So the State of Alabama wants to kill Amy Bishop, but doesn’t want to pay for further psychiatric testing on the issue of criminal responsibility? Okay, maybe I’m being a little crass here and resorting to hyperbole, but it seems to me there is both disconnection and denial in the position the State of Alabama is taking in connection with Ms. Bishop’s triple homicide case. My related thoughts are not intended as a referendum on the death penalty. Nor is this an analysis of the particular merits of her defense. However, it is axiomatic to me that whenever a state or sovereign elects to pursue the ultimate criminal sanction — the death penalty — upon conviction, it is incumbent on the State to make sure that justice is given every reasonable opportunity to be served to its fullest extent before such final punishment is imposed and carried-out. It is similarly incumbent upon defense counsel to make sure that every possible viable defense has been considered and every possible avenue of relief is sought in connection with the same process. Isn’t that the deal that’s struck?
If Alabama wants to impose the death penalty in certain cases, that’s their right, at least since the United States Supreme Court’s decision re-establishing the validity of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976) (overruling Furman v. Georgia, 408 U.S. 238 (1974)). But such election has to come with both the responsibility and commitment of making sure that the State is correct beyond a reasonable doubt and that due process is rigidly observed. Isn’t that also the minimum trade off and haven’t we already seen that reflected in the increasing number of states that have finally passed sensible post-conviction DNA testing laws? Shouldn’t that same logic prevail pre-conviction too, especially in death penalty cases?
Now I don’t know the first thing about the status of Ms. Bishop’s personal finances. I also don’t have any idea whether family members have the financial ability and/or desire to support her defense. I do know there is process involved whenever a defendant is seeking public funding, as I have pursued it myself on behalf of many clients. Basically, the defense files a motion for funds and/or a judicial declaration of defendant’s indigency, usually accompanied by a financial affidavit attesting to the petitioner’s indigency, that sets forth both the basis and need for the funding. The Court first determines whether the client is, in fact, indigent, and second whether there is merit to the request. It’s as simple as that, but for the fact that in a capital case where the death penalty option is being exercised, courts, as the trial court in the Bishop case apparently did in approving the defendant’s request for funding, should of necessity proceed with an abundance of caution in which all benefit of doubt must be afforded a defendant. In such cases, frankly, prosecutors ought to be prepared to back off or back down, except in instances of frivolousness or obvious obstruction and delay. Here, Ms. Bishop’s attorneys clearly feel further (follow-up) psychiatric testing is needed and integral to their psychiatric defense, particularly to rebut any psychiatric evidence introduced by the prosecution, who has hired a qualified expert, also at the State’s expense. I cannot imagine an objection to state-funding in a case, like this, where indigency has been established, particularly when prosecutors and the trial court have publicly acknowledged and cited budgetary issues. Talk about a guaranteed appellate issue! And excuse me for asking, but if one’s state is so financially strapped, why codify a sanction that is always accompanied by the most expensive appeal process in our comprehensive court system? It makes it seem particularly "crazy" to me that the State (read the Finance Department) won’t cut the check even after judicial approval.
As I have said before, it’s not that our Criminal Justice System is unfair, per se. Far from it. Still, far too often, the quality of justice one receives directly correlates to how much one can pay (e.g., for top-quality lawyers, expert services, private investigators, etc.). That’s the main piece that, in my opinion, needs to be addressed and needs to be fixed. Maybe Ms. Bishop doesn’t really need follow-up testing, but maybe she does. It’s that last point that has to control here. I mean maybe I’m being indelicate putting it like this, but it seems to me if the State of Alabama really is determined to see Amy Bishop (or anyone) "hang", it has to be willing to provide enough "rope" in the process