A Case for Harmless Review of Ake Errors

Article excerpt

I. INTRODUCTION

In Tuggle v. Netherland,(1) the Supreme Court ruled that the state of Virginia's use of a psychiatric expert's testimony at trial to prove part of its case against Tuggle, an indigent capital defendant, was an Ake error(2) because the trial judge denied funds for Tuggle to hire a rebuttal expert.(3) The Court then remanded the case to the Fourth Circuit Court of Appeals to determine whether that error was harmless.(4) The Fourth Circuit held that it was harmless(5) and the Supreme Court agreed on appeal.(6)

Tuggle's case illustrates precisely why harmlessness review of an Ake error is appropriate. Tuggle's sentencing jury heard both property and improperly admitted evidence.(7) Considering that evidence within the parameters of Virginia's statutory scheme, the jury found two aggravating circumstances: vileness of the crime and future dangerousness of the defendant.(8) The improperly admitted evidence about Tuggle's future dangerousness(9) was unrelated to the jury's decision that the murder was vile.(10) Since a Virginia capital sentence can stand even if supported by only one aggravating circumstance, the improper evidence was indeed harmless because it invalidated only the "future dangerousness" aggravator.(11)

As this case illustrates, there are times where an appellate court should perform harmless error analysis of Ake errors. Rather than automatically going through a complete resentencing, the reviewing court should decide whether the error infected the jury's deliberation so thoroughly that it caused an unconstitutional defect in the trial.

The saga of Lem Tuggle came to a close on December 12, 1996. Twelve years after his conviction for the rape and murder of Jessie Geneva Havens, Tuggle was executed by the state of Virginia.(12)

II. BACKGROUND

A. AGGRAVATING CIRCUMSTANCES IN CAPITAL CASES SINCE FURMAN V. GEORGIA

When the United States Supreme Court invalidated the Georgia and Texas capital punishment statutes in 1972,(13) it in effect abolished capital punishment as it then existed in the United States.(14) The Furman Court held, in a one paragraph per curiam opinion, that the challenged state laws constituted cruel and unusual punishment(15) as prohibited by the Eighth Amendment to the United States Constitution.(16) The essence of the concurring opinions(17) was that the language of the statutes was overly broad.(18) In particular, the Court pointed to the statutes' potential for allowing (1) too many or too few capital sentences and (2) capital sentences out of proportion with the crime.(19)

1. Overinclusion and Underinclusion

The justices objected to the statutes' failure to limit or channel the sentencer's discretion.(20) Because the statutory parameters for imposing the death penalty were vague,(21) sentencing bodies exercised a great deal of discretion in their decision-making and invoked the punishment inconsistently.(22) The result was two common problems with capital sentences: overinclusion and underinclusion.(23) Overinclusion occurs when nearly any killing can qualify for capital punishment.(24) Underinclusion is the imposition of the death penalty inconsistently from one trial to the next, resulting in less harsh penalties for equally heinous crimes.(25) When the Court upheld some revised capital statutes four years later, it reiterated that overinclusion and underinclusion create arbitrary and capricious results that violate the fundamental notions of fairness protected by the Eighth Amendment.(26)

2. Proportionally

The Court also banned death sentences unless the defendant was a major participant in a dangerous felony and exhibited a reckless indifference to human life; that is, the punishment had to be proportional to the crime.(27) At one point, the Court construed the proportionality doctrine so narrowly that only those who had killed, attempted to kill or intended to kill another human were eligible for the death penalty. …