What is the road to judicial killing in the state of Mississippi, where I spent three months on an internship with Amicus, the charity which assists in the provision of legal representation for those awaiting capital trial and punishment in the US, at the Office of Capital Defense Counsel (“OCDC”)?

The route

Let us imagine a defendant, Terry. He is African-American (like 37.2 per cent of Mississippians), unemployed (like 8.6 per cent of them) and very poor. He lives in Starkville in Oktibbeha County, which is 58 per cent white.

Terry, a petty criminal, and an associate, Leon, are suspects in the fatal shooting and robbery of a local drug dealer. Murder alone is not a capital crime; in order to convert it into that there must be an aggravating factor in which robbery is the most common. The police saw Terry’s vehicle speeding in the area soon after the crime. This has given them the suspicion that he is involved, but suspicion is not “probable cause”. He is pulled over and questioned. At this juncture, the many differences between British and Mississippian law and procedure assert themselves.  There is no requirement that  Terry is cautioned or “Mirandized”  (derived from the landmark case of Miranda v Arizona 384 US 436 (1966)) prior to pre-arrest police questioning in relation to “justified and reasonable” suspicions, so long as he is not detained in a way analogous to an actual arrest.

The ambigious answers Terry provides give the police “probable cause” for arrest but they continue to question Terry, still without Mirandizing him since the Supreme Court decision of Hoffa v United States 385 US 293 (1966) states that the police are not required to arrest and Mirandize at the precise point at which they suspect that they have sufficient evidence to do so. Terry is eventually arrested and cautioned as to his rights to silence and to an attorney. He waives these however after he is told that he is not the main suspect in the murder and that the interrogation will only focus on the robbery. This is in fact a deception but one which has been found by the state courts to be legally permissible; anything incriminating said by Terry before and after arrest will be admissible at trial.

Terry’s associate Leon quickly realises the seriousness of the situation and decides to strike a deal with the prosecutor. He will testify against Terry in return for a lesser charge of “accessory after the fact” to which he will plead guilty. The prosecuting District Attorney is facing strong challenges in the upcoming election for his post and he knows that a successful capital murder prosecution will bolster his image. A public defender is appointed for Terry who is indicted by a grand jury two days later.

There is a public defence crisis in Mississippi. State law essentially caps the net profit a defence attorney can make from a capital trial at $1,000 while allowing a pro rata expenses fee currently set at $32.50 per hour. In the notorious local case of Pruett 574 So 2d 1342 (Miss 1990) defence counsel was paid less than the court reporter and was refused reimbursement of the $3,250 of his own money which he had spent on an expert. No financial constraints are placed on the prosecution.

For defendants who are unable to get the support of OCDC (a judge must make a court order appointing them to the case), public defenders who are prepared to work under the above restraints are the only option. There are no minimum standards of experience or competence required and Terry’s attorney, like many others, is a novice, 18 months out of law school, burdened with an enormous caseload and a struggling private practice. Terry and his attorney do not meet until the arraignment hearing and only once again for a 20 minute pre-trial conference.

The attorney is out of his depth and he finds his problems compounded by the delivery of the prosecution “discovery” (disclosure) only three days before Terry goes on trial for his life. The test for prosecution disclosure is similar to ours under the Criminal Procedure and Investigations Act 1996 (“CPIA 1996”) but time limits are largely eschewed. Counsel does not have time, given his caseload, fully to peruse it and key documents are missed.

The trial

The trial begins. A huge burden is placed on counsel for the defence because any failure to mount a contemporaneous verbal objection to a decision of the judge or actions of the prosecution during the trial will act as a permanent waiver of the issue as a ground of appeal. Several erroneous evidential rulings slip by.

Jurisprudence on admissible evidence reveals that in Mississippi there is, perhaps surprisingly, considerable protection for defendants. The 2004 Supreme Court case of Crawford v Washington 541 US 36 (2004) has greatly restricted the use of hearsay evidence gathered during a police investigation even where the individual who has made a statement to the police cannot testify because of the defendant’s actions; the evidence should be excluded even if the defendant has killed the witness so long as it was not his specific intention to prevent the witness testifying.

The rules on bad character are similarly stringent. Unlike in England and Wales, propensity to commit a crime is barred, subject to some specific exceptions, from being an issue at trial. This covers any act, not just a criminally “reprehensible” one. However the judge uses his considerable discretion (“abuse of discretion” is generally required for his rulings to be overturned) to make several contentious decisions on character and hearsay evidence as well as denying a change of venue motion. He, like the District Attorney, is elected. The jury, selected from the voting rolls of the county, is 11-1 white. As Steven Garvey highlighted (The Emotional Economy of Capital Sentencing 75 New York University Law Review 26 (2000)), studies have shown consistently that white jurors, especially white male jurors, are more likely to feel anger towards, and impose the death penalty, on a black defendant. Jurors are selected by the lawyers for both sides using questionnaires and voir dire. Those who oppose the death penalty are weeded out and disqualified by the prosecutor who has an unlimited number of “strikes” to disqualify potential jurors. No reason has to be given, although racial discrimination is prohibited and allegations of such can be heard in a Batson hearing (after Batson v Kentucky 476 US 79 (1986)).

With no alibi, defence witnesses or funds for an expert, and in the face of the testimony of his former co-accused, Terry’s conviction is as swift as the question of his actual guilt is moot.

The penalty phase

Sentencing usually begins on the same day. Normal rules of evidence are essentially abandoned in the sentencing hearing. Multiple hearsay, good/bad character evidence and matters of tangential relevance are all admissible in a life or death free-for-all. Since the re-introduction of the death penalty in 1977, 10 people have been executed in Mississippi; a further 60 (including three women and Richard Jordan who has been there for 32 years) sit on death row. More than half are African American: 73 per cent of homicide victims in Mississippi are African-American but in death row cases, 70.2 per cent of the victims are white.

Preparing for the mitigation hearing is a multi-disciplinary task encompassing and not limited to legal preparation, socio-medicalinvestigation and detailed examination of client and family history. There is a lengthy victim impact testimony. Counsel has an active duty to engage professional investigators to complete their tasks. Although OCDC has these facilities, the public defender does not. He tries but fails to locate members of Terry’s family. Only his aunt attends and is savagely cross-examined by the prosecutor. Terry is sentenced to death.

There is an automatic right of direct appeal but many of the grounds have been lost because of Terry’s counsel’s failure to object to the judge’s rulings at the time. The only remaining avenue of appeal is “ineffective assistance of counsel”. Ten death sentences in Mississippi have been vacated on these grounds, though not one where the lawyer’s conspiciously unusual behaviour during trial was due to a drug addiction for which, at the end of the appeal, he was then undergoing compulsory rehab.

The role of interns

The OCDC at which I was an intern has since 2000 provided urgently needed specialised representation to indigent defendants facing capital murder charges. It is state funded by levies on speeding fines, hunting licence fines etc but this is not a huge amount of money. Local and British interns are vital to the continued running and success of the office.

Beyond legal research the interns were primarily devoted to mitigation. Our role was to travel across the state and to meet the client and their friends, family members, teachers, neighbours and anyone else connected to them, who could possibly provide something that could be used at the “penalty phase” of the trial in which 12 “death-qualified” jurors determine a guilty defendant’s sentence.
The internship was a rewarding personal and learning experience which would greatly enhance both the skills and CV of anyone interested in practising at the criminal Bar or working with human rights issues.

Sam Clyndes is starting pupillage at 9-12 Bell Yard in the autumn