Best of the Capital Defense Journal
Volume 16 (2003-04)
C. Blaine Elliott, Jailhouse Snitches
16 Cap. Def. J. 1 (2003) [abstract]
Proposes reforms relating to snitch and cooperating witness testimony.
This article will offer reforms in three areas. First, there must be a new wave of remedies tied to pretrial, trial, and post-trial proceedings. Second, there needs to be a systematic collection of data regarding snitch and cooperating witness testimony. Finally, this article will propose a collection of structural reforms within the prosecutorial system itself.
Witnan J. Hou, Retrials and Resentencing
16 Cap. Def. J 19 (2003) [abstract]
Examines the difficulties relating to retrials of life-sentenced capital defendants and resentencing of death-sentenced capital defendants.
In Part II, the article will address how life-sentenced capital defendants have lost double jeopardy protection. It will then suggest analyses designed to clarify which defendants can safely appeal and which cannot safely do so. Part III of the article will then examine at the death-sentenced defendant and the difficulties faced by the defendant at re-sentencing if his appeal is successful.
Daniel L. Payne, Right to Mitigation Specialists
16 Cap. Def. J. 43 (2003) [abstract]
Analyzes issues relating to appointing a mitigation specialists; their role as compared to mental health experts; procedures for requesting mitigation specialists; and argues why the constitution requires mitigation specialists.
This article will explain why a capital defender must seek the appointment of a mitigation specialist, and it will argue why Virginia courts should grant an appointment as a matter of right in all capital cases. Part II of this article will further explain the mitigation specialistís role on a capital defense team, how this role differs from that performed by a mental health expert appointed pursuant to Virginia Code section 19.2-264.3:1 (ď3:1 expertĒ), and why this role can neither be adequately nor sufficiently performed by any other potential member of the capital defense team. Part III of this article will detail the proper procedure for requesting a mitigation specialist. Finally, Part IV of this article will demonstrate why the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution require that a mitigation specialist be automatically granted upon the request of a capital defendant.
Ida-Gaye Warburton, Brainwashing
16 Cap. Def. J. 73 (2003) [abstract]
Analyzes the origins and use of brainwashing as a defense in capital cases.
This article proposes that brainwashing should be recognized as a defensive posture, similar to duress or BWS, in the unique case of capital murder. In Part II, this article discusses the origins of brainwashing and its development in the scientific community and legal system. Part III of this article examines the analytical similarities between brainwashing and the doctrinally acceptable defenses of duress and BWS. Part IV outlines the application of the defense in a capital case and the future of brainwashing.
Terrence T. Egland, Religion in Jury Deliberations
16 Cap. Def. J. 337 (2004) [abstract]
Analyzes the need to exclude religious material from capital punishment deliberations; common law rules relating to extraneous material; traditional and procedural methods for limiting religion-based verdicts; and Establishment Clause-based challenges.
This article will first provide an explanation of why religious material should be excluded from the jury room in capital punishment deliberations. Second, this article will provide an overview of the common law rules in Virginia for determining whether a jury was influenced by extraneous material. Third, an outline of the traditional methods for limiting the possibility of religion-based verdicts will be offered. Emphasis will be placed on the procedural mechanisms of a jury trial as well as post-verdict direct attacks under the Sixth Amendment guarantee of an impartial jury and the Eighth Amendment prohibition against cruel and unusual punishment. Finally, this article will explore the viability of challenging religion-based verdicts under the Establishment Clause of the First Amendment.
Meghan H. Morgan, Self Representation and Standby Counsel
16 Cap. Def. J. 367 (2004)
Examines the history of self-representation, the emergence of standby counsel and the issues that surround the role of standby counsel today.
Jessie A. Seiden, Frontal Lobe Dysfunction
16 Cap. Def. J. 395 (2004) [abstract]
Analyzes the effect of frontal lobe dysfunction on behavior and the use of such evidence in capital trials in the context of the defenses of diminished capacity and insanity defenses and in mitigation.
This article discusses the effect of frontal lobe dysfunction on behavior and the most effective use of such evidence in a capital murder case. Part II will examine the scientific aspects of frontal lobe dysfunction including, the symptoms and the relationship between dysfunction and criminality. Part III will explain the ways in which frontal lobe damage may be used as a valid defensive posture in a capital murder case. In particular, this Part will examine the use of frontal lobe dysfunction evidence in a diminished capacity defense, in an insanity defense, and as mitigating evidence during sentencing proceedings. Finally, Part IV will discuss how defense counsel can effectively explain frontal lobe dysfunction to the jury without offending individual notions of free will and morality.
Maxwell C. Smith, Right to Counsel at Psychiatric Hearings
16 Cap. Def. J. 421 (2004) [abstract]
Examines the right to counsel in deciding whether to submit to a psychiatric evaluation; constitutional dimensions of allowing defense counsel to attend; implications of videotaping; the role of defense counsel at such evaluations; and the admissibility of such evaluations.
Therefore, this article will examine some of the approaches other jurisdictions have taken with respect to these issues. It will also suggest which resolutions to these problems best protect a defendantís constitutional rights, and it will predict which resolutions Virginia courts might adopt in practice. Part II of this Article will examine the United States Supreme Courtís decision that a defendant must have the benefit of counsel in deciding whether to submit to a psychiatric evaluation. Part III will explore the constitutional dimensions of allowing defense counsel to attend psychiatric evaluations. Part IV will discuss who, if anybody apart from defense counsel, may attend the examination. Part V will evaluate, from the defense perspective, the desirability of videotaping the examination. It will also examine the likelihood that a judge would grant a request for a videorecording from either party and some alternatives to a videorecording. Part VI will investigate which examinations, other than an examination to determine sanity, defense counsel or other members of the defense team may attend. Part VII will note when evidence from such examinations will be admissible. Finally, Part VIII will discuss what role defense counsel should play at the examination.