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# ASSESSMENT INSTRUCTIONS

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ASSESSMENT INSTRUCTIONS

ASSESSMENT GUIDE

PART I: THE COLLECTION OF INFORMATION ON PENNSYLVANIA’S

DEATH PENALTY SYSTEM

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Death Penalty Moratorium Implementation Project . . . . . . . . . . . . . . . . . . . . . 5

The European Commission Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Grant Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Grant Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Information Session and Assessment Team Binder(s) . . . . . . . . . . . . . . . . . . . . . . . . 7

The Purpose of the Assessment Guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Role of the Assessment Teams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Assessment Team’s Objective for Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Assessment Team’s Objective for Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Anticipated Timeline, Drafting Process, and Structure of the Assessment Report . 10

CRIME DATA, DEATH ROW, DNA, AND THE LOCATION AND PRESERVATION OF INFORMATION AND EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Crime Data and Death Row Demographics in Your State . . . . . . . . . . . . . . . . . . . . 11

Overviews of Reports and Studies Conducted About Your State . . . . . . . . . . . . . . . 14

DNA Testing and the Location and Preservation of Information and Evidence… . 14

LAW ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CRIME LABORATORIES AND MEDICAL EXAMINERS . . . . . . . . . . . . . . . . . . . . . 22

PROSECUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

DEFENSE SERVICES DURING TRIAL, APPEAL, STATE POST- CONVICTION PROCEEDINGS, AND FEDERAL HABEAS CORPUS . . . . . . . . . . . 30

Statewide Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

County-Based Public Defender and Private Law Firms . . . . . . . . . . . . . . . . . . . . . . 30

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Appointment, Qualifications, and Training of Trial, Appeal, State

Post-Conviction Proceedings, and Federal Habeas Corpus Counsel . . . . . . . . . . . . 30

Counsel Performance During Trial, Appeal, State Post-Conviction Proceedings,

and Federal Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Workload of Trial, Appellate, State Post-Conviction Relief Counsel, and Federal

Habeas Corpus Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Compensation for Trial, Appellate, State Post-Conviction Relief, and Federal

Habeas Corpus Counsel and Paralegals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

The Availability and Use of Investigators, Mitigation Specialists, Mental Health

Experts, and Other Experts Pre-Trial and During Trial, Appeal, State Post-

Conviction Proceedings, and Federal Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . 42

DIRECT APPEAL AND THE UNITARY APPEAL PROCESS . . . . . . . . . . . . . . . . . . 45

Non-Unitary Appeal States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Unitary Appeal States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

STATE POST-CONVICTION RELIEF AND FEDERAL HABEAS CORPUS . . . . . . 50

Grounds for State Post-Conviction Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Time Limitations, Contents of Petitions, and Second or Successive Petitions . . . . . 51

Stay of Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Evidentiary Hearings and Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Findings of Law and Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Standards Used When Reviewing State Post-Conviction Petitions . . . . . . . . . . . . . . 53

Retroactivity Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

CLEMENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Clemency Decisionmakers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Clemency Petitions and Clemency Interviews, Meetings, and/or Hearings . . . . . . 56

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Types of Documents Provided to Death Penalty Clemency Decisionmakers

Regarding Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Scope of Review Recommended and Scope of Review Actually Performed . . . . . . 58

Clemency Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Politics and Clemency Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Appointment and Compensation of Counsel During the Clemency Process . . . . . . 59

Investigators and Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

JURY INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

JUDICIAL INDEPENDENCE AND VIGILANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

RACIAL AND ETHNIC MINORITIES AND THE DEATH PENALTY . . . . . . . . . . . 71

JUVENILE OFFENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

MENTALLY RETARDED AND MENTALLY DISABLED OFFENDERS . . . . . . . . 77

Mentally Retarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Mentally Disabled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Waivers of Rights (In General and as it Pertains to the Mentally Retarded, Mentally

Disability, and individuals who received Ineffective Assistance of Counsel) . . . . . . 81

Competency to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

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INTRODUCTION

A. The Death Penalty Moratorium Implementation Project

On February 3, 1997, the American Bar Association (―ABA‖), while taking no position on the death penalty per se, adopted a death penalty moratorium resolution, calling for capital jurisdictions to impose a moratorium on all executions until they can (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed. Following the adoption of the resolution, the Section of Individual Rights and Responsibilities, as the original sponsor of the resolution, carried out much of the ABA’s moratorium implementation work.

In Fall 2001, the ABA created the Death Penalty Moratorium Implementation Project (―the Project‖) to take over its moratorium efforts. The Project encourages other bar

associations to press for moratoriums in their jurisdictions and encourages state government leaders to establish moratoriums and undertake detailed examinations of capital punishment laws and processes in their jurisdictions. The Project also collects and monitors data on domestic and international moratorium developments; conducts analyses of governmental and judicial responses to death penalty administration issues; and publishes periodic reports on moratorium developments.

The Project is staffed by Deborah T. Fleischaker, Director, and Lindsay B. Glauner, Project Attorney, and is advised by a presidentally appointed Steering Committee, comprised of the following individuals:

; James E. Coleman, Jr. (Chair), Professor and Associate Dean, Duke University

School of Law;

; Lauralyn Beattie, Counsel, Office of University Counsel, Georgetown University;

; Stephen B. Bright, Director, Southern Center for Human Rights;

; Zachary W. Carter, Partner, Dorsey & Whitney, LLP;

; W.J. Michael Cody, Partner, Burch, Porter & Johnson and former Tennessee

Attorney General;

; Ruth Friedman, consultant;

; Thomas Lorenzi, Partner, Lorenzi, Sanchez & Rosteet, LLP;

; Charles J. Ogletree, Jr., Professor, Harvard Law School;

; Morris Overstreet, Professor, Texas Southern University Thurgood Marshall

School of Law and former Justice on the Texas Court of Criminal Appeals;

; Cruz Reynoso, Professor, University of California at Davis School of Law and

former Justice on the California Supreme Court;

; Thomas Sullivan, Partner, Jenner & Block and Co-Chair of the Illinois

Governor’s Commission on the Death Penalty; and

; Denise Young, consultant.

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B. The European Commission Grant

1. Grant Description

In February 2003, the European Commission's European Initiative for Democracy and Human Rights (―EC‖) selected the Project to receive a two-year grant to examine

the extent to which U.S. capital jurisdictions’ death penalty systems comport with

minimum standards of fairness and due process.

The objective of the grant is to conduct a preliminary assessment of U.S. death penalty systems, using as a benchmark the protocols set out in the Section of Individual Rights and Responsibilities’ 2001 publication, Death without Justice: A

Guide for Examining the Administration of the Death Penalty in the United States ("the Protocols"). While the Protocols are not intended to cover exhaustively all aspects of the death penalty, they do cover eight key aspects of death penalty administration, including defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic minorities, juvenile offenders, and the mentally retarded and mentally ill. The findings of the preliminary assessments will serve as the bases from which to launch the more comprehensive self-examinations of death penalty-related laws and processes that the ABA is encouraging capital jurisdictions to undertake on their own.

2. Grant Organization

The Project has created an Advisory Board to oversee the implementation of the grant. The Advisory Board is comprised of the following individuals:

; Talbot ―Sandy‖ D’Alemberte (Chair), Professor of Law and former Dean,

Florida State University College of Law, and former President, Florida State

University;

; John J. Gibbons, Partner, Gibbons, Del Deo, Dolan, Grigginger & Vecchione

and former Chief Justice, U.S. Court of Appeals for the Third Circuit;

; Parris Glendenning, President, Smart Growth Leadership Institute, and former

Maryland Governor;

; Fred Gray, Partner, Gray, Langford, Sapp, McGowan, Gray & Nathanson

and former attorney for Rosa Parks and Martin Luther King, Jr.;

; Stephen F. Hanlon, Partner, Holland and Knight;

; Mario Obledo, President, National Coalition of Hispanic Organizations;

; Raymond Paternoster, Professor, Institute of Criminal Justice and

Criminology, University of Maryland;

; Virginia Sloan, President, The Constitution Project; and

; Penny Wakefield, former Director, ABA Section of Individual Rights and

Responsibilities.

The Project Steering Committee, as well as the Project’s staff, will also provide advice and assistance in implementing the grant. The Project encourages your team

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to contact its staff with any questions or concerns regarding the completion of the

assessment.

Each Assessment Team will be responsible for overseeing the assessment in its state.

Each team will be chaired by a law school professor and will include or have access

to current or former defense attorneys, current or former prosecutors, individuals

active in the state bar, current or former judges, state legislators, and anyone else

whom the Project and/or team leaders feel should be included to complete the

assessment in a timely, thorough manner. The leaders of the Pennsylvania

Assessment Team are Professors Michelle Anderson and Anne Poulin. A list of the

other team members will be distributed at the initial team meeting.

At a minimum, Assessment Team members will provide guidance during the research

process and serve as reviewers of the report as it is being drafted. The Project

anticipates that the Assessment Teams will hire students to collect the actual data.

See infra section I(E) for a detailed discussion of the role of the Assessment Teams.

C. Information Session and Assessment Team Binder(s)

The Project will meet with your team to review the Assessment Guide, discuss your team’s objectives and the anticipated timeline, and address any questions and/or concerns regarding the Assessment Guide, team objectives, and/or timeline. At the meeting, the Project will also provide your team with a binder(s) of useful information. The binder(s) will contain the following:

; your state’s current death penalty statute;

; a list of individuals who have been on death row in your state since 1989;

; Death Row U.S.A. reports since 1989;

; a list of individuals who have been exonerated in your state since 1973;

; a list of cites of relevant statutes and articles;

; studies and reports on the administration of the death penalty in your state;

; law review and journal articles on the administration of the death penalty in your

state; and

; news reports on the administration of the death penalty in your state.

D. The Purpose of the Assessment Guide

The Project designed the Assessment Guide to provide your team with a thorough background of the death penalty system and a detailed account of potential problems concerning such system. Given the detail of the Assessment Guide, the Project encourages your team to use it as a research guide, not as a checklist of required tasks. Thus, your team should not feel compelled to collect every recommended document or answer every question contained in the Assessment Guide. In fact, the Project believes that a thorough yet preliminary study of the death penalty system in your state still can be completed without collecting all of the recommended documents and/or answering all of the questions contained herein.

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The Assessment Guide is divided into thirteen sections, not including the introduction: (1) Crime Data, Death Row, DNA, and the Location and Preservation of Information and Evidence; (2) Law Enforcement; (3) Crime Laboratories and Medical Examiners; (4) Prosecutors; (5) Defense Services During Trial, Appeal, State Post-Conviction Proceedings, and Federal Habeas Corpus; (4) Direct Appeal and the Unitary Appeal Process; (7) State Post-Conviction Relief and Federal Habeas Corpus; (8) Clemency; (9) Jury Instructions; (10) Judicial Independence and Vigilance; (11) Racial and Ethnic Minorities; (12) Juvenile Offenders; and (13) Mentally Retarded and Mentally Disabled Offenders.

The thirteen sections are not organized by matter of importance, but rather, the order corresponds to the recommendations contained in the Protocols. The Project encourages your team to prioritize the sections, addressing the most potentially problematic areas first.

The majority of the thirteen sections begin with an introduction, explaining the relevant substantive issues and identifying potential problems regarding these issues concerning the administration of the death penalty. Each section contains a list of documents, including laws, rules, procedures, standards, guidelines, and leading case law, that the Project recommends that your teams gather, review and explain, and a list of questions pertaining to these documents that should be answered by your team to the extent possible. Lastly, in certain sections, the Project has recommended that your team select at least two to three illustrative cases to highlight how certain systems in your state actually function. See infra section I(E)(1), for a further discussion on the collection and explanation of the recommended information and the case studies.

E. Role of the Assessment Teams

1. Assessment Team’s Objective for Part I: The Collection of Information on Your

State’s Death Penalty System

Your Assessment Team’s objective is to collect the laws, rules, procedures, standards,

guidelines, and leading case law recommended in the Assessment Guide. The Project

recognizes that some of the recommended documents may not be easily accessible or

may be entirely unattainable. As a result, the Project advises your team to use its best

judgment to evaluate the potential value of a recommended document in view of the

length of time and effort required to obtain it. Please explain each decision by your

team not to attempt to obtain a recommended document or your team’s unsuccessful

attempts to obtain a recommended document.

The Project also recognizes that the list of recommended documents is not exhaustive.

Thus, it welcomes additional research into the issues discussed herein.

Following the collection of the recommended data, your team should review and

explain the recommended laws, rules, procedures, standards, guidelines, and leading

case law and draft answers to the questions to the extent possible. Your team’s

answers should include detailed cites to the sources relied upon. Please note that

when the Project recommends that your team review and explain the ―laws, rules,

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procedures, standards, guidelines, and leading case law‖ on a particular subject, it does not want a recitation of every law, rule, procedure, standard, guideline, and case on the subject. Instead, the Project expects that your team will use its discretion to identify and explain the most pertinent laws, rules, procedures, standards, guidelines, and leading case law on each subject.

The Project also recognizes that if your team is unable to obtain some of the recommended documents, it may be unable to answer certain questions. In these situations, please explain why your team was incapable of answering the questions.

In addition to collecting the recommended information and answering the questions contained herein, the Project, in certain sections, has recommended that your team select and discuss at least two to three cases (designated as ―case studies‖) to

illustrate how certain systems in your state actually function. The Project recommends either that your team identify one or two very knowledgeable individuals (who need not be team members) to select the illustrative cases or that your team jointly select the cases. When selecting the cases, please choose cases that are illustrative of the manner in which the system functions. Furthermore, although the Project has identified certain sections where case studies are recommended, your team should feel free to use or not use case studies, as it deems necessary. In contemplating case studies, your team should first determine one or two jurisdictions where courts are reasonably likely to provide the types of information desired. Then in the manner described above, select at least one or two cases from these jurisdictions. Thereafter, if your team has the time and inclination, it may select additional case(s) within other jurisdiction(s).

Once your team begins explaining the information recommended in the Assessment Guide, drafting its answers to the questions, and completing the case studies, please send the Project updates, including drafts of your findings and information on your team’s progress. The updates also should include any and all documents collected by your team that the Project could not obtain on the Internet. All documents

that are attainable on the Internet do not need to be sent to the Project as long as the documents are properly cited, allowing the Project to obtain the documents via the Internet. See infra section I(F), for a discussion on the drafting process and

anticipated timeline.

2. Assessment Team’s Objective for Part II: Race and Geography Study

The Project intends to work in conjunction with esteemed sociologists/criminologists to conduct race and geography studies in a number of states depending on various factors, including the existence of a recent, reliable race and geography study and the availability of the requisite data. The Project anticipates that some assistance by the Assessment Teams may be necessary to complete this portion of the assessment in a thorough yet timely manner.

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F. Anticipated Timeline, Drafting Process, and the Structure of the Assessment Report

Your Assessment Team will have approximately six to ten months to collect the recommended data and draft your findings. The Project expects that as your team collects the information recommended in the Assessment Guide, it will explain the recommended documents and draft answers to the questions, and submit updates to the Project with your findings. These updates are imperative to the drafting of the assessment report, as the Project will draft the report at the same time your team collects the recommended information.

The Project envisions that each final assessment report will be comprised of two or three parts, depending on your state. The first section will provide an objective review of your state's death penalty system and will consist largely of a systematic recounting of laws, rules, procedures, standards, guidelines, and case law that comprise the current system. If the Project and its consultants conduct a race and geography study in your state, the second section will discuss the results. Lastly, the third section will compare the data collected by your team with the recommendations contained in the Protocols and recent ABA resolutions.

Following the initial drafting of the assessment report, the Project, in coordination with your team, will edit and finalize the report. It is anticipated that the report will be completed approximately two months after your team has completed gathering the recommended data.

The Project anticipates that all of the assessments will be completed by the summer of

2006; however, your state’s assessment may be completed significantly sooner than this. Upon completion of the assessments, the ABA will sponsor a national symposium, discussing death penalty issues, reviewing assessment findings, and highlighting trends found in the states.

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