A Scholar’s Impression of the Tsarnaev Motion to Appoint Counsel on Appeal

So it begins.

On February 17th, Dzhokhar’s lawyers filed a motion requesting that appellate counsel be appointed to handle the case going forward. This is big news. While I am at work on my next post, I thought it was worth sharing the impressions of the document written by our contributing death penalty scholar, Margo Schulter. To follow along, you can click below to access the document in PDF form:

Motion to Appoint Counsel on Appeal

From here, I’ll give the floor to Margo.

First, I wonder if the phrase “counsel learned in the law” may ultimately trace back to the Federal Crimes Act of 1790, the first federal criminal legislation passed in the First Congress, the same body that adopted the Eighth Amendment and other portions of the Bill of Rights then ratified by the States. In this context, of course, it refers specifically to counsel “learned” in the highly specialized law of the death penalty. It’s interesting how the proposed appellate team would, like the trial team, have two members specializing in capital punishment law, plus a third (like Miriam Conrad at trial) serving from the perspective of a moral general criminal defense expertise.

Second, although it doesn’t surprise me once pointed out, I’ve taken note of the significant fact that given the widespread abolition of the death penalty by all jurisdictions other than New Hampshire within the First Circuit — aside from the federal government, of course — as far as I know, it’s not so easy to find “counsel learned in the law” of the death penalty within that circuit! Puerto Rico is also abolitionist, and indeed has been a place of great resistance to federal death penalty prosecutions. It’s noted that Sampson is the one federal death penalty previously to come before the First Circuit, and that one is currently awaiting a new penalty trial set for September 14.

In addition to the desirability of new attorneys on the appellate team to look at the case from a different perspective, a longer-term concern might be the need for attorneys who can independently evaluate any possible claims of ineffective assistance of counsel. However, such claims are rarely brought on direct appeal, which is generally restricted to a review of the trial record, since most claims of ineffective assistance require evidence not on the record.

One good sign is that the motion cites the ABA Standards for Capital Defense (2003), which notes the duty of appellate attorneys to raise all substantial arguments against the conviction or death sentence. This is important, because state courts often take the position that “winnowing” of arguments, choosing only a few strong ones to raise in an appeal, is not only within the range of competent professional performance for counsel on appeal in a capital case, but a wise and effective strategy.

The problem, of course, is that such “winnowing” is quite likely to endanger a client’s life, since one can hardly predict what currently “unlikely” challenges to the death penalty may become accepted law in ten years, say.

Thank you so much to Margo for her thoughts on this matter. I hope this is able to provide some clarity and optimism for readers following the appeal. I’ll be returning soon to start my series on the killing of Sean Collier, so please stay tuned.

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