NEW RESOURCES: ACLU Report Finds Severe Deficiencies in Capital Representation and Appeals

According to a new report by the American Civil Liberties Union (ACLU) entitled, "Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America," many states severely restrict access to justice for capital defendants and limit the availability of remedies to correct errors. The problem of inadequate counsel continues to pervade death penalty systems across the country:  “Few states provide adequate funds to compensate lawyers for their work or to investigate cases properly. In addition to inadequate funding, the majority of death-penalty states lack adequate competency standards. Many states require only minimal training and experience for attorneys handling death penalty cases, and in some cases capital defense attorneys fail to meet the minimum guidelines for capital defense set by the American Bar Association (ABA),” according to the ACLU.  The report also states that the absence of a right to counsel in post-conviction appeals leaves capital defendants with few options to address serious errors during their trial.  Read full report here.

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NEW RESOURCES: Costs of Representation in Federal Death Penalty Cases

A recent report to the Committee on Defender Services of the Judicial Conference of the United States by Jon Gould and Lisa Greenman provided an update on the costs of representation in federal death penalty cases.  The report examined all cases in which the federal death penalty was authorized by the U.S. Attorney General between 1998 and 2004.  The authors found that "The median cost of a case in which the Attorney General authorized seeking the death penalty was nearly eight times greater than the cost of a case that was eligible for capital prosecution but in which the death penalty was not authorized."  (emphasis added). The report found that the median cost for defense representation in a death case that went to trial was $465,602, including $101,592 for experts.  If the authorized case was settled by a plea, the median cost was $200,933, still far greater than the median cost of a death-eligible case in which the death penalty was not sought-- $44,809.  In other words, it is the seeking of the death penalty that considerably raises the costs, even if the case results in a plea bargain and no trial.  These figures do not include prosecution and judicial costs .

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Lack of Qualified Attorneys in California Delays Death Penalty Cases

A shortage of qualified criminal defense lawyers in California has caused major delays in the state’s capital punishment system.  Nearly half of those sentenced to death in California are waiting for the state to appoint them a post-conviction attorney.  Death row inmates wait an average of 10-12 years.  The long delay is attributed to the lack of experienced lawyers to take on this part of the appeals process.  The California Supreme Court requires that lawyers have experience in trial and appellate court. Criminal defense attorneys also attribute the scarcity to inadequate state funding.  University of California at Berkeley law professor Elisabeth Semel said that an investigation for post-conviction cases can cost about $250,000, which includes expenses related to expert witnesses and travel.  The current state budget for an investigation is $50,000 for an inmate.  Some experts believe that the shortage of defense lawyers will only be met when the state expands resources like the Habeas Corpus Resource Center, where lawyers have access to paid investigators and paralegals. California has the largest death row population in the country, with more than 700 inmates.

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NEW RESOURCES: The Atlantic Center for Capital Representation

The Atlantic Center for Capital Representation (ACCR) is a newly formed non-profit death penalty resource center located in Philadelphia, Pennsylvania. ACCR provides pre-trial consultation to capital defense practitioners and defense teams in Pennsylvania and Delaware. They are involved in conducting statewide capital defense trainings, as well as public education and advocacy. The ACCR is led by Marc Bookman and Dana Cook, both formerly of the Homicide Unit of the Defender Association of Philadelphia. If you are interested in or have additional questions about this new resource, please contact Mr. Bookman at 215-732-ACCR (2227); [email protected] or [email protected].

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Sentencing Judge Second-Guesses Death Sentence In Light of New Evidence

On October 20, attorneys for Jeffrey Landrigan filed a clemency petition with the Arizona Board of Executive Clemency calling on the Board to recommend the commutation of Landrigan’s death sentence largely because of errors by his trial attorneys. Landrigan’s original attorneys failed to present mitigating evidence at the sentencing hearing, which could have included evidence of brain damage and severe abuse. Judge Cheryl Hendrix, the judge who imposed Landrigan’s death sentence, recently signed a declaration admitting that, if she knew about Landrigan’s background and brain damage, she would not have sentenced him to death. Judge Hendrix wrote, “Had the trial counsel presented any of the mitigating information I have received [since the sentencing trial] – which was available at the time of sentencing – Mr. Landrigan would not have been sentenced to death.” UPDATE: A U.S. District Court Judge has stayed Landrigan's execution, forbidding the use of sodium thiopental in the lethal injection because the state has not adequately assured the court of the drug's efficacy.  The U.S. Court of Appeals for the Ninth Circuit upheld the stay. (Oct. 26, 2010). FURTHER UPDATE: The U.S. Supreme Court (5-4) lifted the stay of execution and Landrigan was executed late on Oct. 26.

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COSTS: "Can California Confront Costs of the Death Penalty?"

A recent op-ed by Professor Gerald Uelmen of Santa Clara Law School in the Sacramento Bee highlighted major concerns about California’s death penalty, including its high costs and the difficulty in finding competent representation for death row inmates. Uelmen also noted that California has the broadest death penalty law in the country, which allows for more death-eligible offenses than other death penalty states. According to the op-ed, “Although death penalty laws are supposed to narrow the discretion of prosecutors and juries by requiring 'special circumstances' for a death sentence, in California there is nothing 'special' about special circumstances. Virtually every first-degree murder can be made into a death case if the prosecutor chooses.” California currently has the largest death row in the United States with more than 700 inmates, more than 40% of whom are still awaiting for the appointment of a lawyer to handle constitutionally-mandated appeals. Meanwhile, the state has cut the budget of the Public Defender’s Office, limited the role of the California Habeas Corpus Resource Center, and failed to appropriate funds needed to appoint private lawyers.  California is also planning to build a new $400 million death row prison that will house inmates at three times the cost of holding those with life without parole sentences. Prof. Uelmen was also Executive Director of the California Commission on the Fair Administration of Justice that carefully examined the state's death penalty.  Read full op-ed below.

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REPRESENTATION: Kentucky Inmate Faces Execution Despite Sham Trial

Gregory Wilson is scheduled for execution in Kentucky on September 16, despite having been represented by woefully unqualified and unprepared attorneys in his death penalty trial.  It took over a year for the trial judge to find an attorney to take Wilson’s case. Wilson was indigent, and the maximum state fee for a capital-murder representation was $2,500. The judge even put a note on his courthouse door, saying: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN."  Eventually, two lawyers agreed to take the case: John Foote, who had never tried a felony (much less a capital) case, and William Hagedorn, a semi-retired lawyer who gave as his office number the phone of the local bar, "Kelly's Keg."  Hagedon volunteered to be lead counsel for free, even though he had no office, no staff, no copy machine and no law books. According to witnesses, Wilson’s lawyers came and went during trial, and attorney Hagedorn was absent more than half the time. The lawyers failed to interview and subpoena witnesses, investigate evidence collected by police, or contact certain family members who would have testified on behalf of sparing Wilson’s life. Stephen Bright, president of the Southern Center for Human Rights, said that Wilson’s case is a "travesty of justice and among the worst examples he's ever seen of a defendant tried for his life with unqualified counsel."

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Pennsylvania's Costly Death Penalty Produces Nothing in Return

Pennsylvania Governor Edward Rendell has signed 113 execution warrants during his two terms in office, yet it appears likely that he will leave office in a few months without seeing any of them carried out. Since the state reinstated the death penalty in 1978, only three men have been executed, all of whom had waived their appeals. Inadequate funding for criminal defense may be one of the primary reasons for this de facto moratorium. Since 1978, state and federal courts have overturned 124 death penalty cases on post-conviction review, mostly because of inadequate representation. (Other reasons cited include prosecutorial misconduct, racial discrimination in jury selection, and improper argument and jury instructions).  When the cases are retried, almost all result in a life sentence.  Robert Dunham, a federal defender, said, “So long as Pennsylvania systematically fails to adequately provide resources at trial, cases will be reversed [in] post-conviction."  Marc Bookman, founder of the Atlantic Center for Capital Representation in Philadelphia, said "an ungodly amount of money" has been spent on the death penalty in the state.  "[I]t's an incredible waste of money," he added.  "We're propping this thing up so that some of our leaders can claim to be tough on law and order."  Pennsylvania has the fourth largest death row in the country.

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After Two Trials With Grossly Inadequate Representation, Death Row Inmate is Allowed to Plead and Leave State

James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at the Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors. Fisher, who is now working at EJI, had been sentenced to death twice, and in both instances, higher courts overturned his death sentence after finding that his defense attorneys provided him inadequate representation. His first lawyer, E. Melvin Porter, was unwilling or unable to reveal holes evident in the state's case. According to a federal appeals court, Porter exhibited "actual doubt and hostility" about his client's defense and failed to present a closing argument, even though the state's case was “hardly overwhelming.” Porter later admitted that, at the time, he considered homosexuals to be “among the worst people in the world” and considered Fisher a “very hostile client.” John Albert, Fisher’s second lawyer, later admitted that at the time of the trial, he was drinking heavily and abusing drugs, and once even physically threatened Fisher. Court records also show that Albert all but ignored defense material concerning the case and failed to sufficiently challenge the testimony of the state’s primary witness. Fisher instructed his new lawyer to seek a plea deal with prosecutors, avoiding a third trial. In an exchange for his freedom, he agreed to plead guilty to first-degree murder, to complete a comprehensive re-entry program in Alabama, and to never return to Oklahoma.

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Alabama Inmate May Face Execution Because of Mailroom Mix-Up

Cory Maples, an inmate on Alabama’s death row, may pay for a simple clerical error with his life. When copies of an Alabama court ruling in his case were sent to the New York law firm handling his appeals, both copies were returned unopened because the firm's attorneys representing Maples had left the firm. By the time the error was discovered, Maples’s time to appeal had expired. So far, the firm has failed to persuade a federal appeals court to waive the deadline for filing an appeal.  Maples's new attorney is arguing that Maples should not be penalized for a mistake he did not commit. Prof. Deborah Rhode, an authority on indigent defense and legal ethics at Stanford, said, “Maples’s case is a textbook illustration of why the doctrine of imputing responsibility to the client for a lawyer’s mistake is so out of touch with reality.”  Alabama is the only state that does not provide lawyers for all indigent death row inmates to challenge their convictions. Hence, defendants rely on volunteer attorneys, often from out of state, to fill the gap, and that contributed to the confusion.

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