Background

“People who are well rep­re­sent­ed at tri­al do not get the death penal­ty.… I have yet to see a death case among the dozens com­ing to the Supreme Court on eve-of-exe­cu­tion stay appli­ca­tions in which the defen­dant was well rep­re­sent­ed at trial.”

— Justice Ruth Bader Ginsburg, University of the District of Columbia, April 2001.

The Sixth Amendment to the Constitution guar­an­tees the right to an effec­tive attor­ney for defen­dants charged with a cap­i­tal offense. The adver­sar­i­al nature of the American crim­i­nal-jus­tice sys­tem height­ens the need for a qual­i­fied defense attor­ney. The U.S. Supreme Court has man­dat­ed that crim­i­nal defense attor­neys pro­vide ​“effec­tive representation.”[i] But that require­ment comes with a high bur­den of proof and often too late: to be grant­ed a new tri­al, a defen­dant must show both that his lawyer’s per­for­mance fell unrea­son­ably below the accept­ed pro­fes­sion­al norms and that it is rea­son­ably prob­a­ble that the lawyer’s defi­cient per­for­mance affect­ed the out­come of the trial. 

In cap­i­tal cas­es, the defense attor­ney has the respon­si­bil­i­ty both to vig­or­ous­ly chal­lenge the state’s evi­dence of guilt to min­i­mize wrong­ful con­vic­tions, and to make a case for a life sen­tence dur­ing the sen­tenc­ing pro­ceed­ings. The sen­tencer — who is most often a jury — is required to make a ​“rea­soned moral response to the defendant’s back­ground, char­ac­ter, and crime”[ii] and can only do so when pre­sent­ed with a com­plete social his­to­ry of the defen­dant. Thus, defense coun­sel must be suf­fi­cient­ly skilled and expe­ri­enced in chal­leng­ing the State’s evi­dence and in devel­op­ing mitigating evidence. 

In addi­tion to being spe­cial­ly trained in cap­i­tal-defense work, attor­neys must be pro­vid­ed ade­quate resources to ful­fill their oblig­a­tions to clients and the courts. 

As the for­mer direc­tor of the Tennessee Justice Project explains, ”[w]hen even the most capa­ble and hard-work­ing attor­neys lack ade­quate resources to do their job, there is an increased risk that inno­cent peo­ple will be incar­cer­at­ed, guilty peo­ple may nev­er be pros­e­cut­ed, and oth­er defen­dants will receive unfair­ly exces­sive sentences.”[iii] Researchers found that 68% of death sen­tences imposed between 1973 and 1995 were reversed because of seri­ous error, and one of the two lead­ing caus­es of error was inad­e­quate defense counsel.[iv] Moreover, of the 34 death-row pris­on­ers exon­er­at­ed between January 2007 and April 2017, inad­e­quate legal defense was a lead­ing con­tribut­ing cause to their con­vic­tion in 23.5% of the cases.[v]

Obtaining the nec­es­sary resources to defend a cap­i­tal case has been and con­tin­ues to be a prob­lem. For exam­ple, in the mid-1990s, Louisiana had lim­it­ed ​“the com­pen­sa­tion for court-appoint­ed cap­i­tal-defense coun­sel to $1,000 for all pre­tri­al prepa­ra­tion and tri­al pro­ceed­ings”; Kentucky had a cap of “$2,500 for the same ser­vices”; and Alabama lim­it­ed ​“reim­burse­ment for out-of-court prepa­ra­tion in cap­i­tal cas­es to a max­i­mum of $1,000 each for the tri­al and penal­ty phases”[vi] and paid attor­neys $20 per hour for time spent prepar­ing the case for trial.[vii] Such fees were inad­e­quate to allow even min­i­mal work to be done in cap­i­tal cas­es. Investigating the crime and the defendant’s back­ground — which includes many activ­i­ties such as inter­view­ing wit­ness­es, review­ing the state’s evi­dence, build­ing a rela­tion­ship with the client — can take hun­dreds and even thou­sands of hours when done ade­quate­ly. If a defense attor­ney spent 500 hours prepar­ing for tri­al in Alabama in 1996, that attor­ney would be paid $2 per hour. Inadequate defense attor­neys per­form­ing with­in an under­fund­ed state sys­tem have led to wrong­ful con­vic­tions. See Case of Anthony Ray Hinton.

In the past two decades, how­ev­er, there have been changes regard­ing cap­i­tal defense and what is required to meet min­i­mum per­for­mance stan­dards. In 2003, the American Bar Association pub­lished defense stan­dards for cap­i­tal cas­es, which include hav­ing two attor­neys, a fact inves­ti­ga­tor, and a mit­i­ga­tion spe­cial­ist — a per­son trained to inves­ti­gate the social his­to­ry of the client. The U.S. Supreme Court has rec­og­nized these guide­lines as per­sua­sive when mea­sur­ing attor­ney per­for­mance in death-penal­ty cas­es. Moreover, states have begun fund­ing state-wide and region­al cap­i­tal defend­er pro­grams, which experts have found increased the qual­i­ty of rep­re­sen­ta­tion and decreased the num­ber of death sentences.[viii]

Despite these efforts, there are con­tin­u­ing instances in which cap­i­tal defense attor­neys pro­vide egre­gious­ly sub­stan­dard rep­re­sen­ta­tion. In some instances, cap­i­tal attor­neys have slept through parts of the tri­al or showed up for court under the influ­ence of drugs or alco­hol. And even in states that pro­vide fund­ing, prob­lems still arise. Here are a few examples:

Israel Naranjo— Convicted and sen­tenced to death in Arizona in 2011. Naranjo was giv­en a state-appoint­ed attor­ney who lied on his invoic­es, claim­ing he did inves­tiga­tive work and wit­ness inter­views that he did not. Naranjo has low intel­lec­tu­al func­tion­ing, which could have exempt­ed him from the death penal­ty. On one of his invoic­es (which are pub­lic record), the attor­ney stat­ed, ​“Looking at new video of our client from the past. He looks like a killer, not a retard.” In January 2017, Naranjo’s attor­ney was sus­pend­ed from the prac­tice of law for four years.[ix] Naranjo remains on Arizona’s death row.

James Fisher— Convicted and sen­tenced to death in Oklahoma in 1983 and again in 2005. Fisher had his con­vic­tion and sen­tence over­turned because of inef­fec­tive assis­tance of coun­sel not once, but twice. Fisher’s con­vic­tion was ini­tial­ly reversed after the fed­er­al appel­late court found that his tri­al coun­sel ​“exhib­it­ed hos­til­i­ty to his client and sym­pa­thy and agree­ment with the pros­e­cu­tion in ways that put his actions direct­ly at odds with his clien­t’s interests.”[x] During his sec­ond tri­al, Fisher’s attor­ney ​“spent less time work­ing on cas­es and more time drink­ing beer and play­ing pool dur­ing work hours.” His attor­ney was ​“drink­ing heav­i­ly and abus­ing cocaine,” which result­ed in neglect­ing his clients’ cases.[xi] After his con­vic­tion was reversed a sec­ond time, Fisher reached a set­tle­ment agree­ment with prosecutors.

Robert Wayne Holsey— Convicted and sen­tenced to death in Georgia in 1997. ​“Holsey’s lead defense lawyer drank a quart of vod­ka every night of Holsey’s tri­al while also prepar­ing to be sued, crim­i­nal­ly pros­e­cut­ed, and dis­barred for steal­ing client funds.”[xii] Despite these facts, Holsey was denied relief because he could not show that he was prej­u­diced by his attorney’s per­for­mance. Holsey was exe­cut­ed in 2014.

George McFarland— Convicted and sen­tenced to death in Texas in 1992. McFarland’s lead attor­ney, whom he hired upon advice of an acquain­tance, spent only four hours prepar­ing and slept through parts of the 17-day tri­al, being nudged at times by the bailiff and being admon­ished by the judge.[xiii] The Texas Court of Criminal Appeals said the fact that McFarland had been appoint­ed anoth­er attor­ney — even though that per­son had nev­er tried a cap­i­tal case and McFarland did not com­mu­ni­cate with him — was suf­fi­cient to pro­tect his right to counsel.[xiv] McFarland remains on Texas death row.