Pretend Justice-Defense Representation in Tennessee Death Penalty Cases

University of Memphis Law Review, The, Winter 2008 by Redick, William P Jr, MacLean, Bradley A, Truett, M Shane

I. THE RIGHT TO EFFECTVE REPRESENTATION AND JUDICIAL REVIEW OF TENNESSEE DEATH PENALTY CASES..............306

II. THE SURPASSING DIFFICULTY OF EFFECTIVE DEFENSE REPRESENTATION IN DEATH PENALTY CASES ..................316

A. The Unique Posf-Furman Procedure in Tennessee Death Penalty Cases..................................................316

B. The Challenge of Effective Representation in Death Penalty Cases.............................................................318

III. TENNESSEE FAILS TO PROVIDE EFFECTIVE DEFENSE REPRESENTATION IN DEATH PENALTY CASES ..................323

A. Tennessee Does Not Meet the Prevailing Standards for Effective Representation in Death Penalty Cases......324

1. The ABA Guidelines Set the Prevailing Standards for Effective Representation in Death Penalty Cases ....................................................................324

2. Tennessee Does Not Meet the Prevailing Standards Set by the ABA Guidelines...................................325

B. The Existing Attorney Qualification Standards in Tennessee Death Penalty Cases are Ineffective and Counterproductive .....................................................328

C. Tennessee Fails to Provide Adequate Compensation and Supporting Resources for Indigent Capital Defense Representation...........................................................333

1. Tennessee Fails to Provide Adequate Compensation for Defense Counsel in Death Penalty Cases.......333

2. Tennessee Fails to Provide the Extra-Legal and Supporting Resources Necessary for Effective Defense Representation in Death Penalty Cases .338

D. Tennessee Has No State-Wide System for Expert Death Penalty Defense Counsel to Provide Direct Representation in Death Penalty cases or to Supervise the: (1) Recruitment of Qualified Death Penalty Defense Counsel to Represent Death Penalty Defendants, (2) Setting of a Standard for Effective Defense Representation in Death Penalty cases, or (3) Provision of Resource Assistance to Appointed Death Penalty Defense Counsel.................................341

E. Defense in Tennessee is Subordinated to the Prosecution................................................................349

1. The Imbalance of Resources Devoted to the Prosecution and Defense Functions .....................349

2. The Imbalance of Autonomy and Independence between the Prosecution and Defense..................351

3. The Erroneous Presumption of a Legitimate Prosecutorial Interest in the Judicial Administration of the Defense Function: Three Examples...........352

a. Example One: The Resources Available to the Defense in Individual cases...........................352

b. Example Two: The Compensation of Defense Counsel.........................................................355

c. Example Three: The Public Defenders' Caseload and Budgetary Issues.....................357

IV. CONCLUSION.....................................................................360

APPENDIX A..................................................................................363

Tennessee Death Penalty Cases in Which Relief Was Granted on Conviction or Sentence

APPENDIX B..................................................................................365

Tennessee Death Penalty Cases in Which Relief Was Granted due to Ineffective Assistance of Counsel (IAC)

APPENDIX C..................................................................................368

Tennessee Death Penalty Demographic Chart

APPENDIX D..................................................................................393

Tennessee Death Penalty Cases in Which Relief Was Granted in State Post-Conviction (Second Tier)

APPENDIX E..................................................................................404

Tennessee Death Penalty Cases in Which Relief Was Granted in Federal Habeas Corpus (Third Tier)

APPENDIX F..................................................................................408

Side-by-Side Comparison of Tennessee Procedures and Requirements ABA Guidelines

I. THE RIGHT TO EFFECTIVE REPRESENTATION AND JUDICIAL REVIEW OF TENNESSEE DEATH PENALTY CASES

The principle of equal justice for all is a cornerstone of our American democracy, engrained in our national consciousness. The opening lines of our Declaration of Independence proclaim that "[w]e hold these truths to be self-evident, that all men are created equal," and engraved in the edifice above the entrance to the United States Supreme Court are the words "Equal Justice Under Law." An articulation of this inalienable right to equal justice, the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense." The Tennessee Constitution provides the same assurances.1 Any person accused of a crime is thus ensured the right to legal representation in order to guarantee that justice is fairly and equally applied to all, and to provide protection from excessive government action.2

The right to counsel accrues to the benefit of the rich and poor alike. If a criminal defendant cannot afford counsel, counsel must be provided,3 including in cases that the state seeks the death penalty.4 If the defendant has sufficient resources to obtain a lawyer, he or she selects the lawyer to handle the case. If the defendant is indigent, however, the selection of counsel is made by the government, not the accused person.5 Because virtually all capital defendants are indigent, generally, they receive counsel appointed by the state.