The following is a guest blog post by Hugh Southey, an English Barrister who has worked on Texan death penalty cases. He can be reached by email.
Linda Carty's case has been generating increasing media coverage in the United Kingdom. For example, the Times of London has recently published an editorial calling on the United Kingdom government to do all that it can to prevent Linda being executed.
One of the features of that coverage has been a concern about the safety of Linda's conviction. That is not surprising. The 5th Circuit Court of Appeal and the State of Texas has accepted that Linda's trial counsel performed unreasonably.
The approach of the appellate courts to the issues raised by Linda's case explains why her conviction and sentence stand despite the concerns about the safety of her conviction. There are a number of procedural rules that apply in Texas death penalty cases that mean that a person may be prevented from raising strong arguments. In this case, a number of issues have not been given substantive consideration as a consequence of the application of procedural rules. For example, some of the material said to demonstrate that Linda's trial lawyer was ineffective was not given substantive consideration because the appellate courts essentially said that it was produced late.
The approach in Texas contrasts with that in England. The English Court of Appeal is required to focus upon the safety of conviction. The only procedural rule that is likely to prevent issues being considered is a time limit. However, this rule can be waived by the Court of Appeal and it normally will do so if it believes that an issue has merit. This means that it is highly unlikely that the Court of Appeal will not consider the merits of an issue raised by a prisoner in England.
Whether or not one agrees with the death penalty, it must surely be correct that it should only be inflicted where a conviction is safe. It cannot be acceptable for a society to execute a person who may be guilty. However, reliance upon procedural rules to prevent consideration being given to issues of substance means that it is highly likely that there will be cases where people are executed despite doubts about their guilt. Issues of substance will not be considered to determine whether they demonstrate that a conviction is unsafe.
I hesitate to suggest lessons that Texas can learn from England. However, if there is one lesson, it appears to me that the criminal process should focus on the reliability of the conviction rather than compliance with rules. That way there can be greater certainty that persons executed are genuinely guilty.
Read Southey's previous post on the Carty case.