With Justice for Few: The Growing Crisis in Death Penalty Representation

by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center October 1995 TABLE OF CONTENTS
Executive Summary
Introduction
Fatal Mistakes: Attorney Ineptitude at Trial
Prospects for the Future are Worse
The Breadth of the Problem
Towards a Fairer System of Representation
Conclusion: Going from Bad to Worse

When we execute a capital defendant in this country, we rely on the belief that the individual was guilty, and was convicted and sentenced after a fair trial, to justify the imposition of state-sponsored killing. . . . My 24 years of overseeing the imposition of the death penalty from this Court have left me in grave doubt whether this reliance is justified and whether the constitutional requirement of competent counsel for capital defendants is being fulfilled.

--Justice Harry A. Blackmun [1]

Executive Summary As executions reach record numbers in the U.S., the system of representation for those facing the death penalty is in a state of crisis. Far from the legal "dream team" assembled in the O.J. Simpson case, capital defendants are given attorneys who fail to investigate, who fall asleep during trial or come into court drunk, attorneys barely out of law school, or attorneys who say nothing when their client's life is on the line. Too many states encourage this malpractice by offering totally inadequate pay and resources for death penalty defense. States allow elected judges to pick attorneys not on the basis of experience or merit but because they will cause the least "trouble" in trying the case.

And the situation is about to become far worse. The size of death row is larger than it has ever been before. Executions in 1995 will far surpass the number in any year since the death penalty was reinstated. Yet Congress is about to drastically curtail the opportunities for death row inmates to challenge the representation they were given at trial, and is simultaneously planning to eliminate the death penalty resource centers.

Former death row inmates such as Andrew Golden, Federico Macias, and Gary Nelson, received poor representation at trial and could have been executed, despite their innocence. In their cases, competent counsel later stepped in and were able to reverse the worst damage, sometimes after a decade of legal challenges. Others with equally inadequate counsel already have been executed or remain on death row. Far too often, people are given the death penalty not for committing the worst crimes, but for having the worst lawyers.

This problem has been ignored for years as politicians use the death penalty as a stepping stone to electoral success. Instead of establishing an independent body to assure that everyone facing a death sentence is adequately represented, legislatures are concentrating on ways to shorten appeals, expand the death penalty, and limit access to the group of attorneys best qualified to represent them.

The warnings from people like Justices Marshall, Brennan and Blackmun have gone largely unheeded. The injustice of inadequate representation in death cases is an affront to the nation's stated commitment to equal justice for all.

Introduction Executions will reach record numbers in the United States in 1995: by the end of the year, the number of people put to death will be almost double any other year since the Supreme Court allowed the death penalty to resume in 1976. But a look at who is executed and who is spared reveals a glaring inequality: too often, the death penalty is reserved not for those who committed the worst crimes, but for those who were given the worst lawyers. And this miscarriage of justice is about to become much worse.

Two of the nation's best known defendants will certainly avoid the death penalty this year. In the case of O.J. Simpson, the "dream team" defense and his wealth of resources may well have convinced the prosecution that seeking the death penalty was futile. In the Susan Smith case, the death penalty was sought but missed by a mile. All twelve jurors voted for a life sentence after a short deliberation, when even one vote would have been sufficient to spare her.

Although initially vilified by the public, Susan Smith had the good fortune of being represented by a skilled and experienced death penalty attorney to tell her life story to the jury. Moreover, her family had the resources to make sure that this attorney was involved in the case from the beginning.

These highly visible cases, however, present a false picture of the criminal justice system in this country. Most of the 3,000 people on death row were far less fortunate in the representation they received.

This report will demonstrate both the pervasiveness of incompetent lawyering in death penalty cases, and the resistance of the system to reform. It will point to the underlying causes for this crisis: the inadequate compensation available for capital representation, and the absence of an entity to appoint attorneys independent from the judges who preside over these cases. As long as the system for appointing and compensating counsel is tied to the same politics of recrimination which pushes for more executions, there will be little change.

The report concludes that the prospects for improvement in the near future are not good. With executions already escalating, Congress is about to curtail most federal review of death penalty cases and eliminate all funding for the death penalty resource centers around the country. The consequences for those on death row with legitimate claims of innocence and for the survival of our principles of justice are dire.

8/30/95

Fatal Mistakes: Attorney Ineptitude At Trial

"[The attorneys'] state of preparation qualified them only as spectators."
--House v. Balkcom [2]
The pleas for justice from those on death row seem distant to the average American and are most often rebuked with disdain. People condemned to death have no political clout, and almost no one wants a dime spent on their defense. But the following story should change some minds.

A Good Citizen's Nightmare

Andrew Golden is a former teacher who had never even received a traffic ticket. He had been married to his wife, Ardelle, for twenty-four years, sharing a very close relationship. He adored his two sons, Chip and Darin. That is why life on Florida's death row was so difficult for Golden, almost driving him to suicide. He kept his sanity by making things for the boys and helping them with their college applications--and by fighting to prove his innocence. [3]

Golden was sent to death row in 1991 for allegedly drowning his wife. The case against him was amazingly weak: Ardelle and the family car were found in a lake at the end of a boat ramp near Winter Haven, but even the police investigators and medical examiner stated at trial that the evidence did not suggest foul play. [4]

However, Golden's lawyer did almost nothing to prepare for trial, having assumed that he would have the case thrown out beforehand. When the case was announced for trial, it was too late to prepare. There was no time for an accident reconstruction. The attorney put on no defense. He never presented the jury with the reasonable explanation that Golden's wife might have committed suicide, having been depressed over the recent death of her father. He never told the jury about the coffee mug wedged near the brake and accelerator pedal, or the four death notices of her father which Ardelle had with her in the car. [5]
  Andrew Golden, with a new lawyer, had his conviction overturned by a unanimous Florida Supreme Court and was freed into the welcoming arms of his children and granddaughter in 1994. 

With few alternatives available, the jury accepted the prosecution's theory that Golden pushed his wife off the dock in order to get insurance money. The jury was never told that the water by the dock was not even over Ardelle's head. [6]

Andrew Golden, with a new lawyer hired by family members, had his conviction overturned by a unanimous Florida Supreme Court and was freed into the welcoming arms of his children and granddaughter in 1994. He had been on death row for over two years. The Court held that the prosecution had failed to prove that Ardelle's death was anything but an accident, or that the Goldens' relations were anything "but affectionate and cordial."[7] Golden's trial lawyer has been publicly reprimanded by the Florida Bar[8] and is being sued by Golden for malpractice in this case.

The Appeal May Be Too Late

"Schlup soon encountered one of the catch-22s of life on death row: It's hard to prove your trial counsel ineffective if your post-conviction counsel is too."
 

* Lloyd Schlup may not seem quite as sympathetic as Andrew Golden, but he may be no less innocent. Schlup was accused of a murder while in prison and came within hours of execution in 1993. He remains under a sentence of death in Missouri, despite an enormous compilation of evidence of innocence, including a videotape and eyewitnesses, which indicate he was not even at the scene of the crime.

Schlup's trial for murder in 1985 took all of two days. Unlike the daily visits by Robert Shapiro to O.J. Simpson, Schlup's trial attorney visited him twice, for a total of 75 minutes, before trial and never talked to him on the phone. He was paid a total of $2,000 for fees and expenses. He never interviewed the 20 eyewitnesses who saw this prison murder and now swear that Schlup was elsewhere. And after Schlup was convicted at trial, his attorney was completely unprepared for the critical sentencing phase of the trial in which the jury decides life or death. [9]

Unlike Susan Smith's lawyer, Schlup's trial attorney never investigated his medical, family, or psychological background. The only outside witness who testified for Lloyd Schlup's life was his mother. He was quickly sentenced to death. [10]
Unlike the daily visits by Robert Shapiro to O.J. Simpson, Schlup's trial attorney visited him twice, for a total of 75 minutes, before trial and never talked to him on the phone. He was paid a total of $2,000 for fees and expenses. 

Schlup's appeal attorneys were also deficient. As Stuart Taylor, who reviewed the Schlup case for The American Lawyer, noted: "[Schlup] soon encountered one of the catch-22s of life on death row: It's hard to prove your trial counsel ineffective if your post-conviction counsel is too . . . ."[11] But Schlup's mother, Nancy Slater, never gave up, and she finally secured the representation of Sean O'Brien and the Missouri Capital Punishment Resource Center. With a skilled capital litigator putting over 1,000 hours into the case, things started to turn around.

O'Brien has compiled 20 affidavits from eyewitnesses to the crime who state that Schlup was not at the scene. He also has a videotape showing Schlup in the prison cafeteria near the time of the crime and a statement from a prison guard who was talking to Schlup just before he entered the cafeteria. There is also evidence that some of the prison officials who helped convict Schlup have falsified evidence and framed prisoners in other cases. [12]

Governor Mel Carnahan stopped Schlup's scheduled execution, deciding the case needed review for possible clemency. And the Supreme Court agreed to review whether Schlup's claim of innocence is so strong that it overcomes the Court's usual rules permitting only one federal review.

Even though the Supreme Court ruled in his favor, [13] Schlup could still be executed. The Court only opened the door slightly so that a lower court can consider the new evidence. Before trial, he was presumed innocent. Now, because of poor representation, he is presumed guilty. On top of that, Congress is on the brink of voting the Missouri Resource Center out of existence by removing its funding. In halting an almost certain execution, the Center overcame incredible odds. If the same effort had been made during his trial, Lloyd Schlup might be free today.
 

* Varnall Weeks was executed this year. Before his electrocution in May, virtually every organization in Alabama associated with mental health issues had lined up in opposition to the sentence because of Weeks's severe mental illness. Together these organizations submitted a petition for clemency to the Governor, pointing out Weeks's twenty year history of mental problems. Unfortunately, none of this opposition or history of mental illness was presented at trial. [14]

Weeks's case had been taken up by new lawyers who discovered that Weeks had been committed to a mental hospital in 1974 following an earlier arrest, where he was diagnosed as suffering from constant delusions, hallucinations, and paranoid schizophrenia. Nevertheless, he had been returned to prison and eventually released in 1981, with no arrangements for the treatment and medication he desperately needed. Shortly thereafter, Weeks committed a murder. He was tried and sentenced to death. But his overworked and underpaid appointed attorney never told the sentencing judge about Weeks's history of mental illness.

The Southern Center for Human Rights, which represented Weeks in the last stages of his appeal, worked mightily to have this death sentence overturned, but to no avail. If the clear history of mental illness and the support of independent mental health organizations had been presented at trial instead of at the eleventh hour, Weeks would probably be alive and under treatment today.
  The hard reality is that there simply is no substitute for competent counsel at trial. 

* Sylvester Adams was executed in South Carolina on August 17 this year. Adams was a poor, black man suffering from mental retardation and mental illness. But his court-appointed lawyer failed to mention those critical facts at trial. Later, at least one of the jurors came forward and said that she would not have voted for death if she had known Adams was retarded.[15] Her vote for life would have spared Adams. The subsequent intervention of David Bruck (who represented Susan Smith at trial) and the South Carolina Resource Center came too late. The hard reality is that there simply is no substitute for competent counsel at trial.
 

* Joseph Spaziano may soon be added to those executed this year. Although the full truth may never be known, Spaziano is probably innocent. But without a doubt the moral certainty of guilt, which even supporters of the death penalty acknowledge must be established in order for an execution to proceed, has completely evaporated in this case.

Tony DiLisio was the only witness connecting Spaziano to the murder of a young woman. DiLisio was a drug-addicted teenager at the time he was questioned regarding the woman's murder, which had occurred two years earlier. But through the suggestive techniques of "refreshed memory" and hypnosis, DiLisio eventually "remembered" Spaziano talking about the murder of Laura Harbert.[16]

The prosecution readily admitted that without DiLisio it had no case at all.[17] At the time of Spaziano's trial in 1975, however, his lawyer never told the jury that DiLisio had no memory of the conversation with Spaziano until the police had him hypnotized. He also did not present the considerable evidence existing at that time which could have cast doubt on the hypnotically-induced testimony.

Today, under Florida law, DiLisio's hypnotically-induced testimony would not be admissible. [18] The process of "refreshed memories" has largely been discredited.[19] DiLisio, himself, now completely denounces the accuracy of those memories.[20]
  Spaziano will be hung on a technicality--he probably would have been spared if the proper objections had been raised, but once again quality representation came too late. 

But procedural barriers in federal and state courts now make it impossible to argue the points which would have destroyed the prosecution's case at trial. Spaziano will be hung on a technicality--he probably would have been spared if the proper objections had been raised, but once again quality representation came too late.
A Lawyer in Name Only Given that someone's life is on the line and that death penalty law is among the most complex in the legal profession, one might expect that only the best attorneys would be assigned to such cases. Nothing could be farther from the truth. Consider the quality of representation the following people received in the trial for their lives:

  • Aden Harrison, Jr., a black man, had as his court-appointed counsel 83-year-old James Venable, who had been an imperial wizard of the Ku Klux Klan for over 15 years. A Georgia judge who reviewed Venable's representation in 1990 said the lawyer all but abandoned his client and suffered from "advanced age, and numerous lapses of judgment."[21] Venable was later disbarred for other matters.
  • Judy Haney's court-appointed lawyer was so drunk during the trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney came out of the cellblock and the trial resumed. But being drunk in court was just the tip of the iceberg. This same lawyer failed to present hospital records showing that Haney was a battered spouse, a key factor in why she had her adulterous husband killed. Many other women have successfully used such abuse in their defense. Despite this shoddy representation, Haney's death sentence was upheld by the Alabama Supreme Court in 1992 [22] and she remains on death row.
  • Jack House was represented at his capital trial by a husband and wife team in Georgia who had never read the state's death penalty statute. The lawyers never visited the crime scene or interviewed the state's witnesses, made no attempt to discover the state's evidence (they were "too busy"), and barely spoke to their client. One of them left during the testimony of a key prosecution witness (whom he later cross-examined), and they presented no mitigating evidence at sentencing because they were unaware that there even was a sentencing phase to the trial.

  • When their client was sentenced to death, they submitted a boilerplate motion for a new trial but failed to point out that three credible neighbors had surfaced who claimed to have seen the victim after the state's certified time of death. Their client had an iron-clad alibi for that time. Worse still, the lawyers even failed to appear to argue their own motion. The U.S. Court of Appeals in 1984 charitably characterized this shambles by saying that the attorneys' "state of preparation qualified them only as spectators."[23] One of the attorneys was later disbarred for his performance. Even with two attorneys, Jack House stood alone at his trial.

  • Obviously, the state which assigns and compensates attorneys in these cases bears much of the responsibility. Gary Nelson spent eleven years on Georgia's death row. During that time, fifteen people were taken to the electric chair and executed. Nelson says the smell of burnt flesh is something he'll never forget.

  • Nelson was represented at his two-day trial by a sole practitioner who had never tried a death penalty case. During a time when Nelson's attorney was personally experiencing financial problems, he was paid between $15 and $20 per hour. His request for co-counsel was rejected. No funds were provided for an investigator, and the attorney didn't even ask for funds for an expert witness. The attorney's closing argument at trial was 255 words. Gary Nelson was sentenced to death. His trial attorney was later disbarred for other reasons. [24]
      If this thorough defense had been mounted at trial, it would have saved the state the enormous costs of a decade of litigation. It also would have saved eleven years of Gary Nelson's life. 

    Fortunately, Nelson's appeal was taken over by a respected Atlanta law firm, and eventually he was cleared of all charges and released in 1991. The prosecution admitted that "there is no material element of the state's case in the original trial which has not subsequently been determined to be impeached or contradicted." [25] If this thorough defense had been mounted at trial, it would have saved the state the enormous costs of a decade of litigation. It also would have saved eleven years of Gary Nelson's life.

    Today, there is even less of a chance that a Gary Nelson would be spared the electric chair. With over 3,000 people on death row and with the resource centers, which assisted law firms in taking cases, on the brink of elimination, an inmate's claim that he was poorly represented at trial will fall on deaf ears.


Repeat Performances One of the obstacles to change is that incompetent lawyers repeatedly get appointed to death cases and then provide a twisted form of "speedy justice." They ease the pursuit of the death penalty, rather than fight zealously for their clients. [26] They follow the path of least resistance by putting on a tepid defense, filing few motions on behalf of their clients, expediting the trial, and filing only a perfunctory appeal. Despite lackluster results, these attorneys are often favored by appointing judges over attorneys who conscientiously challenge the state at every step of the proceedings.
  • In Houston, Texas, the death penalty capital of the country, attorney Ron Mock has represented about 10% of the people the county has sent to death row, probably more than any other defense attorney in Texas. Mock starts each day not as a member of the bar, but at the bar he owns in downtown Houston, Buster's Drinkery. [27] Of his 15 capital clients, 12 ended up on death row, including Gary Graham, a 17-year-old who was convicted largely on the basis of a single eyewitness and no physical evidence. Mock's investigator, Merv West, said Mock discouraged him from working hard on the case: "I remember that from the first Ron Mock insinuated that Gary was guilty, and that definitely affected my investigation. Since we both assumed Gary was guilty, I decided not to waste time trying to substantiate his alibi. . . ." [28] By taking a large number of cases, Mock has consistently been a leader in receiving the most money among court-appointed attorneys in Houston.[29]
  • Not far behind Ron Mock is Joe Frank Cannon, who also practices in Houston and who has had ten clients sent to death row. Cannon boasts of hurrying through trials "like greased lightning." [30] Candelario Elizondo, past president of the Harris County Criminal Lawyers Association, said that it is "generally reputed in the Harris County legal community" that Mr. Cannon received capital appointments "because he delivers on his promises to move the courts' dockets." [31]

  • ;

    One of Mr. Cannon's former clients closest to death is Calvin Burdine. The jury foreman from Burdine's trial has submitted an affidavit in court asserting that Cannon repeatedly fell asleep during the trial. Cannon also used slurs such as "queer" and "fairy" in court papers for Burdine, an openly gay man. According to The Wall Street Journal, Mr. Cannon doesn't remember the details of the Burdine case. "I don't have to prove anything," he remarked. "My record speaks for itself."[32]

  • In California, attorney Ron Slick has had at least 8 clients sent to death row. According to a report in The Los Angeles Times, Slick "gave new meaning to the words speedy trial." Where other attorneys "take weeks or months to try complex capital cases, . . . Slick sometimes spent just a few days . . . ." [33]
  • "Since we both assumed Gary was guilty, I decided not to waste time trying to substantiate his alibi."
    --member of Gary Graham's defense team 

    One of Slick's clients convicted of murder is Robert Glover. When Glover's mother contacted another attorney, he told her she must have been mistaken when she said that her son's trial lasted only one day. He told her: "Don't worry, that must be the preliminary hearing." [34] But he was mistaken. Glover's non-capital conviction was overturned when the state Court of Appeal found that Slick acted incompetently. The prosecution later dropped the charges. Despite--or perhaps because of--this reputation, Slick was frequently appointed to represent indigent defendants, earning sizable sums of money. [35]
      Where other attorneys "take weeks or months to try complex capital cases, . . . Slick sometimes spent just a few days."

The Politics of Judicial Decisions

To ensure that only competent lawyers get appointed to capital cases, those responsible for selecting attorneys should be independent of the elected judges who try these same cases. The American Bar Association, for example, has recommended that the recruitment and appointment be handled by a public defender office or by a special committee of experienced legal practitioners. [36]

In 32 out of the 38 states with the death penalty, state judges are elected and subject to the same pressures which have made many politicians embrace increased executions. Judges in California, Texas and Mississippi in recent years have lost their positions after their opponents mounted campaigns focused on a harsher application of the death penalty. [37] While those accused of capital offenses have little support in the electorate, their rights to due process in the courts should not be subject to such pressures.

Prospects for the Future Are Worse "Notwithstanding the heroic efforts of the resource centers and appellate projects throughout the country, the meager hourly rates and expenditure caps that many states impose on appointed counsel in capital cases do not suggest that a solution to this crisis is imminent."
--Justice William Brennan, Jr., 1994 

The system of death penalty representation has been at the crisis stage for years. As retired Justice William J. Brennan, Jr. said in 1994 at the University of Notre Dame:

The case reporters and academic literature are filled with countless accounts of inadequate legal representation in capital cases, both at trial and sentencing phases. . . . Notwithstanding the heroic efforts of the resource centers and appellate projects throughout the country, the meager hourly rates and expenditure caps that many states impose on appointed counsel in capital cases do not suggest that a solution to this crisis is imminent. [38]
The prospects for change are now far worse than just a year ago. Funds for indigent defense are being cut back, the number of people facing imminent execution is increasing dramatically, and Congress is preparing to effectively remove the last protections defendants have to counter this injustice. In the atmosphere of fear sparked by the bombing in Oklahoma City, the time honored Great Writ of habeas corpus has been targeted for virtual elimination. Moreover, federal funding for the death penalty resource centers, which have uncovered so many of the examples of shoddy representation, also faces elimination.

The main reason that death penalty defense has been neglected for so long is that capital punishment has become so politicized. Politicians, from prosecutors to presidents, seize upon the death penalty as their symbol of toughness against crime. Therefore, it is not surprising that the appointment of counsel in capital cases is steeped in politics as well. As Stephen Bright wrote recently in The Yale Law Journal, those on death row are not a powerful constituency:

The quality of legal representation in capital cases in many states is a scandal. However, almost no one cares. Those facing the death penalty are generally poor, often members of racial minorities, often afflicted with substantial mental impairments, and always accused of serious, terrible crimes. . . . All of this leads to, at best, indifference and, more often, hostility toward the plight of those accused." [39]

The attack on the resource centers is an example of the political offensive. Their closure will probably result in greater costs to the government and more delay, but it is politically popular to attack those on death row. Some of the harshest critics of the resource centers are those who usually oppose them on appeals. Opponents like South Carolina Attorney General Charles Condon have taken their fight out of the courts and into Congress to defeat the resource centers. [40]

But supporters like Chief Judge Richard Arnold of the U.S. Court of Appeals point to the substantial advantages of keeping the centers: "If these [resource] centers are eliminated, the cost to the taxpayer will go up. . . . The effect will be to prolong cases because it will take more time to find competent attorneys, and those attorneys, who have probably never handled a death penalty appeal, will struggle in this highly complex area of the law."[41] Similarly, David Sellers of the Administrative Office of the U.S. Courts said, "The irony is Congress is doing exactly the opposite of what it intends. By eliminating this program, there will be fewer lawyers taking these cases and that will create more delay."[42]

earning sizable sums of money. [35]
  "The quality of legal representation in capital cases in many states is a scandal. However, almost no one cares."
--Stephen Bright 
The Role of the Great Writ When a defendant is convicted and sentenced to death, he or she has the right to a direct appeal to the state's highest court and the right to an attorney to file that appeal. Often, the attorney who handles the appeal is the same one who lost at trial. The purpose of the direct appeal is to challenge any mistakes which were made during the trial. But what if the mistakes were caused by that same attorney?

This is where the writ of habeas corpus comes into play. Apart from the direct appeal, defendants have traditionally been able to challenge any unconstitutional act by the state in the course of the proceedings against them. Since the right to counsel is a constitutional right, the effective denial of that right is grounds for relief in the form of a writ of habeas corpus.

In 1984, the Supreme Court set the standards for judging ineffective assistance of counsel in Strickland v. Washington.[43] The Court held that a defendant must show not only that the counsel's performance was so bad as to overcome a strong presumption of adequate representation, but also that this poor performance affected the outcome. Judges, applying this presumption, will often find excuses for attorneys who failed to investigate or failed to object at crucial times. And even when no explanation can be found for behavior such as drunkenness or falling asleep at trial, a judge may simply conclude that the jury would still have found the defendant guilty and sentenced him to death even if the lawyer was totally conscious. Although those facing possible execution need a far more vigorous and astute defense, the Strickland standard does not ensure it.

Many defendants with demonstrably ineffective lawyers receive no relief from the courts. [44] State court judges, who are often elected and subject to public outcries for vengeance, are particularly reluctant to overturn a conviction or death sentence because of the performance of an attorney whom they or their colleagues appointed. As a result, a defendant's best chances have been in federal court, where judges are appointed for life and are one step removed from the vagaries of state politics and election pressures. But under the guise of speeding up the execution process, both houses of Congress have passed legislation which would decimate this avenue of relief. If finally signed into law, this legislation would require federal courts to give strong deference to the decisions of state courts. If claims of ineffective assistance of counsel are limited by this proposed legislation, then a federal writ of habeas corpus will not be granted even though the state court ignored shoddy representation. A federal court will not be able to act when it merely disagrees with the state court. It will have to find that the state court acted unreasonably--a very harsh condemnation which judges are reluctant to make against each other.
 
 
The Importance of Federal Review It is hard to predict exactly what the plight of the three thousand inmates on death row will be if these blows to due process are not softened. However, a look at some recent cases in which federal courts have found ineffective representation by lawyers is revealing. In all of the cases which follow, the states' highest courts found no ineffective representation. Under Congress's new regime, it is quite possible that these same federal courts, while disagreeing with the state decisions, will nevertheless have to let them stand because the state results were not clearly unreasonable.

To understand these cases, it is important to remember that a death penalty trial is a two-step process: first, the defendant must be found guilty; then it must be decided that this particular crime and defendant merit execution. The Supreme Court has rejected automatic death sentences for the crime of murder. A judge or jury must find that the murder in question was so exceedingly brutal, or that the defendant is such an extraordinary danger to society, that an execution is warranted. Lawyers who make arguments only about the guilt of their clients fail miserably as advocates.

The case of Susan Smith is an example of how critical the sentencing phase can be. There was little doubt that Smith drowned her two sons. But the jury needed to be told Susan Smith's life story, a story of sexual abuse, of mental instability and suicide attempts, in order to decide between life and death. She could not tell that story herself--she needed an experienced advocate who had investigated every aspect of her life so that the jury might understand what happened. Shockingly, many defense attorneys are simply silent when it comes to that crucial phase of a death penalty trial.
 

* Shock Treatment Ignored. James Agan suffered from severe mental illness which may have led him to plead guilty to a crime he did not commit. His attorney, Mack Futch, spent a total of fifteen hours on the case, including only seven hours of investigation. He never requested or received the previous attorney's file. He never obtained his client's medical files or military files, and made no inquiry into Agan's psychiatric background. As a result, the attorney had no idea that his client had been on psychotropic medication, had undergone 81 shock treatments, or had been diagnosed as psychotic by three different psychiatrists. Although the state's highest court affirmed the death sentence, a federal court ruled that Futch completely failed to explore the mental competency of his client, thereby requiring a new trial. [45]
 

* My Client Is Guilty. Alphonso Cave was accused, along with three other men, of robbery and murder of a convenience store employee. Under Florida law, someone like Cave, who participates in a robbery in which the victim dies can be convicted of first degree murder and sentenced to death even if he did not do the shooting. Admitting to the robbery would be equivalent to admitting to the murder, a capital offense. Apparently ignorant of this fundamental point of law, Cave's attorney made the following statement to the jury during the guilt phase of the trial:

I submit to you, ladies and gentlemen, that my client is guilty of armed robbery. He's guilty of it . . . . I know you can come back with a guilty verdict for armed robbery. It is not even an issue. [46]
The attorney thereby conceded the most important element in the state's effort to achieve a capital conviction. Once the robbery was admitted by the defense, the death penalty became likely. A federal court found that the attorney's performance "fell far below the acceptable standard for competent counsel" and that she had a "'grandiose, perhaps even delusional' belief in her abilities, especially so because she was trying her first capital case." [47]

Moreover, this attorney was so (mistakenly) confident that she would avoid a murder conviction by admitting to the robbery, she completely ignored preparation for the penalty phase of the case. Counsel presented no mitigating witnesses during the sentencing phase. [48]

The prosecutor, who had already been handed a complete victory in the guilt phase of the trial, had an even easier time in the penalty phase. His remarks to the jury were unfortunately true:

What have we learned regarding the Defendant's character? Absolutely nothing. What witnesses appeared during the second phase to testify regarding the Defendant's character? None. Of all the persons that Alphonso Cave knows, what person told you anything regarding Alphonso Cave's character? None.[49]
 

* Even a Cursory Investigation. When James Brewer was found guilty of murder, his attorney thought the sentencing phase of the trial would occur much later. Instead, the judge, following the usual practice, denied any continuance and began the sentencing hearing at 9:00 a.m. the next business day. The attorney's preparation for this critical phase of the trial consisted of a couple hours of discussion with his client. He waived the opportunity to make an opening argument, presented no character witnesses, and presented no evidence of his client's history of severe mental illness. Instead, the attorney simply put his unprepared client on the stand, and the jury returned a death sentence. [50]

The federal court which reviewed this attorney's behavior found that even a cursory investigation of Brewer's mental health history would have revealed that he was treated with shock therapy, that he had brain damage resulting from blows to the head, that he had been evaluated as "mentally defective," and "fixated at a very dependent and infantile level," with an IQ between 58 and 67. [51] The sentencing jury knew nothing of this.
 

* Just One Juror. In the State of Washington, Kwan Fai Mak was represented at trial by counsel who had no experience with death penalty cases. The attorney realized too late that he had not adequately prepared for the sentencing phase of the trial. Due to his lack of preparation, none of the readily available mitigating evidence regarding Mak's background, family relationships, or cultural differences was presented to the jury, which returned a sentence of death. [52]
  "To fail to present important mitigating evidence in the penalty phase . . . can be as devastating as a failure to present proof of innocence in the guilt phase."
--Mak v. Blodgett 

Upon federal review, the court emphasized the critical nature of the sentencing hearing and the attorney's role in presenting evidence:

The issue for the jury is whether the defendant will live or die . . . . The sentencing hearing is defense counsel's chance to show the jury that the defendant, despite the crime, is worth saving as a human being . . . . To fail to present important mitigating evidence in the penalty phase--if there is no risk in doing so--can be as devastating as a failure to present proof of innocence in the guilt phase. [53]

Under Washington law, if just one juror had found the existence of a mitigating circumstance the sentence would have been life rather than death.[54] But with no such evidence presented, the jury had little choice.
 

* Death As A Gift of Life. A California attorney, Donald Ames, went out of his way to assist the prosecution in his ten minute closing argument for his client, Melvin Wade. [55] Ames told the jury that his client "can't live with that beast from within any longer," and that a death sentence might be "the gift of life." [56] With that invitation, the jury voted for death. The federal Court of Appeals, which overturned the death sentence because of Ames's conduct, held that his argument "effectively relieved the jury of any doubt or anguish it might feel in sentencing Wade to death." [57]
  Defense counsel's argument "effectively relieved the jury of any doubt or anguish it might feel in sentencing Wade to death."
--Wade v. Calderon 

These cases illustrate that state courts often ignore gross misconduct by lawyers. The federal courts, if permitted to do so, occasionally overturn a conviction or sentence because of bad lawyering. Now, however, federal review is also in jeopardy. But even federal review is no panacea for the crisis in death penalty representation. In many ways, the cases above are the exceptions: equally egregious attorney behavior is often ignored by all courts, [58] and executions are going forward in ever-increasing numbers.
The Second Shoe About to Fall: 
Closing of the Resource Centers To the indigent defendant who was poorly represented at trial, Congress's gutting of habeas corpus would be a very serious blow. But Congress is about to let the second shoe fall as well. The House of Representatives has targeted all twenty of the death penalty resource centers around the country for extinction by eliminating their entire federal funding. Thus, even if the federal courts were willing to entertain a motion regarding ineffective lawyering at trial, there may be no experienced attorney to bring the claim.

For seven years, the resource centers have represented those on death row who have no other recourse, and have advised other attorneys willing to take such cases. In many instances, they have done the work which should have been done at trial. Attorneys like Bryan Stevenson at the Alabama Resource Center have re-investigated the cases of people like Walter McMillian and found that the ultimate miscarriage of justice had been done: an innocent man had been sentenced to death. Stevenson was nationally honored this year as a MacArthur Fellow by the John T. and Catherine D. MacArthur Foundation for his outstanding work, but Congress appears unwilling to fund his $28,000 salary so that the Resource Center can continue. [59]

These resource centers have been a small counter-balance to the enormous funds and legal arsenal available to the prosecution at both the trial and appellate stages of a capital case. With the resource centers gone, the playing field will precipitously tip further in favor of the state's case. Sole practitioners with little or no experience and no resource center backup will be thrust into complex death penalty litigation. Payment for handling post-conviction appeals, if there is any payment at all, may go to the lowest bidder. Years of expertise in the complex area of death penalty law will be squandered.
  "If these [resource] centers are eliminated, the cost to the taxpayer will go up . . . . The effect will be to prolong cases . . . ."
--Chief Judge Richard Arnold, U.S. Court of Appeals  The Breadth of the Problem The federal reports are filled with stories of counsel who presented no evidence in mitigation of their clients' sentences because they did not know what to offer or how to offer it, or had not read the state's sentencing statute.
--Justice Thurgood Marshall [60]

Examples like those cited above, of incompetent lawyers handling the most important cases in their clients' lives, are by no means isolated. They represent a growing crisis which has been exposed and denounced time and again over the years.
 

* A 1990 report by the American Bar Association concluded that "the inadequacy and inadequate compensation of counsel at trial" was one of the "principal failings of the capital punishment systems in the states today."[61] The report contained numerous examples of flagrant misconduct by attorneys like the lawyer who was out of the courthouse parking his car while the key prosecution witness was testifying, and another lawyer who referred to his own client as a "nigger" in front of the jury. The report noted that examples like these are legion.
 

* A subsequent 1993 ABA study found the whole system of indigent defense to be in a state of crisis, citing a long history of warnings on this problem. In particular, it noted that death penalty defendants have been the hardest hit by inadequate funding. [62]
 

* The National Law Journal, after a study of death penalty representation in the South, concluded that capital trials are "more like a random flip of the coin than a delicate balancing of scales," because the defense attorney is "too often . . . ill-trained, unprepared [and] grossly underpaid." [63] An investigation by the Kentucky Department of Public Advocacy found that one-fourth of those under the sentence of death in Kentucky were represented at trial by attorneys who since had been disbarred or had resigned rather than face disbarment. [64] In six southern states, capital defense attorneys were disbarred, suspended, or disciplined at rates 3 to 46 times higher than the general attorney discipline rates. [65]
 

* In an extensive recent article in The Yale Law Journal, veteran death penalty attorney and J. Skelly Wright Fellow at Yale, Stephen Bright, concluded, "No person accused of any crime should receive the sort of representation that is found acceptable in the criminal courts of this nation today, but it is particularly indefensible in cases where life is at stake." [66] The article is a veritable catalogue of slipshod representation, inexcusable omissions, and a lack of concern by attorneys for the gravity of their task.
 

* In many instances, it's not just a question of inadequate lawyers; there simply are no lawyers available, especially for appeals:

-In California, half of the 249 death row inmates awaiting their first appeals have no lawyers, and about 33 new inmates are added to death row each year.[67]

-In Pennsylvania, the new governor is signing death warrants at record rates, even scheduling multiple executions on the same day. But the system of representation is breaking down. According to Prof. Shelley Stark of the University of Pittsburgh School of Law, "There are about 190 people on [Pennsylvania's] death row right now, and almost none are represented after the direct appeal stage. This is a major crisis." [68] At the same time, the overwhelmed Pennsylvania Resource Center with five attorneys, is trying to represent those closest to execution and is about to lose its funding.

-Even in Ohio, which has a public defender office to handle death row appeals, unreasonable workloads can make representation impossible. John Dougherty's recent death penalty appeal was dismissed because his lawyers missed a filing deadline. The public defender office had tried to withdraw from the case because of overwhelming time pressures, but the court refused. One of Dougherty's attorneys explained that she was trying to work on eleven other death penalty cases at the same time. [69]
 

* Most recently, Justice Harry Blackmun, just before stepping down from the Supreme Court in July, 1994, pointed to the "crisis" in the representation of capital defendants. His parting thoughts to the Court and to the American people deserve ample quotation:

Frequently the legal counsel available to capital defendants at these critical stages [trial and postconviction proceedings] is woefully inadequate. . . .

Court-awarded funds for the appointment of investigators and experts often are either unavailable, severely limited, or not provided by state courts. As a result, attorneys appointed to represent capital defendants at the trial level frequently are unable to recoup even their overhead costs and out-of-pocket expense, and effectively may be required to work at minimum wage or below while funding from their own pockets their client's defense.

He concludes:
It is my hope and belief that this Nation soon will come to realize that capital punishment cannot morally or constitutionally be imposed. Until that time, however, we must have the courage to recognize the failings of our present system of capital representation and the conviction to do what is necessary to improve it. [70]
Texas: A Case of Neglect


"We believe, in the strongest terms possible, that Texas has already reached the crisis stage in capital representation . . . ."
--A Study of Representation of Capital Cases in Texas, 1993 

No state epitomizes the death penalty more than Texas. With three times the executions of any other state and one of the largest death rows in the country, Texas is far and away the execution leader. Not coincidentally, Texas has one of the worst systems for providing death penalty lawyers.

Recently, the State Bar of Texas commissioned a study of the system of representation in death penalty cases. A comprehensive report prepared by the Spangenberg Group of Massachusetts found that capital representation in Texas is plagued with tremendous problems at both the trial and appellate level. It described the lack of counsel and the inadequacy of funding as "desperate" and "urgent", and concluded:

We believe, in the strongest terms possible, that Texas has already reached the crisis stage in capital representation and that the problem is substantially worse than that faced by any other state with the death penalty.[71]
Texas's compensation for court-appointed attorneys remains near the lowest in the country. [72] The prosecutors, on the other hand, represent a team of salaried state employees with ample resources and ready access to other law enforcement agencies for investigating and pursuing their cases. [73]
The Spangenberg Report concluded that defending death penalty cases in Texas is frequently a losing financial venture: "The rate of compensation provided to court-appointed attorneys is absurdly low and does not cover the cost of providing representation." [74] Without adequate compensation, it would be unrealistic to expect that capital defendants are consistently provided a thorough defense.
 

* In one Texas case, the entire argument offered by an attorney for his client, Jesus Romero, at a capital sentencing consisted of these words: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say."[75] Romero was executed in 1992.

* Federico Macias came within two days of execution in Texas because his trial attorney did almost nothing to prepare for trial. No doubt, being paid just over $11 an hour was a disincentive for the attorney to conduct a more thorough investigation.

This lawyer failed to call available witnesses who could have refuted the state's case and based his trial decisions on a fundamental misunderstanding of Texas law. The defense counsel also admitted he did no investigation at all for the sentencing phase. His only preparation was to speak to his client and his wife during the lunch break of the sentencing proceeding.[76]
  In Randall County, Texas, defense counsel Mallory Holloway was told that he had better not ask for investigation funds, since he had already drained the county's budget by insisting on co-counsel.[77]

Today Macias is a free man, thanks to volunteer counsel from a Washington law office that intervened just before Macias's execution. With qualified counsel and the help of the Texas Resource Center, Macias was eventually cleared of all charges and released in 1993. [78] That resource center is now facing defunding and is closing its doors.

The Crisis in Other States

Texas is certainly not alone in having a poor record regarding death penalty representation. In a review of attorney conduct in capital cases, a Tennessee appellate court cited 17 cases in which the attorneys offered no mitigation evidence whatsoever during the penalty phase of the trial.[79] This represented one-fourth of the cases of people who had been sentenced to death in that state. Under Tennessee law, presenting no mitigating evidence is tantamount to an automatic death sentence. In medicine, this would be comparable to a doctor walking away from a patient who had suddenly stopped breathing.

According to a recent article in the Tennessee Bar Journal, some attorneys are spending 20 hours or less preparing for a death penalty trial. (In contrast, North Carolina public defenders spent an average of 613 hours on death penalty cases, most of it preparing for trial. [80]) Yet, the article noted that no capital convictions have been reversed by Tennessee courts because of ineffectiveness of counsel and only one death sentence has been overturned. [81]

In Louisiana, the public defender system is funded primarily by revenues from local traffic tickets. In regions with little revenue, little money is available to pay defense attorneys, even when a defendant's life is on the line. This results in representation like that afforded Keith Messiah. Messiah was convicted of capital murder in a one-day trial in Louisiana. His attorney then merely stipulated to his client's age at the time of the crime and rested his case. The entire penalty trial took 20 minutes. Messiah remains on death row. [82]

Philadelphia, with only 14% of Pennsylvania's population, has been responsible for over 50% of the Pennsylvania cases receiving the death penalty.[83] A closer look at the system of capital representation in Philadelphia helps explain these dismal results. Attorneys in Philadelphia are given about one-tenth what lawyers in Los Angeles are paid for defending a death penalty case. [84] In a review of 20 cases in which the death penalty was sought over two years, The Philadelphia Inquirer found that in only one case did the defendant have two attorneys, standard practice in many other jurisdictions. In 60% of the cases, no investigator was paid for by the courts. The courts paid for psychologists in only two cases, and then only a paltry amount.[85]

Prof. Robert Sadoff of the University of Pennsylvania, who travels widely as an expert witness in criminal cases, refuses to take work in Philadelphia homicide cases because the money is either ridiculously low or non-existent. "I like to choose my charities," Sadoff said. "This is a bad system, unfair to the defendant." [86]
  Presenting no mitigating evidence is tantamount to an automatic death sentence. . . . comparable to a doctor walking away from a patient who had suddenly stopped breathing. 

Although some measures have been taken to improve the system of representation, it is being overwhelmed by a new law requiring the Governor of Pennsylvania to sign death warrants on an accelerated basis, even if the defendant is not represented by counsel. The state's former attorney general, Ernest Preate, Jr., said that there are more than 30 cases facing death warrants, which will cost the state a minimum of $1 million each. "A small, rural county in Pennsylvania is not going to be able to absorb the cost of these fees," said Preate. [87] The recently established Pennsylvania Resource Center, which monitors death penalty appeals is already overwhelmed. Its director, Rob Dunham, said it will have to stop taking cases: "There are many, many more cases than we will ever be able to handle." [88] Soon, even that recourse will be closed to those on death row because of the withdrawal of federal funds.

Towards A Fairer System of Representation "The state [of Texas] paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for."
-->Martinez-Macias v. Collins 

Some states have begun to acknowledge the need for better representation in capital cases. [89] Under New York's new death penalty law, there is an office to assist in the selection of defense attorneys, though the ultimate decision in a case still rests with elected judges. Tennessee's Supreme Court, after a four-year wait, has recently promulgated standards for death penalty representation and raised the fees for attorneys. Louisiana is attempting to emerge from a state of crisis by the appointment of an Indigent Defender Board with some funds to improve their system of court appointments, though some attorneys are still not being paid for defense work. [90]

Nevertheless, despite these modest gains, compensation rates for court-appointed attorneys in capital cases are well below the rates for comparable work by experienced attorneys in almost every state. And the U.S. Congress, while imposing new deadlines and draconian restrictions on death row appeals, has failed to impose any conditions on the representation afforded capital defendants at trial.

Inadequate Pay Brings Inadequate Results

Although, in theory, the fee that an attorney is paid should not figure into the quality of representation, it usually does. Some lawyers can work for free or are not concerned about meeting office expenses, making a profit and paying their staff, but most attorneys have to keep their eye on the bottom line if they are to remain in practice. If the court allows only $2,000 to prepare for a death penalty trial, then a lawyer who puts in 20 hours will be making about $100 per hour, which is a minimal fee in many kinds of practice. (Of course, 20 hours is a seriously deficient amount of time to prepare for a death penalty trial.) An attorney who decides to devote 200 hours of preparation, however, would be making only $10 per hour, and someone who was diligent enough to put in the 500 to 1,000 hours which experts estimate is often needed to prepare a capital case [91] would be working for below minimum wage.

Yet, fees in the range of $2,000 for preparing a death penalty case are not unusual. Justice Blackmun pointed to the "perversely low" compensation offered to attorneys appointed to these cases as one of the principal reasons for poor representation. "Kentucky pays a maximum of $2,500 for [all pretrial and trial proceedings.] Alabama limits reimbursement for out-of-court preparation in capital cases to a maximum of $1,000 each for the trial and penalty phases." [92] (Kentucky's fee cap was recently raised to $5,000, still abysmally low.)

In other states, the arrangement between the courts and the attorneys they appoint may be less constrained but still totally inadequate. A survey by the Mississippi Trial Lawyer's Association found that death penalty lawyers were paid an estimated $11.75 per hour. [93]

In the recent Texas case of Federico Macias mentioned above, the U.S. Court of Appeals overturned his conviction and death sentence because of the poor representation he received at trial. The Court directly linked the attorney's failure to present evidence of Mr. Macias's innocence to the inadequate pay:

We are left with the firm conviction that Macias was denied his constitutional right to adequate counsel in a capital case in which actual innocence was a close question. The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.[94]
The Public Defender "Solution"


I met 'em, pled 'em and closed 'em--all in the same day.
--Public defender, Fulton County, GA 

Some states have sought to deal with the crisis in death penalty representation by assigning these cases to the public defender's office, under the assumption that the attorneys there are already adequately funded by the state and presumably screened for competence. This might work where caseloads can be adjusted for the enormous burden which even a single death penalty case places on an office, and where the public defender's office can be expanded to include attorneys specially trained to handle capital cases. However, this is clearly not a solution where the public defender's office is already overwhelmed by its non-death penalty case load. In Minnesota, Connecticut, Mississippi, Illinois and Indiana, the indigent defense systems are so overburdened that the states are being sued. [95]

When the Kentucky Public Defender's office found that its overburdened caseload did not allow it to take the death penalty case of Gregory Wilson, the appointing judge had great difficulty finding attorneys to handle the case, especially with Kentucky's low fee cap. Finally, the judge wrote to the members of the local bar:

PLEASE HELP. DESPERATE. The defendants, the community, and everyone concerned in this matter is entitled to their day in court. [96]
Two lawyers applied for the job. One had never tried a felony case. The other was a semi-retired lawyer who had been successfully sued for malpractice. His client in the capital case described him as "unprepared, ill-trained and ill-equipped." Nevertheless, the Kentucky Supreme Court held that the defendant received effective assistance of counsel.[97]

One experienced litigator described the situation in the Fulton County Public Defender's Office which serves the courts in Atlanta:

A public defender in Atlanta may be assigned as many as forty-five new cases at one arraignment. At that time, upon first meeting these clients--chained together--for a nonprivate, nonconfidential "interview" in a holding area near the courtroom, she may plead many of them guilty and have them sentenced on the spot. As one public defender described disposing of seventeen indigent defendants: 'I met 'em, pled 'em and closed 'em--all in the same day.'[98]
Most of the defendants in this assembly line justice are not capital defendants. But a public defender with such a daily dose of rapid fire cases would be ill-prepared to stop and spend the extensive time which just one capital defendant requires. In such an atmosphere, a lone defendant whose charges might end with a death sentence can easily fall through the cracks. Mistakes or omissions made at the early stages of representation could cripple this defendant all through the legal system and ultimately mean the difference between life and death.

In a similarly deplorable situation, the Louisiana Supreme Court recently found that the whole system of representation through the public defender's office was unconstitutional. One public defender, for example, had at least one serious case set for trial every single day he worked. In routine cases, he received no investigative support, because the three investigators who served the entire public defender's office were responsible for over 7,000 cases per year. [99]
  "Basically, when the [Louisiana] Legislature set up this system they said, 'We got to do it, but we don't gotta do it good.'"
--John Lavern, Louisiana public defender 

John Lavern, head of the Louisiana public defender's office for Calcasieu and Cameron parishes, described the approach that the state legislature had taken to this crisis: "I don't think there's any question about the system being in crisis," he said. "Basically, when the Legislature set up this system they said, 'We got to do it, but we don't gotta do it good.'" [100] Fortunately, court rulings have begun to bring legislative change.

Elsewhere, cutbacks across the country in indigent legal defense have created a crisis in the criminal justice system. [101] A 1993 report for the American Bar Association found that "long-term neglect and underfunding of indigent defense has created a crisis of extraordinary proportions in many states throughout the country."[102] As John Holdrige of the Mississippi & Louisiana Capital Trial Assistance Project put it: "You have a lawyer in a sense, but a lawyer who can't work on your case. There is virtually no difference between that and not having a lawyer at all." [103]

The Court's Adoption of Low Standards

Adequate financial resources for defending capital cases is only part of the solution to the problem of incompetent representation. An attorney just out of law school who has never tried a criminal case, much less a death penalty case, will not provide quality representation no matter how much he or she is paid.[104] There is a need for both high standards of competency and an independent appointing authority, so that only experienced and qualified lawyers will be assigned the primary responsibility for such cases.

The Supreme Court has abdicated responsibility for this problem by defining its notion of ineffectiveness of counsel so narrowly that only the most extreme cases of incompetence apply. They begin with a generous presumption that the attorney's conduct fits within a wide range of professional assistance.[105] Given the complexity of death penalty law, an attorney should have to establish beforehand that he or she is qualified to handle such a case. Justice Blackmun called the Court's standards in this area "impotent" and said they have "failed to protect a defendant's right to be represented by something more than 'a person who happens to be a lawyer.'" [106]

Justice Blackmun succinctly illustrated the fatal consequences of an attorney's ignorance of the law by relating two parallel cases which went in very different directions because of the widely divergent skills of the respective attorneys:

John Smith and his codefendant Rebecca Machetti were sentenced to death by juries selected under the same Georgia statute. Machetti's attorneys successfully challenged the statute under a recent Supreme Court decision winning Machetti a new trial and ultimately a life sentence. Smith's counsel was unaware of the Supreme Court decision, however, and failed similarly to object . . . . Smith was executed in 1983. [107]

Perhaps the most often repeated story about shoddy representation in a death penalty case concerns a Georgia lawyer who was asked to name any criminal cases, from any court, with which he was familiar. The lawyer could name only Miranda and Dred Scott, the latter being a civil case. But the most amazing part of this sad story is not that the lawyer had such poor knowledge of criminal law, but rather that he was found competent in the case where this challenge arose and went on to try other death penalty cases while satisfying the lax standards for effective representation.[108]

There are many similarly egregious examples of ineffectiveness in which the death sentence was upheld under the Supreme Court's lenient approach:
 

* John Young was represented at trial by an attorney who was addicted to drugs. Shortly after the trial in which his client was sentenced to death, the attorney himself was incarcerated on federal drug charges. However, the lawyer was not found to be ineffective, and John Young was executed in 1985.
 

* Jesus Romero's attorney, whose closing argument was quoted above, failed to present any mitigating evidence at the sentencing phase of the trial. His closing argument was 29 words. No ineffectiveness was found, and Romero was executed in 1992.
 

* Larry Heath's attorney failed to appear for oral argument before the Alabama Supreme Court. He filed a brief containing a one-page argument, citing only a single case. Heath was executed in 1992. [109]
 

* William Garrison was defended by an attorney who "consumed large amounts of alcohol each day of the trial. . . drank in the morning, during court recesses, and throughout the evening. . . was arrested for driving to the courthouse with a .27 blood-alcohol content," and eventually died of alcohol related diseases. Garrison's conviction was affirmed, though his death sentence was overturned on other grounds. [110]

In the wake of the failure of the High Court's standards announced in Strickland, some academic commentators are saying it is now time to overturn this benchmark. [111] In its place, the courts might rely more on the widely accepted ABA Model Rules of Professional Conduct, which call for zealous advocacy of one's client, as well as identifying minimum defense responsibilities for attorneys in a capital case. [112]

The more immediate need, however, is to prevent bad lawyering before it occurs at trial. In most states, that will take a thorough overall of the way capital defense attorneys are selected and the way resources are provided for death penalty trials.

Conclusion: Going From Bad To Worse There will be more people executed in the United States this year than any other time in the past 30 years. There are more people on death row now than ever before in our country's history. Yet, there is overwhelming evidence that many of these 3,000 people are there not because they have committed the worst crimes, but rather because they were given the worst lawyers.

Most measures being considered to change death penalty laws make them harsher. Under the guise of imposing swift and sure justice, all the emphasis is on swift and sure and none of it is on justice. Instead of taking measures to ensure that everyone facing a death sentence is given adequate representation and the resources to defend themselves, legislators are expanding the number of crimes punishable by death, limiting the opportunities to expose incompetent attorneys, and ignoring the fundamental role that the trial is supposed to play in dispensing justice. Despite the pleas of some of the nation's leading legal organizations and the entreaties by Justices of the Supreme Court to make the trial the "main event" in capital cases, the states and the U.S. Congress are concentrating their efforts on limiting the opportunity and time for death row appeals, eliminating the crucial death penalty resource centers, and failing to address the underlying problem of inadequate legal representation.

Under the current rush to inflict revenge, some who receive the death penalty will be innocent. Many will be chosen to die simply because they could not afford a qualified attorney who would stand up for them. This society has no way of separating the innocent from the guilty except by its adversarial system of justice. That system depends on zealous and independent representation of the accused, so that jurors can discern the truth. As it stands now, representation in death penalty cases is an affront to our commitment to equal justice for all. Unless we renew our commitment to the right to counsel in a way which recognizes the gravity and complexity of death penalty cases, things will continue to get steadily worse.

References [1]. McFarland v. Scott, 114 S. Ct. 2785, 2790 (1994) (Blackmun, J., dissenting from denial of certiorari).

[2]. 725 F.2d 608, 619 (11th Cir. 1984) (ineffectiveness of counsel found at all phases of case).

[3]. See J. Hayes, Stolen Lives, Life Magazine, Oct., 1994, at 65.

[4]. Golden v. State of Florida, slip opin. No. 78,982 (Fla., Nov. 10, 1993).

[5]. Phone conversation between Golden's appellate lawyer, Gwendolyn Spivey, and the Death Penalty Information Center, Aug. 22, 1995.

[6]. Id.

[7]. Golden, note 4.

[8]. The Florida Bar v. Allen Ross Smith, No. 80702 (May 13, 1993) (failure to maintain in trust certain property in which both lawyer and another person claimed interest).

[9]. S. Taylor, Jr., He Didn't Do It, The American Lawyer, Dec. 1994, at 70.

[10]. Id. at 73.

[11]. Id.

[12]. Id. at 69.

[13]. Schlup v. Delo, 115 S. Ct. 851 (1995).

[14]. See Request for Commutation of Death Sentence of Varnall Weeks, submitted to Gov. Fob James of Alabama, May 8, 1995 by eight mental health organizations and other individual mental health professionals (on file with the Death Penalty Information Center).

[15]. See NBC Nightly News, Aug. 18, 1995 ("In Depth" segment on the death penalty, with statement by juror from Adams's trial).

[16]. See L. Rozsa, Governor Asked to Free 'Crazy Joe,' The Miami Herald, June 30, 1995, at 1B.

[17]. See L. Rozsa, Witness: Don't Kill Convict, The Miami Herald, June 11, 1995, at 1A (quoting prosecutor Claude Van Hook).

[18]. See Bundy v. State, 471 So.2d 8, 19 (Fla. 1985).

[19]. See, e.g., R. Ofshe, Making Monsters: False Memories, Psychotherapy and Sexual Hysteria (1994).

[20]. See Rozsa, note 16, at 5B.

[21]. P. Marcotte, Snoozing, Unprepared Lawyer Cited, ABA Journal, Feb., 1991, at 14.

[22]. See The Death of Fairness? Counsel Competency & Due Process in Death Penatly Cases, 31 Houston Law Review 1105, 1132 (1994) (Panel Discussion, remarks of Stephen Bright).

[23]. See V. Berger, The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases, 18 N.Y.U. Review of Law & Social Change 245, 246-51 (1990-91); see also note 2.

[24]. S. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale Law Journal 1835, 1838 (1994).

[25]. J. Davis & M. Curriden, Man Condemned for Murder of Girl is Freed, The Atlanta Journal-Constitution, Nov. 7, 1991, at E6.

[26]. One defense counsel's closing argument consisted of "an apology for having served as [the defendant's] counsel." A federal court granted the defendant a new sentencing hearing, rejecting the attorney's proffered explanation that he thought the jury would spare his client's life because they felt sorry for the attorney. Mathis v. Zant, 704 F. Supp. 1062, 1064 (N.D. Ga. 1989).

[27]. S. McVicker, Defending the Indefensible, The Texas Observer, April 22, 1994, at 8.

[28]. S. Blaustein, The Executioner's Wrong, The Washington Post, Aug. 1, 1993, at C1.

[29]. McVicker, note 27, at 8.

[30]. P. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, The Wall Street Journal, Sept. 7, 1994, at A1.

[31]. Id. at A4.

[32]. Id.

[33]. T. Rohrlich, The Case of the Speedy Attorney, The Los Angeles Times, Sept. 26, 1991, at A1.

[34]. Id. at A3 (Glover was not a death penalty case).

[35]. Id.

[36]. American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 3.1 (1989).

[37]. See, e.g., S. Bright & P Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 Boston University Law Review, to be published Fall, 1995.

[38]. W. Brennan, Jr., Foreward: Neither Victims Nor Executioners, 8 Notre Dame Journal of Law, Ethics & Public Policy 1, 3 (1994).

[39]. See Bright, note 24, at 1878.

[40]. See, e.g., L. Wiehl, Program for Death-Row Appeals Facing Its Own Demise, The New York Times, Aug. 11, 1995, at A13.

[41]. Id.

[42]. M. Coyle, Republicans Take Aim at Death Row Lawyers, The National Law Journal, Sept. 18, 1995, at A1.

[43]. 466 U.S. 668 (1984).

[44]. See generally W. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 William & Mary Bill of Rights Journal 91 (1995).

[45]. See Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994).

[46]. Cave v. Singletary, 971 F.2d 1513, 1517 (11th Cir. 1992).

[47]. Id. at 1518 (quoting district court opinion).

[48]. Id. at 1519.

[49]. Id.

[50]. Brewer v. Aiken, 935, F.2d 850, 852 (7th Cir. 1991).

[51]. Id. at 857-58.

[52]. Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992).

[53]. Id. at 619, quoting Mak v. Blodgett, 754 F. Supp. 1490, 1500 (W.D. Wash. 1991).

[54]. Id. at 616 n.2.

[55]. Even a 10 minute argument is too long for one attorney who has handled a number of capital cases. After his client was found guilty of capital murder, the trial judge asked a Wyoming attorney how much time he would need to present his case for sparing the defendant's life. "Two minutes," the lawyer replied. "I'm serious. I have been in this position probably more than anybody in this room, multiplied by 5, okay, and there ain't nothing you can say. They (the jury) will do what they want and there is no point." Hopkinson v. State, 632 P.2d 79, 197 n.13 (Wyo. 1981), (Rose, C.J., dissenting in part and concurring in part) .

[56]. B. Egelko, 9th Circuit Overturns Death Sentence, Los Angeles Daily Law Journal, May 17, 1994.

[57]. Id.

[58]. See, e.g., Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (allowing a broad range of attorney omissions at trial).

[59]. See, e.g., A. Lewis, Cruel and Reckless, The New York Times, Aug. 11, 1995 (op-ed).

[60]. T. Marshall, Remarks on the Death Penalty Made at the Judicial Conference of the Second Circuit, 86 Colum. L. Rev. 1, 2 (1986).

[61]. I. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, Report of the American Bar Association's Recommendations Concerning Death Penalty Habeas Corpus, 40 American U. Law Rev. 1, 16 (1990).

[62]. R. Klein & R. Spangenberg, The Indigent Defense Crisis, prepared for the ABA Section of Criminal Justice Ad Hoc Committee on the Indigent Defense Crisis, 1993, at 7.

[63]. M. Coyle, et al., Fatal Defense: Trial and Error in the Nation's Death Belt, National Law Journal, June 11, 1990, at 30.

[64]. D. Cassens Moss, Death, Habeas and Good Lawyers: Balancing Fairness and Finality, ABA Journal, Dec. 1992, at 85.

[65]. See Coyle, note 63, at 44.

[66]. Bright, note 24, at 1883.

[67]. See C. Cooper, Hard Life for Lawyer in Death Row Appeal, The Sacramento Bee, July 24, 1995.

[68]. K. Berexa, The Coming Crisis in Death Penalty Cases, Pittsburgh Legal Journal, May 18, 1995.

[69]. M. Williams, Could Missed Deadline Cost Man His Life?, The (Ohio) Daily Reporter, June 8, 1995.

[70]. McFarland v. Scott, 114 S. Ct. 2785, 2790 (1994) (Blackmun, J., dissenting from denial of certiorari) (citations omitted).

[71]. The Spangenberg Group, A Study of Representation of Capital Cases in Texas, at 4 & 152 (March, 1993) (emphasis added) [hereinafter Spangenberg].

[72]. Id. at 14-15.

[73]. "State funding pays the salaries of the primary district or county felony prosecutor . . . and provides cash supplements for partial funding of assistants' salaries and other expenses." Texas Crime, Texas Justice 49, Office of the Comptroller (Sept., 1992). There is also an Office of the State Prosecuting Attorney to represent the State's interests in the Court of Criminal Appeals. Id. at 47. These offices are not subject to the variations in county budgets which the defense faces.

[74]. Spangenberg, note 71, at vi (Major Findings).

[75]. See Romero v. Lynaugh, 884 F.2d 871, 875 (5th Cir. 1989) (Romero was executed in 1992).

[76]. See generally Martinez-Macias v. Collins, 810 F. Supp. 782 (W.D. Tex. 1991), and specifically with regard to the sentencing phase see id. at 814-15 (magistrate's report).

[77]. See Hafdahl v. Texas, 69,646 (Texas Crim. App., 1988), cited in Coyle, note 63, at 34.

[78]. Martinez-Macias v. Collins, 979 F.2d 1067, 1067 (5th Cir. 1992). Tragically, Mr. Macias died in September, 1995.

[79]. State v. Melson, 772 S.W.2d 417, 421 (Tenn. 1989).

[80]. See P. Cook & D. Slawson, The Costs of Processing Murder Cases in North Carolina, 61, table 6.3 (1993).

[81]. See W. Redick, The Crisis in Representation of Tennessee Capital Cases, Tenn. Bar Journal, Mar./April 1993, at 24. After a four year wait, the Supreme Court of Tennessee recently issued an order which will result in promulgating standards for counsel in death penalty cases and raising fees paid to attorneys. See Capital Report, National Legal Aid and Defender Association newsletter (March/April 1995) at 2.

[82]. See State v. Messiah, 538 So.2d 175, 187 (La. 1988), cert. denied, 493 U.S. 1063 (1990).

[83]. See generally, M. Kroll, Justice on the Cheap: The Philadelphia Story, Death Penalty Information Center (1992).

[84]. F. Tulsky, Poor Defendants Pay the Cost As Courts Save On Murder Trials, The Philadelphia Inquirer, Sept. 13, 1992, at A1, 18.

[85]. Id. at A18.

[86]. Id.

[87]. D. Roddy, Death Penalty's New Life May Burden the Courts, Pittsburgh Post-Gazette, May 7, 1995, at A1, 14.

[88]. Id.

[89]. See McFarland v. Scott, 114 S. Ct. 2785, 2786 n. 1 (Blackmun, J., dissenting from denial of certiorari) (Florida struck down fee cap; South Carolina refused to enforce state's $10 and $15 per hour compensation rates; Oklahoma and Arkansas struck down fee caps).

[90]. See, e.g., The Death of Fairness?, note 22, at 1175 (Panel Discussion, remarks of Clive Stafford Smith).

[91]. See, e.g., American Bar Association, Toward a More Just and Effective System of Review in State Death Penalty Cases, at 63-64 (October, 1989) (many capital cases require 1,000 hours); see also P. Cook, note 80, at 61.

[92]. McFarland, 114 S. Ct. at 2786. Kentucky has raised the limit of compensation to $5,000. If preparation and court time amounts to 500 hours, the attorney will make $10 per hour.

[93]. Id.

[94]. Martinez-Macias v. Collins, 979 F.2d 1067, 1067 (5th Cir. 1992) (emphasis added).

[95]. See E. Gleick, Rich Justice, Poor Justice, Time Mag., June 19, 1995, at 40..

[96]. D. Cassens Moss, Death, Habeas and Good Lawyers: Balancing Fairness and Finality, ABA Journal, Dec. 1992, at 84.

[97]. Id.

[98]. Bright, note 24, at 1850.

[99]. Id. at 1851.

[100]. D. Hanners, Indigent Legal Aid in Dispute, The Dallas Morning News, Dec. 25, 1993, at 1A.

[101]. See, e.g., A. Blum, Defense of Indigents: Crisis Spurs Lawsuits, The National Law Journal, May 15, 1995, at A1.

[102]. See Klein & Spangenberg, note 62, at 25.

[103]. See A. Blum, note 101.

[104]. See, e.g., Paradis v. Arave, 954 F.2d 1483, 1490-91 (9th Cir. 1992) (defendant represented at trial by attorney who passed the bar six months earlier, had tried no felony or jury cases, and had not taken any courses in criminal law).

[105]. Strickland v. Washington, 466 U.S. 668, 688-89 (1984).

[106]. McFarland, 114 S. Ct. at 2787 .

[107]. Id. (citations omitted). The trial lawyers for both Smith and Machetti failed to raise this crucial issue. Machetti's post-conviction counsel did challenge the composition of the jury and obtained relief. See Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983).

[108]. Bright, note 24 , at 1862. Same lawyer failed to raise an obvious challenge to the racial make-up of the jury in a capital case; the reviewing courts held that the defendant was barred from raising this issue later. See id., at 1839.

[109]. See McFarland, 114 S. Ct. at 2788.

[110]. R. Parloff, Effective Assistance Isn't Much, The American Lawyer, Jan./Feb. 1993.

[111]. See Geimer, note 44, at 176.

[112]. Id. at 161-76.
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