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ASHLEY HALPHEN[*] reports on the ineffectiveness of counsel in capital cases in the United States.
George McFarland was sentenced to death in Houston in August 1992. The most startling aspect of the trial involved McFarland’s lawyer, John Benn. Here is how the Houston Chronicle described what happened as McFarland stood on trial for his life:
Seated beside his client … defense attorney John Benn spent much of Thursday afternoon’s trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.
There are more than 3700 people currently on death row in the Unites States. Since the reinstatement of capital punishment in 1976, 749 people have been executed, while 98 people have been exonerated. In other words, 761 years of lives have been lost on death row!
Wrongful convictions often arise because lawyers lack the competency to effectively defend their clients. A number of notorious illustrations suggest that truth is often far stranger than fiction:
• A woman in Talledega County, Alabama was sentenced to death. Her court appointed lawyer was so drunk that the trial had to be delayed for a day after he was held in contempt and sentenced to jail.
• John Young was represented at his capital trial by an attorney who was dependent on amphetamines and distracted from his law practice because of a number of personal problems. The lawyer as a result was inadequately prepared and his performance inept. A few weeks after trial, Young met his lawyer in the prison yards after he had pleaded guilty to both state and federal drug charges.
• Consider the level of competency of a Georgian lawyer who conceded his client’s guilt and argued for a life sentence at the guilt phase, having not even read the state’s death penalty statute nor realising that the capital trial was bifurcated into separate determinations of guilt and punishment.
• In another capital case the court-appointed lawyer was asked by the trial judge to name criminal law decisions from any court with which he was familiar. He was able to name two, one of which was not a criminal case.
• It is difficult to imagine how one defendant felt when during his penalty phase his court appointed lawyer said to the jury: ‘You have got a little ole nigger man over there that doesn’t weigh over 135 pounds. He is poor and he is broke …’ Or how Gary Nelson regarded his court-appointed lawyer, a sole practitioner who had never tried a capital case. The lawyer was struggling with financial problems and a divorce and being paid at a rate of about $20 an hour. Under the stress of it all his closing argument amassed a total of 255 words.
• Nothing, however, is as unforgivable as the attorney who 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’.
In the terms of inadequate preparation, an article in the Tennessee Bar Journal revealed that some attorneys are spending 20 hours or less preparing for a death penalty trial. This results in representation like that afforded to Keith Messiah. Messiah was convicted of capital murder in a one-day trial in Louisiana. His attorney then merely referred to his client’s age at the time of the offence and rested his case. The entire penalty phase took 20 minutes.
Minded of the above, it would come as no surprise that one investigation found that one-fourth of those under sentence of death in Kentucky were represented at trial by attorneys who since have been disbarred or resigned to avoid disbarment. Similarly in Texas, a quarter of death row inmates were represented by lawyers with records of professional misconduct.
Appellate courts often review and decide capital cases on the basis of appellate briefs that would be rejected in a first year legal writing course at law school. The Georgia Supreme Court affirmed the death sentence after receiving a brief that contained only five pages of argument and was filed only in response to threat of sanctions against the lawyer.
Defence counsels’ failure to present evidence available may have resulted in the imposition of numerous death sentences. Jerome Holloway had an IQ of 49 and the intellectual capacity of a seven year old. Donald Thomas, a schizophrenic, was sentenced to death. In each case the jury knew nothing of the defendant’s respective impairments. Lawyers failed to present a scintilla of evidence of those conditions.
There are several reasons underlying the poor quality of representation in capital cases.
In many jurisdictions, judges simply appoint members of the bar in private practice to defend indigents accused of capital crime. These lawyers may not want the case, may receive little or no compensation for handling them, may lack any interest in criminal law and may not have the experience or skill to defend those accused of capital crime. A newly admitted member of the Georgia bar was surprised to be appointed to handle the appeal of a capital case on her fifth day of practice in Colombus, Georgia.
Some jurisdictions employ a contract system in which the county contracts with an attorney in private practice to handle all of the indigent cases for a specified amount. Often contracts are awarded to the lawyer or group of lawyers who bids the lowest. Any money spent on investigation or experts comes out of the amount the lawyer receives. These programs are well known for the lack of expenditure in these areas.
A third system is the public defender system. Some of these offices employ remarkably dedicated attorneys whose jobs are nonetheless made almost impossible by overwhelming caseloads and low funding. These programs have never been created or properly funded in many jurisdictions. The remuneration is so minimal that few accomplished lawyers can be enticed to capital cases. Those who do take a capital case rarely have the time to defend it properly.
Less than one quarter of the 38 death penalty states have set any standards for competency of counsel and in those few states, the standards were set only recently. In most states, any person who passes a bar examination, even if that attorney has never represented a client in any type of case, may represent a client in a death penalty case.
The Supreme Court has been asked to protect defendants against instances of ineffectiveness. A defendant must show that the attorney’s representation fell below an objective standard of reasonableness and also establish a reasonable probability that counsel’s errors effected the outcome.
It appears that rather mediocre assistance will ‘pass muster’ under the objective standard. Often what are clearly mistakes and errors in judgement are characterised as strategy and thus beyond review. A defence lawyer in one Texas case failed to produce any evidence in mitigation at the penalty phase of the trial and his entire closing argument regarding sentencing was: ‘You are an extremely intelligent jury. You’ve got the man’s life in your hands. You can take it or not. That’s all I have to say.’ The Fifth Circuit characterised counsel’s non-argument as a dramatic ploy and refused an appeal.
The standard offers little protection to an indigent defendant and has consequently been described as the ‘mirror test’ — you put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, then the lawyer is considered adequate counsel.
An ‘able’ attorney may not, on appeal, be able to rescue the situation. Where counsel at first instant fails to preserve an issue by an objection made to the court, opportunity on appeal to argue the point is lost. Increasingly, strict procedural doctrines developed by the Supreme Court since 1977 means that failure to preserve an issue will bar review of that issue.
Where a fundamental component of the adversary system is missing, injustices will prevail, undermining protections the legal system should afford and eroding the confidence that people expect of their courts.
The best hope for those facing the death penalty is that capable lawyers volunteer to take capital cases and provide proper representation regardless of whether they are paid adequately or at all.
As a Justice of the Supreme Court, once a supporter of the death penalty but now an ardent opponent once noted: ‘It is tempting to pretend that those on death row share a fate that is in no way connected to our own, that our treatment of them sounds echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined … The way in which we choose those who will die reveals the depth of moral commitment among the living.’
People are able to help, by contacting Reprieve Australia, a non-profit organisation established in Melbourne, Australia with the aim of supporting the provision of effective legal representation and humanitarian assistance to indigent defendants facing the death penalty. As a key part of its program Reprieve Australia has established a volunteer internship program, allowing Australians to donate three months or more of their time as volunteers in death penalty law offices representing impoverished accused.
[*] Ashley Halphen is a Melbourne barrister.
For further information email: contact@reprieve.org.au
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/49.html