Court during this period revolutionized the substance and focus of criminal procedure. A touchstone of Warren Court jurisprudence was the shielding of suspects from coercive law enforcement tactics;11 an interposition function was assumed with vigor and alacrity by the federal judiciary and the United States Supreme Court.12 For example, decisions of the Warren Court assured defendants charged with serious crimes representation by counsel;13 information obtained in violation of the Fourth Amendment's strictures against unreasonable searches and seizures was excluded as trial evidence;14 and, perhaps most significantly, the federal courts were decreed broadly accessible, through the "great writ," habeas corpus, so defendants held under state authority could challenge their convictions on federal constitutional grounds.15 These safeguards condemned abusive police techniques not merely for the sake of scolding law enforcement, but because these constitutional protections were deemed essential components of the fairness of the criminal trial process and the accuracy of its outcome. Fundamental to this protection was the tenet that a confession deemed "involuntary," procured by overbearing police tactics, such as beating or depriving a suspect of sleep or nourishment, was inadmissible at trial.16 The Supreme Court emphasized that coerced confessions were inadmissible as trial evidence, not only because they might be inaccurate, but because the methods used to extract them offend the elemental principles upon which the accusatorial system is based.17 The 1964 case of Massiah v. United States18 holds particular significance for Barbara Graham's conviction. Massiah, after retaining counsel, pleaded not guilty to narcotics violations and was released on bail. His co-defendant, unbeknownst to Massiah, was cooperating with federal authorities. He invited Massiah to discuss the pending case during a ride in his car, which was equipped with a radio transmitter. Massiah's damaging admissions were the subject of a federal officer's testimony at Massiah's trial. The Supreme Court reversed Massiah's conviction, holding that the post-indictment, deliberate elicitation of statements from Massiah, in the absence of his lawyer, violated his right to a lawyer's counsel. Under the dictates of Massiah, Officer Ben Miranda's testimony, extracted by preying upon Barbara Graham's apprehension that her alibi would be disbelieved, in utter disregard for her right to counsel, would be substantively inadmissible as proof of her participation in the murder of Mrs. Monaghan. Massiah typifies Warren Court admonitions to prosecutorial authorities that abusive, coercive or manipulative techniques used to extract information from an accused must be condemned. To the Warren Court, these constitutionally guaranteed rights were not mere technicalities, casually sacrificed to achieve expediency and efficiency. Instead, the Warren Court's solicitude for the rights delineated by the Fourth, Fifth, Sixth, and Eighth Amendments originated in a certainty that robust enforcement would ensure that innocent persons were not wrongfully convicted, and all convictions are undergirded by scrupulously fair procedures. It was immaterial to the Warren Court that the information gleaned through constitutionally violative methods might be accurate, or that using alternative measures to obtain information might prove to be burdensome or inefficient or inexpedient. Exclusion was required to protect the individual from an excess of law enforcement or prosecutorial zeal.19 Do the Warren Court's precepts survive so that Officer Miranda's testimony would be inadmissible if Barbara Graham were tried today? Have the Burger and Rehnquist Courts sustained or shirked the obligation to insulate the accused from the overpowering prosecutorial power of government? The Court's decisions during the past two decades demonstrate that preeminent judicial values have mutated. No longer are the constitutional rights of individuals of paramount significance to the Court. Other values now predominate: admissibility of any arguably accurate information, even if acquired through constitutionally questionable means, finality of criminal convictions, and expediency in obtaining them.20 For example, it is likely that if Barbara Graham were tried in 1996, Officer Miranda would be permitted to testify to contradict her testimony as to her noninvolvement in Mrs. Monaghan's murder and her whereabouts on the evening in question.21 The Court has stressed that arguably reliable information should not be excluded from the impeachment process; instead, prohibiting the use of information accumulated through measures of dubious constitutional validity as substantive proof of guilt satisfies the prophylactic purposes of the exclusionary rule.22 Presumably, under Massiah, Officer Miranda's testimony, the consequence of his jailhouse extraction of statements from Barbara Graham would be inadmissible in a 1993 trial as substantive proof of her guilt. However, several recent decisions by the Court erode the degree of confidence with which one might speculate upon the continuing validity of Massiah.23 Concerning the right to counsel, which was pivotal in Massiah, the Court held recently that the Sixth Amendment right to counsel is offense specific and only attaches at the outset of adversarial judicial proceedings, such as indictment or information.24 Once invoked, this Sixth amendment right to counsel annuls any waiver of questioning of the accused by the police, but only where the questioning relates to the same offense for which the right was invoked.25 For example, assume that a suspect, indicted for armed robbery and represented by counsel on that charge, is in custody and succumbs to overtures by law enforcement personnel. She confesses to several unrelated crimes committed long before she was indicted or otherwise charged on them. Her Sixth Amendment right to counsel attaches only to the armed robbery with which she had been actually charged and affords no protection. However, the suspect does have an avenue for recourse. The Fifth Amendment also encompasses a right to counsel for suspects in custody, a component of the protection against self-incriminatory statements. Once invoked, this right thwarts custodial interrogation upon any topic, even matters unrelated to the offense charged, without the presence of counsel.26 The pragmatic difficulties with the Court's Sixth/Fifth Amendment dichotomy in interpreting the scope of the right to counsel are apparent. First, although lawyers and judges might comprehend the distinction between the Sixth and Fifth Amendment rights to counsel, most suspects will not and will fail to grasp the concept that being represented by counsel does not obviate the requirement to invoke the right to counsel in interrogation sessions concerning unrelated crimes. Second, suspects who are nervous, frightened, or intimidated--and perhaps even innocent--are more likely to relinquish the rights specified in the Miranda warning when confronted in the interrogation room by law enforcement authorities without counsel present. Moreover, the Court recently encroached upon the wellestablished constitutional principle that involuntary confessions are inimical to the adversary process and are per se inadmissible as evidence. Instead, in Arizona v. Fulminante,27 the Court held that admissibility of an involuntary confession is indistinguishable from any other form of trial error. Allegations of error in admitting an involuntary confession are to be appraised on appeal according to the harmless error standard, which simply ascertains, beyond a reasonable doubt, whether the error in admitting the coerced confession has caused any inaccuracy in the determination of guilt.28 Justice Rehnquist reasoned that examining even coerced confessions according to the harmless error standard is required to preserve the "principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error."29 Adoption of this harmless error standard withdraws from the judiciary the obligation to closely examine transgressions upon constitutional rights of individuals. Instead, the court simply glances at the result obtained and inquires whether, on the face of the matter, that result appears to be correct.30 Slackening strictures on custodial interrogation techniques and on the admissibility of confessions obtained thereby is expedient. Insofar as it facilitates confessions or incriminating statements in the custodial context, the Court's permissiveness towards law enforcement procedures diminishes the necessity for law enforcement authorities to ferret out independent evidence of guilt. But, if the right to advice of a lawyer during interrogation is anything more than a fond indulgence and the right to constrain law enforcement authorities from compelling the suspect's own words in order to acquire proof of guilt is indeed an integral aspect of constitutional fairness, it must be questioned whether such expediency, which removes both counsel and the courts from oversight of custodial interrogation, serves--or eviscerates--fundamental societal values and the cause of justice.31 BUFFER OR TIMEKEEPER? Graham's correspondence and investigative articles by Edward S. Montgomery, a Pulitzer-Prize winning reporter for the San Francisco Examiner.33 The script portrays Barbara as an innocent scapegoat, twice victimized: first, by conniving cohorts who scheme to engineer her death as a desperate ploy to salvage their own lives, and second, by a system thirsty for sensationalism and vengeance. The film's assumption that Barbara was a guiltless victim who was wrongfully executed--lends unspeakable poignancy to her death. In fact, the realities surrounding the brutal murder of Mrs. Monaghan remain unknown. Yet, whether Barbara Graham was blameless or culpable, the film's forceful abolitionist posture sears the viewer's consciousness.34 Whether or not the imposition of capital punishment is morally defensible or desirable, it is apparent that in reviewing convictions in capital cases, the Supreme Court has abdicated, actively and absolutely, its role as insulator of the individual from the force of governmental, prosecutorial power. The Warren Court's position was that a federal court, in considering a habeas corpus petition from a state prisoner, should independently consider the merits of the constitutional challenge, notwithstanding the previous state court adjudication. State court rulings were entitled to the respect ordinarily afforded to opinions of a court of another jurisdiction, but did not preclude federal review of constitutional claims raised in a habeas corpus application.35 A series of recent cases demonstrates that values of efficiency, expediency and finality predominate over any obligation to consider potentially meritorious claims on behalf of the condemned.36 No longer is habeas corpus readily available to defendants incarcerated under state authority, even defendants convicted of capital offenses, as a device to challenge the constitutionality of their confinement. Instead, the Court has transmuted habeas corpus into a mechanism by which federal courts are permitted to do little more than ascertain whether state courts properly considered all constitutional challenges raised by the defendant during direct appeal.37 Above all, the Court, in its current preoccupation with punctuality in the execution of state-condemned capital defendants, has transmogrified its own role from shielding protector to detached timekeeper. Presumably, if Barbara Graham's conviction had been obtained subsequent to the Massiah ruling, and the state court adamantly refused to consider Massiah as a ground for reversal in reviewing her conviction, federal habeas would be available to her.38 Similarly, if her lawyer failed to raise a constitutional challenge to the admissibility of Officer Miranda's testimony, based on Massiah, during either the trial or the direct appeal of her conviction by the state court, federal habeas relief might be available, if she could fulfill some stringent preconditions. Barbara Graham would have to establish that her lawyer's breach was tantamount to ineffective assistance of counsel and that counsel's incompetence actually affected the outcome of the case. In other words, she would have to demonstrate that without counsel's errors of omission or commission, it is likely she might have been acquitted.39 Yet, several other examples based upon Barbara Graham's conviction for murder and subsequent death sentence reveal the circumscribed nature of federal habeas corpus review presently available to defendants, even defendants convicted of capital crimes. Successive Habeas Petitions. Assume that Barbara Graham files as petition for habeas relief urging that Massiah provides a basis for federal relief, and that this petition is denied. She now files a habeas petition averring ineffective assistance of counsel in failing to develop crucial facts pertaining to her alibi as a ground for relief. Is the opportunity to file successive habeas petitions available to a defendant convicted of a capital crime? On April 24, 1996, President Clinton signed into law the Anti-terrorism and Effective Death Penalty Act of 1996.40 This statute includes provisions pertaining to second or successive habeas corpus applications by state prisoners, and provides that a habeas petition containing a claim previously raised must be dismissed.41 A habeas petition that incorporates a claim not raised in a previous petition can be considered only under the most exceptional of circumstances: subsequent change of a rule of constitutional law applied retroactively to the petitioner's case; or a factual basis for the claim that could not have been discovered previously through the exercise of due diligence, where the new facts demonstrate by clear and convincing evidence that "no reasonable factfinder would have found the applicant guilty of the underlying offense."42 In Felker v. Turpin,43 the Court unanimously upheld the constitutionality of these provisions.44 Thus, in essence, access to more than one attempt to obtain federal habeas corpus as a means of challenging aggressive police practices or overzealous trial procedures in state courts is substantially obliterated. It is unlikely that Barbara Graham could establish the ineffectuality of her counsel, and the concomitant persuasiveness of new-found facts demonstrating her alibi, to the requisite standard.45 Her subsequent habeas petition would be denied. Subsequent Change in Governing Law. Barbara Graham was convicted for the murder of Mrs. Mabel Monaghan in 1954. A decade later, the Supreme Court decided Massiah v. United States,46 ruling that surreptitious elicitation of statements from an accused in the absence of his lawyer violates the Sixth Amendment. If Barbara were still incarcerated in 1964, could she seek release through a federal habeas corpus petition, claiming that Officer Miranda's subterfuge in procuring her incriminating statement transgressed upon her right to counsel? Supreme Court authority reveals the answer is negative. The Court's position is that the duty of the federal habeas court is not to determine how it would interpret the Constitution, but, rather, to decide whether the state court's interpretation constituted a reasonably debatable application of precedent at the time the defendant's conviction became final. State inmates cannot benefit in habeas corpus proceedings from "new rules" that were not in existence when their convictions were obtained and finalized.47 Thus, Barbara Graham would be unable to avail herself of the "new rule" concerning applicability of the right to counsel announced in Massiah, and her petition for habeas corpus would be denied. Cruel and Unusual Method of Execution. If, several days before her scheduled execution, Barbara Graham's lawyer decided to challenge California's capital punishment instrumentality--the gas chamber--as cruel and unusual punishment in contravention of the Eighth Amendment, would a federal court be constrained to consider her habeas corpus petition? Recent precedent dictates a negative response. Fierro v. Gomez48 was a class action filed under section 1983 by three California death row inmates, including Robert Alton Harris, challenging the constitutionality, on Eighth Amendment grounds, of the gas chamber as an execution device. Harris' execution was scheduled in four days. The federal trial judge concluded the constitutional claim was sufficiently meritorious to warrant further consideration and issued a tenday temporary restraining order halting Harris' execution. During the next few days, three more stays were issued because the Ninth Circuit Court of Appeals considered the case seven times.49 The United States Supreme Court quickly vacated each stay, stating in a brief per curiam opinion that "the State's strong interest in proceeding with its judgment," for equitable reasons, far outweighed "Harris' obvious attempt at manipulation."50 Finally, manifestly frustrated by the lower federal courts' persistence in granting stays so that the merits of the Eighth Amendment challenge could be considered--undoubtedly perceived by the Court as obstruction of Harris' scheduled execution--the Supreme Court entered an unprecedented order. The Court not only vacated the most recent stay, but the Court also decreed all lower federal courts to be without further authority to issue any more orders to postpone Harris' execution.51 Harris' execution was carried out, delayed by only a few hours.52 Claim of Factual Innocence. If either Emmett Perkins or John Santo had relented in the final moments preceding their executions and exonerated Barbara Graham from all culpability in Mrs. Monaghan's death, would a federal court be obliged to hear her habeas corpus petition predicated upon a fact-based claim of innocence? Would the federal court be obliged, at least, to hold a hearing to determine the persuasiveness of her claim of innocence? Based on recent precedent, the response to these questions is also negative.53 In Herrera v. Collins,54 Herrera, based upon two eyewitness identifications, circumstantial evidence, and a letter in which he implicated himself, had been convicted for the murder of a police officer in 1982.55 He pled guilty to the murder of a second officer in 1983.56 A decade later, with his execution imminent in three days, Herrera sought federal habeas corpus relief, claiming that new evidence proved that his brother, now deceased, had actually perpetrated the murders.57 His petition was supported by four affidavits, one of which was offered by an alleged eyewitness.58 Execution of an innocent person, argued Herrera, would be cruel and unusual punishment and would violate due process.59 The federal trial court stayed his execution to permit Herrera to present his claim of actual innocence in a habeas proceeding.60 The Court of Appeals reversed, finding no cognizable federal constitutional claim and, therefore, no need for a federal habeas hearing.61 The United States Supreme Court affirmed.62 Justice Rehnquist declared that a claim of actual innocence, without more, has never provided a ground for federal habeas relief.63 To merit a federal habeas corpus hearing, a defendant must demonstrate that an independent constitutional violation infected the state trial proceedings. "A claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."64 The Court assumed that a persuasive demonstration of "actual innocence" would warrant a grant of habeas relief.65 However, Herrera's affidavits were markedly insufficient to persuade the Court of his factual innocence. Justice Rehnquist opined that Herrera already had an appropriate forum in which to advance his claim of innocence--executive clemency.66 Bruce King identified Barbara Graham as Mrs. Monaghan's murderer. Barbara's own contrary testimony was subject to impeachment by her statement to Officer Miranda and by her felony perjury conviction. On this trial record, it would be virtually impossible for her to construct a credible claim of "actual innocence." Under Herrera, even a hypothesized last-minute exoneration by her co-defendants would be inadequate to permit a federal court to even entertain Barbara Graham's petition for federal habeas corpus relief. Grants of executive clemency by governors, elected officials who are not shielded by lifetime tenure from the repercussions of their actions upon the electorate, are exceedingly rare. Her execution would proceed on schedule. The post-Warren Court's zeal in restricting access to federal habeas corpus relief is premised upon the weighty values of finality, efficiency, and expediency.67 State convictions that are reversed by federal courts on habeas review can inflict substantial costs upon society, insofar as "passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible."68 Open-ended habeas review thwarts society's "psychological" need for conclusiveness in criminal matters.69 And a deluge of federal habeas petitions filed by state prisoners detracts from the resources of federal judges required to decide other cases, yet rarely results in reversal.70 That finality, efficiency and expediency are legitimate and valuable goals for the criminal justice system cannot be gainsaid. Yet, these concerns must not eviscerate substantive interests in preserving individual liberties. If Barbara Graham was, as portrayed in I Want to Live, an innocent victim of circumstance, the governmental termination of her life is an unspeakable perversion of justice. If Barbara Graham was guilty of Mrs. Monaghan's murder, premising her conviction for that crime upon information acquired by illegal, abusive and reprehensible law enforcement tactics sabotages fundamental principles of respect for the dignity of the individual--even the individual criminal--and for her inviolable constitutional rights. It is essential that an impartial, independent decision-maker insulate the individual accused from the force of prosecutorial and law enforcement power, and conscientiously scrutinize constitutional challenges. If efficiency, expediency and finality mandate that the federal judiciary abdicate its critical role in ensuring that constitutional rights are provided a forum for vindication, then, especially in capital cases, those values reduce the judiciary to indifferent keepers of the death-watch chronometer who can do no more than to insure only that executions--like trains--proceed in a timely fashion. Information that aids the fact finder in deciding whether to believe a witness, including a criminal defendant, is used to impeach, to demonstrate that the witness is not credible and not worthy of credence. Examples of impeachment evidence include showing that the witness had been convicted for a serious crime, like perjury, demonstrating that the witness is biased, and contradicting the witness's trial testimony with words spoken by the witness out of court. As explained by the Court, the exclusionary rule--which prevents the prosecutor from using information against a criminal defendant, which was illegally obtained by law enforcement authorities--keeps that material from the fact finder only when it is offered as substantive proof. If the defendant chooses to exercise the Sixth Amendment right to testify or to present evidence of a defense, this illegally acquired information can be used to impeach the testimony and impugn the credibility of the defendant or of defense witnesses. See infra note 22. 22. In Harris v. New York, 401 U.S. 222 (1975), Justice Burger explained that statements taken in violation of the Miranda warning requirement are nevertheless admissible to impeach defendant's trial testimony: "the shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Id. at 226. See also Michigan v. Harvey, 494 U.S. 344 (1990) (defendant's statements acquired in violation of the right to counsel are available to contradict his trial testimony); United States v. Havens, 446 U.S. 620 (1980) (physical evidence gathered in violation of the Fourth Amendment is admissible to impeach defendant's trial testimony). For a criticism of the impeachment use of substantively inadmissible information, see Robert G. Spector and Teree E. Foster, Swords, Shields, and the Quest for Truth in the Trial Process: The Road from Constitutional Standards to Evidentiary Havens, 33 OKLA. L. REV. 520 (1980). 23. See infra notes 24-29 and accompanying text. 24. In McNeil v. Wisconsin, 501 U.S. 171 (1991), the defendant was arrested in Omaha on a Wisconsin armed robbery charge. He was brought before a Wisconsin judicial officer several days later, and was accompanied by his lawyer, an attorney from the Public Defender's office. He was detained in county jail and questioned by police officers about unrelated Wisconsin crimes--a murder, an attempted murder, and an armed robbery--despite the fact that he was already represented by counsel. McNeil, after waiving his rights under Miranda, implicated himself in the unrelated crimes and was later convicted. The Court affirmed his conviction. See id. 25. See id. 26. In McNeil, the Court conceded that the Fifth Amendment privilege against self-incrimination also encompasses a right to counsel that forbids police interrogation on any topic, whether or not related to the initial charge, without the presence of counsel. But, in this case, McNeil had waived his Miranda protections, and could not avail himself of this Fifth amendment right to counsel. Id. at 176. 27. 499 U.S. 279, 308 (1991). 28. See id. 29. Id. at 308 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). Justice White submitted a vigorous dissent objecting to the majority's deviation from precedent in abandoning the axiomatic principle that due process is offended by allowing a fact finder to consider a coerced confession, "without regard to the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction." Id. at 288. An interesting sidelight to Justice Rehnquist's opinion is that some 40 years ago, while employed as a law clerk to Justice Jackson, he wrote a memorandum advocating adoption of a harmless error rule in the context of coerced confessions. See Donald G. Savage, Rehnquist Wins Confession Battle Law, L.A. TIMES, Mar. 30, 1991. 30. See Charles Ogletree, Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 HARV L. REV. 152 (1991); Tom Stacy and Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79 (1988). 31. Justice White expressed this concern in his dissent in Arizona v. Fulminante in strong terms: [Excluding coerced confessions] reflects the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will," as well as "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."Fulminante, 499 U.S. at 293 (quoting Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960) and Spano v. New York, 360 U.S. 315, 320 (1959)). Although not pertinent to the issues raised by Barbara Graham's conviction and execution, another recent case illustrates the extent to which the Supreme Court has aggressively detached itself from any accountability in shielding individuals from the prerogatives of prosecutorial and law enforcement authorities. In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the defendant, a citizen and resident of Mexico was, under the auspices of Drug Enforcement Agency officials, forcibly kidnapped from his home and flown to Texas, where he was arrested for his participation in the kidnapping and murder of a DEA agent. The Court found this kidnapping violative of neither treaty nor constitutional mandates. See id. 32. The death penalty provokes passionate response from both adherents and opponents. In the two decades--July 2, 1976 to July 2, 1996--since the constitutionality of the death penalty was re-established by the Court in Gregg v. Georgia, 428 U.S. 153 (1976), 331 persons have been executed. Methods utilized, and numbers of states in which each is authorized, include: lethal injection (32 states)--194; electrocution (11 states)--123; gas chamber (7 states)--9; hanging (4 states)--3; firing squad (2 states)--2. Death row inmates by state, 3,112 in number, followed by the numbers of persons dispatched by execution in this 20-year interval are as follows: California: 444 (4); Texas: 394 (106); Florida: 351 (36); Pennsylvania: 200 (2); Illinois: 164 (7); North Carolina: 154 (8); Ohio: 150 (0); Oklahoma: 119 (7); Alabama: 144 (5); Arizona: 121 (5); Georgia: 108 (20); Tennessee: 102 (0); Missouri: 92 (19); Nevada: 85 (6); South Carolina: 71 (6); Virginia: 54 (31); Mississippi: 54 (4); Indiana: 50 (3); Louisiana: 53 (23); Arkansas: 37 (11); Kentucky: 28 (0); Oregon: 22 (0); Idaho: 19 (1); Delaware: 11 (8); Maryland: 17 (1); Washington: 13 (2); Utah: 10 (5); New Jersey: 14 (0); Nebraska: 10 (1); Montana: 6 (1); Connecticut: 5 (0); Colorado: 4 (0); New Mexico: 3 (0); South Dakota: 2 (0); New Hampshire: 0 (0); New York: 0 (0); Wyoming: 0 (0); Kansas: 9 (0); United States Military: 8 (0); United States Government: 8 (0). Twelve states do not permit the death penalty: Alaska; Hawaii; Iowa; Maine; Massachusetts; Michigan; Minnesota; North Dakota; Rhode Island; Vermont; West Virginia; and Wisconsin. See Christopher McDougall, Death Penalty Ignites Passion on Both Sides, CHARLESTON GAZETTE, July 2, 1996, at 1. 33. The film also uses court records, investigative reports, personal interviews, and media accounts as sources. The film begins with a statement by Montgomery: "You are about to see a factual story. It is based on articles I wrote, other newspaper and magazine articles, court records, legal and private correspondence, investigative reports, personal interviews--and the letters of Barbara Graham." According to the film, Montgomery initially exploited Barbara in print, sensationalizing her in the headlines as "Bloody Babs" and "The Titian-Topped Tiger Lady." Yet ultimately, swayed by her grit and her forbearance, he became a staunch defender and supporter. I WANT TO LIVE, supra note 1. 34. In this regard, I Want to Live takes its place among films that state vigorous opposition to the death penalty by utilizing the simple, yet forceful, technique of merely depicting--unblinkingly and inescapably--its implementation. In fact, it might be argued that abolitionists would gain substantially more adherents if executions were public, so that private citizens would be compelled to witness the grisly spectacle of state-imposed termination of a human life. See HUGO A. BEDAU, THE DEATH PENALTY IN AMERICA 14 (1988); Anna Quindlen, Death Watch, N.Y. TIMES, May 16, 1991, at A23. Hollywood customarily produces graphic renderings of the barbarity of stateimposed capital punishment. In instances where the convicted defendant is portrayed as innocent, as in Somebody Has To Shoot The Picture (Home Box Office 1990) and Let Him Have It (1991), imposition of the death penalty is depicted as akin to clumsy, savage, vengeful murder. In films like In Cold Blood (Columbia Pictures 1967) and Hoodlum Priest (1961), where the death penalty is meted out to convicted criminals who did perpetrate the crimes for which they are executed, capital punishment appears an act of ruthless vengeance. In Dead Man Walking (Gramercy Pictures/Polygram 1995), the sheer brutality and senselessness of the murders committed, the maturation of Poncelet, the brutal, confessed killer of two teenagers, and the succor selflessly bestowed upon him by Sister Helen Prejean, a nun who counsels and consoles him, lend an ethereal ambiguity to the debate about the justice and rectitude of the death penalty. 35. See Brown v. Allen, 344 U.S. 443 (1953); Faye v. Noia, 372 U.S. 391 (1963). 36. See infra notes 30-39 and accompanying text. 37. See Barry Friedman, Habeas and Hubris, 45 VAND. L. REV. 797, 822 (1992); Donald P. Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 MINN. L. REV.. 1013 (1993); Tabak, supra note 12; Robert Weisberg, A Great Writ While It Lasted, 81 J. CRIM. L. & CRIMINOLOGY 9 (1990). See generally Evan T. Lee, The Theories of Federal Habeas Corpus, 72 WASH. U. L.Q. 151 (1994); David McCord, Visions of Habeas, 1994 B.Y.U. L. REV. 735; Ann Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575 (1993). 38. See Jackson v. Virginia, 443 U.S. 307 (1979). 39. See Kimmelman v. Morrison, 477 U.S. 365 (1986). These two requirements must be emphasized. First, the lawyer's oversight or blunder must be truly egregious to be considered a denial of effective assistance of counsel. Even serious errors will not provide a ground for claiming that counsel was so ineffective so as to deprive defendant of Sixth Amendment rights. See Coleman v. Thompson, 501 U.S. 722 (1991), holding that counsel's failure to file a timely notice of appeal in state court does not excuse failure to comply with the state filing deadlines. In that case, defendant's attorney filed a petition for a write of habeas corpus one day late; the Court ruled that the writ was properly denied. Second, the defendant maintains the burden of demonstrating that the alleged constitutional deprivation--such as right to counsel--has produced "actual prejudice" or a "fundamental miscarriage of justice." This is tantamount to a requirement that defendant prove that the constitutional violation raised on habeas is so grave that it probably affected the outcome of the case. McClesky v. Zant, 499 U.S. 467 (1991). See generally Ellen Kreitzberg, Death Without Justice, 35 SANTA CLARA L. REV. 485 (1985); Panel Discussion: The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases, 31 HOUSTON L. REV.. 1105; Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials, 107 HARV. L. REV. 1923 (1994). 40. Pub. L. 104-132, 1996 U.S.C.C.A.N. (110 Stat.) 1217. 41. § 106(b)(1). 42. § 106(b)(2). Subsection 106(b)(3) incorporates stringent procedural and filing requirements and rigid deadlines, requiring that the first habeas petition be filed within six months from final judgment if the state assists the defendant in procuring the services of a competent lawyer, and within one year from final judgment, whether or not a lawyer is available. 43. 116 S. Ct. 2333 (1996). 44. The Act requires that an inmate must first request authorization from the court of appeals as a precondition to filing a second or successive habeas petitions. The Act declares denial of this permission to be unreviewable by the Supreme Court. The Court further held that a provision of the Act that purported to remove the Court's jurisdiction to review a decision by a court of appeals denying leave to file a second habeas petition by appeal or writ of certiorari, § 106(b)(3)(E), precluded neither the Court's authority to entertain an original habeas petition nor its appellate jurisdiction. See Felker, 116 S. Ct. at 2338-39. 45. That it is unlikely that petitioners in capital cases can fulfill the requirements of the Act is manifest in view of the strict deadlines; most in-depth factual investigations cannot be concluded fruitfully within six months or one year following final judgment. § 106(b)(3). 46. 377 U.S. 201 (1964). 47. See Teague v. Lane, 489 U.S. 288 (1989); Graham v. Collins, 586 U.S. 461 (1993). See also Barry Friedman, Pas De Deux: The Supreme Court and the Habeas Courts, 66 S. CAL. L. REV. 2467, 2496 (1993) ("The Teague decision was painfully disingenuous. It was disingenuous to pretend the decision was about inequity in retroactivity law . . . . Rather, the Teague Court was adopting its own approach to serve its own purposes.") 48. 790 F. Supp. 966 (N.D. Cal. 1992). 49. The procedural vagaries of the case are detailed in Fierro v. Gomez, 77 F.3d 301 (9th Cir.), vacated and remanded, 117 S. Ct. 285 (1996). See also Reinhardt, supra note 20. 50. Gomez v. United States District Court, 503 U.S. 653, 654 (1992) (per curiam). 51. Vasquez v. Harris, 503 U.S. 1000 (1992). 52. The subsequent history of Fierro v. Gomez is also revealing as to the values espoused by the Court in capital cases. Judge Patel eventually ruled that California's statutorily-preferred form of execution, the gas chamber, constituted cruel and unusual punishment, and issued a permanent injunction against its use. 865 F. Supp. 1387 (N.D. Cal. 1994). Section 3604 of the California Penal Code was amended to permit a death row inmate to affirmatively choose lethal injection. Cal. Penal Code § 3604 (1995). The Court of Appeals affirmed, holding that the two remaining inmates could be executed by lethal injection, but not in the gas chamber. 77 F.3d 301 (9th Cir. 1996). California subsequently amended its statute to require execution by lethal injection unless the inmate affirmatively chooses the gas chamber. Cal. Penal Code § 3604(b)(1996). The United States Supreme Court vacated this decision and remanded for further consideration in light of the amended § 3604. Gomez v. Fierro, 117 S. Ct. at 285. 53. That innocent persons are sometimes convicted of capital crimes cannot be gainsaid. In the two decades between 1976 and 1996, some 75 inmates were freed prior to execution through resort to the writ of habeas corpus. See Aric Press & Daniel Klaidman, "The Great Writ" Hit, NEWSWEEK, May 6, 1996, at 72. See also Marcia Coyle, Innocent Dead Men Walking?, NAT'L L. J., May 20, 1996, at A-1, A-2021. See generally Tabak, supra note 12 at 534, 543-44, 550-59, 606-10, (discussing the cases of numerous capital defendants who are awaiting death or who have been executed but whose cases manifest substantial proof of innocence, as well as defendants who are severely retarded or severely mentally retarded); Hugo A. Bedau & Michael L. Radelet, Miscarriage of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987); Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 IND. L.J. 817 (1993); Jennifer Breuer, Habeas Corpus--Limited Review for Actual Innocence, 84 J. CRIM. L. & CRIMINOLOGY 943 (1993). 54. 506 U.S. 390 (1993). 55. See id. at 393. 56. See id. 57. See id. 58. See id. 59. See id. 60. See id. at 396. 61. See id. 62. See id. at 393. 63. See id. at 400. 64. Id. at 862. See generally Vivian Berger, Herrera v. Collins: the Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere, 35 WM. & MARY L. REV. 943 (1994); Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV.. 303 (1993); Tara L. Swafford, Responding to Herrera v. Collins: Ensuring That Innocents Are Not Executed, 45 CASE W. RES. L. REV. 603 (1995). 65. Id. at 417. 66. See id. at 421. 67. See Barry Friedman, Habeas and Hubris, 45 VAND. L. Rev. 797, 822 (1992); Reinhardt, supra note 20; Tabak, supra note 12; Weisberg, supra note 37. 68. Engle v. Isaac, 456 U.S. 107, 127-28 (1982). 69. Stone v. Powell, 428 U.S. 465 (1976). See generally Teree E. Foster, Beyond Victim Impact Evidence: A Modest Proposal Reprise, 45 HASTINGS L.J. 1305 (1994), (detailing the prevalent societal psychological considerations in death penalty cases). 70. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (Powell, J., concurring). |
