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The Challenges of Trying Death Penalty Cases
The process of trying criminal cases can be complex. In this episode of the ABA Law Student Podcast, hosts Chris Morgan and Sandy Gallant-Jones speak with Washington state trial attorney Mark Vovos about his journey toward trying death penalty cases and the difficulties and challenges these cases can present.
Mark Vovos has practiced law in the State of Washington for 44 years. He has represented citizens in alleged federal criminal law violations in Spokane, Yakima, and Richland handling diverse matters including murder, conspiracy, false statements, bank fraud and violations of federal drug and narcotics statutes. Mr. Vovos’ practice focuses on complex federal litigation in all aspects of criminal defense. He also represents citizens in federal and state civil matters.View transcript
ABA Law Student Podcast
The Challenges of Trying Death Penalty Cases
Intro: Welcome to the official ‘ABA Law Student Podcast’ where we talk about issues that affect law students and recent grads. From finals and graduation, to the Bar exam and finding a job, this show is your trusted resource for the next big step. You are listening to the Legal Talk Network.
Chris Morgan: I am Chris Morgan; a 3L at the Gonzaga University School of Law and Governor of the Law Student Division’s 12th Circuit.
Sandy Gallant-Jones: And I am Sandy Gallant-Jones; a 2L at the Northern Illinois College of Law and Governor of the Law Student Division’s 7th Circuit. Thanks for joining us for another episode of the Law Student Podcast here on Legal Talk Network.
Chris Morgan: Joining us today from Spokane, Washington is attorney Mark Vovos. Mark has practiced law in the State of Washington and throughout the North-West for 49 years. He is one of only a handful of lawyers certified in the State of Washington to try death penalty cases at the trial level.
Mark tried his first capital case back in 1969 and currently serves on the Executive Board of the Washington State Bar Association section on Criminal Law.
Hey, Mark, thank you for joining us today, to talk a little bit about what you do and the challenges associated with trying death penalty cases.
Mark Vovos: Well, thank you.
Sandy Gallant-Jones: Mark, first off, tell us a little bit about your practice and what inspired you to get into law in the first place?
Mark Vovos: Well, my practice is primarily criminal defense in federal courts, but I also do state court defense of citizens here in Spokane.
How I got involved in criminal law is probably a long story, but as a young lawyer, I was practicing with another lawyer and the cases that I were given or assigned were criminal cases. And back then, in 1968, in the State of Washington, if there was a charge of murder, this is pre Furman v. Georgia; a jury made the decision if somebody was convicted of murder, whether it was felony murder or intentional murder, what the penalty would be?
In other words, if they were found guilty of first-degree murder, the jury would make a determination whether the sentence would be life imprison or death. Death back then in ’69 was by hanging in the State of Washington. And life had a different meaning that it has today, it wasn’t necessarily life without parole, but it was a definition based on our statutes in the State of Washington. So that’s how I got involved and I tried a number of cases, a pre-Furman, and then after Furman, and I guess, often on up until this year.
So that’s the basic answer to your question, how I got involved, I just got involved in it and was given cases and I just sort of developed pre-Furman and post-Furman.
Chris Morgan: Great. So, on the subject of capital punishment and being certified to try death penalty cases at the trial level, how does a person become certified to try death penalty cases as there are so few individuals who are in the State of Washington?
Mark Vovos: Yeah. Well, that’s a good question, Chris, and it wasn’t until recently that there was any list of lawyers who were going to try death penalty cases either at a trial level or in post-conviction relief or on appeals. That didn’t start in the State of Washington until the year 2000 when the Supreme Court decided that based on the problems with death penalty cases, the quality of representation, and all the other inherent problems with asking for the death penalty that there should be a committee or a list.
And so, the Supreme Court — our Supreme Court of the State of Washington formulated rules, which is now the Superior Court Special Proceedings Rule. Special proceedings means you’re going to ask for death that the committee or that the list was started, and in that regard the Supreme Court picked a number of lawyers and judges, defense attorneys from the public defenders, from the private sector, and judges from around the State to form a committee, and we pretty much started. I was initially on the committee when it started in 2000 and we developed a questionnaire and a format, and that’s the basis, if people want to be appointed, they have to complete a questionnaire. They can obtain that from the Supreme Court of Washington and they answer the questions and the committee reviews their application.
The basis for somebody becoming an attorney, who can handle either post-conviction releases or appeals, is the panel looks at because the lawyer has to have demonstrated a proficiency and a commitment to quality representation, which is appropriate in the capital case, that’s something that’s evaluated by the Supreme Court and the committee.
You have to have at least five years of experience in the practice of criminal law and be familiar with the utilization of expert witnesses and evidence; that’s stated in the rule, in the special Superior Court Special Proceedings Rules, and you can’t be serving in any other active case involving the death penalty. And there’s two attorneys that are appointed, so one counsel has to be on the list, the other one doesn’t. So that’s basically how you do it.
Mary Tracy of the Washington Supreme Court has the questionnaire and a lawyer would call her, if they have the requisite experience which have been changed here in the last couple of years, it’s just five years experience, but it does require an exhaustive questionnaire, answers, and you have to demonstrate your knowledge, capital cases and the committee looks at briefs and checks your references and talks to judges and lawyers that you’ve tried cases with.
So that’s in a nutshell how you go about getting on the list and the list is segregated with trial counsel, appellate counsel, and a post-conviction relief counsel.
Sandy Gallant-Jones: And I know that generally regarding the criminal procedure rules for the State of Washington, but I’m just interested in generally, what do you think about implementing that type of certification or broadening out that type of certification to cover non-capital type offences?
Mark Vovos: Well, I think certification would be good. I think that’s a good idea. I think a lot of attorneys perhaps don’t have all the experience that’s necessary, and I think that the more certification we have and being able to demonstrate that you’re knowledgeable of the criminal law is a good thing.
Sandy Gallant-Jones: Okay, so let’s take a step back and look at the preparation that goes into, in particular death penalty cases, and what goes into preparing for a capital murder trial?
Mark Vovos: Well, short answer, a lot of things. Once an attorney is appointed or once it’s determined that the case potentially can involve the aggravating circumstances of an aggravated murder and there’s a ton of them; it can be a burglary in the first degree or more than one victim or a police officer, there’s all sorts of aggravating factors that are set forth.
The counsel should be appointed immediately by the local Superior Court, and who has the list of attorneys, at least one attorney initially, and meeting with the client and making sure that they’re advised of what’s going on. The prosecuting attorney has a time period within which to make a determination whether they’re going to ask for the death penalty or not. So it’s usually a 30-day period that can’t be extended.
And what happens in that period is that our practice in Washington is that the defense begins immediately to prepare a mitigation package or reasons and mitigation as to why the prosecutor should not seek the death penalty in the first instance; even though it may be a qualifying aggravated first-degree murder under our statute.
And that includes the appointment of experts. Now, in the State of Washington and throughout the country, there are what they call, mitigation investigators, that go out and investigate the history, background, and circumstances of a defendant that is charged with aggravated murder that may involve a capital trial, if the prosecutor seeks death.
So family members are reviewed, school records, criminal history records, mental health records, find out as much as you can about the client that may be a mitigating factor or a reason for the prosecuting attorney not to elect the file to charge. So having said that, that can go on for a period of time not necessarily within the 30 days but it can go on for four months to give the defense the opportunity to present some mitigating evidence.
And most prosecutors are interested in that and would like to receive it; of course, that’s subject to privilege and how much you want to present but that’s where it starts.
If the prosecutor in any event decides to file the charge of aggravated murder and asks for the death penalty, that is a specific notice that they will be seeking death, which is a jury question.
And then that implicates the real scope of representation, because you’re not only investigating the facts of the case as to what led up to the aggravating factors and you are also investigating mitigation or continuing to investigate mitigation and the evidence in the case and that takes a while.
The rules in our experience in the State of Washington, if you’re involved in a case, where there’s a death penalty you’re probably not going to have anything else that you’re going to be doing at that time as far as your practice. Does that answer your question?
Chris Morgan: Yeah that’s great. Thank you for that. Turning to the day of trial itself, how if it all does the jury selection process differ in death penalty cases as opposed to less serious cases? Are you allowed more extensive use of jury questionnaires, might a judge limit or expand the process of voir dire, just given the stakes of the case?
Mark Vovos: Well it’s a good question and there is not a short answer. On the day of the trial, when you show up there’s been a lot of preparation and work done as far as selection of the jury.
There’s an initial pool of jurors in a capital case that maybe 500 or maybe a 1000 people, it depends on where you’re at, but the first thing that’s going to happen is that there’s going to be the preparation of the jury questionnaire months or at least some months before a trial to try to work out the types of questions that the parties may want to ask or maybe important and relevant to the jurors.
But basically you’re talking about, is the juror qualified or is there any disabilities or problems with the jurors in a case like this because in capital cases, you may be talking about a month or two in trial, things like that, time constraints and other questions; publicity, reading about the case, other issues that may involve the ability of the jurors if everything else is okay as far as their schedule and any disabilities that they have, that they would be able to serve for that period of time or whether the court would excuse them or not. And then of course, the big questions, what’s your view about the death penalty and when do you think it should be imposed?
So those questionnaires go out to jurors and then they come back to the court, they have to be formulated, and we write our own, the prosecutor may have their own, and then the judge looks at them. So there’s a correlation of all the different advocates and they put together a questionnaire, it goes out and comes back then you have to take a look at that. From that initial questionnaire, you can probably exclude a large number of people either because of disability or inability to serve or because of conflicts and things like that.
So the court tries to limit jurors that may be excused or excusable and get down the number that they’re actually going to ask to come into the courthouse. Then they’re going to be looking at the questionnaires. For example, and I just use this as an example, if there are people that have had extensive exposure to publicity, if there’s a lot of publicity in the case and have answered questions that may disqualify them, those people may be put into a separate group and then another group would be their feeling about the death penalty.
If people would express for example, an answer to how do you feel about the death penalty that I think anybody who has committed murder should be put to death. Those people may be disqualified automatically.
So there are different pools that come in but at some point, there’s going to be a group of people that are going to come in and the lawyers and the judge is going to have a good idea where we’re going to start first.
And I think that any questions about disability or any questions about issues in the case like publicity, preconceived notions, opinions, ideas, and things like that; that may be the first area that the lawyers start to question the jurors on.
There can be a difference as to whether this is done with the complete veneer panel; in other words, if there’s 300 people, you question 300 people at once, that usually doesn’t work. So there may be smaller groups and you try to ferret out individuals that may have potential disqualifying attitudes or beliefs.
And then the second issue, just in this example, might be people who have views about the death penalty and we would have the questionnaires and that is where a lot of the time you spend, asking people what is your view about the death penalty.
So it’s not just necessarily simply you’re bring in 500 people and you talk to them all at the same time, you don’t. There’s questionnaires that go out. You try to break them into pools and try to get down the areas of questions you’re going to pursue.
But the key question in a case involving death is your view about the death penalty and that’s what takes a long time and that’s usually done in this jurisdiction, individual questions.
Chris Morgan: Going off of and you had mentioned potential media coverage and I wanted to touch on that just for a second because in this day and age, media can play such a huge role pretrial in capital cases. Cases like Jodi Arias for example come to mind. How do you handle potential media coverage surrounding a death penalty case?
Does the strategy there depend on whether the media coverage might be favorable or dis-favorable to your client? We’ve seen kind of both ends of the spectrum lately in terms of media so kind of how do you approach potential media coverage surrounding these kinds of cases?
Mark Vovos: Well a lot of different ways. If you have the money and in a capital case if you could, you could make an effort to try to do a community survey. I have done those in the past in cases that I’ve had where we still had landlines and there was like in the death of a police officer or a couple police officers there was a community and the community was overwhelmingly prejudiced because of the publicity and we did a community survey and presented that to the judge as far as a motion for a change of venue; just to deal with the publicity.
But anyway getting back to the question, I guess you have to find out in a questionnaire what media they’ve been exposed to and in today’s day and age, Chris like you say, it’s not just newspapers or radio or television, it’s podcast, it’s Twitter, it’s Facebook, there’s all sorts of different areas.
Well, we use a service here in Spokane, and I have in my last venue challenges, that gives us an idea of the saturation of all of the media newspapers, radio, podcasts, anything about the case and we can get the number of hits. How often that’s been exposed to the public consumption of information and we use that to just see what we’re dealing with.
But primarily you have to ask the questions from the individual, and it is very hard to believe that there’s some people that live in caves and may not know anything about a high publicity case but there are some people that say they haven’t heard or read anything.
So you have to ask the question and then find out and then of course the big question is what opinions have you formed or what’s your belief or feeling. And a lot of people don’t know, it’s another thing we find out in jury selection, a lot of people don’t know about publicity until they come to court and of course, then they get here and then they get all sorts of comments from other jurors; that’s why courts are going to tell people not to talk about the case or anything.
How do you deal with it? You have to deal with it by finding out what the panel thinks and what they believe and if that’s going to affect their ability to deliberate during in the case. But it also impacts a change of venue and I have been fairly successful in death penalty cases in getting them moved especially in smaller communities from one place to another so.
Sandy Gallant-Jones: So after a verdict comes down then you could go into, is there a penalty phase in a death penalty case and is that tried differently than the guilt phase because I know it’s different in different states.
Mark Vovos: Oh yeah.
Sandy Gallant-Jones: So I know when Illinois had a death penalty, we haven’t had one for some time but when they did, there was that option of having a judge decide the sentence versus having a jury decide the sentence in a death penalty case. So is that the same case in Washington?
Mark Vovos: Well I suppose you could ask that a judge decide the issue but I’ve never had that happen. In the State of Washington, it’s a bifurcated trial, the first, the factual case whether a person is actually guilty of aggravated murder takes place first and that’s in front of a jury. And that same jury then determines that here’s the case what the sentence will be, will it be either life imprison without the possibility of parole or death.
And the big issue that’s involved in the fact case that’s different in the penalty phase is the jury has to make a decision that’s completely different. I mean, in the fact part of the case, the jury determines is this a fact, was the car blue, was the car red, what’s going on? In the penalty phase, it’s more of a moral decision on the part of the juror.
In our state, they have to ask the question and then answer the question, having in mind the crime for which the defendant has been found guilty. Are you as a juror convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency. So anything that could merit leniency, mercy is a quality of leniency too in a case. So it’s a completely different case.
The facts are certainly important but you’re dealing with the jury that’s made a decision if you go to the penalty phase that — your guy’s guilty and they’re probably not very happy about that, that’s why it’s always good between the facts phase and the penalty phase to get some separation in time maybe a week if you can or three or four days rather than go in when the jury has just returned a verdict of guilty and tried the penalty phase.
But to answer your question I don’t know of any judge that would — although we’ve considered that I don’t know of any Judge in our state because all that death penalty cases are reviewed by the Supreme Court automatically, that would agree to handle that death penalty case. I know of no case where that’s taken place in our state. It’s a jury question and they are separate trials by the same jury.
Chris Morgan: Great so in terms of the whole process from start to finish and I know it’s going to vary probably from case to case and the severity and the charges and depend on a number of different factors but how long does a death penalty case or a case where the prosecution is seeking capital punishment usually take from inception, the incident or the alleged incident to when there’s actually a jury verdict? Is it a number of months? Is it a number years or does it just depends?
Mark Vovos: Well it depends but I would say usually in cases where capital punishment, where the death penalty is an issue, it’s usually going to be closer to two years, year and a half. The cases that we just finished last year in Seattle, in the Carnation, a murder case where relative and her boyfriend killed an entire family, three generations of the family, there were two murder cases, those were a couple years more than two years afterwards where they were still preparing and hadn’t gone to trial yet.
So but on average I would say it’s closer to two years. We have a moratorium in the state of Washington now but since the two cases from a practical point of view that were decided in King County and the costs that are involved in trying the case asking for the death penalty, there has not been since then and since the moratorium any prosecutor that has asked for the death penalty.
They still charge the aggravated first-degree murder and the penalty is life in prison without parole if you’re convicted of that but they haven’t filed a notice seeking a special proceeding and asking for the death penalty.
Sandy Gallant-Jones: We have law students listening to this podcast around the country and you teach at Gonzaga, I am curious what are the traits and the qualities of a good law student that transfers over to a successful public interest practice in criminal law?
Chris Morgan: Or a private practice as well Mark either of those, what are the things that kind of transfer?
Sandy Gallant-Jones: Well in terms of public interest whether you’re working as a defender or as a prosecutor.
Mark Vovos: Well I think there’re a lot of things. If it’s in the public sector and really I think that there’s a big difference. Lawyers who do capital defense and in my view are not doing it because of the money. I don’t think it’s because of the business reason.
I think it’s because it’s the profession that’s what they believe in, a lot of them don’t believe that the death penalty works and they use their capabilities and their experience as lawyers to defend that, but having said that I think it’s something that you want to do. It’s like being a judge I’m not sure there’s a lot of people that are going to do it just for the financial benefits, it’s like a calling.
I believe that lawyers who get into criminal defense in today’s day and age especially in the federal system because the federal system in Washington — we just finished last year where this year a capital case well last year and then in 2016 a capital case in the state of Washington before Eric Holder left as Attorney General of the United States where death was on the line for almost six months before the United States Attorney in Washington DC decided not to seek death, this was a murder-for-hire case out of North Dakota and involved Spokane.
So it’s a lot of work and I think it’s more calling than it is anything and training is something that is constantly going on. The CLEs and the training in capital cases is different. It’s more intense, it’s more time-consuming. So I think it’s something you have to want to do.
Sandy Gallant-Jones: So would you recommend students really focus their course track through law school, more on criminal procedure and then perhaps trial advocacy so that they are learning those types of skills?
Mark Vovos: Yeah.
Sandy Gallant-Jones: And then maybe even fostering a mentor type relationship with somebody who is already practicing?
Mark Vovos: I think that’s a fantastic suggestion. Now we are in a smaller community here in Spokane, but to get involved in the practice of criminal law today, usually is going to be in a smaller community with a public defender or in the Federal Courts with the Federal defender.
In bigger cities like Seattle across the mountains from us, there are law firms that practice criminal law and you could associate with them. But I do think having courses in law school that deal with criminal procedure, criminal law being involved with clinics and taking litigation classes is something that would to help in the future, but if you could also as a student whether it’s in a clinic or an internship, work with an attorney who has experience in defending capital cases would be a real plus.
Because what the committee that evaluates lawyers who have the basic qualifications of just five years of practice and learn it and the law looks at is experience with capital cases. You don’t have to be qualified to defend one but going through the process of preparing questionnaires or investigating in a capital case or researching the law that applies to capital cases and dealing with the experts that are involved in some of these cases, is real helpful.
And if you have that experience as an intern or an extern if you could get that with a lawyer who does serious criminal cases — all criminal cases are serious, but I’m talking about major cases, murder cases where experts are involved would be something I think would be helpful and I would recommend that students do that.
Let me say there are lawyers in my 10 years on the qualifications committee for the Supreme Court, there is a lot of lawyers, just because you apply it doesn’t mean you’re going to get approved. I think in our state, this is what I’m saying just off the top of my head, I think we have about 15 attorneys in the State of Washington that are qualified for appellate practice.
So if you’re going to be an appellate lawyer that’s something — that’s more writing, of course it involves knowledge of the substantive law when you are talking about capital cases, but there is 15 lawyers that are involved for direct appeals in capital cases. I think there is about another 20 on personal restraint petitions and as far as capital cases there is in our entire state I think there is about 50 lawyers that are on the list, at Seattle, at every place in the State.
The more exposure you can get to try cases the better you learn as a student.
Chris Morgan: Awesome. Hey Mark, I want to thank you again for joining us today, the death penalty capital punishment and everything that goes into trying one of those cases is something that students really are interested in, especially if they are pursuing a career in criminal law either in the private or public sector.
So hey, thanks again so much for being here. That’s it for us here today at the Law Student Podcast on Legal Talk Network. I am Chris Morgan.
Sandy Gallant-Jones: And I’m Sandy Gallant. Thanks so much for listening until next time.
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