Federal Appellate Review Proceedings: Length and CostFederal Appellate Review Proceedings: Length and Cost. As a matter of federal law, once a state death penalty case appeal and personal restraint petition review process is completed, the federal review process begins. If, after the defendant's appeal and personal restraint petition, the Washington State Supreme Court affirms the capital defendant's death sentence, the defendant has the right to request review by the United States Supreme Court by filing a petition for writ of certiorari. If the US Supreme Court grants certiorari to review the state decision, a hearing is held. Even if the US Supreme Court decides not to review the state decision or reviews it and affirms the death sentence, the defendant has the right to file a writ of habeas corpus in federal district court.
When considering the capital defendant's petition for writ of habeas corpus, the federal district court reviews the state trial court record, as well as the Washington State Supreme Court appeal and personal restraint petition records and decisions, scrutinizing them under constitutional standards to evaluate whether the state trial court conviction and death sentence were properly adjudicated and whether federal statutory and constitutional laws were followed during state review. If the federal district court finds error in the state court proceedings, the death penalty conviction and/or sentence is reversed and, usually, remanded to the state trial court for retrial or resentencing. If the federal district court does not find error, it dismisses the defendant's petition for writ of habeas corpus.
The next review stage occurs if the capital defendant or the state appeals the federal district court's decision to the Ninth Circuit Court of Appeals. The Ninth Circuit evaluates all the preceding records and decisions. If the Ninth Circuit finds error, it may reverse the district court's decision either on behalf of the defendant or on behalf of the state, and also may remand the matter to a lower court for new proceedings. If the Ninth Circuit does not find error, it affirms the federal district court's decision.
The combined state and federal review process of the five Washington death penalty cases that have been completed in federal court, one case by execution and four cases by reversal of the capital judgment, has taken between 9 and 14 years. Combined state and federal review has taken an average of 11.2 years for these cases. A number of Washington death penalty cases are presently awaiting federal review decisions or are in the process of being retried in state court after federal reversals. At present, there are four Washington capital defendants undergoing federal review.
At the federal court level, defense costs are paid by the federal government. The state is the respondent, seeking to uphold the conviction and death sentence, and is represented by the Attorney General. During the past few years, the Attorney General's Office has also begun participating in reference hearings in state court and assisting county prosecutors with state appeals. Attorney General costs for federal court proceedings are comparable to defense attorney costs in state court; for example, the Attorney General's Office reports spending $154,034 to defend the Sagastegui death sentence, $254,209 on the Lord case, and $78,799 on the Campbell case.
The chart on the following page depicts the number of years each of Washington's sixteen cases have been in state or federal review and the proceedings completed for each case. Also noted are the standard future review proceedings to which each defendant is entitled if the death sentence is affirmed in all preceding court reviews.
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