first published in the Stanford Humanities Review (Fall/Winter 1990)

Newsweek photograph by Ken Light

THE DEMISE OF DUE PROCESS:

MURRAY AGAINST GIARRATANO

by Matt Gonzalez

“Even though a person be the immediate occasion of another’s death, he is not a deodand to be forfeited like a thing in the medieval law.” [fn1]

CAPITAL PUNISHMENT DEPENDS UPON the reliability of the criminal process for its popular support. The accused, before being condemned to death, has theoretically received a fair trial and has been given every opportunity to present mitigating evidence and appeal the judgment of death. And yet this appearance of reliability is largely a fiction. The process relied upon is flawed—and the flaws are becoming more pronounced. Last term the U.S. Supreme Court decided Murray v. Giarratano, [fn2] which exemplifies in many ways the erosion of due process which has resulted from the desire of a conservative bench to hasten executions in this country.

Murray v. Giarratano concerns the right of death row inmates to have legal assistance in pursuing what is known as collateral or postconviction review in the form of a writ of habeas corpus in state courts.[fn3]

Generally, after a death sentence is imposed, a condemned inmate will appeal to the state supreme court. This first direct appeal is automatic and cannot be waived in 35 of the 36 states which allow capital punishment; during this first direct appeal, counsel is constitutionally guaranteed.[fn4] Because a number of potentially meritorious claims may not even surface until after  the automatic appeal has taken place it is routine for condemned inmates to seek relief in habeas corpus proceedings which provide another forum for inmates to allege that errors occurred during their trials. Claims that often appear after the direct appeal has occurred include: “ineffective assistance of counsel, prosecutorial suppression of evidence, racial discrimination in the composition of grand and petit jury venires, improper external influences on jurors, and the like…”[fn5] These issues are precisely the kind that need to be identified and corrected if the reliability of a death judgement is to be ensured.

Joseph M. Giarratano is a prisoner under sentence of death in Virginia who initiated a civil rights action under 42 U.S.C. Sec.1983 without the aid of counsel. Edward W. Murray, the director of the Virginia Department of Corrections and other officers of the state of Virginia were named as parties. A federal district court certified a class of indigent prisoners whose convictions had been affirmed on their first automatic appeal and who did not have the aid of counsel to proceed with collateral remedies. Relying on Bounds v. Smith, in which the U.S. Supreme Court has stated “that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisons with adequate law libraries or adequate assistance from persons trained in the law.” [fn6] Giarratano, et al., sought to compel the State of Virginia to provide counsel to death row inmates for postconviction review.[fn7] In an opinion dated December 18, 1986, the district court found that prisoners under a sentence of death were entitled to the aid of counsel in the preparation, filing and prosecution of state habeas corpus,[fn8] consistent with the U.S. Supreme Court’s decision in Bounds. The State of Virginia appealed to the U.S. Court of Appeals for the Fouth Circuit and Giarratano, et al., cross-appealed. In a split opinion the Fourth Circuit reversed the district court’s judgment, finding there was no constitutionally compelled reason to require counsel to prisoners under sentence of death for post conviction remedies. On rehearing en banc, the Fourth Circuit affirmed the district court 6-4.[fn9] The Fourth Circuit had changed its mind: death row inmates did have a right to the assistance of counsel to pursue state habeas corpus relief if “meaningful access to the courts” was to be realized.

The U.S. Supreme Court granted certiorari and reversed the Fourth Circuit’s new opinion relying on Pennsylvania v. Finley[fn10] which had held that there was no constitutional right to counsel for state postconviciton proceedings generally. Since Finley had not been a capital case, Giarratano had asked the Court to make an exception to it because of the uniqueness in the finality of death judgments and the need to have a reliable process to protect against errors. In the plurality opinion by Chief Justice Rehnquist the Court declined to do so. Joined by Justices White, Scalia, and O’Connor, he recognized that capital defendants were entitled to “additional safeguards” but stated these rights only attached to the “trial stage of capital offense adjudication, where the court and jury hear testimony, receive evidence, and decide the questions of guilt and punishment.” These trial safeguards, he argued, are “sufficient to assure the reliability of the process by which the death penalty is imposed.” Moreover, he found no contradiction in the Court’s decision in Bounds with that of Finley. Bounds’ “right of access” only required a state “to furnish access to adequate law libraries in order that the prisoners might prepare petitions for judicial relief.” Bounds did not entitle prisoners to have counsel actually prepare those petitions for them.

A short concurrence by Justice O’Connor, in which she also joined a concurrence by Justice Kennedy, argued that postconviction proceedings are not part of the criminal process itself, but constitute instead “a civil action designed to overturn a presumptively valid criminal judgment.” Hence, states are simply not required to provide such proceedings, the U.S. Constitution’s due process guarantee and prohibition of cruel and unusual punishment notwithstanding.

Justice Kennedy’s concurrence recognized that “[t]he complexity of our jurisprudence . . . makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law” yet concluded that the right to meaningful access articulated in Bounds could be satisfied in numerous ways. He noted that “[t]he intricacies and range of opotions are of sufficient complexity that state legislatures and prison administrators must be given ‘wide discretion’ to select appropriate solutions.”

In the dissent by Justice Stevens, joined by Justices Brennan, Marshall and Blackmun, Bounds v. Smith was interpreted as “encompass[ing] ‘right-to-counsel’ as well as ‘access-to-courts’ cases.” The Fourteenth Amendment’s due process clause requires “that adcused and convicted persons be permitted to seek legal remedies without arbitrary governmental interference.”

Justice Stevens distinguished the Court’s earlier decision in Pennsylvania v. Finley, which denied counsel for postconviction review, from Giarratano three ways.

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