Still sitting on the floor, Mark watched Katja’s shoes recede, then went back to the boxes. He pulled out a document at random and looked at it. Report of Peter D. Samuels, Ph.D. What’s this? I have no idea what I’m doing, what I’m looking for, he thought. Time to ask for advice. He went back inside his office and picked up the phone.
“Look, Walker,” he said. “I don’t know what to do here.”
Walker’s yawn was almost silent. “Read the stuff they gave you,” he said. “Figure out what we’re trying to achieve. Then write me a memo about it. A short one.”
“Well, I know what we’re trying to achieve,” Mark said. “We’re trying to save this guy’s life.”
“We’re what?” Walker asked.
“But I don’t know where to start on it. I don’t know the first thing about the death penalty.”
The howl of dismay was entirely silent, but veins stood on Walker Eliot’s neck. He clenched the phone in shock. Oh, shit, he thought. This is a death penalty case? I took a death penalty case?
Walker took a deep breath, trying to regain composure. He contorted his face into a grimace of distress, on the theory that a physical manifestation of his sentiments would remove them from his mind. It was partially effective. “Where are we now?” he asked.
“Filing a federal habeas petition, I guess.”
“Okay,” said Walker. “So he’s gone through the state system. What we need to do is look for errors in the trial. Or the penalty phase.”
“What’s that?”
Walker twisted in his chair, which did not twist with him. With one hand he massaged his temples. He had explained the workings of the death penalty before, most often to groups of schoolchildren visiting the Supreme Court. He had developed a speech he could deliver by rote. Then in the course of one long night he had experienced what he described, and now he found he didn’t want to talk about it anymore.
“Here’s what you need to know,” he said finally. “There’s a trial, there’s a conviction. That’s the guilt phase. Then there’s a penalty phase, to determine whether a death sentence is appropriate. We’re going to identify errors in those phases. Ideally, they’d be constitutional errors, because that’s what federal habeas is for. But they don’t have to be. The Constitution guarantees you a lawyer. And not just any lawyer, a reasonably competent one. That doesn’t mean much, but it does mean that if your lawyer missed a winning argument, you can say that he was constitutionally ineffective. So a big enough mistake can give you a constitutional argument. That’s what you’re looking for.”
“What if I can’t find any?”
“Then the habeas petition will be dismissed. And then we can appeal to the Fourth Circuit, and if they affirm the dismissal, we could file a cert petition with the Supreme Court. Or you could—the Court doesn’t allow clerks to work on Supreme Court cases for two years after they leave.”
“And what does the Supreme Court do?”
“Usually they deny it,” Walker said uncomfortably. It was starting to seem easier just to give the talk. “They don’t have to hear any case they don’t want to, and most death cases don’t present the sort of legal issues they spend their time on. That’s pretty easy with an ordinary habeas case. It’s the last-minute stuff that causes the problems. When the death warrant actually issues, prisoners almost always try to get last-minute stays from federal courts, and if they can’t, they appeal the denials up to the Supreme Court. That’s what makes the clerks stay up so late. The Justices go home, and the clerks wait for the filings, call the Justices to get their votes, and keep doing it until the all-clear signal comes around.”
“All clear?” asked Mark.
“It means nothing more will be filed,” Walker said. “So it’s all clear for the clerks. For the guy on the gurney it means something very different. But you don’t need to worry about that yet. Here’s what you should do. Start with the Virginia Supreme Court opinion. Just give it an issuespotting
read—look for legal problems, or factual descriptions that seem odd. They should be candid about the issues, but sometimes they like to hide the ball. If something strikes you as unfair, note that. It’s probably just Virginia law, but it might be unconstitutional.”
“Right,” said Mark, hanging up the phone. He took the opinion from a box and began to read.