January 26, 2021

Project Assists in Pandemic-Related Capital Advocacy Throughout 2020

ABA President Refo expressed concern over the continuation of executions during the COVID-19 pandemic in a letter to Missouri Governor Michael Parson.

ABA President Refo expressed concern over the continuation of executions during the COVID-19 pandemic in a letter to Missouri Governor Michael Parson.

In 2020, the Project worked to assist the capital defense community in responding to the unprecedented challenges that the COVID-19 pandemic has presented in representing clients in capital cases.

In April, Project Director Emily Olson-Gault authored two declarations detailing the myriad ways the pandemic prevents attorneys from fulfilling their constitutional obligations to their clients at various stages of capital cases. The trial-level declaration highlighted the immense difficulties and threat of exposure to COVID-19 that attorneys would be forced to navigate in conducting the needed investigation and compiling evidence. Effective representation at trial is crucial to ensuring due process and fairness in capital cases, and extensive investigation requiring in-person contact is necessary to mounting an effective defense in capital trial cases. The pandemic circumstances therefore inevitably compromise defense counsel’s ability to effectively represent their capital clients in accordance with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”) and Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (“Supplementary Guidelines”), which compile long-standing standards of care for capital representation.

A second declaration detailed the way these challenges persist in post-conviction proceedings, including in the litigation that occurs when an execution warrant has issued and in clemency proceedings, since this stage requires a thorough reinvestigation of the facts, the client’s psychosocial history, and any issues related to trial counsel’s performance, judicial bias, or prosecutorial misconduct. The declaration emphasized that for all stages of capital representation, remote technology options are not an adequate alternative for capital defenders, mitigation specialists, experts, or investigators to carry out their obligations to the client in line with professional norms.

In addition, with the help of the Project, the ABA spoke out against several of the executions that have continued during the pandemic. On May 13, 2020, then-ABA President Judy Perry Martinez wrote a letter to Missouri Governor Michael Parson expressing concerns about the execution of Walter Barton, which was scheduled for May 19, 2020, and urging the governor to issue a reprieve of the execution date. Due to the pandemic, Mr. Barton’s attorneys were severely limited in their ability to perform essential tasks and pursue evidence. The letter noted that this was especially concerning given the “significant questions that remain about Mr. Barton’s guilt and the inability of the courts to review the merits of what evidence has been developed due to procedural technicalities.” Walter Barton was executed as scheduled despite these concerns, becoming the first prisoner executed during the pandemic.

The Project also assisted the ABA in speaking out against the federal executions that have occurred at an unprecedented level this past year. On November 12, 2020, ABA President Patricia Lee Refo wrote a letter to President Donald Trump regarding the government’s plan to carry out three federal executions during a new surge in the COVID-19 pandemic: those of Orlando Hall, Lisa Montgomery, and Brandon Bernard. In each of these cases, the limitations presented by COVID-19 stymied attorneys’ efforts to build effective clemency campaigns and to pursue lines of investigation and evidence. The letter urged against carrying out the executions during the pandemic, to protect not only the due process rights of the individuals scheduled to be executed but also the health of the various personnel necessary to execution proceedings. As the letter noted, Ms. Montgomery’s attorneys contracted COVID-19 after visiting their client subsequent to her execution date being scheduled. Since the letter’s publication, Mr. Hall and Mr. Bernard have been executed, while Ms. Montgomery received a judicial stay due to her attorneys’ inability to represent her while suffering from COVID-19. The execution was subsequently rescheduled by the DOJ to January 12, 2021.

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