1. THE DEFENSE NEVER RESTS Reflections on Death, DNA and Dogma Michael Edwards, Visiting Professor Sheffield Hallam University, Dept. of Law & Criminology Helena Kennedy Centre for International Justice

2. DEATH

3. www.deathpenaltyinfo.org 1,418 U.S. executions since 1976, the year the U.S. Supreme Court reinstated the death penalty. Over half of all executions since 1976 (753) have occurred in just 3 states - TX, OK and VA. 3,002 people on death row in the U.S. as of 1 April 2015. (www.deathpenaltyinfo.org/documents/FactSheet.pdf)

4. www.deathpenaltyinfo.org 31 States, including Georgia, the U.S. military and the federal system have death penalty statutes. 19 States and the District of Columbia have repealed death penalty laws. 156 death row exonerations since 1973, 11% of the number of executions over almost the same period.

5. www.deathpenaltyinfo.org 58 Georgia executions since 1976, three in 2015. 84 people on death row in Georgia, all of whom are male. The last female, Kelly Gissendaner, was executed on 30 Sept. 2015. Six Georgia death row inmates have been exonerated since 1973.

6. American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Revised Edition February 2003

7. 2003 ABA GUIDELINES TABLE OF CONTENTS GUIDELINE 1.1—OBJECTIVE AND SCOPE OF GUIDELINES GUIDELINE 2.1—ADOPTION AND IMPLEMENTATION OF A PLAN TO PROVIDE HIGH QUALITY LEGAL REPRESENTATION IN DEATH PENALTY CASES GUIDELINE 3.1—DESIGNATION OF A RESPONSIBLE AGENCY GUIDELINE 4.1—THE DEFENSE TEAM AND SUPPORTING SERVICES GUIDELINE 5.1—QUALIFICATIONS OF DEFENSE COUNSEL GUIDELINE 6.1—WORKLOAD GUIDELINE 7.1—MONITORING; REMOVAL GUIDELINE 8.1—TRAINING GUIDELINE 9.1—FUNDING AND COMPENSATION GUIDELINE 10.1—ESTABLISHMENT OF PERFORMANCE STANDARDS GUIDELINE 10.2—APPLICABILITY OF PERFORMANCE STANDARDS GUIDELINE 10.3—OBLIGATIONS OF COUNSEL RESPECTING WORKLOAD GUIDELINE 10.4—THE DEFENSE TEAM GUIDELINE 10.5—RELATIONSHIP WITH THE CLIENT

8. 2003 ABA GUIDELINES TABLE OF CONTENTS GUIDELINE 10.6—ADDITIONAL OBLIGATIONS OF COUNSEL REPRESENTING A FOREIGN NATIONAL GUIDELINE 10.7— INVESTIGATION GUIDELINE 10.8—THE DUTY TO ASSERT LEGAL CLAIMS GUIDELINE 10.9.1—THE DUTY TO SEEK AN AGREED-UPON DISPOSITION GUIDELINE 10.9.2—ENTRY OF A PLEA OF GUILTY GUIDELINE 10.10.1—TRIAL PREPARATION OVERALL GUIDELINE 10.10.2—VOIR DIRE AND JURY SELECTION GUIDELINE 10.11—THE DEFENSE CASE CONCERNING PENALTY GUIDELINE 10.12—THE OFFICIAL PRESENTENCE REPORT GUIDELINE 10.13—THE DUTY TO FACILITATE THE WORK OF SUCCESSOR COUNSEL GUIDELINE 10.14—DUTIES OF TRIAL COUNSEL AFTER CONVICTION GUIDELINE 10.15.1—DUTIES OF POST-CONVICTION COUNSEL GUIDELINE 10.15.2—DUTIES OF CLEMENCY COUNSEL

9. GUIDELINE 4.1—THE DEFENSE TEAM AND SUPPORTING SERVICES A. The Legal Representation Plan should provide for assembly of a defense team that will provide high quality legal representation. 1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist. 2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.

10. GUIDELINE 10.4.—THE DEFENSE TEAM C. As soon as possible after designation, lead counsel should assemble a defense team by: 2. Subject to standards of the Responsible Agency that are in accord with these Guidelines and in consultation with associate counsel to the extent practicable, selecting and making any appropriate contractual agreements with non- attorney team members in such a way that the team includes: a. at least one mitigation specialist and one fact investigator; b. at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments; and c. any other members needed to provide high quality legal representation.

11. GUIDELINE 10.7.—INVESTIGATION A. Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty. 1. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented. 2. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented.

12. DNA

13. www.innocenceproject.org 33014140 Number of Average Number of Number of Real DNA Exonerations Years Served Perpetrators Found 7 Number of Other Than THE DNA Exonerations CAUSES ⇓ ⥇ Eyewitness Misidentification ⥇ Unvalidated or Improper Forensic Science ⥇ False Confessions/Admissions ⥇ Informants/Snitches ⥇ Government Misconduct

14. www.georgiainnocenceproject.org 5,900 letters received 52 clients accepted 7 exonerations

15. “Finding a person’s DNA implies their presence, but presence is not a necessary consequence of that find.” -- Allan Jamieson, Forensic Institute, Glasgow “DNA is ubiquitous. There are lots of examples where inadvertent transfer of DNA has happened. The problem is these evidence items are often kept in plastic bags and if you have got heavily bloodstained items, for example, then DNA is going to transfer across items.” -- Peter Gill, formerly of UK Forensic Science Services

16. Although generally quite reliable (particularly in comparison with other forms of evidence often used in criminal trials), DNA tests are not now and have never been infallible. Errors in DNA testing occur regularly. DNA evidence has caused false incriminations and false convictions, and will continue to do so. Although DNA tests incriminate the correct person in the great majority of cases, the risk of false incrimination is high enough to deserve serious consideration in debates about expansion of DNA databases. The risk of false incrimination is borne primarily by individuals whose profiles are included in government databases (and perhaps by their relatives). Because there are racial, ethnic and class disparities in the composition of databases, the risk of false incrimination will fall disproportionately on members of the included groups. -- William C. Thompson, Professor and Chair of the Department of Criminology, Law & Society at the University of California, Irvine

17. DOGMA

18. What is the Rule of Law? A system in which the following four universal principles are upheld: 1. The government and its officials and agents as well as individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

20. ANTI-DOGMA

21. A JUDICIAL "THIRD WAY" Restorative Justice > Retributive Justice Therapeutic Courts > Adversarial Courts Criminal Justice as Social Justice What is your role?