Death Penalty Representation

Introduction
Key Cases
Facts
Resources on Representation Standards
Additional Resources

News and Developments - Current Year
News and Developments - Previous Years

INTRODUCTION

Perhaps the most important factor in determing whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol. The right to an attorney is a vital hallmark of the American judicial system. It is essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to fulfil his or her obligations to the client and the court.

KEY SUPREME COURT CASES REGARDING REPRESENTATION

Powell v. Alabama, 287 U.S. 45 (1932)
(Right to an attorney in capital cases)

Gideon v. Wainwright, 372 U.S. 335 (1963)
(Right to an attorney in criminal cases)

Strickland v. Washington, 466 U.S. 668 (1984)
(Two pronged standard to demonstrate ineffectiveness of counsel: subpar representation AND an effect on the outcome of the case)

Murray v Giarratano, 492 U.S. 1 (1989)
(No right to an attorney in post-conviction appeal; ie after direct appeal)

(Terry) Williams v. Taylor, No. 99-6615 (2000)
(Finding ineffective representation under the two pronged test of Strickland despite the 1996 restrictions on federal habeas corpus)

Wiggins v. Smith, No. 02-311 (2003)
(Mitigation investigations required in a capital case for effective representation)

Rompilla v. Beard, No. 04-5462 (2005)

Note: Case links are to the FindLaw website.

FACTS

An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates has been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers. ("Quality Of Justice" Dallas Morning News, September 10, 2000). An investigation by the Texas Defender Service found that, "Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard." (Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts Texas Defender Service, 2002). In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001). According to an investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, "an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away." An additional 9.5% inmates, "have received a new trial or sentencing because their attorneys' incompetence rendered the verdict or sentence unfair, court records show." (Ken Armstrong and Steve Mills, "Inept Defenses Cloud Verdict," Chicago Tribune, November 15, 1999) In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).

RESOURCES ON REPRESENTATION STANDARDS

• Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases - Spring 2008 Edition of the Hofstra Law Review by Eric M. Freedman

• American Bar Association - Summer 2003 Edition of the Hofstra Law Review, which contains the finalized version of the "ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (PDF) (2003)

• Indigent Defense and Capital Case Representation (PDF) (2001) by Madelynn Herman. This memo, published by the National Center for State Courts in 2001, updated the qualification standards for attorneys handling capital cases with indigent defendants.

• The Compendium of Standards For Indigent Defense Systems - Standards for Capital Case Representation (2000) presents national, state, and local standards relating to five functions of indigent defense, including capital case representation. The report was prepared by the Institute for Law and Justice and supported by a contract with the Bureau of Justice Assistance, United States Department of Justice.

ADDITIONAL RESOURCES

From DPIC

Articles Editorials Law Reviews

DPIC Report: "With Justice for Few: The Growing Crisis in Death Penalty Representation (1995)"

From the American Bar Association

• Guidelines on Representation (PDF)
• ABA Death Penalty Representation Project
• ABA's Confidential Practice Area for Attorneys Handling Capital Cases
• Toledo Law Review, Spring 2004 (PDF): Highlighting the work of Pro Bono Civil Attorneys in Death Cases across the Country

Other Resources

• Federal Death Penalty Resource Counsel Project
• National Association of Criminal Defense Lawyers (NACDL)
• National Legal Aid and Defender Association (NLADA)
• The Spangenberg Group - "Specialist in Access to Justice." Offers a regular newsletter on indigent defense representation. For more information on this newsletter, Click Here.