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V.   The Capital Review Process

This phase of our study asks what state and federal courts discovered when they inspected capital convictions and sentences imposed during the 23-year study period. In a later phase, we will consider some candidate causes of the evidently irrational patterns of error that those courts have detected. In order to frame these questions, we first describe the capital-inspection process whose results we are studying.

A.   First Inspection: State Direct Appeal

In Furman v. Georgia and later cases, the Supreme Court suggested that state high courts were required to review all death sentences on direct review.86 As a consequence, the law of nearly all states requires that capital judgments be automatically appealed.87 And as a matter of fact, virtually all capital judgments are appealed.88 In all but two of our study states, that appeal ran directly from the trial court to the highest court in the state with criminal jurisdiction, which is typically the state supreme court or, as in Oklahoma and Texas, a "court of criminal appeals."89 In Alabama and Ohio, there were two rounds of appeals in the state direct review process-first to an intermediate court of criminal appeals, and then to the state supreme court.90 Reversal of a capital conviction or sentence on direct appeal requires a showing of "serious error" as defined earlier.91

In nearly all cases in which the direct appeal decision runs entirely against the defendant, he or she seeks certiorari in the United States Supreme Court.92 Although in the vast majority of cases, the Supreme Court denies review, it occasionally undertakes merits review and either affirms or reverses.93 Certiorari proceedings are typically understood to be a part of the direct review, or pre-finality, stage of a criminal case,94 and they are treated that way here. If the Supreme Court reversed a capital conviction or sentence on direct review of the state high court's decision, we counted that decision as a direct-appeal finding of serious (indeed, in all such cases, federal constitutional95) error.

B.   Second Inspection: State Post-Conviction

In order to seek federal habeas review of a constitutional claim, the prisoner must have exhausted at least one full round of state judicial remedies for the claim.96 There are certain kinds of claims that cannot easily be exhausted at trial and on direct appeal because the defendant cannot discover or adequately litigate the facts or the legal principles supporting the claims at trial or on direct appeal.97 This sometimes occurs (1) because a police officer, prosecutor or other state actor has suppressed the relevant facts (which may itself have violated the Constitution, as when the suppressed facts show the defendant is innocent,98 or may keep the defendant from establishing the violation of some other principle, as when police suppressed evidence that they coerced the defendant into confessing, or when the prosecutor hid his efforts to keep African-Americans off of criminal juries99); (2) because the agent of the violation was the defendant's own trial or direct appeal attorney (as in the case of ineffective assistance of counsel), thus preventing the defendant from recognizing or fairly litigating the claim;100 (3) because the evidence establishing the claim was not reasonably available to the defense at the time of trial or appeal for some other reason101 (as when counsel later discovers that the trial judge was corrupt102 or biased,103 that a juror lied during the jury selection process,104 or that the bailiff secretly lobbied the jury to convict or condemn105); or (4) because the legal rule establishing the claim did not exist at the time of trial or appeal and the rule applies "retroactively" to the prisoner's case.106

Because the Supreme Court has suggested that states are constitutionally required to provide adequate state post-conviction remedies for federal constitutional claims that cannot properly be pursued at trial and on direct appeal,107 and because federal habeas law rewards states when they do provide such remedies,108 all states now do so.109 State capital prisoners seeking to preserve their access to federal habeas review accordingly are obliged to exhaust those remedies, and the professional obligation of capital attorneys to subject their clients' convictions and sentences to searching scrutiny compels them to pursue state post-conviction review in nearly all capital cases.110

State post-conviction review takes a variety of forms under a variety of names (e.g., habeas corpus, coram nobis, extraordinary motion for new trial, and state post-conviction procedures acts). Traditionally, such proceedings have taken place after the completion of state direct appeal and have entailed the filing of a petition for review with the judge who presided over the original trial, and the appeal of any adverse rulings up to an intermediate state appellate court and then to the state high court.111 More recently, an increasing number of states (1) have adopted "unitary appeal" procedures that require direct appeal and state post-conviction proceedings to take place nearly simultaneously,112 and/or (2) have required prisoners to commence state post-conviction proceedings in a state intermediate or high court that either can grant or deny state post-conviction relief once and for all, or can remand the case to a trial court to take evidence. In most states, state post-conviction review is limited to claims that were not and could not have been raised on direct appeal and that arise under state or federal constitutional law.113

Most capital prisoners also seek U.S. Supreme Court review on certiorari of adverse state post-conviction proceedings, which the Supreme Court (very) occasionally grants.114 In the event that the Court does so, and grants relief, our classification scheme counts that decision as part of the state post-conviction inspection phase.115

C.   Third Inspection: Federal Habeas Corpus

Because federal habeas corpus practice is controlled by federal statute,116 it is far more uniform across states than are direct appeal and state post-conviction proceedings. Habeas proceedings begin with the filing of a petition in a United States District Court in the state in which the defendant was convicted and is incarcerated.117 If relief is denied, and if (but only if) the prisoner can show that his petition presents a substantial constitutional claim, he may appeal the denial to a federal circuit court,118 and if the district court opinion is affirmed and a stay of execution is available, he may petition the Supreme Court for certiorari.119 Although habeas proceedings at the district court level are a matter of statutory right, stays of execution are not, thus limiting capital habeas proceedings to cases in which the prisoner can secure a federal stay of execution based on a substantial constitutional claim.120 Habeas relief is limited to a category of "serious error" that is even narrower than the analogous of category of "serious" direct-appeal error.121

A stylized depiction of the post-trial review process in capital cases that we are studying here is set out below.

Figure 5
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