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Friday, July 22, 2011
Ind. Courts - How does the death penalty appeals process work? [Updated]
If you are not an attorney, or do not do criminal or death row appeals, the process can be confusing. It seems like you see the same case names again and again, in different Indiana and federal courts.
At the Law School for Journalists conference I attended Wednesday, at a panel titled "Least Understood Areas of Law," I obtained a great chart, headed "Avenues of appeal for a death row inmate."
Indianapolis criminal defense attorney Monica Foster, whose practice is devoted to representing persons in death penalty cases at the trial and appellate levels, and Greta Scodro, Deputy Administrator and senior staff attorney in the Division of Supreme Court Administration, put it together.
As noted on the chart, the only appeal that is mandatory is direct appellate review of the death sentence by the Indiana Supreme Court. All of the other potential steps in the appellate process are optional; the convicted person chooses whether to request review.
The second column on p. 1 shows a petition for state post-conviction review (PCR), based on, for example: The defense received at the trial -- "My lawyers did something wrong." Or "The prosecutors withheld evidence." This process begins in the trial court, without a jury.
If that avenue is exhausted, the third column shows habeas relief -- "something deprived me of my rights under the federal constitution."
Thereafter, judicial review of the conviction and sentence to which the convicted person is entitled as a matter of right is at an end, but the convicted person may seek additional discretionary review, as set out on p. 2, on the basis, for instance, of "a new claim the convicted person could not have known about before." Actions in the 3 columns on p. 2 usually take place at the same time.
The setting of execution dates was also discussed by the panel. Back to p. 1:
- Initially, the trial court sets a date within one year of conviction.
- Then the Supreme Court, in column 1, will stay that date.
- When column 2 is decided, the Supreme Court will set a date again, but expressly subject to stay by federal court.
- Sometime after the conclusion of the appeal action in column 3, the Supreme Court will set the date again. This is likely the final date.
The ILB has just received this note from Steve Creason, Chief Counsel, Appeals Division, Office of the Attorney General:
Marcia,The handout summarizing appeals in capital cases was interesting and illustrated well the stages of the appellate process. Thanks for posting it.
I think it’s worth noting, however, that this same process is generally available to all criminal defendant and not just those sentenced to death. Obviously, the parts regarding executions and stays aren’t relevant in non-capital appeals, but even successive PCR/habeas and the Executive Clemency process is available. I’m not sure that everyone understands that.
The process can be long and confusing. And although the process is essentially the same in capital and non-capital, the capital cases invariably receive a more searching review and include far more claims than your average non-capital case.
Posted by Marcia Oddi on July 22, 2011 01:43 PM
Posted to Indiana Courts