Stages in a Capital Case
Note that not every case goes through all of the steps outlined here. Some states have different procedures.
I. Pre-Trial
II. Guilt Phase Trial
III. Penalty Phase Trial
 Aggravating Circumstances: Facts that make a crime worse or more serious by such circumstances as the facts of the crime, the defendant’s prior criminal
record, etc. Some aggravating circumstances are very specific, e.g., the murder of more than one victim. Other aggravators are broad, e.g., the murder was
committed in a heinous, cruel or atrocious manner.
 Mitigating Circumstances: Facts that do not justify or excuse an act or offense, but may reduce the degree of moral culpability, and thereby reduce the
penalty. Examples include mental impairments, deprived background, etc.
 Victim Impact Statements: Statements read into the record, or presented through testimony of witnesses, during sentencing to inform the jury of the
financial, physical, and psychological impact of the crime on the victim and the victim's family.
 Jury Sentence Recommendations: The jury considers the aggravating and mitigating circumstances surrounding the crime and the defendant and returns
with a recommended sentence. In a death penalty case, the jury chooses between a death sentence and a lesser sentence of life without parole, life, or a
term of years.
 Judge Sentencing: After considering the jury recommendation, the court formally pronounces punishment on the defendant. In some states, the judge must
follow the jury recommendation. In other states, a judge may sentence without a jury, or override a jury’s recommendation.
The Appeals Process:
In the early twentieth century, executions typically took place within a year after the trial. Since few constitutional rights of defendants were recognized, few areas of
relief were possible. In particular, the criminal-procedure guarantees of the Bill of Rights in the Constitution of the United States – guarantees such as the right to a
defense attorney, the right to a public trial by an impartial jury, and the privilege against self-incrimination – were thought to apply only in federal criminal
prosecutions, not in state prosecutions. Gradually, however, the Supreme Court of the United States held that many of the protections of the federal Constitution’s Bill
of Rights applied to state criminal defendants as indispensable components of the “due process of law” which the Fourteenth Amendment to the Constitution explicitly
required the States to grant to any person in the United States. Protecting these constitutional rights required a more thorough review of a defendant’s conviction and
death sentence. Today, the average time between sentencing and executions is ten years. Many cases have to go through a second sentencing proceeding or even a
complete second trial, because serious errors were found in the original proceedings.
The trial, however, is still in theory the main event of the legal process. Once a person has been found guilty, the presumption of innocence is removed. The defendant
now has the burden of showing that a significant error was made in the process that convicted him. The review by appellate courts focuses on legal errors that may
have occurred before or during the trial. States have strict time limits (some are as short as 3 weeks) on presenting any new evidence that could have been raised at
trial. Courts generally give deference to the decisions of the trial court judge as the person closest to the testimony and facts of the case. Even if errors were made, a
reviewing court might find them to be harmless, that is, errors that are not likely to have affected the conviction or sentence.
The constitution does not require that a defendant be provided with a lawyer representing him throughout the appeals process. Even when represented, the lawyer
must be aware of numerous procedural rules for filing appeals. If the rules are not precisely followed, issues may be lost forever from the appeals process.
IV. Direct Appeal
On direct appeal, which occurs shortly after trial, the state’s highest criminal court reviews both the defendant’s conviction and his or her death sentence. In most
states, the state supreme court reviews every capital case, even if the defendant does not request an appeal. The focus of this round of review is on what happened at
trial. For example, decisions by the trial judge regarding jury selection, the admission of evidence and testimony, and instructions to the jury can be challenged.
Once relief is denied by the state’s highest court, and the U.S. Supreme Court has either declined to review that decision or has reviewed and upheld the decision, the
defendant’s conviction and sentence are deemed “final.”
V. Post-Conviction Review
A defendant can still challenge the constitutionality of the judgment through a series of petitions in state and federal courts. These are called post-conviction
proceedings since typically they come after the conviction becomes final. They are also called collateral proceedings because they can raise issues outside of the
record of the proceedings in the trial court, which are the basis of the direct appeal. Strictly speaking, these are not appeals of earlier decisions but rather civil suits
challenging the constitutionality of the conviction or sentence.
Two of the most common claims made at this stage are ineffectiveness of counsel and prosecutorial misconduct. The Sixth Amendment to the U.S. Constitution
guarantees a defendant the right to a lawyer. The Supreme Court has held that this right obligates the state to provide the defendant with a lawyer if he cannot afford
one, and that the representation provided by counsel must be “effective.” If the lawyer’s actions fall below the accepted standards of the profession and those actions
undermined the reviewing court’s confidence in the outcome of the trial, then a new trial is required.
Similarly, the Fourteenth Amendment requires the state to provide the defendant with “due process.” Someone charged with a crime, particularly a capital crime, must
have a fair chance to defend himself against the charges. The Supreme Court has held that this requires the state to inform the defendant of the evidence that might
tend to show his innocence, or that might lead the jury to spare his life if he is convicted. If the prosecution withholds such evidence, this “prosecutorial misconduct”
may require that the defendant be given a new trial.
VI. Federal Habeas Corpus
Post-conviction proceedings are sometimes referred to as habeas corpus proceedings, particularly in federal court. Habeas corpus is Latin for “you have the body,” and
the petitioner is asking the warden of the prison where the petitioner is held to justify continuing to imprison the “body” of the petitioner. The right to habeas corpus
relief extends as far back into English law as the Magna Carta. The U.S. Constitution guarantees access to habeas corpus except in times of extreme emergency.
The statute governing federal habeas corpus was significantly modified in 1996 by the “Anti-Terrorism and Effective Death Penalty Act.” This law puts restrictions on
when federal habeas corpus petitions can be filed and what they may contain. A petition seeking federal habeas corpus relief is filed in the federal District Court near
where the original trial was held. The District Court is the trial-level court in the federal system. To decide whether the defendant’s constitutional rights were violated,
the District Court judge may allow a hearing with witnesses. Either the defendant or the State may appeal an unfavorable ruling by the District Court to the U.S. Court
of Appeals, and then seek review in the U.S. Supreme Court.
VII. Clemency
A defendant who is denied relief throughout the entire process of judicial review can still be spared through clemency, which is an act of the executive branch. Every
death penalty state has some process by which the governor or an executive committee can review a defendant’s conviction and sentence. A death sentence can be
reduced to a life sentence, and, in rare circumstances, a person can be completely pardoned and freed by an executive decision. In the federal system, the president
possesses such power.
Grants of clemency are rare in death cases, though a few governors have commuted (reduced) the sentences of everyone on death row to life. (Governor George Ryan
took such action in Illinois in 2003, sparing the lives of 167 defendants.) Clemency is considered an act of mercy, and hence does not have the usual protections of due
process found in the judicial system. A defendant may not always have a lawyer or be given a hearing and has little recourse if his clemency request is denied.
VIII. Execution
 Death Warrant: A paper, typically signed by the governor or a judge, setting a date of execution. The warrant is then served on the defendant and his or her
attorney. Typically, shortly before the execution the inmate is moved to a cell closer to the death chamber and kept on 24-hour suicide watch.
 Execution: The carrying out of a death sentence by lethal injection, electrocution, lethal gas, hanging, or firing squad.
Chances of Obtaining Relief
Approximately 7,000 death sentences have been imposed since 1977. Over 1,000 people have been executed. Another 3,300 people remain on death row. Some
inmates have died of natural causes. Many of those originally sentenced to death eventually received a lesser sentence. About 120 death row inmates have been
exonerated, that is, their convictions have been overturned and subsequently all charges were dropped or they were acquitted at a retrial. [Note: these numbers are
from an older article—they are no longer up to date.]
Whether a particular death-sentenced inmate will obtain relief certainly depends on whether a legal error was made in the process of trying and sentencing the
defendant. But it may also depend on other circumstances, some quite fortuitous, such as the quality of the lawyer representing the defendant at one or another stage of
the process and the timing of Supreme Court decisions that affect broad categories of death penalty cases. For example, since 1972, 22 inmates were executed for
crimes committed when they were under 18 years of age, but since 2005 such executions of minors have been banned as unconstitutional.
A study of the chances for death row inmates to obtain legal relief was published in 2000. Professor James Liebman and his colleagues at Columbia University
reviewed all of the death penalty cases from 1973 to 1995 in which those the defendant had been granted relief or was executed.
Of the cases that were finally resolved, 68% resulted in some relief from the courts. This does not mean that the inmates were set free or even that they were given a
life sentence. Rather, serious error (i.e., error that was not considered “harmless” by the courts) was found in either the guilt or sentencing trial. This error required that
there be a retrial if the prosecution wished to have a new conviction or death sentence imposed.
Among the most frequent errors found by the courts were ineffectiveness of counsel and prosecutorial misconduct. Presumably, when the case was retried, the
defendant would have effective counsel, or evidence withheld by the prosecution would now be available to the defense. Prof. Liebman and his colleagues followed a
subset of these cases through their second trial; the overwhelming majority (82%) of defendants were not re-sentenced to death.
The publication of this study resulted in both widespread concern about the reliability of the death penalty system and sharp criticism of some claims of the study.
Critics rightly pointed out that the 68% of defendants who obtained relief were by no means innocent; many were re-sentenced to death in their second trials. Critics
also claimed that relief was more common in the earlier years of the study, while the death penalty was still being reformed after the 1972 Supreme Court case
Furman v. Georgia. More recent measures of the chances for relief, especially in the final stage of federal habeas corpus, indicate a smaller percentage of cases
obtaining relief.
Barriers to Obtaining Relief
Despite the variety of avenues in which to pursue relief, and the seemingly high chance of mistakes being discovered in cases that have been through the entire system,
the presence of serious error in a case does not guarantee a new trial or sentencing. If an issue is not raised, particularly in the latter two stages of the review process,
courts are unlikely to grant relief. In the more common scenario, attorneys for the death row inmate may either file a claim too late or neglect to include a claim in an
otherwise timely appeal. For the purposes of the courts, the failure to follow the rules of procedure is equivalent to not filing at all.
One of the cardinal rules of post-conviction proceedings is that any challenge to the proceedings must be raised at the first available opportunity. If it is not raised, the
claim is deemed to be waived. So, if the trial judge admits improper testimony but the defense attorney fails to object, the opportunity to challenge that testimony on
appeal is probably lost. Similarly, if a federal constitutional challenge could have been made in one’s direct appeal, but instead the attorney waited until the time for
federal review to raise the claim, it will probably be barred from consideration.
There is an obvious tension between the state’s concern for finality and the defendant’s interests in escaping a wrongful execution. Because the defendant’s stake in
the outcome is very high, the procedural rules barring review do have exceptions. They usually require that if a belated claim is to be allowed, it must have the
potential of exonerating the defendant. Mere correction of a mistake made at trial, even a serious constitutional mistake, will not suffice.
Sources: http://www.capitalpunishmentincontext.org/issues/remedies and http://deathpenaltyinfo.msu.edu/