Texas Report Finds Noncompliance With State Defense Laws

A review of death penal­ty defense poli­cies in Texas has uncov­ered wide­spread non­com­pli­ance with state laws that require each region to adopt qual­i­fi­ca­tion stan­dards for cap­i­tal defense attor­neys. Only two of the nine judi­cial regions in Texas have adopt­ed the stan­dards. A report on the find­ings has been pub­lished by the Equal Justice Center, a Texas orga­ni­za­tion that advo­cates for greater fair­ness in the jus­tice sys­tem, and the Texas Defender Service, an orga­ni­za­tion ded­i­cat­ed to improv­ing the qual­i­ty of death penal­ty rep­re­sen­ta­tion. (Houston Chronicle, October 29, 2003) Read the report.

Inadequate Representation in Pennsylvania Produces Large Death Row

When New Jersey enact­ed its death penal­ty law in 1982, it estab­lished a spe­cial unit of lawyers and experts for defen­dants fac­ing cap­i­tal charges. After two decades, the state has 14 indi­vid­u­als on death row. In con­trast, when Pennsylvania enact­ed its death penal­ty law, the state failed to estab­lish a sim­i­lar sys­tem for assis­tance. For Pennsylvania, a state of com­pa­ra­ble pop­u­la­tion to New Jersey, the result of this deci­sion has been a death row pop­u­la­tion of 237 and a cap­i­tal pun­ish­ment sys­tem that is plagued by evi­dence of inad­e­quate rep­re­sen­ta­tion. The sys­temic flaws and sen­tence rever­sals led the Pennsylvania Supreme Court to appoint a com­mit­tee to exam­ine the prob­lem. (Philadelphia Inquirer, October 6, 2003).

Extraordinary Representation Needed to Free Death Row Inmate

The Philadelphia law firm of Morgan Lewis recent­ly cel­e­brat­ed the exon­er­a­tion of John Thompson, who spent 18 years on Louisiana’s death row before two of the fir­m’s part­ners helped to win his free­dom. Firm part­ners J. Gordon Cooney Jr. and Michael L. Banks pro­vid­ed Thompson with pro bono ser­vices that cost the firm $1.7 mil­lion in legal work and expens­es over a 15-year peri­od and involved 90 lawyers and sup­port staff. According to the city’s bar asso­ci­a­tion, there is a mas­sive need for addi­tion­al lawyers to do more. Sharon Browning, exec­u­tive direc­tor of the bar asso­ci­a­tion’s Volunteers for Indigent Defense, said, ​“I can’t even begin to tell you how vast the need is. It’s huge. The over­whelm­ing major­i­ty of peo­ple who are poor have no access to the legal sys­tem — none.” Even with the extra­or­di­nary rep­re­sen­ta­tion by Morgan Lewis, Thompson came close to exe­cu­tion in 1999 until a piece of evi­dence was dis­cov­ered that had been with­held from the defense in 1985. (Philadelphia Inquirer, September 22, 2003)

U. S. Supreme Court Rules Lawyers Failed Client, Voids Death Sentence

By a vote of 7 – 2, the U.S. Supreme Court has thrown out the death sen­tence of Maryland death row inmate Kevin Wiggins, rul­ing that his inex­pe­ri­enced attor­neys failed to ade­quate­ly rep­re­sent him at tri­al. Wiggins’ orig­i­nal lawyers made no attempt to inform mem­bers of the jury that sent Wiggins to death row that their client was repeat­ed­ly raped, beat­en and denied food as a child, and that his moth­er burned his hands on the stove as pun­ish­ment. In an opin­ion authored by Justice Sandra Day O’Connor, the Court said that if jurors knew the ghast­ly details of Wiggins’ child­hood, they might have cho­sen a life sen­tence for Wiggins. Wiggins, who is bor­der­line men­tal­ly retard­ed, will now receive a new sen­tenc­ing hear­ing. Justices O’Connor and Ruth Bader Ginsburg have pub­licly expressed qualms about the qual­i­ty of legal help avail­able to many peo­ple accused of mur­der. (Associated Press, June 26, 2003). See Supreme Court.

Funding for Death Penalty Representation in Jeopardy

North Carolina House bud­get writ­ers recent­ly pro­posed elim­i­nat­ing cru­cial state fund­ing for the Center for Death Penalty Litigation, an orga­ni­za­tion that advis­es defense attor­neys in death penal­ty cas­es. The Center cur­rent­ly receives $590,000 annu­al­ly to train defense attor­neys and advise them in approx­i­mate­ly 350 cap­i­tal cas­es a year. The cen­ter also direct­ly rep­re­sents about 30 peo­ple a year accused of mur­der, most of them at the appel­late lev­el. North Carolina Representative Martin Nesbitt warned, ​“It’s fools gold to do away with this. It’s not whether you are pro- or anti-death penal­ty. Whether peo­ple like it or not, the con­sti­tu­tion demands that peo­ple receive ade­quate rep­re­sen­ta­tion.” The Center main­tains that elim­i­na­tion of fund­ing could risk inno­cent lives and ulti­mate­ly end up cost­ing the state more mon­ey because an increased num­ber of death penal­ty cas­es will be over­turned at the fed­er­al lev­el. The pro­pos­al must now go before the House’s full Appropriations Committee, where fund­ing could be restored. The mon­ey could also be restored by North Carolina’s Senate dur­ing its con­sid­er­a­tion of the pro­pos­al. (Herald Sun, April 10, 2003).

Texas Judges Issue Dissent After Execution

More than two months after Leonard Rojas was exe­cut­ed on December 4th in Texas, three judges from the Texas Court of Criminal Appeals decried the court’s ear­li­er deci­sion to deny Rojas’s request for a reprieve. The request was based on claims that his defense attor­ney, David Chapman, had cost him all of his fed­er­al appeals. In the dis­sent, Judge Tom Price stat­ed Chapman had nev­er han­dled a death penal­ty appeal and, at the time of his appoint­ment, was under two pro­bat­ed sus­pen­sions hand­ed down by the state bar because he inef­fec­tive­ly rep­re­sent­ed oth­er clients. Court records also reveal that Chapman suf­fered from bipo­lar dis­or­der and con­duct­ed no inde­pen­dent inves­ti­ga­tion of the Rojas case. The dis­sent fur­ther not­ed that in a brief filed by Chapman, he failed to file a sin­gle appro­pri­ate claim, sug­gest­ing that he did not under­stand the crit­i­cal habeas cor­pus appeal process. (Chicago Tribune, February 13, 2003) Read the Texas Defender Service Press Release.

Disciplinary Problems Common Among Court-Appointed Attorneys in North Carolina

According to a new report issued by the Common Sense Foundation, more than one in six cur­rent death row inmates in North Carolina was rep­re­sent­ed at tri­al by lawyers who have been dis­ci­plined by the North Carolina State Bar. One of the attor­neys, Douglas Osborne, Jr., rep­re­sent­ed death row inmate Kenny Neal at his cap­i­tal tri­al in 1996. The state appoint­ed him to serve as Neal’s coun­sel not long after he was released from fed­er­al prison after serv­ing time for child pornog­ra­phy charges. Jurors said after the tri­al that they knew about Osborne’s felony con­vic­tion and it affect­ed their per­cep­tion of his argu­ment. Thirty-five of the inmates cur­rent­ly await­ing exe­cu­tion in North Carolina were rep­re­sent­ed by dis­ci­plined attor­neys. Read the Report. (October 15, 2002)

California Judicial Council Adopts Standard on Death Penalty Appointments

On November 1, 2002, California’s Judicial Council for the first time adopt­ed statewide min­i­mum stan­dards for attor­neys appoint­ed to rep­re­sent death penal­ty defen­dants at tri­al. Under the new rules, an appli­cant for a lead death penal­ty defense appoint­ment must show at least 10 years crim­i­nal law lit­i­ga­tion expe­ri­ence, pri­or ser­vice as lead coun­sel in oth­er mat­ters, and at least 15 hours of spe­cial cap­i­tal case defense MCLE train­ing. If a Public Defender’s Office is appoint­ed, the indi­vid­ual attor­ney to be lead coun­sel from the office must meet the qual­i­fi­ca­tions. The rule orig­i­nat­ed with the council’s Advisory Committee on Criminal Law, and becomes rule 4.117 of the California Rules of Court. (Metropolitan News-Enterprise, November 4, 2002) Read the article

Attorney’s Letter Reflects Ongoing Crisis in Death Penalty Representation

The Louisiana Bar Journal con­tains a let­ter writ­ten by defense attor­ney David J. Williams. In the let­ter, Williams shares his expe­ri­ence rep­re­sent­ing Leslie Dale Martin, who was exe­cut­ed ear­li­er this year. The let­ter reads as follows:

This let­ter is about the tri­al of Leslie Dale Martin who was exe­cut­ed on May 10, 2002. On March 30, 1992, I was appoint­ed to rep­re­sent Martin. Exactly six weeks lat­er, over our vig­or­ous protest that we were not pre­pared, the tri­al began and Martin was con­vict­ed and sen­tenced to death. 

Neither of Martin’s two attor­neys had any expe­ri­ence or train­ing in han­dling this type of case. In addi­tion, the case­load of the lead coun­sel was such that he only had time to read through the file once before trial. 

We hired a psy­chi­a­trist to exam­ine Martin for the penal­ty phase. We thought that the case would be con­tin­ued because the psy­chi­a­trist had not exam­ined Martin before the tri­al began. Instead, the tri­al judge ordered the tri­al to begin and the psy­chi­a­trist to exam­ine Martin at night when the tri­al went on dur­ing the day. Other than hir­ing a psy­chi­a­trist, we had not done any prepa­ra­tion what­so­ev­er for the penalty phase. 

The case shows that, in death penal­ty cas­es, it does not mat­ter whether or not the defense attor­neys are inex­pe­ri­enced or unpre­pared. District Attorneys should cite this case for the propo­si­tion that cap­i­tal cas­es should be rushed into tri­al quick­ly before the defense attor­neys have a chance to pre­pare a defense.

This case cost me most of the respect that I for­mer­ly had for the crim­i­nal jus­tice sys­tem. I thought that courts reviewed death sen­tences care­ful­ly to make sure that the defen­dant had a fair tri­al. Instead, it is only a mat­ter of ran­dom chance whether or not a sen­tence will be overturned. 

(Louisiana Bar Journal, August/​September 2002)

The Washington Supreme Court has unan­i­mous­ly adopt­ed high­er stan­dards for death penal­ty attor­neys after a 2001 Seattle Post-Intelligencer news series revealed that 20% of the defense attor­neys who han­dled cap­i­tal cas­es in the state had been, or were lat­er, dis­barred, sus­pend­ed or arrest­ed. The reforms, enact­ed by the Court under Chief Justice Gerry Alexander, require Washington judges pre­sid­ing over death penal­ty cas­es to appoint defense attor­neys who have been screened by a high court com­mit­tee, or to offer an accept­able excuse for not doing so dur­ing a manda­to­ry hear­ing. (Seattle Post-Intelligencer, June 7, 2002).

Georgia Inmate Sentenced to Death in 27 Minute Hearing Granted Stay

Georgia death row inmate Wallace Fugate was sched­uled for exe­cu­tion on Tuesday, June 18th, but Fulton Superior Court Judge John Goger ruled to stay the exe­cu­tion until the Georgia Board of Pardons and Paroles has a fifth mem­ber as required by the Georgia Constitution. Fugate was con­vict­ed of a mur­der of his ex-wife, Pattie, in an extra­or­di­nar­i­ly brief tri­al that last­ed only two days. Fugate, then 42, had no crim­i­nal record. The sen­tenc­ing hear­ing, where the jury could have heard any­thing about Fugate’s life as a pro­duc­tive cit­i­zen, last­ed only 27 min­utes. (Atlanta Journal-Constitution, June 19, 2002).

Death Row Appeal Denied Despite Drunk Attorney

North Carolina death row inmate Nathan Bowie, whose defense attor­ney admit­ted drink­ing more than 12 ounces of 80-proof rum every night dur­ing his clien­t’s tri­al, has been denied a new tri­al by Superior Court Judge Michael Helms. The appeal claimed that Bowie’s tri­al attor­ney, Thomas Portwood, failed to com­ply with a Supreme Court deci­sion requir­ing defense attor­neys to thor­ough­ly inves­ti­gate a defen­dan­t’s back­ground. Appellate attor­neys assert­ed that, dur­ing Bowie’s tri­al, Portwood failed to obtain cru­cial evi­dence that he could have pre­sent­ed to the jury on behalf of Bowie, and he did not call wit­ness­es to detail his clien­t’s trou­bled child­hood, alco­hol abuse, or men­tal prob­lems. Appellate attor­neys are ask­ing the state Supreme Court to review the deci­sion by Judge Helms. (Associated Press, July 25, 2002).

Appeals Court Overturns Death Penalty Conviction Because Defense Attorney ​“Sabotaged” Case

A Federal Appeals court over­turned the con­vic­tion of Oklahoma death row inmate James T. Fisher after find­ing that his defense attor­ney was ​“gross­ly inept.” The judges stat­ed that Fisher’s tri­al attor­ney, for­mer state Senator E. Melvin Porter, ​“sab­o­taged his clien­t’s defense.” The court’s opin­ion stat­ed that Porter did not pre­pare for Fisher’s tri­al, did not chal­lenge dis­crep­an­cies in the pros­e­cu­tion’s case, and failed to ​“act as his clien­t’s advo­cate and the state’s adver­sary.” The pros­e­cu­tion’s main wit­ness was the man orig­i­nal­ly charged with the mur­der in the case. However, as the court stat­ed, Porter failed to present a defense the­o­ry and was ​“incom­pe­tent” in inves­ti­gat­ing Fisher’s ali­bi. In addi­tion, Porter failed to present a clos­ing argu­ment at the tri­al, and dur­ing the sen­tenc­ing phase, he spoke only nine words, includ­ing ​“we waive” when asked to give a clos­ing argu­ment. ​“I believe my per­son­al feel­ings toward James Fisher affect­ed my rep­re­sen­ta­tion of him,” Porter stat­ed. ​“At that time, I thought homo­sex­u­als were among the worst peo­ple in the world, and I did not like that aspect of this case.” (The Oklahoman, 3/​13/​02).

Investigation Finds Subpar Representation Continuing in Illinois

Last year, the Illinois Supreme Court ruled that death penal­ty cas­es had to be tried by attor­neys admit­ted into the Capital Litigation Trial Bar, a select group of lawyers who were sup­posed to have met rig­or­ous stan­dards for admit­tance. An inves­ti­ga­tion by the Chicago Tribune found, how­ev­er, that the new list of attor­neys eli­gi­ble to try cap­i­tal cas­es includes lawyers with crim­i­nal and dis­ci­pli­nary records, as well as those whose mis­con­duct or inep­ti­tude has been con­demned in pre­vi­ous cap­i­tal cas­es. For exam­ple, three attor­neys admit­ted to this group were sus­pend­ed or cen­sured between 1988 and 1994 by the state agency that reg­u­lates lawyers. Two of those attor­neys were sanc­tioned because of felony tax-fraud con­vic­tions. ​“The func­tion of hav­ing a cap­i­tal tri­al bar was pre­cise­ly to screen out peo­ple like this,” said Northwestern University law pro­fes­sor Lawrence Marshall. ​“And if the process that’s in place is inca­pable of doing that, then the reform of the cap­i­tal tri­al bar is no reform at all.” (Chicago Tribune, 3/​10/​02)

California Inmate Executed Despite Trial Lawyer’s Record of Ineffectiveness

California exe­cut­ed Stephen Wayne Anderson on January 29, despite evi­dence that his tri­al attor­ney was unpre­pared. Anderson’s case was one of the first three cap­i­tal cas­es defend­ed by Sherman Ames. In Anderson’s case, Ames did not meet with him until the morn­ing of the tri­al and called few mit­i­gat­ing wit­ness­es dur­ing the sen­tenc­ing phase. In the oth­er two cas­es, both defen­dants had their sen­tences over­turned due to Ames’ inef­fec­tive­ness. In one case, Ames declared him­self ready for tri­al after work­ing 12.5 hours on the case, and argued to the jury that exe­cut­ing the defen­dant would be a favor­able out­come for him.
Although the fed­er­al appeals court has recent­ly decid­ed to allow Anderson’s exe­cu­tion to go for­ward, six of the court’s judges believe Anderson’ s case deserves clos­er scruti­ny in light of Ames’ pri­or inef­fec­tive­ness. ​“Having twice deter­mined that Ames was con­sti­tu­tion­al­ly inef­fec­tive in rep­re­sent­ing cap­i­tal clients… we should not now per­mit an exe­cu­tion to pro­ceed in the case of still anoth­er cap­i­tal defen­dant whose life the state has placed in Ames’ hands, at least not with­out review­ing the case en banc,” wrote Judge Stephen Reinhardt in his dis­sent. (The Recorder, 1/​22/​02)

Death Row Inmate Wins New Trial

Shelton Jackson was grant­ed a new tri­al when the Oklahoma Court of Criminal Appeals threw out his 1997 mur­der con­vic­tion. While Jackson had admit­ted that he had com­mit­ted the crime, it was the state­ments of his court-appoint­ed coun­sel that trig­gered the Appeals Court’s rever­sal. The lead attor­ney, dur­ing jury selec­tion, stat­ed that no one ​“is going to be con­test­ing guilt in this case.” During the tri­al, Jackson’s co-coun­sel admit­ted to being ner­vous in a tri­al when guilt was not an issue. The tri­al judge at the con­clu­sion of the hear­ing stat­ed that evi­dence failed to estab­lish whether Jackson had con­sent­ed to a strat­e­gy to con­cede guilt, which deprived Jackson of effec­tive assis­tance of coun­sel. (The Oklahoman, December 22, 2001)

Federal Court Unanimously Strikes Down California Death Sentence

A fed­er­al appeals court struck down the death sen­tence of Demetrie L. Mayfield, who was sen­tenced to death in California in 1983. The 11 judges on the 9th Circuit Court of Appeals, includ­ing sev­er­al staunch con­ser­v­a­tives, said Mayfield’s court-appoint­ed lawyer failed to ade­quate­ly rep­re­sent him. Court records show that Mayfield’s attor­ney, S. Donald Ames, spent only 40 hours prepar­ing for the guilt and penal­ty phase of the case. Four of the 11 jus­tices said the attor­ney’s per­for­mance was so inad­e­quate that Mayfield’s con­vic­tion should also be overturned.
This marks the sec­ond time that the 9th Circuit has reversed a death sen­tence in a case in which Ames was the defense lawyer. Currently, anoth­er case involv­ing inef­fec­tive rep­re­sen­ta­tion by Ames is pend­ing before the U.S. Supreme Court. (Los Angeles Times, 11/​7/​01)

North Carolina Executes Inmate Despite Inadequate Representation

John Hardy Rose was exe­cut­ed on November 30. At tri­al Rose was rep­re­sent­ed by two
attor­neys: one, Jay Coward, who was only a few years out of law school and had nev­er defend­ed a mur­der case, much less a cap­i­tal case, and the oth­er, Marcellus Buchanan, who:

had nev­er defend­ed a cap­i­tal case and was a career prosecutor

was found to have engaged in mis­con­duct as a pros­e­cu­tor. Buchanan also hid excul­pa­to­ry evi­dence and threat­ened ali­bi wit­ness­es dur­ing his tenure as a prosecutor

had a daugh­ter who worked in the DA’s office and signed Rose’s indictment

In addi­tion, Mr. Rose’s legal team did not use a men­tal health expert and nev­er informed the jury about Mr. Rose’s exten­sive child­hood sex­u­al abuse. North Carolina Governor Mike Easley has yet to decide whether or not to grant clemen­cy to Rose. (Carolina Justice Policy Center, press release, 11/​26/​01)