Best of the Capital Defense Journal
Volume 17 (2004-05)
Joseph R. Dunn, Antipsychotic Medication
17 Cap. Def. J. 1 (2004) [abstract]
Analyzes the role and effect of antipsychotic medication; legal and strategic ramifications; right to refuse such medication; and the role of relevant jury instructions.
Abstract: This article will address several important issues that may arise when a capital defendant is in need of antipsychotics and trial is approaching. Part II will begin by examining the types of mental disorders for which antipsychotic medication is prescribed and the neurological effects of the specific drugs. This Part will also explore potential side-effects that may result from the administration of antipsychotics and compare the advantages and disadvantages of traditional versus new or “atypical” antipsychotics. Part III will address several legal issues that may arise when defending “psychotic” capital defendants and suggest specific strategies to manage those issues during capital proceedings. This Part will also survey recent case law defining a defendant’s right to refuse the administration of antipsychotics and the implications of such a refusal for trial strategy. Part IV will address ethical considerations that attorneys may face when representing defendants suffering from psychotic mental illnesses. Finally, Part V will consider jury instructions as a means of safeguarding the due process rights of medicated defendants.
Jannice E. Joseph, Brady Revisited
17 Cap. Def. J. 33 (2004) [abstract]
Analyzes current status of Brady v. Maryland; problematic aspects of current Brady caselaw; treatment of Banks material; memorialization of witness proffers and disclosure of victim-witness advocates’ files.
Abstract: This article will discuss the current status of Brady in capital cases and ways that defense counsel can ensure that their clients reap the full benefit of Brady at all phases of trial. Part II of this article surveys problematic aspects of the Brady doctrine. Part III focuses on the witness preparation aspect of Banks and discusses Banks’s implication that material generated in the course of victim and witness interviews may be treated as Brady material. Part IV focuses on witness proffers and argues for a standard that would require all proffers to be memorialized for Brady purposes. Part V examines the emerging issue of whether victim-witness advocates’ files should be subject to potential Brady disclosure. Part VI discusses ways defense counsel might take advantage of the current modest expansion of the Brady doctrine as evidenced by cases such as Banks.
Mark J. Goldsmith, Mental Health Experts (3:1) Statute
17 Cap. Def. J. 293 (2005) [abstract]
Analyzes right to mental health expert evidence under 3:1; prosecution’s limited right of rebuttal; comparison to counterpart federal statute; consequences of withholding mental health mitigation evidence form prosecution; and right against self-incrimination.
Abstract: This article will address several issues that arise when a indigent capital defendant exercises his right to a mental health evaluation and to present mental health expert evidence in mitigation. Part II examines a capital defendant’s constitutional right to mental health expert evidence and the codification of that right in Virginia’s 3:1 statute. Part III discusses the prosecution’s limited right to the use of mental health testimony as rebuttal evidence during the sentencing phase of a capital trial and explores the Fifth Amendment restrictions on the Commonwealth’s right to such evidence. This Part also examines federal case law regarding the disclosure of mental health evidence to the prosecution and compares 3:1 to its federal counterpart. Part IV considers the problem of balancing a capital defendant’s right against self-incrimination against the prosecution’s right to rebut mental health evidence. Specifically, this Part explores the benefits and consequences of withholding mental health mitigation evidence from the prosecution until the defendant has been found guilty and has confirmed his intent to introduce such mitigating testimony. Part V considers whether 3:1 violates an indigent capital defendant’s Fifth Amendment right against self-incrimination.
Tamara L. Graham, Discovery of Evidence in Aggravation
17 Cap. Def. J. 321 (2005) [abstract]
This article analyzes constitutional implications of discovery of evidence that will be used to prove aggravating circumstances; use of unadjudicated conduct to prove future dangerousness; comparison of Virginia’s discovery practice to national practices.
Abstract: Part II of this article analyzes Gray v. Netherland and points out the difficulties capital defense counsel face in a jurisdiction that allows introduction of evidence of prior unadjudicated conduct to prove the future dangerousness aggravating factor. Part III explores the status of criminal discovery in Virginia and the measures taken to avoid such “sentencing by ambush” since Gray. Part IV places Virginia’s discovery practices in the national context of reciprocal and open-file discovery rules. Finally, the article argues for a constitutional right to notice and discovery of evidence of aggravating circumstances under Gardner and Ring.
Justin B. Shane, Ex Parte Hearings for Expert Funding
17 Cap. Def. J. 347 (2005) [abstract]
This article analyzes the constitutional right of indigent defendants to an ex parte hearing for expert funding.
Abstract: This article contends that the Constitution entitles indigent defendants to apply ex parte for expert funding. Part II examines Ake v. Oklahoma, which held that in certain circumstances the state must provide an indigent defendant with expert assistance. Part III analyzes the Supreme Court of Virginia’s opinions concerning the right to an ex parte hearing for expert assistance. Part IV discusses current state and federal practice regarding applications for expert assistance. Finally, Part V examines possible challenges to open hearings for expert funding under the Fifth Amendment Self-Incrimination Clause, the Sixth Amendment Assistance of Counsel and Compulsion Clauses, and the Fourteenth Amendment Equal Protection and Due Process Clauses.
Jessica M. Tanner, Capital Risk Assessment
17 Cap. Def. J. 381 (2005) [abstract]
This article analyzes the use (and misuse) of capital risk assessment instruments in future dangerousness assessments and the importance of base rates and contextual information to such determinations.