Ask The Lawyer – “Capital Murder Cases” and Tommy Arthur redux.

The types of murders are different and cases where punishment can be death are also different. Not every case involves the death penalty. The ones that do are very expensive. That is in part because there are two jury trials. The first is to determine innocence or guilt. If the defendant is found to be guilty of Capital Murder, then the second trial is held. The same jury is used. After they decide to convict the defendant then they must decide if the defendant will get life in prison without the possibility of parole or death by lethal injection.

The courts and the American Bar Association have set standards for attorneys who are charged with the responsibility of defending persons charged with Capital Murder. It is a high standard to meet.

There is another fact about Capital Murder cases. As it turns out,  very few people who are facing the death penalty can afford to hire a qualified attorney.

The minimum standards for the defense team have been set out in many Supreme Court decisions. First, the lead attorney must have at least five years of criminal trial experience. She/He must have also been co-counsel on a previous death penalty case.  In addition, the attorney should have training specific to the complexities of the capital case.  This training is ongoing and should be completed each year.

“Today, it is universally accepted that the responsibilities of defense counsel in a death penalty case are uniquely demanding; both in the knowledge that counsel must possess and in the skills he or she must master.” ( ABA standards 2003)

This year I attended a week long conference in Houston for attorneys who defend Mexican Nationals in capital cases. I have just returned from Chicago where I attended the Clarence Darrow Death Penalty Defense College. Both of these schools limit the number of attorneys who are allowed to attend. The faculty of each are nationally known defense attorneys. Some are representing the detainees at Guantanamo Bay. Others were part of the Jodi Arias defense team. All were superb capital defense attorneys.

The ABS standards state, “Due to the extraordinary and irrevocable nature of the penalty, at every stage of the proceedings counsel must make “extraordinary efforts on behalf of the accused.”

In addition to the lead attorney a co-counsel is required. The defense team should also include investigators, mitigation specialist, mental health professionals and other experts as needed for the particular case. The Alabama Circuit Judges Association adopted these ABA guidelines on the 21st day of January 2005.

A mitigation specialist compiles a comprehensive and well-document psycho-social history of the defendant.  Then, based on an analysis of the significance of this history of the defendant, the history is presented to the jury in the second phase of the capital trial.

“An attorney representing the accused in a death penalty case must fully investigate the relevant facts. Because counsel faces what are effectively two different trials—one regarding whether the defendant is guilty of a capital crime, and the other concerning whether the defendant should be sentenced to death providing quality representation in capital cases requires counsel to undertake correspondingly broad investigation and preparation. Investigation and planning for both phases must begin immediately upon counsel’s entry into the case, even before the prosecution has affirmatively indicated that it will seek the death penalty.” (ABA standards of 2003)

Editor’s note: Readers may be interested in reading our articles on murderer, Tommy Arthur of Sheffield. “Arthur To Be Executed” and “Arthur: Long Journey From Childhood To Death Chamber”.