Capital Punishment in Context, an online death penalty resource, published the following on its page titled “Defense Representation in Capital Cases” (accessed Aug. 28, 2008):
“The Constitution guarantees a criminal defendant a right to an attorney and to due process of law. The Supreme Court has held that legal counsel must provide effective representation. Almost all defendants in capital cases cannot afford their own attorneys…
Even though the right to counsel in criminal proceedings is guaranteed by the Sixth Amendment, this right only protected criminal defendants in federal prosecutions until two cases extended the protection to individuals prosecuted by state governments. Powell v. Alabama (1932) secured the right to an attorney for indigent capital defendants, and Gideon v. Wainwright (1963) extended that right to all indigent criminal defendants at the trial level. In Douglas v. California (1963), the Court held that when a state affords a defendant a right to appeal, it must provide an attorney to indigent defendants for the first statutory appeal. This appeal, which concerns matters that arose during the trial, is called the 'direct appeal.' Subsequent review is referred to as 'post-conviction proceedings.' In Murray v. Giarratano (1989) the Court refused to find, at least where capital defendants were receiving some legal assistance for post-conviction proceedings, that there was a constitutional right to representation in such matters.
After the right to counsel was established, the Supreme Court issued a series of decisions that evaluated the effectiveness of trial counsel. Strickland v. Washington (1984) established a framework for evaluating attorney performance in capital cases. Strickland requires that the defendant prove that counsel’s representation was deficient and that there is a reasonable probability that, but for counsel's deficiency, the outcome of the trial would have been different.”
Is Poor Representation by Public Defense Attorneys a Widespread Problem in Capital Cases?
John Conyers, JD, US Congressman (D-MI), made the following statement on June 20, 2000 at the hearing for the Innocence Protection Act of 2000 before the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives:
“[A] shocking two out of three death penalty convictions have been overturned on appeal. They were overturned because of police and prosecutorial misconduct, as well as serious errors by incompetent court-appointed defense attorneys with little experience in trying capital cases.
How can we contend that we provide equal justice under the law when we do not provide adequate representation to the poor in cases where a life hangs in the balance?...
We, the Congress, must bear our share of responsibility for this deplorable situation. In 1996, we defunded the death penalty resource centers, the State offices which ensure adequate representation to the poor in capital cases...
In short, while others, like Governor Ryan in Illinois, have recognized the flaws in the death penalty, the Congress still just doesn't get it. This system is broken…
It is far too frequent an occurrence that an indigent defendant in a capital case is furnished a lawyer who has never tried a death penalty case.
It is common for these inexperienced attorneys to give up after a client is found guilty and present no evidence at the sentencing phase. This is literally the phase of a trial where a man's life hangs in the balance."
The American Bar Association (ABA) wrote in its fact sheet “Frequently Asked Questions by Attorneys Considering Post-Conviction Capital Representation” published on its website (accessed Aug. 19, 2008):
“During 1995-96, Congress eliminated all funding for the 20 capital post-conviction defender organizations known as 'resource centers.' The resource centers served three vital functions. Their trained attorneys provided direct representation to many death-sentenced prisoners. The offices also assisted pro bono firms and appointed counsel in hundreds of cases. Lastly, the centers monitored the progress of cases from conclusion of trial through clemency to ensure that claims were not forfeited by inexperienced counsel and that individuals were not executed without representation or without review of their constitutional claims.
Only a handful of states now directly support a capital post-conviction counsel office and even fewer provide funding at the same level that had been appropriated by Congress. One compelling example is Pennsylvania, which, after losing federal funds for the resource center, refused to spend any money for capital post-conviction attorneys to represent those on death row, but has consistently allocated $500,000 annually for prosecutors who are assigned the responsibility of opposing death penalty post-conviction and habeas applications.
Almost every state now makes some provision for appointment of counsel once a pro se application for habeas relief is filed by a death row prisoner. However, very few states require that appointed lawyers have sufficient experience and skill to handle this complex and time-consuming litigation, and few compensate lawyers with more than token fee payments or provide reimbursement for the substantial costs that must be incurred to investigate, prepare and litigate state post-conviction claims.
The number of jurisdictions with death-sentenced prisoners who lack adequate legal representation is growing at an alarming rate. There are currently 3300 persons on death row in the United States and 99.5% of them are indigent.”
The National Coalition to Abolish the Death Penalty (NCAB) wrote in its fact sheet “Death Penalty Overview: Ten Reasons Why Capital Punishment is Flawed Public Policy” published on its website (accessed Aug. 19, 2008):
“Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. 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. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.”
Alan Berlow, freelance journalist, wrote in his Nov. 1999 article "The Wrong Man" published in The Atlantic:
“Eighteen death-penalty states lack statewide public-defender organizations, and many of those that have them underfund them so seriously that lawyers end up handling huge caseloads that would be considered unconscionable, to say nothing of impractical, in the private sector. Most public defenders are so poorly paid that many talented lawyers tend to shy away from this sort of practice. Some jurisdictions award capital cases to the attorney making the lowest bid. In one Georgia county the low-bid public-contract attorney tried fourteen cases, entered a grand total of seven motions, and entered 262 guilty pleas for his court-assigned clients from 1993 to 1998. Other states randomly assign lawyers from a general list, a system that almost ensures that lawyers lacking appropriate qualifications will frequently be found. Aden Harrison Jr., a black man indicted for murder in Georgia, was assigned an eighty-three-year-old attorney who had been an imperial wizard of the Ku Klux Klan."
[Editors Note: In 1987 Harrison appealed his death sentence to the Supreme Court of Georgia (Harrison v. State). The Supreme Court of Georgia upheld Harrison’s conviction and his death sentence. Further research by ProCon.org has revealed that Harrison, at some point, had his sentence converted to life. He is still serving his life sentence at Valdosta State Prison in Georgia as of Aug. 29, 2008.]
Joshua Marquis, JD, District Attorney for Clatsop County Oregon, wrote in his Dec. 11, 2005 article “For Select Few, Death is Just” published in USA Today, that:
“A consistent majority of Americans, from blue states and red, Democrats and Republicans, support the availability of capital punishment. While there is a valid moral argument against it, claims…that killers get lousy lawyers are largely urban myths…
Many states, such as Oregon, spend hundreds of thousands of dollars defending each killer charged with capital murder.”
The California District Attorneys Association wrote in its Mar. 2003 report “Prosecutors' Perspective on California's Death Penalty” published on www.cdaa.org, that:
"Once the decision to seek death is solidified, the court and defense counsel are immediately notified. If a defendant does not have private defense counsel, an experienced criminal-defense attorney is appointed. California law also authorizes the judge to appoint a second defense attorney – at taxpayers’ expense – for the defendant. These attorneys are paid much higher fees than appointed attorneys in noncapital cases. Capital-case defense counsel also receive significantly more funding for investigators and other experts – and frequently spend thousands of dollars on psychiatrists, forensic scientists, criminalists, jury-selection experts, penalty-phase coordinators, and other specialists to ensure that no stone is left unturned. Defense attorneys also routinely file all manner of motions and objections to protect their clients from conviction. Attorneys know their trial tactics will be thoroughly scrutinized on appeal, so every effort is made to avoid error, ensuring yet another level of protection for the defendant.
They [death penalty opponents]...have painted a picture of incompetent defense lawyers, sleeping throughout the trial, or innocent men being executed. Their accusations receive wide media coverage, resulting in a near-daily onslaught on the death penalty. Yet, through all the hysteria, jurors continue to perform their responsibilities and return death sentences for those who would abduct, molest, and then kill our youth."
The US Department of Justice (DOJ) wrote in its Sep. 12, 2000 “Survey of the Federal Death Penalty System” published on www.usdoj.gov:
“Since 1988, federal law has expressly required that, upon the request of an indigent capital defendant, a federal judge shall appoint two attorneys to represent the defendant and make available sufficient funds for reasonable investigative and expert services. The attorneys appointed to represent an indigent defendant must have the 'background, knowledge, or experience [that] would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.' See 21 U.S.C. § 848(q). Furthermore, a separate provision in effect since 1994 requires that at least one defense attorney be 'learned in the law of capital cases' (a prior version of that statute, in effect from 1948 to 1994, provided for all capital defendants to be represented by 'learned counsel'). See 18 U.S.C. § 3005.”
Eliot Spitzer, JD, Former Attorney General and Governor of New York, made the following statement on June 20, 2000 at the hearing for the Innocence Protection Act of 2000 before the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives:
“In 1995, when New York enacted legislation allowing for the imposition of capital punishment in certain cases, the State simultaneously enacted legislation addressing the need for competent counsel in these cases. New York Judiciary Law Section 35-b creates a Capital Defender Office with several responsibilities including: serving as counsel for defendants when appointed by the court; furnishing legal advice, investigative, expert and other services; and providing training to attorneys appointed to represent capital defendants…
Ultimately, the integrity of our criminal justice system rests on the assurance that capital defendants have competent counsel. In New York, we have created a program to ensure this, and every state should adopt a program which addresses this critical need…
Many states have programs with different details which also adequately ensure competent counsel…”