Sunday, January 20, 2013

Justice for a few

A punishment for the poor

We’ve heard it in the movies a thousand times – “You have the right to an attorney.” But in most states there is little guarantee in most states that poor defendants will receive a competent one.
Our nation’s death penalty is littered with shocking examples of lawyers who were drunk, asleep, or completely inexperienced. Most people cannot afford a “dream team” of expensive lawyers. When court-appointed lawyers lack the experience or resources to do an effective job in a capital case, their mistakes can cost a life.

The Constitution guarantees the right to an attorney. It doesn't say the lawyer has to be awake.
— Texas trial judge in the case of George McFarland, whose lawyer slept through much of his trial.

No Dollars, No Defense?

  • Upfront costs for a competent criminal defense lawyer can start at $25,000 or more.1 Across the country, almost none of the defendants that face the death penalty can afford such a price.2
  • Poor defendants sentenced to die have been represented by lawyers who were drunk, asleep, or later disbarred. Others have been represented by collections or tax attorneys or lawyers fresh out of school. Some court-appointed lawyers can be so overworked or indifferent that they don’t even bother to defend their clients at all.
  • Capital defense is much more time-consuming and complicated than other criminal defense work, requiring highly trained and experienced lawyers receiving adequate compensation for hundreds of hours of work. Yet public defense offices are plagued by unmanageable caseloads, high turnover, and some of the lowest pay in the profession.
  • Courts often allow the most egregious mistakes to stand. In the famous “sleeping lawyer” case of George McFarland, a Texas court ruled, “the Constitution guarantees the right to an attorney. It doesn't say the lawyer has to be awake.”3
When a criminal defendant is forced to pay with his life for his lawyer’s errors, the effectiveness of the criminal justice system as a whole is compromised.
— William Sessions, former FBI Director under Ronald Reagan

Incompetent lawyers: Stories of a broken system

  • Mose Young was executed in Missouri in 2001. His lawyer, Jack Walsh, inherited the case at the last minute. He saw Young just one time prior to the trial, never visited the crime scene, conducted no investigation or preparation, and failed to interview a witness who said Young was not the shooter. During the trial, Walsh went drinking every night and came to court with a can of soda spiked with alcohol.4
  • Justin Chaz Fuller’s court-appointed lawyer filed an appeal that was riddled with typos, inconsistencies, and errors. The brief was so illogical that another lawyer said it “should have been submitted on a Big Chief Tablet using an eight-count box of Crayolas.” Fuller was executed in 2006.5
  • Gary Nelson’s lawyer had never tried a capital case, but was denied his request for co-counsel. He was paid less than $20 per hour and did not request any funds for an investigator, assuming that the request would be turned down. His closing argument was 255 words long – less than half the length of this fact sheet. Nelson was sentenced to death. He was later found innocent and released.6
  • Jesús Romero was executed in Texas in 1992. His lawyer’s entire closing argument for the penalty phase of his trial was four sentences: “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.”7
In this country, you are better off being rich and guilty than poor and innocent.
— Steve Bright, Southern Center for Human Rights

Poor defendants dealt poor lawyers

  • Even the best public defenders often rely on the court’s approval for funds to pay for investigators, forensic scientists, and other experts needed for an effective defense. Such money can be extremely limited or even unavailable.
  • Caps on pay in many states mean that lawyers defending poor clients can earn less than minimum wage if they provide a decent defense. In Ohio, for example, costs are often only approved after a case is completed – requiring defense lawyers to work for weeks, months, or even years not knowing if they will be paid for all that time.8

Below the standard

  • Many states in the country still fail to implement the American Bar Association’s minimum standards for lawyers in death penalty cases.
  • Many people are sent to death row despite the fact that their lawyers failed to meet these standards. A North Carolina study, for example, found at least three-dozen people on death row – and 16 who had been executed – whose lawyers would not meet the state’s current minimum standards.9
The right to an attorney is one of the basic hallmarks of our justice system. But it’s not justice at all when a select few can hire a “dream team” of expensive lawyers and everyone else is lucky if theirs is competent. When a life is on the line, good luck isn’t good enough.
  1. 1.Aaron Larson, "Hiring a Criminal Defense Lawyer," Expert Law
  2. 2."Death Penalty Representation Death Penalty Information Center
  3. 3.Beth Wilkinson, Testimony before the United States Senate Committee on the Judiciary, June 27, 2001.
  4. 4.Clemency petition for Mose Young.
  5. 5.“Convict’s odds today may rest on gibberish,” San Antonio Express News, August 23, 2007.
  6. 6.Stephen B. Bright, “Counsel For The Poor: The Death Penalty Not For The Worst Crime But For The Worst Lawyer,” Yale Law Journal, Vol. 103 (1994). Cited by Georgians for a Moratorium on Executions.
  7. 7.Alan Berlow, “The Wrong Man, Part III –How Much Justice Can You Afford?” The Atlantic Monthly, November 1999.
  8. 8.S. Adele Shank, “The Death Penalty in Ohio: Fairness, Reliability, and Justice at Risk – A Report on reforms in Ohio’s use of the Death Penalty Since the 1997 Ohio State Bar Association Recommendations Were Made,” Ohio State Law Journal, Vol. 63, 2002.
  9. 9.The Common Sense Foundation, “Death Row Injustices: Too many death-row inmates were represented by lawyers who
    would not even meet the minimum standards of today,” The Plain Truth, October 2006.

During my 30 years as a Maryland prosecutor, I saw the death penalty system up close. I sent 12 defendants notices to prepare for a capital trial, tried six of them, and obtained death penalty verdicts in two. The crimes were cruel and the killers were wicked. I believed that if we are to have a death penalty, they deserved it. I have changed my mind.
— Hon. Andrew Sonner, former Maryland State's Attorney who used to support the death penalty
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