Conviction and Sentencing at Trial

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Conviction and Sentencing at Trial

Post  Yoke on Wed May 13, 2009 10:51 am

Conviction and Sentencing at Trial

The trial is held in a State District Court, in two phases. In the first phase, guilt or innocence is determined. In the second phase, once the jury has ruled conviction, the same jury then hears evidence of mitigating circumstances (from the defense) and aggravators (from the prosecution). The jury makes a sentencing recommendation to the judge based on this evidence. There are three options for the jury: recommending a life sentence with the possibility of parole, a life sentence with no possibility of parole, or a death sentence. Recommending a death sentence must be a unanimous decision. The judge makes the final sentencing decision, but this tends to be a formality with the judge rarely, if ever, contradicting the jury’s recommendation. The judge formally sentences the convicted defendant to death by lethal injection.

Direct Appeal

The first appeal in a death penalty case is automatic. It goes before the Oklahoma Court of Criminal Appeals ( COCA) in Oklahoma City. The burden is on the defendant’s appeal attorney to reveal mistakes that took place at trial. All discoverable mistakes must be presented in this appeal--they cannot be brought up at a later step in the appeal process, even if they hadn’t been discovered at the time of the direct appeal. It’s a "now or never" situation. Trial errors raised in the direct appeal can
include matters of state law, federal constitutional law, or both. A successful Direct Appeal would result in being granted a new trial. This is rare.

Writ of Certiorari

A "cert" petition is a formal request to go before the US Supreme Court. Certs can be filed at different steps in the appeal process. At this point, after being denied relief in the Direct Appeal, the attorney asks the Supreme Court to review COCA’s decision in the Direct Appeal and rule whether there are any constitutional reasons to overturn that decision. The court rarely agrees to accept a death penalty case, allowing COCA’s Direct Appeal decision to stand. This denial of cert usually happens very quickly. The state appeal process then continues.

Post-Conviction Appeal

Once COCA has ruled that the verdict and death sentence from the original trial stand, the next step is, within 90 days, to file an appeal in the COCA. This would be to seek post-conviction relief on the basis of changes in law, new evidence, or claims of ineffective counsel either in the trial or in the Direct Appeal. COCA can also be asked to have an evidentiary hearing to consider whether new evidence is relevant and, in fact, actually new. Relief is routinely denied. The verdict and death sentence is affirmed, thus ending the state appeals.

Writ of Certiorari

Another formal request can be made at this point for the US Supreme Court to review the Post-Conviction Appeal. This is so rarely successful that is rarely even sought now, and the federal appeals begin.

Habeas Corpus Appeal (District Court)

A habeas appeal is a federal court’s consideration of possible violations of the constitution rights of the person the state has condemned to death. This takes place at two different levels. This first habeas petition is filed in the Federal District Court in Oklahoma. (There are three such courts in Oklahoma: the Western District in Oklahoma City, the Eastern District in Muskogee, and the Northern District in Tulsa). The court rules only on constitutional questions, such as alleged violations of due process and allegations of an unfair trial. Questions of innocence will not be considered, even if evidence can be proven. Most federal judges turn down habeas petitions, allowing the previous rulings to stand unchallenged by the federal court. This appeal must be filed within one year of being denied cert by the US Supreme Court.

Habeas Corpus Appeal (Circuit Court)

Upon having the first habeas petition denied by the District Court, this denial is appealed to the United States Tenth Circuit Federal Court of Appeals. Unless if there is clear and convincing evidence of innocence that has not been explored previously, the 3-judge panel routinely denies this appeal. Once this happens, only the US Supreme Court is left as a very slim chance for overturning the death sentence.

Writ of Certiorari

A brief is filed with the US Supreme Court, asking that court to hear arguments on why the death sentence should be overturned. The Court almost never agrees to hear the case at this point.

Preparations for Execution

Upon the Supreme Court’s denying the Writ of Certiorari, the Oklahoma Attorney General asks COCA to set a serious date for execution within 60 days. COCA usually complies quickly. Once the date is set, the inmate is informed. Sixty days before the execution, the inmate is moved into a special, maximum-security cell. This is known as 60-day lock-down. He is completely isolated from all other inmates 24 hours a day.

Competency Hearing

If, after his delivery to the warden for execution, there is good reason to believe that a condemned person has become insane, the warden must notify the district attorney of the county where the prison is located. It is the DA's duty to immediately file in the district or superior court of that county a petition for a competency hearing to determine the sanity of the inmate. The court must at once convene jury of twelve from the regular jury list to hear such inquiry. Legally, the person must be aware of what is happening to him/her and why in order to be competent for execution (sane). He must know that he will die as a result of the execution and that this is a punishment for his crimes. If they rule that the inmate is incompetent, the execution is suspended until a time when he can be found to be competent. This is extremely rare. Typically, the inmate is found to be competent based on the testimony of the warden of the penitentiary, and the execution date stands.

Clemency Hearing

A clemency hearing before the Oklahoma Pardon and Parole Board can be requested. Typically, a representative from the state Attorney General’s office argues before the board why the execution should go forward, while the appeal attorney asks that the Board make a recommendation to the Governor to grant clemency and commute the sentence to life in prison. Routinely, the Board votes against recommending clemency, and it never goes to the governor.

Executive Clemency

If the Pardon and Parole Board recommends clemency, the Governor would decide whether to grant clemency or deny it. If clemency is granted, the death sentence is revoked. If clemency is denied, the execution date stands. Only once in the state’s history has an Oklahoma Governor granted clemency.


Shortly after 6 p.m., during the first minutes of the scheduled execution date, the prisoner is injected with three chemicals which, in effect, poison him to death. He may make a brief final statement just before the execution takes place. The execution is witnessed by prison officials, members of the media, and possibly by members of the murder victim’s family and one or two family/friends of the prisoner. Time of death is declared by a medical doctor on contract with the Department of Corrections.

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