This article provides an in-depth account of the experiences of one condemned prisoner, Joseph Mitchel Parsons, who made the profound decision to waive his appeals and expedite his execution after serving eleven years under sentence of death in the State of Utah. Parsons determined that, at best, he faced years of appeals culminating in a long or life sentence that would likely end in a slow death in prison by unknown causes. Dropping his appeals, in contrast, offered a quick death in the execution chamber on a timetable under his control. The court granted Parsons the right to drop his appeals and expedite his execution. We provide evidence from this case study that the court allowed Parsons to make an autonomous decision to die on his own terms. As this research illustrates, an evaluation of the voluntariness of decisions to waive appeals in capital cases must be nested in an understanding of the death row experience of the individual under study. Case studies of the death row experience of those who waive their appeals, such as the research reported here, are integral to understanding these momentous decisions.

Autonomy in Extremis: An Intelligent Waiver of Appeals on Death Row

In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an "objectively unreasonable" application of U.S. Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Court should discourage trial and directreview courts from basing their decisions on AEDPA cases. INTRODUCTION "I think I would like to talk to a lawyer."1 "Could I call my lawyer?"2 "I think I need a lawyer."3 "I think I might want an attorney."4 "I think maybe I need to talk to a lawyer."5 "I don't think I want to say anything more until I talk to a lawyer."6 A layperson hearing, reading, or speaking any of these phrases might reasonably understand them as requests for an attorney, which, in a police interrogation, would bar all further questioning without the presence of counsel.7 However, courts have determined each of these phrases to be inadequate to invoke the right to counsel, and they are part of a long list of similar phrases deemed insufficient.8 The rights of a criminal suspect established in Miranda v. Arizona* are deeply ingrained in the American popular consciousness.10 Virtually anyone who has watched a contemporary police drama will know that suspects under arrest have a "right to remain silent,"11 and that they have a right to a lawyer present during interrogation, whether or not they can afford one.12 Most people likely do not know, however, how a suspect invokes his right to counsel. It turns out that doing so is fairly difficult. The central reason for this difficulty arises from Davis v. United Statesi In Davis, the United States Supreme Court held that police are free to question a suspect until he "clearly requests an attorney."14 Applying this "clear and unequivocal request" rule, courts have often interpreted the phrases uttered by suspects as questions or comments about counsel, even when a layperson might interpret them as requests for counsel.15 Phrases that employ tentative words, such as "might" or "could," tend to fall short of the Davis "clear request" standard.16 Exacerbating this trend is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),17 which imposes an extremely deferential standard for review of state court convictions by federal courts exercising habeas corpus jurisdiction.18 Under AEDPA, federal courts cannot overturn a state court's conviction unless the state court rendered "a decision that was contrary to, or involved an unreasonable application of, clearly established [fjederal law, as determined by the Supreme Court of the United States."19 This entirely novel standard of review means that when a court decides a case under AEDPA, it is not saying what the law is; rather it is saying what the limit of the law is. That is, it is saying what constitutes a patent transgression of the law, and not how the law itself should be applied. The distinction is crucial. As federal habeas courts have interpreted state Miranda rulings20 through AEDPA's highly deferential prism, they have left undisturbed lower-court decisions holding phrases to be inadequate to invoke - phrases the habeas court might otherwise call a valid invocation. …

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Aedpa's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act

In Davis v. United States, the Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an ‘objectively unreasonable’ application of Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.

David S Rubenstein

Papers

Aedpa's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act

AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act