Criminal defense attorneys always dread dealing with the cases that carry significant punishments – no more so than that of capital punishment. States that allow capital punishment keep the possibility of execution on the table. Eighteen states and the District of Columbia do not currently allow capital punishment. The rest do, although the frequency of use depends largely on the prosecutor in charge. For example, in Texas the last offender executed out of Travis county was in 2010, while Harris county leads the number of convictions through death penalty in the United States. In Florida, the State Attorney Aramis Ayala was removed by the governor because of her refusal to seek the death penalty in prosecuting murders in the state.
Aside from the moral implications of the death penalty, states are also facing a new issue – the cocktail used to carry out the deaths have failed to pass the Constitutional requirement prohibiting cruel and unusual punishment. Many manufacturers have stopped providing drugs and pharmacies often refuse to supply the paralytics and sedatives required to stop someone’s heart. Already, the number of people who have actually been put to death is at its lowest since 1991, and is concentrated largely to southern states. But, Arkansas has been rushing to execute its death row prisoners before the supply of drugs expires. Mississippi has tried to continue using the lethal injection as an option, but continues to face lawsuits. Therefore, lawmakers have decided to use the traditional execution methods if the lethal injection protocol will no longer be viable: gas, electric chairs or death by firing squad.
For defense attorneys, states with capital punishment at the end of the line are intimidating. Jury trials in and of themselves take months of preparation. Evidence must be gathered, reviewed and objected to. There are likely deals being traded back and forth, because typically, a jury trial with capital punishment is just as grueling for the State. And unless the client is an incredibly wealthy defendant, like Robert Durst, the State likely has far more resources to carry the case to trial. If there is a conviction and a sentence for capital punishment, it will most likely be appealed. In many cases, the grounds for appeal is ineffective assistance of counsel at the trial level – meaning the criminal defense attorney will be to blame for the conviction. The vast majority of these claims are outright rejected, or even if there is evidence of ineffective assistance of counsel, it will be determined as harmless.
What has been hugely successful in exonerating inmates on death row is the existence of DNA. According to the Innocence Project, 349 inmates have been exonerated due to the existence of DNA evidence that was not present at trial. Therefore, any defense attorney worth their salt should be an absolute bull dog about requesting DNA. On the flip side, if DNA exists and it points to the guilt of your client, then the attorney should be an absolute bull dog about the testing facilities and procedures used in order to raise questions about the validity of the result. While it might be a long shot, just remember the fascinating story of O.J. Simpson, whose DNA was found on multiple items of clothing and in multiple places – and yet, he was completely acquitted of any crime.