With successful challenges to the death penalty increasing, a Virginia man awaiting execution has come up with an attack that draws on all the others: He says the state's 50-page limit on post-conviction petitions made it impossible for his attorneys to present all the different arguments that might persuade courts to reverse his sentence.
Though he admits his crime, Dennis M. Orbe, 39, maintains he did not intend to kill 39-year-old Richard Burnett, an Exxon convenience store clerk, early in the morning on Jan. 24, 1998, and therefore should not die. A jury, however, sentenced him to death.
On Thursday, York County Judge Prentis Smiley Jr. scheduled Orbe's execution for March 31.
Next month, Orbe will petition the US Supreme Court with the hope that the justices will agree to hear his theory that the Virginia procedural rule designed to speed up the litigation process thwarted his right to a fair defense. With so many different challenges succeeding in courts these days, 50 pages is not enough space to introduce all the arguments that could save an inmate's life, his lawyers contend.
"It's like target shooting with a revolver from which half the bullets have been removed," argued Eric M. Freedman, a Hofstra Law professor. "You'd like to take six shots, but you have only three. Fifty pages may not be sufficient to save your client's life."
Three years ago, Orbe's 113-page habeas corpus petition to the Virginia Supreme Court was denied because it exceeded the 50-page limit. And despite efforts to squeeze 11 arguments into the space requirements, Orbe's attorneys had to pick four arguments to drop, including a claim of jury misconduct and an argument that one of Orbe's original attorneys was unqualified.
"We went to a condensed font, we cut out every superfluous word," said Michele Brace, Orbe's attorney. "We tried to compress as much as possible, but we could still not fit everything into 50 pages."
Page limits in everyday court proceedings have been commonplace for years and aim to control the court's workload by encouraging attorneys to stick to their best arguments. In capital cases, however, the restriction is more recent, having popped up in the past decade in eight states, including Arizona, Florida, and Oklahoma.
Opponents say it is often impossible to stick to these strict page limits, considering the complexity of capital cases and the court's requirements that defense counsel properly establish each argument with a multitude of supporting facts and relevant legal citations.
Being forced to choose which claims to drop exposes defense attorneys to an agonizing moral and professional dilemma, they said. The attorneys feel they are gambling with their client's life by having to select certain claims while sacrificing others that might have been successful arguments.
Orbe is not an innocent man. Security video caught him shooting Richard Burnett in the chest as he stepped away from the store's cash register. It was the peak of a 10-day crime run that also included shooting another robbery victim in the leg, taking three women hostage, and leading a high-speed car chase on Richmond roads, where he was caught. One of the kidnapped women, Patricia Tuck, says she still has trouble being alone and vividly remembers Orbe's words when he locked them in a bedroom closet: "Don't try anything stupid, because I've killed one person, and I don't have anything to lose."
Supporters of the death penalty say Orbe's crime meets all the requirements for a death sentence because of the cruel and depraved manner in which it was conducted. They believe his page-limit argument is a classic example of defense attorneys tying up the court system with frivolous claims.
"For death row inmates and their counsel, every delay is a win, and they delay at all costs," said Dianne Clements, president of Texas-based Justice for All, a victims' group. "It's a pathetic process where the videotaped guilt of this killer is usurped by attorneys who are verbose and use big font. A 50-page limit should be sufficient if the issue is presented succinctly and to the point."
In the past, the US Supreme Court has maintained that there is a heightened need for reliability on capital cases. Jeffrey L. Kirchmeier, a law professor at the City University of New York School of Law, argues that a page limit compromises that position.
"Basically, someone could die because of a procedural matter," he said.
Tim Murtaugh, a spokesman for the Virginia attorney general, contends that Orbe had ample opportunities before the habeas corpus petition to enter the four
arguments that his lawyers had to drop. Murtaugh added that the arguments were dismissed.
According to the American Bar Association, that does not matter because there is always the chance that a court, particularly the Supreme Court, will reverse its own ruling. And in its practice guidelines for lawyers in capital punishment cases, the bar association maintains it is an attorney's duty to test existing laws and assert legal claims even when the chances of success "are at best modest."
Pointing to the high court's recent reversal on the death penalty for mentally retarded inmates and last month's decision to reconsider the execution of juveniles, Kirchmeier noted that the Supreme Court has often changed its mind.
"You can never be sure what's going to be the next successful claim," said Kirchmeier, coauthor of a Supreme Court amicus brief filed by the New York Bar Association supporting Orbe. "Attorneys for years argued that they have mentally retarded clients who shouldn't have been executed. Eventually they won, but it was a losing claim for a lot of people."
And because habeas corpus guidelines prevent lawyers from raising new claims in federal court that were not first raised at the state level, they have probably lost the chance to raise the arguments later.
For example, Kirchmeier cited the hundreds of inmates on death row in Nebraska, Arizona, Montana, Idaho, and Colorado who never challenged the idea that a judge, rather than a jury, applied their death sentence. In 2002, the US Supreme Court ruled that only a jury could impose death, but these other inmates had never challenged the judge's decision at the state level, and are thus prevented from raising it in federal appeals.
The inmates are hoping the Supreme Court reverses itself again, and allows new issues to be raised at the federal level.
Meanwhile, a rash of such reversals has only increased the public skepticism about the reliability of capital punishment that has been brewing since the introduction of DNA evidence and former Illinois governor George Ryan's decision in 2000 to declare a moratorium on state executions.
Since the death penalty was restored in 1976, 112 death row inmates have been exonerated, according to the Death Penalty Information Center. And the awareness that people have been wrongly sentenced to die has led jurors to hesitate before condemning someone to die, opting instead for life in prison. Consequently, in the past three years, the number of death sentences issued has dropped from an average of 300 a year in the 1990s to an estimated 139 last year.
"There is queasiness with the realization that innocent people can be sentenced to death," said John Blume, a habeas corpus specialist and the director of the Cornell Death Penalty Project.
Orbe filed an initial petition in the fall asking the Supreme Court to hear his argument that he should be allowed to present the court with the remaining four arguments for why he should not be executed. The request was denied without comment, presumably because Orbe had not exhausted his appeals at the state level. Now that he has, Brace, Orbe's lawyer, expects to submit a revised petition to the court next month, a week before his scheduled execution.
Specialists hesitate to speculate what impact a favorable decision by the Supreme Court might have. If Orbe were to win, it would open the door to bulkier habeas corpus petitions. But even if he loses, it probably won't be the last time the high court hears an appeal about an unfair page limit.
"The moral of the story is to raise every claim and keep raising them every single time because the courts, especially the Supreme Court, have shown a proclivity to change their minds," said Ronald Tabak, cochairman of an American Bar Association committee on the death penalty.
Copyright 2004 Globe Newspaper Company