Opinion
No. 85-01174.
February 8, 2010.
Shelby County.
MOTION FOR LEAVE TO FILE AMICUS CURIAE STATEMENT
COMES the Tennessee Association of Criminal Defense Lawyers (TACDL), pursuant to Rule 31 of the Tennessee Rules of Appellate Procedure, and moves this Honorable Court for leave to file an amicus curiae statement on the issue of whether the Court should set an execution date in this case.
In support of this motion, TACDL states the following:
1. TACDL is a non-profit statewide organization with approximately 800 members, including private criminal defense lawyers, public defenders, law professors and students. Founded in 1973, TACDL is the state's leading organization advancing the mission of criminal defense lawyers to protect and ensure the individual rights guaranteed by the United States and Tennessee Constitutions in criminal cases. TACDL seeks to promote study and provide assistance within its membership in the field of criminal law. Among TACDL's objectives are to facilitate the exchange of information within the membership including information about the defense of criminal cases, educational programs, membership meetings, special committees, and publications. TACDL is committed to advocating fair and effective criminal justice in the courts, the legislature, and wherever justice demands. TACDL has a specialized Death Penalty Committee devoted to training, advocacy and fairness in capital cases. TACDL has long had an Amicus Curiae committee that follows cases that could significantly impact the administration of justice. When TACDL has a unique perspective that can assist the courts in evaluating issues, members volunteer to research and file amicus curiae briefs. In this case, participation on behalf of Ms. Owens has been approved by the Death Penalty Committee, the Amicus Curiae Committee and the Executive Committee of the Association.
Mission Statement of Tennessee Association of Criminal Defense Lawyers, available at www.tacdl .com/missionpurpose.htm.
2. Members of the Tennessee Association of Criminal Defense Lawyers have a particular interest and expertise in the functioning of the capital system in Tennessee. The Association's members practice in criminal courts statewide, and it is respectfully submitted that the Association's experience and research will assist the Court in reaching its decision. The Association provides specialized training in the defense of capital cases. The Association has a particular interest in ensuring the fairness of the system and in ensuring that each case is decided on its own merits. Members of this Association have faced the predicament of being given plea offers that are contingent on forces outside of their client's control and as such have a unique perspective and interest in the process. See 20A Moore's Federal Practice §§ 329.11 ("classic" role of amicus is to assist court "in a case of general public interest") (3d ed. 2004).
Respectfully submitted this 8th day of February 2010.
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing pleading has been forwarded to Gordon Smith, Assistant Solicitor General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this the8 th day of February 2010.
TENNESSEE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS' AMICUS STATEMENT IN SUPPORT OF GAILE OWENS' RESPONSE TO THE ATTORNEY GENERAL'S MOTION TO SET AN EXECUTION DATE FOR GAILE OWENS AND REQUEST FOR A CERTIFICATE OF COMMUTATIONThe Tennessee Association of Criminal Defense Lawyers, as amicus curiae, respectfully submits that the unique facts of Ms. Owens' case raise serious questions as to the appropriateness of execution of Gaile Owens when she tried her best to plead guilty and accept responsibility but was prevented from doing so by circumstances over which she had no control. Further, a review of the procedural history of Ms. Owens' case shows that her fate has not been determined pursuant to an individualized, fully informed, sentencing decision showing that she was among the worst class of offender.
Despite the fact that there are a number of levels of review available in capital cases, there will always be a few cases in which justice is elusive. The facts of Ms. Owens' case illustrate that this is such a case. Having reviewed Ms. Owens' Response, the Association writes to emphasize that this Court has the authority at this stage to decline to set an execution date and either to modify the judgment to life imprisonment or to recommend that the governor commute the sentence. (Owens' Response at page 2, note 1). TACDL recognizes and emphasizes that this procedure should be carefully and rarely used. TACDL respects the jury system and is not asking this Court to substitute its judgment for the judgment of a jury that heard all relevant evidence and was properly instructed. In this case, Ms. Owens never had a trial at which all the relevant facts were presented to a jury. The Court has discretion, however, in a rare case like this to prevent execution of a defendant when the truth finding process has not been fairly and accurately applied, regardless of the reason or assignment of blame.
In fact, the case presents an opportunity for the Court to help educate the public on the capital process. Courts are routinely criticized for allowing multiple appeals and taking too long to carry out death sentences. The Court here could set out in its order the precise history of this case and emphasize the role of different levels of review and show how it is possible in a rare case like this that the facts are never presented in a way that fulfills the requirement that death sentences are only carried out on the basis of a reliable and individualized finding that the defendant is among the worst class of offender. This would be in keeping with the educational role that has been adopted by this Court. Seehttp://www.tsc.state.tn.us/OPINIONS/TSC/CapCases/CapCases.htm, setting out capital case information and filings and the SCALES program.
Acceptance of responsibility. There is no question that our system is generally designed to reflect that society values acceptance of responsibility by the defendant. The jury that sentenced Ms. Owens never knew that she had attempted to plead guilty and accept responsibility. TACDL urges the Court to look closely at the fact that Ms. Owens attempted to plead guilty and accept responsibility for her actions. It is the understanding of the Association that Ms. Owens is the only death-sentenced defendant who signed and accepted a plea offer allowing her to accept responsibility for her conduct. The only impediment was the behavior of the codefendant who did not share her desire to accept responsibility. The prosecutor certainly had valid grounds for offering a life sentence to Ms. Owens. One need only read an account of the facts that were known to the State to understand that Ms. Owens was not among the worst class of murderer sufficient to warrant the death penalty. Owens v. Guida, 549 F.3d 399, 424-25 (6th Cir. 2008)(dissent) cert, denied. 130 S. Ct. 281,175 L. Ed. 2d 135 (U.S. 2009). Ms. Owens' attempt to plead guilty was rejected for an unconstitutional reason. TACDL agrees that courts should not participate in the plea bargaining process and recognizes that criminal defendants do not have a right to receive plea offers. It has often been held that a District Attorney has the right not to engage in plea bargaining. What happened here is different. Having determined that a plea offer should be made to Ms. Owens, that plea was controlled by a third party who had no legal training and no connection to Owens. While contingent plea agreements have been upheld, here, the District Attorney's desire to keep the codefendants together was based in this case on an unconstitutional motivation. Ms. Owens' response points out that the Assistant District Attorney resisted severance because he was afraid he could not use Ms. Owens' pretrial admissions against the codefendant if they were not tried together. Thus, the decision was based on a desire to violate the confrontation clause. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Cruz v. New York, 481 U.S. (1987) (confrontation clause violated by introduction of non-testifying codefendant statement even if "interlocking").
While the majority opinion in Owens v. Guida finds no cognizable right to present evidence of an attempt to plead guilty, this Court can consider the fact in exercising its discretion.
Having engaged in plea bargaining, the State should not be allowed to base its final approval either on the actions of a third party or, even more importantly, on an unconstitutional motivation. It does not appear that this issue has ever been addressed by any court. The circumstances presented show that Ms. Owens' fate was not determined by decisions on the merits that were specific to her. SeeWoodson v. North Carolina, 428 U.S. 280 (1976).
Plea bargaining would not be affected by the requested relief. The action that TACDL advocates here does not threaten the plea bargaining process. District Attorneys will still have the authority to engage in plea bargaining or not as long as it is not for an unconstitutional purpose. There will no effect on the day to day operations that prosecutors and defense counsel have in resolving cases. Courts will still be prohibited from engaging in the plea bargaining process, and the District Attorney's office is not losing any of its discretion as to which cases merit plea negotiation.
If the Court sets an execution date, this evidence will never be presented. Ms. Owens will be executed without her story ever accurately having been told in court. As an association that is devoted to the proper functioning of the criminal justice process, TACDL respectfully asks this Court to use its inherent authority to prevent an execution under these circumstances.
Respectfully submitted this 8 th day of February 2010.
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing pleading has been forwarded to Gordon Smith, Assistant Solicitor General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this the8 th day of February 2010.