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

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. 

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.

“[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.

“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]

“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 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. 

“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. 

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.