St. Mary's Law Journal


Daniel Givelber


Although originally federal courts were sources of new rights available to those accused of capital crimes, federal courts have become extremely difficult to access. One reason for this is the United States Supreme Court showing a marked lack of interest in developing new constitutional doctrine helpful to the accused. Another reason for the diminished role is that access to federal courts is so difficult. Frequently, access is difficult because the issues lawyers want federal courts to address have never been adequately presented in state courts. Yet, federal venues remain essential to capital punishment litigation. It is considerably easier to define the challenge of successfully raising federal issues in state court than it is to suggest a cure for the problem. Although this presumes a problem which requires a solution. The problem would disappear if the Supreme Court acknowledged the extent to which federal constitutional doctrine has permeated state criminal procedure. Thus, holding any claim under state law founded on the fundamental unfairness of the state procedure necessarily implicates the Due Process Clause of the United State Constitution. This would obviate the need to turn every failure to add a due process claim to an existing state law claim into an allegation of ineffective counsel. The more intriguing problem is whether the ineffectiveness route is likely to be meaningful in the area of capital representation. Meaning, should the court recognize capital representation as unique and should lawyers’ obligations extend beyond the personally conducted proceedings? Courts have not favored claims that appellate lawyers are ineffective because they fail to raise particular arguments. Yet, the Supreme Court also made exclusion from federal court the price of failing to raise federal claims in state court. Effective representation apparently does not include preserving a defendant’s right to federal adjudication of a federal claim.


St. Mary's University School of Law