As the first capital case tried in Boston in over 30 years demonstrated, such cases present unique challenges.
Capital cases often present severe challenges and stresses for a federal trial court and the individuals who perform its work: judges, court staff, andjurors. These challenges are frequently amplified when the government brings a death penalty case under federal law in a state that does not itself provide for capital punishment.
Some of the challenges posed by capital cases are the same as those presented by other complex litigation. Capital cases are time consuming, emotionally draining affairs that often involve lengthy jury trials. This alone challenges the court's ability to manage the hundreds of other cases pending before any one district court judge. The strain and delay on the administration of justice in other cases is particularly acute if a capital case is brought in a division that has but one or two judges.
Other issues are unique to capital cases or are present in only capital cases and a few other types of criminal trials. This article discusses some of these unique challenges, drawing on my experience working on a death penalty case as a law clerk in the United States District Court for the District of Massachusetts from 2002 to 2004. As Massachusetts no longer provides for the death penalty under state law, that prosecution, United States v. Gary Lee Sampson, was the first capital case tried to verdict in Boston in over 30 years.
Appointment of counsel and experts
Although appointment and oversight of counsel for indigent criminal defendants are not issues unique to capital cases, the defense of capital cases is typically more complex than the defense of other criminal cases. Section 848(q) of Title 21 of the United States Code describes the procedures for appointing counsel and reimbursement of "investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant." Federal law requires a judge to appoint at least two lawyers to serve as defense counsel in a capital case, in large part because of the separate penalty phase of the bifurcated trial, which is governed by law and practice unlike any other proceeding in any other kind of criminal case. Depending on the case, private investigators, jury consultants, expert witnesses-including mental health experts-and other non-testifying experts may be "reasonably necessary for the representation of the defendant." In particular, mitigation specialists have become integral parts of many if not most capital defense teams. Failure to provide adequate expert support for a capital defendant may result in an unfair trial.
Oversight of these experts individually and as part of an overall case budget becomes the responsibility of the presiding district judge. Once the costs for experts exceed $7,500-a trivial sum in the context of capital cases that cost, on average, hundreds of thousands of dollars to defend-the law requires additional review by the chief judge of the circuit, or his or her designee. Oversight over budgeting consumes judicial resources. It also places the trial judge in the somewhat awkward position of serving as a gatekeeper for the resources needed to try a capital case for one side of the adversarial process, but not the other.
The costs of defense and difficulties for the court are enhanced when the government brings a capital case in a jurisdiction that does not have an established capital defense bar. In such cases, experienced capital defense counsel and others, such as mitigation specialists, will likely need to be brought in from other jurisdictions. Thus, in the Sampson case, the defense team included two lawyers from Boston, one lawyer from New Jersey, mental health experts from Boston and New York City, and a mitigation specialist from Wisconsin, among others.
Using a defense team comprised of individuals from multiple locations creates logistical problems. …