Inadequate legal representation

"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. People who are well represented at trial do not get the death penalty."
 - Supreme Court Justice Ruth Bader Ginsburg, April 9, 2001

Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. Many more appointed attorneys lack the training, experience, or resources to provide effective representation. This results in people being given the death penalty not for committing the worst crimes, but for having the worst lawyers.

While each individual has the right to seek post-conviction relief, there is no federal constitutional guarantee that a lawyer will be appointed in state post-conviction proceedings. As a consequence, many prisoners on death row throughout the country lack counsel to challenge their convictions. This has led to a significant amount of death row prisoners who cannot afford a lawyer placing adverts on social networking sites such as Facebook and MySpace to appeal for legal funds in a desperate attempt to find funds to prove their innocence.

In addition to inadequate funding for death penalty cases, most states do not have meaningful competency standards. In 2003, the American Bar Association (ABA) published its revised Guidelines for the Appointment and Performance of Defence Counsel in Death Penalty Cases that include: requiring the attorneys to have abilities, expertise, and skills in representing clients in capital cases; providing two attorneys, an investigator, and a mitigation specialist in every case; and providing full-funding to the defence. According to the ABA, no state has yet established standards that meet its minimum requirements.
 
FACTS
• 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.
• In six southern states, capital defence attorneys were disbarred, suspended, or disciplined at rates 3 to 46 times higher than the general attorney discipline rates.
• An investigation by the Texas Defender Service found that death row inmates face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.
• There are hundreds of people on death row in Texas who were defended by attorneys who had investigative and expert expenses capped at $500. In some rural areas in Texas, lawyers have received no more than $800 to handle a capital case.
Statement before the United States Senate Judiciary Committee on Fairness, Reliability and Federal Habeas Corpus Procedures July 13, 2005 by Bryan A. Stevenson, Director, Equal Justice Initiative of Alabama
• There are about 190 people on [Pennsylvania’s] death rows and almost none are represented after the direct appeal stage.
• 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.
• A review of attorney conduct in Tennessee capital cases revealed that in one-four capital cases attorneys offered no mitigating evidence during trial.
• In Philadelphia, 60 percent of all capital cases went without proper investigation or experienced attorneys. A Columbia University professor examined every capital sentence from 1973 to 1995 and found that 68 percent of the cases had been reversed. Inadequate representation was one of the primary reasons for the high reversal rate.
• 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) Yet, no capital convictions have been reversed by Tennessee courts because of ineffectiveness of counsel and only one death sentence has been overturned.

CASES

John Dougherty had a recent death penalty appeal which 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.

Clyde Moore had a lawyer who slept through phases of his capital trial. The Texas Criminal Court of Appeals overruled an appeal to reverse his conviction and sentence and grant him a new trial because it could not be ascertained whether the lawyer slept through “important” parts of the trial. This begs the question which part of a capital trial is not important? They concluded that such alleged conduct did not affect the outcome of Moore's trial.

Troy Lee Jones was convicted of murder in California in 1982 when his defence lawyer failed to interview potential witnesses, obtain a relevant police report, or seek pre-trial investigative funds. Moreover, the attorney elicited damaging testimony against his own client during the cross-examination of a witness. The California Supreme Court ruled that Jones should have a new trial and instead of re-trying the case, the prosecution announced that it was dropping all charges against Jones in November 1996, after he had been on death row for 14 years. Had Jones been adequately represented, he may never have been on death row.

Keith Messiah was convicted of capital murder in a Louisiana trial that lasted just one-day. 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.

Delma Banks, Jr. was charged in the 1980 murder of Richard Whitehead of Texas. The only evidence against Banks was the testimony of an informant who in exchange for his testimony received $200 and the dismissal of an arson charge that could have resulted in his life sentence as a habitual offender. Banks' lawyer did not vigorously cross-examine the informant, nor did he investigate the case. Had he done so, he would have learned of strong evidence that Banks was in another city at the time of the crime.

Wanda Jean Allen was convicted of the murder of her lover. Her lawyer had never tried a capital case. Allen's lawyer sought to be removed from the case, or to at least have assistance from the public defender's office or an experienced investigator. An Oklahoma court turned down all of these requests. Wanda Jean Allen's lawyer failed to discover the existence of this information, despite a well-documented history of mental retardation and mental disability. Had a jury been told of Allen's disabilities, they might have spared her life. Wanda Jean Allen was executed in January 2001.

Judy Haney had a court-appointed lawyer was so drunk during her trial that he was held in contempt and sent to jail. The next day, both client and attorney were brought from their cells and the trial resumed. Her lawyer failed to present hospital records showing that Haney was a battered spouse. Despite her substandard representation, the Alabama Supreme Court upheld Haney's death sentence in 1992 and she remains on death row.

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 was represented by a lawyer who failed to present any mitigating evidence at the sentencing phase of the trial. 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." No ineffectiveness was found, and Romero was executed in 1992.

Jack House was represented by two lawyers who never visited the crime scene or interviewed the state's witnesses, made no attempt to discover the state's evidence 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. They failed to point out that three credible neighbours 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." One of the attorneys was later disbarred for his performance.

Gary Nelson was represented at his two-day trial by a lawyer who had never tried a death penalty case. 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. Gary Nelson was sentenced to death. His trial attorney was later disbarred for other reasons. Fortunately, Nelson's appeal was taken over by a respected Atlanta law firm, and eventually after spending eleven years on death row he was cleared of all charges and released in 1991.

James Brewer was found guilty of murder; his lawyer 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.

Federico Macias came within two days of execution in Texas because his trial lawyer 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 defence 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. With qualified volunteer counsel and the help of the Texas Resource Center, Macias was eventually cleared of all charges and released in 1993.

Sources:
Texas defender service 
DPIC