Giarratano v. Murray, Civ. A. No. 85-0655-R.

• Citation: 668 F. Supp. 511
• Decision Date: 18 December 1986
• Docket Number: Civ. A. No. 85-0655-R.
• Parties: Joseph M. GIARRATANO, et al., Plaintiffs, v. Edward W. MURRAY, et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

668 F. Supp. 511

Joseph M. GIARRATANO, et al., Plaintiffs, v. Edward W. MURRAY, et al., Defendants.

Civ. A. No. 85-0655-R.

United States District Court, E.D. Virginia, Richmond Division.

December 18, 1986.

Joseph M. Giarratano, pro se.

Gerald T. Zerkin and Michael Kozak, Zerkin, Heard & Kozak, Richmond, Va., Steven E. Landers, Jay Topkis, Deborah Livingston, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Johnathan Sasser, Moore & Van Allen, Durham, N.C., Martha Geer, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., for plaintiffs.

Richard F. Gorman, III, Asst. Atty. Gen., Robert Q. Harris, Guy W. Horsley, Jr., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

The plaintiffs in this matter, a class consisting of certain present and future death row inmates, have filed suit pursuant to 42 U.S.C. § 1983 against various officials of the Commonwealth of Virginia. The jurisdiction of this Court is premised on 28 U.S.C. §§ 1331 and 1343. Plaintiffs' contention is that Virginia is constitutionally required to provide them with counsel in post-conviction proceedings such as petitions for writs of certiorari to the United States Supreme Court or habeas corpus.

Background

Plaintiff Giarratano originally brought this action seeking declaratory and injunctive relief with respect to postconviction assistance of counsel. After permitting other death row inmates to intervene in the suit, the Court granted plaintiffs' motion for class certification. The class consists of

... all persons, now and in the future, sentenced to death in Virginia, whose sentences have been or are subsequently affirmed by the Virginia Supreme Court and who either (1) cannot afford to retain and do not have attorneys to represent them in connection with their post-conviction proceedings, or (2) could not afford to retain and did not have attorneys to represent them in connection with a particular post-conviction proceeding.

There are currently thirty-two inmates on Virginia's Death Row.

After full trial on the merits, the Court took the case under advisement and permitted the parties to file posttrial briefs and other memoranda. Being in receipt of those filings, the Court is now prepared to render its decision.

Merits

Plaintiffs assert a number of federal constitutional grounds to support their claim that they are entitled to postconviction assistance of counsel. These grounds encompass the equal protection clause, the sixth amendment, the eighth amendment, Article I, and the due process clause of the fourteenth amendment, as well as the right of access to the courts enunciated in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Although the Court entertains serious doubts as to the viability of many of these theories, it is satisfied that the United States Supreme Court's decision in Bounds dictates that the plaintiffs here be granted some form of relief. Consequently, the Court will not address the remaining grounds.

1. Bounds v. Smith

In Bounds, the Supreme Court considered a section 1983 action filed by prison inmates who sought legal research facilities to assist them in filing habeas corpus petitions and section 1983 claims. The inmates alleged that North Carolina, by failing to provide such facilities, denied access to the courts in violation of the fourteenth amendment.

The Supreme Court agreed, holding that prison authorities are required "to assist inmates in the preparation and filing of meaningful legal papers" by providing prisoners with either adequate law libraries or assistance from legally trained personnel. Bounds, supra, 430 U.S. at 828, 97 S.Ct. at 1498. Rejecting the argument that states could not be obligated to expend funds to effectuate such a right, the Court noted that its previous decisions "have consistently required states to shoulder affirmative obligations to assure all prisoners meaningful access to the courts." Id. at 824, 97 S.Ct. at 1496 (emphasis added).

The Court noted that "meaningful access" is the touchstone. Id. at 823, 97 S.Ct. at 1495. The Court expounded upon this concept by phrasing the issue as "whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental rights to the courts." Id. at 825, 97 S.Ct. at 1496. In concluding that the assistance was required, the Court implicitly rejected the argument that inmates are ill-equipped to use law libraries. The Court noted in passing that "this Court's experience indicates that pro se petitioners are capable of using lawbooks to ..." raise legitimate claims. Id. at 826, 97 S.Ct. at 1497. This assumption provided the basis for the alternative nature of the required relief: trained legal assistance or adequate law libraries.

In the present case, however, the evidence at trial demonstrated that this assumption is invalid with respect to death row prisoners in Virginia. Three considerations underlie this determination.

The first is the limited amount of time death row inmates may have to prepare and present their petitions to the courts. In Virginia, appeal of right lies to the Virginia Supreme Court in all cases in which the death penalty is imposed. Va.Code § 17-110.1. Once the conviction and sentence are affirmed, the sentence may be carried out at any time, provided thirty days has elapsed since the imposition of sentence. Va.Code § 53.1-232. While stays of execution may be secured in appropriate cases to enable a prisoner to prepare a petition for a writ of habeas corpus in the state (and later federal) courts, the result is that a large amount of legal work must be compressed into a limited amount of time. Even assuming that a death row inmate would be intellectually capable of such a task, it is beyond cavil that a prisoner unversed in the law and methods of legal research would need much more time than a trained lawyer to explore his case. See Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir.1978).

The second consideration is the complexity and difficulty of the legal work itself. In Virginia, the capital trial is bifurcated, entailing separate proceedings to determine guilt and to set the appropriate punishment. Aside from analyzing the voluminous transcript of the guilt determination phase which not infrequently lasts several days, a great deal of time must be devoted to analyzing the issues of mitigation and aggravation characteristic of the sentencing phase of a capital case.

The third consideration is that at the time the inmate is required to rapidly perform the complex and difficult work necessary to file a timely petition, he is the least capable of doing so. The evidence gives rise to a fair inference that an inmate preparing himself and his family for impending death is incapable of performing the mental functions necessary to adequately pursue his claims.

Based upon these considerations, the Court finds that the plaintiffs are incapable of effectively using lawbooks to raise their claims. Consequently, the provision of a library does little to satisfy Virginia's obligation to "assist inmates in the preparation and filing of meaningful legal papers" with respect to Virginia death row prisoners. See Bounds, supra, 430 U.S. at 828, 97 S.Ct. at 1498. Accordingly, Virginia must fulfill its duty by providing these inmates trained legal assistance. Id. Therefore, the Court now turns to an examination of the assistance presently provided by Virginia to determine whether this constitutional requirement is met.

2. Virginia's Current Assistance

Virginia presently provides two forms of trained legal assistance to death row inmates pursuing post-conviction claims. Virginia provides for the appointment of attorneys to the various penal institutions to assist inmates in any matter related to incarceration, see Va.Code § 53.1-40, and Virginia provides for the appointment of counsel under certain circumstances to indigents who have resided in Virginia continuously for six months, see Va.Code § 14.1-183. These provisions will be analyzed in light of the Commonwealth's obligation to provide meaningful access to the courts.

First, pursuant to the Virginia Code, attorneys have been assigned to each institution to assist all inmates in matters related to incarceration. The defendants allege that these institutional attorneys provide the trained legal assistance mandated by Bounds. This allegation is not without support. See, e.g., Williams v. Leeke, 584 F.2d 1336, 1339 (1978) (Virginia's system of making lawyers regularly available to prisoners for consultation and advice satisfies duty under Bounds). With respect to death row prisoners, however, the Court finds that the assistance these attorneys are able to provide is inadequate both in fact and in law.

Currently there are seven institutional attorneys attempting to meet the needs of over 2,000 prisoners. No pretense is made by the defendants in this case that these few attorneys could handle the needs of death row prisoners in addition to providing assistance to other inmates. Although no institutional attorney has helped to prepare the habeas corpus petition of a single death row inmate, the testimony at trial indicated that each attorney could not adequately handle more than one capital case at a time. Moreover, they are not hired to work full time; they split time between their private practice and their institutional work.

Even if Virginia appointed additional institutional attorneys to service death row inmates, its duty under Bounds would not be fulfilled. The scope of assistance these attorneys provide is simply too limited. The evidence indicated that they do not perform factual inquiries of the kind necessitated by death penalty issues. They act only as legal advisors or, to borrow the phrase of one such attorney, as "talking lawbooks." Additionally, they do not sign pleadings or make court appearances. See ...