ABA Death Penalty Due Process Review Project

Death Penalty Due Process Review Project "A system that will take life must first give justice."

- Former ABA President John J. Curtin, Jr.
Project Released Research Paper In 2016, the Project released a comprehensive White Paper on Severe Mental Illness & Death Penalty that addresses medical, legal and policy concerns with executing those with mental illness.
State Assessments "Key Findings" Report In November 2013, the Project released "The State of the Modern Death Penalty," a report summarizing the major findings from our 12 state death penalty assessments (2003-2013).


Recent News & Announcements



ABA brief asks U.S. Supreme Court to overturn death penalty conviction in case where trial attorney conceded guilt over client’s objection


November 20, 2017 – Today the American Bar Association submitted an amicus curiae brief to the U.S. Supreme Court in the capital case of McCoy v. Louisiana. A Bossier Parish jury sentenced Mr. McCoy to death in 2011 for killing three family members of his estranged wife. Before his trial, Mr. McCoy explicitly expressed to his attorney that it was his desire to contest guilt, maintain his innocence, and to argue for acquittal. However, his attorney decided to instead admit Mr. McCoy’s guilt during opening statements to the jury, causing Mr. McCoy to verbally object and ask the court for a different lawyer. After the court refused his request, his trial attorney again admitted Mr. McCoy’s guilt during closing argument, even after Mr. McCoy had provided alibi testimony. Although the Louisiana Supreme Court upheld Mr. McCoy’s convictions and death sentence on appeal, the U.S. Supreme Court granted certiorari in September to consider the question of whether it is unconstitutional for a defense lawyer to admit an accused defendant’s guilt over his or her express objection.


The ABA’s brief argues that this is indeed a foundational principle of the attorney-client relationship – and an attorney must serve the interests of his or her client, and must respect the client’s right to make fundamental decisions regarding his or her case. The ABA’s position has been consistently reflected in several of our seminal resources that guide attorneys in their ethical duties and the practice of law, including the Model Rules of Professional Conduct, the Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, and the Criminal Justice Standards. The decision to admit guilt at trial is a decision that belongs solely to the competent client, and may not be disregarded by an attorney as a strategic decision. Oral arguments in McCoy v. Louisiana are expected to be held in early 2018.


The Project was proud to support the drafting and filing of this important brief and offers special thanks to Michael Gottlieb, Albert Giang, Bibeane Metsch, Matthew Schwartz, Peter Skinner, and John Zach of Boies Schiller Flexner LLP for their generous pro bono authorship of the brief. 


You can read the ABA News update about the case here

Texas Assessment Team Files Amicus Brief in Important Texas Intellectual Disability Case

November 1, 2017 – Members of the Project’s esteemed Texas Capital Punishment Assessment Team submitted an amicus curiae brief today in Ex Parte Bobby James Moore, which is currently pending before the Texas Court of Criminal Appeals (“CCA”). The case was remanded in March 2017 by the U.S. Supreme Court after it decided Moore v. Texas, which held that Texas’s use of non-clinical standards to determine whether a capital defendant has an intellectual disability was unconstitutional. Today’s excellent brief, written by pro bono counsel at Kilpatrick Townsend, is not on behalf of the ABA, but instead on behalf of Assessment Team members who believe the Court should grant Mr. Moore’s claim for Atkins relief and change his death sentence to life imprisonment.

The Assessment Team’s brief argues that the rule of law and fundamental fairness mandate that Texas adhere to the roadmap established by the Supreme Court for applying Atkins v. Virginia and Hall v. Florida, which, based on the record, mandates a finding that Mr. Moore is intellectually disabled and ineligible for the death penalty.  According to the brief, the Texas framework for determining intellectual disability, applied to Mr. Moore, does not comply with the Eighth Amendment because it is outdated and medically baseless, as it precludes current medical standards, such as the AAIDD’s amended definition of intellectual disability.

In Moore v. Texas, the U.S. Supreme Court provided an evolved, detailed roadmap for constitutionally analyzing Mr. Moore’s claim (and, in fact, cited the ABA’s Texas Capital Punishment Assessment Report as reflecting the fact that “scholars and experts have long criticized” the Texas precedent for determining intellectual disability in death cases.). Finally, the Assessment Team contends that remand to district court for further proceedings is unnecessary, as the Supreme Court has already resolved all relevant issues, and harmful to Mr. Moore, as additional proceedings could take several years and he has already been inappropriately on death row and in solitary confinement for decades.

Special thanks to W. Alan Wright, Joseph S. Dowdy, and Jonathan E. Polonsky of Kilpatrick Townsend & Stockton LLP for their generous work on the brief.



ABA President Expresses Concerns About Execution of Jack Greene in Letter to Arkansas Governor




October 25, 2017ABA President Hilarie Bass wrote to Arkansas Governor Asa Hutchinson to express the Association’s concerns regarding the case Jack Greene, an inmate on Arkansas’ death row. Mr. Greene is scheduled to be executed despite a long history of severe mental illness and the fact that there is very serious concern that, in his current mental state, he does not have a rational understanding of his upcoming execution.





In her letter, Ms. Bass reiterated the ABA position first adopted in 2006 through ABA Policy 122-A opposing the execution of individuals with severe mental illness at the time of the crime, as well as the execution of defendants who do not rationally understanding that they are going to be executed, or why.  Ms. Bass also expressed concern that Mr. Greene’s execution might violate the U.S. Supreme Court decision in Panetti v. Quarterman, 551 U.S. 930 (2007). Indeed, the Panetti decision held that determining incompetence to be executed requires an analysis of whether the inmate has a rational understanding of the government’s reason for executing him, noting, “[a] prisoner’s awareness of the State’s rational for an execution is not the same as a rational understanding of it.”



Read more about Ms. Bass' letter to Gov. Hutchinson



For more information about the issue of severe mental illness and the death penalty, please visit our Resources page.


U.S. Supreme Court Takes Significant Action in Two Death Penalty Cases This Week


September 28, 2017 - Today the U.S. Supreme Court granted a petition for certiorari in McCoy v. Louisiana, a capital case. Mr. McCoy was convicted of three first-degree murder charges and sentenced to death in Bossier Parish, Louisiana, after his attorney conceded his client’s guilt at the beginning of the trial, despite Mr. McCoy’s explicit objections to his lawyer’s plan, both before trial and during opening statements to the jury. The Supreme Court has agreed to hear the case early next year and will consider the question of whether a defendant’s Sixth Amendment right is violated where an attorney, as an assistant or agent of the accused, unilaterally decides to concede a client’s guilt despite the client’s clear lack of consent. Briefing is due to the Court in November.


Earlier this week, the U.S. Supreme Court granted Georgia death-row defendant Keith Tharpe a stay of execution, pending the disposition of his petition for a writ of certiorari on appeal from the Eleventh Circuit Court of Appeals. Mr. Tharpe was convicted and sentenced to death in 1991 after killing his sister-in-law in front of his wife. A few years after the trial, a juror who had voted to impose death told Mr. Tharpe’s state post-conviction attorneys that he had favored the death penalty for Mr. Tharpe because he was a “n****r”, and that the juror’s Bible study had led him to “wonder if black people even have souls.”  The juror also provided these sentiments in a sworn, signed affidavit. To the Court, Mr. Tharpe contends that such clear racial animus of a juror had a substantial and injurious effect on the jury’s verdict of death, grounding his claim in the other recent Supreme Court opinions of Pena-Rodriguez and Buck v. Davis, both relating to race bias and its role in tainting jury deliberations and decisions. If the Court ultimately declines to grant certiorari on these issues, the temporary stay of execution will be automatically terminated and any avenue for legal redressing of this claim will be exhausted.  

Join us online on September 28th for “McWilliams v. Dunn: Ake & Access to Mental Health Expert for Alabama Death Row Inmate?"  

On September 28, 2017, from 1 – 2:30pm EST, the Project is co-sponsoring a webinar, McWilliams v. Dunn: Ake & Access to Mental Health Expert for Alabama Death Row Inmate?". We hope you will register to hear capital defenders and legal experts address the entitlement of indigent defendants to psychiatric evaluation, as established in Ake v. Oklahoma in 1985, and the recent, related developments in the 2017 decision, McWilliams v. Dunn. The requirements of Ake have significantly shaped cases involving indigent defendants whose sanity at the time of the offense was an issue at trial, - including Alabama death row inmate, James McWilliams. In McWilliams, the U.S. Supreme Court held that the Alabama Court of Criminal Appeals’ determination that McWilliams received all the assistance to which he was entitled under Ake - including access to a competent psychiatrist to conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense -  was incorrect, as Mr. McWilliams did not have access to expert assistance in the preparation of his defense or analysis of more than a thousand pages of technical records his lawyers received on the eve of trial.

Please join us to hear from the distinguished capital defense attorneys and experts who were instrumental in McWilliams and who will explain this case’s likely impacts on ensuring that indigent and mentally ill defendants receive a full and fair defense:

  • Mark Loudon-Brown, Southern Center for Human Rights
  • Michael DeSanctis, Munger, Tolles & Olson LLP
  • Patrick Mulvaney, Southern Center for Human Rights
  • Sara Tontonchi, Southern Center for Human Rights

Attendees can receive 1.5 hours of General CLE Credit. Please click here for more information and to register for the webinar.

Fifth Circuit Reverses Texas’s Denial of Appointed Counsel and Expert Funding Relating to Scott Panetti’s Competency to Be Executed

July 11, 2017 – The U.S. Court of Appeals for the Fifth Circuit today ruled in the case of Scott Panetti, holding that the district court abused its discretion in denying Panetti funding for counsel and experts and vacating any previous findings of fact regarding his competency to be executed.  It reasoned that Panetti was denied due process under existing Texas law, and there was no appropriate justification for denying him funding for experts and other investigative resources.


Scott Panetti was convicted for capital murder and sentenced to death in 1995 after killing his wife’s parents in front of his wife and daughter. Panetti, who has a long history of schizophrenia and institutionalization, insisted upon representing himself throughout the legal process. Many appeals followed, some reaching as far as the United States Supreme Court, before the most recent appeal arguing that he is currently incompetent to be executed came before the Fifth Circuit.


Panetti’s appeal is grounded in the claim that Ford v. Wainwright and due process mandate that he should have been provided both the time to prepare filings as well as appointment of counsel and funding for expert assistance in demonstrating his further deteriorated mental state. The Fifth Circuit found that “to refuse to give [Panetti] the time and resources critical to review [his] present condition is error,” and although “the core deficiencies underlying our finding of denial of due process have commendably been alleviated by the Texas legislature[,]” ending there would leave Panetti “in the dust.” 


The ABA has followed this case closely - submitting a letter to Governor Rick Perry in 2014 urging him to stay Mr. Panetti’s execution and allow for a complete and up-to-date consideration of his mental health status, and an amicus brief in 2007 when the case was before the U.S. Supreme Court. In our brief, the ABA argued that execution of a mentally ill offender should occur only if the offender is aware of the nature and purpose of the punishment and appreciates its personal application in his or her case, because, to survive constitutional scrutiny, capital punishment should be able to serve the purpose of retribution. 


Click here to see today’s Fifth Circuit’s decision.

Project Leader Publishes Annual Update on Death Penalty

Project Steering Committee member, Ronald J. Tabak, authored the comprehensive and up-to-date Chapter on the Death Penalty in the ABA’s The State of Criminal Justice 2017. You can find his death penalty chapter online here, and can buy the complete book here if you want a thorough report on the major issues, trends, and significant changes in the U.S. criminal justice system. The 2017 volume contains 22 chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2016-2017 that address criminal justice issues. Mr. Tabak’s chapter notes the Project’s work on severe mental illness reform, several of our recent educational programs, and editorial support of the featured Human Rights magazine issue that came out earlier this year. 

ABA Letter Expresses Concerns Regarding the Case of Virginia Death-Row Inmate William Morva




June 28, 2017 - ABA President Linda Klein sent a letter to the Governor of Virginia, expressing concerns regarding the case of Virginia death-row inmate William Morva, who is scheduled to be executed on July 6 and whose petition for executive clemency is now before the Governor’s Office. 



The ABA is particularly concerned with the significant evidence of Mr. Morva's long history of severe mental illness. Indeed, while the ABA does not oppose or support capital punishment per se, it has long had an interest in ensuring that the death penalty is not imposed on individuals who do not have the highest culpability for the most serious crimes. Based on the same principles that underlied the Supreme Court's reasoning in prohibiting capital punishment for individuals with intellectual disability and juveniles, the ABA opposes the execution of individuals with severe mental disorders or disabilities present either at the time of their crime or at the time of their execution. (See ABA Mental Illness Resolution, 122-A, 2006.



In Mr. Morva’s case, a thorough post-conviction investigation that included his complete psychiatric history led a clinical expert to find that he suffers from delusional disorder (DSM-5 § 297.1), a form of psychosis which causes him to be unable to distinguish reality from delusions. She further found, based on all the interviews and medical records she had, that Mr. Morva was likely experiencing delusions at the time of his crimes that made him believe that people were trying to kill him. Additionally, there are reports that he continues to show symptoms to this day, as he refuses to accept visits from his family and lawyers, believing that they are part of a conspiracy to kill him.



The evidence suggests that Mr. Morva’s severe mental disorder was present at the time of his crimes and still is present as he is approaching his execution date. It is for these reasons that the ABA urges the Governor to give full consideration to the issue of his severe mental illness and how it may have impacted his understanding of reality and ability to control his actions before deciding whether to grant or deny his clemency petition.



Click here to read more information about William Morva's case.

Click here to learn about our Mental Illness Initiative.








Supreme Court Rules Ineffective Assistance of Post-Conviction Counsel Does Not Excuse Procedural Default




June 27, 2017 – Yesterday, the U.S. Supreme Court held in Davila v. Davis that the exception to procedural default in habeas corpus claims announced in Martinez v. Ryan and Trevino v. Thaler should not be extended to claims that post-conviction counsel’s ineffective representation and failure to raise timely claims compounded appellate counsel’s ineffectiveness.




Davila was convicted of capital murder in 2008 after firing a rifle at a group of people, believing one of them was a member of a rival street gang. He stated in his confession that he did not intend to kill the “other guys,” leading the jury to hear an instruction on transferred intent that said it could find the defendant guilty of murder if it determined he intended to kill one person but instead killed a different person. The defendant’s trial lawyer objected to this instruction but was overruled, and Davila was convicted and sentenced to death.




Davila appealed his conviction, but his appellate counsel did not challenge the instruction on transferred intent. When this appeal was unsuccessful, Davila sought post-conviction relief, but that attorney also did not challenge the instruction about transferred intent nor did he challenge the failure of his appellate counsel to raise the issue on direct appeal. With new counsel, Davila later sought habeas relief in federal District Court, where he invoked Martinez and Trevino, arguing that his appellate and state post-conviction counsel provided ineffective assistance by failing to challenge the jury instruction.




Davila argued that allowing a claim of ineffective assistance of appellate counsel to evade review is equally as concerning as allowing one of ineffective assistance of trial counsel to escape review.  However, the U.S. Supreme Court noted that although the Constitution guarantees the right to a criminal trial, a prisoner does not have a right to counsel in state post-conviction.  The Court then held that attorney error cannot provide cause to excuse a default if the Constitution does not guarantee the assistance of counsel at that stage; thus, “the ineffective assistance of post-conviction counsel does not provide cause to excuse the procedural default of ineffective-assistance-of-appellate-counsel claims.” The Court reasoned that claims of ineffective assistance of appellate counsel do not pose the same risk as claims of ineffective assistance of trial counsel that a trial error will escape review.




The Court’s decision is available here.



Supreme Court Rules in Favor of Defendant in McWilliams v. Dunn and Holds that State Must Provide a Defendant With a Competent Mental Health Expert

June 19, 2017- Today, the U.S. Supreme Court held in McWilliams v. Dunn that Alabama violated the rights afforded to James McWilliams under Ake v. Oklahoma. Under Ake, the state must provide access to a “competent psychiatrist” to indigent defendants if they suffer from a mental condition that may be relevant in their court proceedings. The psychiatrist must “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”


McWilliams is an indigent defendant who was diagnosed with a documented mental condition, Organic Personality Syndrome. After his trial in 1986, the court appointed a neuropsychologist to examine him before his sentencing hearing. Two days before the hearing, the neuropsychologist issued a report noting that he had some “genuine neuropsychological problems.” The trial judge refused to grant his attorneys a continuance to further investigate these problems, sentencing McWilliams to death. The Alabama Court of Criminal Appeals upheld his conviction in 1991 on the grounds that his examination was sufficient, and the federal habeas court and Eleventh Circuit denied him relief. However, the Supreme Court held yesterday that the examination was insufficient as the neuropsychologist did not have a chance to help defense counsel evaluate, prepare, and present a defense. This error, the Court held, was “contrary to” or an “unreasonable application” of “clearly established Federal law.”




The Court did not decide whether the error had a “substantial and injurious effect” necessary to grant habeas relief, remanding this question to the Eleventh Circuit. The court also did not decide the question of whether the psychiatrist had to belong specifically to the defense team, instead reaffirming the Ake rule that the expert be available to the defense and independent from the prosecution to the extent that he could fulfill his duties. The ABA has long had a policy that indigent defendants should be provided with access to mental health experts during trial and sentencing. This policy is outlined in ABA Criminal Justice Mental Health Standards 7-3.3 and 7-9.4. More broadly, the ABA also calls for people with demonstrated severe mental illnesses present at the time of the crime to be exempt from the death penalty.




ABA Files Amicus Brief to U.S. Supreme Court in Ayestas v. Davis, Asks Court to Require Adequate Funding for Post-Conviction Investigations




June 16, 2017 - Today, the American Bar Association filed an amicus brief in Ayestas v. Davis, asking the U.S. Supreme Court to reverse a decision by the U.S. Fifth Circuit Court of Appeals setting a “substantial need” rule for funding for investigation of claims in post-conviction capital cases.



The Supreme Court has long recognized that well established standards of professional conduct require that counsel conduct an independent and adequate investigation of the facts at each stage of the process. The Court has also recognized that the statutory guarantee of counsel in federal habeas proceedings – a critical and highly complex stage of litigation – must be meaningful, and that petitioners are entitled to “reasonably necessary” services to support their representation. Importance of habeas counsel’s duty to investigate is also well supported by the ABA Death Penalty Guidelines and ABA Criminal Justice standards.



However, in 2016, the 5th Circuit found that defendants like Carlos Ayestas must show a “substantial need” for investigative services to receive funding – a standard higher than the “reasonable need” standard defined by federal statute. In an amicus curiae brief filed on June 16, the ABA argues it is virtually impossible to meet this standard without the funding needed to develop the case, and creates a catch-22 for defendants like Ayestas: they can’t get the funding needed to hire investigators or mental health experts without showing a court the facts that the expert would be hired to discover. In its brief, the ABA calls the appeals court’s rule “restrictive and circular.”



In addition, Carlos Ayestas argues that his original counsel was ineffective, which requires as a result that his current attorneys conduct an “independent and adequate investigation of the facts.” As noted by the ABA brief, an ineffective assistance of counsel claim is particularly likely to need additional investigation, since a prior ineffective attorney will not have gathered all the required information. In contexts like this one, the 5th Circuit “substantial need” test blocks essential funding and prevents counsel from meeting their ethical obligations.



Although certiorari was granted in April 2017, the U.S. Supreme Court has not yet scheduled the oral argument.



Special thanks to Clifford Sloan, Donald Salzman and Brendan Cants at Skadden for their work on the brief.

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