Death Penalty Representation

Posted: February 20, 2004

Representation

Introduction

Key Cases

Facts

Resources on Representation Standards

State Capital Post-Conviction Offices

Additional Resources

News and Developments - Current Year

News and Developments - Previous Years

2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 - 2001

Introduction

Perhaps the most important factor in determing 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. The right to an attorney is a vital hallmark of the American judicial system. It is essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to fulfil his or her obligations to the client and the court.

Key Supreme Court Cases Regarding Representation

Powell v. Alabama, 287 U.S. 45 (1932)
(Right to an attorney in capital cases)

Gideon v. Wainwright, 372 U.S. 335 (1963)
(Right to an attorney in criminal cases)

Strickland v. Washington, 466 U.S. 668 (1984)
(Two pronged standard to demonstrate ineffectiveness of counsel: subpar representation AND an effect on the outcome of the case)

Murray v Giarratano, 492 U.S. 1 (1989)
(No constitutional right to an attorney in post-conviction appeal--after direct appeal)

(Terry) Williams v. Taylor, No. 99-6615 (2000)
(Finding ineffective representation under the two pronged test of Strickland despite the 1996 restrictions on federal habeas corpus)

Wiggins v. Smith, No. 02-311 (2003)
(Mitigation investigations required in a capital case for effective representation)

Rompilla v. Beard, No. 04-5462 (2005)
(Even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial's sentencing phase. (FindLaw summary)).

Note: Case links are to the FindLaw website.

Facts

An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates has been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers. ("Quality Of Justice" Dallas Morning News, September 10, 2000).

An investigation by the Texas Defender Service found that, "Death row inmates today 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." (Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts Texas Defender Service, 2002).

In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).

According to an investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, "an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away." An additional 9.5% inmates, "have received a new trial or sentencing because their attorneys' incompetence rendered the verdict or sentence unfair, court records show." (Ken Armstrong and Steve Mills, "Inept Defenses Cloud Verdict," Chicago Tribune, November 15, 1999)

In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).

Resources on Representation Standards

State standards for attorneys in capital representation: compiled by the American Bar Association Death Penalty Representation Project (Feb. 2009; PDF)--minimum qualifications required in each state in order to represent someone facing the death penalty
Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases - Spring 2008 Edition of the Hofstra Law Review by Eric M. Freedman
American Bar Association - Summer 2003 Edition of the Hofstra Law Review, which contains the finalized version of the "ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (PDF) (2003)

Indigent Defense and Capital Case Representation (PDF) (2001) by Madelynn Herman. This memo, published by the National Center for State Courts in 2001, updated the qualification standards for attorneys handling capital cases with indigent defendants.

The Compendium of Standards For Indigent Defense Systems - Standards for Capital Case Representation (2000) presents national, state, and local standards relating to five functions of indigent defense, including capital case representation. The report was prepared by the Institute for Law and Justice and supported by a contract with the Bureau of Justice Assistance, United States Department of Justice.

Additional Resources

From DPIC

Articles

Editorials

Law Reviews

DPIC Report: "With Justice for Few: The Growing Crisis in Death Penalty Representation (1995)"

From the American Bar Association

Guidelines on Representation (PDF)
ABA Death Penalty Representation Project
ABA's Confidential Practice Area for Attorneys Handling Capital Cases
Toledo Law Review, Spring 2004 (PDF): Highlighting the work of Pro Bono Civil Attorneys in Death Cases across the Country

Other Resources

Federal Death Penalty Resource Counsel Project
National Association of Criminal Defense Lawyers (NACDL)
National Legal Aid and Defender Association (NLADA)
The Spangenberg Group - "Specialist in Access to Justice." Offers a regular newsletter on indigent defense representation. For more information on this newsletter, Click Here.

State Capital Post-Conviction Offices (source Brad Levenson, Texas, Jan. 26, 2011) - represent or assist death row inmates after their direct appeal.

ALABAMA

None

ARIZONA

State Capital Post Conviction Public Defender

CALIFORNIA

Habeas Corpus Resource Center

COLORADO

Alternate Defense Counsel

CONNECTICUT

None

FLORIDA

Capital Collateral Resource Center (for Middle and Southern District of Florida only)

IDAHO

State Appellate Public Defender

ILLINOIS

Office of the State Appellate Defender (Capital Post Conviction Unit)

KENTUCKY

Frankfort Post-Conviction Office

La Grange Post-Conviction Office

IDAHO

Idaho State Appellate Public Defender

INDIANA

Indiana State Public Defender

LOUISANA

Capital Post Conviction Project of Louisiana

MISSISSIPPI

Office of Capital Post-Conviction Counsel

NEVADA

None

OKLAHOMA

Oklahoma Indigent Defense System

OHIO

Ohio Public Defender (Appeal, State and Federal Post-Conviction habeas)

OREGON

None

PENNSYLVANIA

None

TENNESSEE

Tennessee State Post Conviction Defender’s Office

TEXAS

Office of Capital Writs

WASHINGTON

None

53580 reads

From DPIC

REPRESENTATION AND THE DEATH PENALTY

CONSEQUENCES OF INADEQUATE REPRESENTATION

Leroy White (pictured above) was executed in Alabama on January 13, 2011.

Before trial, prosecutors offered White a plea bargain that would have given him life without parole. The settlement failed when Mr. White's trial lawyer misunderstood the law and incorrectly told Mr. White that he could not be convicted of capital murder. The jury in White's case recommended a life sentence, but Alabama is one of the few states in the country that allow the judge to override the jury and White was sentenced to death.

One of White's appeals attorneys, G. James Benoit, withdrew from the case without telling White, and admitted that he allowed his client to miss a critical appeal deadline, shortening the appeals process and expediting his execution. Benoit, who took over White’s case after another member of his firm was suspended, practiced transactional tax and corporate law, and had never been in a courtroom. He no longer practices law today.

Bryan Stevenson, director of Equal Justice Initiative, took up White’s case in 2010 when the state asked the Alabama Supreme Court to set a date for his execution. White was surprised to hear that his execution date was approaching because he assumed he was still in the appeals process. In the week before the execution, Stevenson petitioned both the U.S. Court of Appeals for the Eleventh Circuit and the U.S. Supreme Court to delay White’s execution because of the missed appeal by his former attorney and his failure to inform White. According to Stevenson, “If we don't provide fair trials, fair review procedures, when we have executions that are unnecessarily cruel and distressing, or if we have a death penalty that is arbitrary or political or discriminatory, then we are all implicated."

Read the Equal Justice Initiative's summary of Leroy White's case

SUPREME COURT Image Supreme Court

In 2009, the Supreme Court overturned the death sentence of George Porter, an inmate in Florida. Porter v. McCollum (2009) held that Porter's right to effective counsel had been violated when his lawyer failed to present mitigating evidence in the penalty phase of his trial. Among the mitigating evidence raised in Porter's appeals was his military service during the Korean war, and "his struggles to
regain normality upon his return from war."

Read the Supreme Court opinion in Porter v. McCollum (2009).

DPIC PODCAST ON REPRESENTATION

Seventh in a series of overviews on death penalty issues

Click here to listen to DPIC'S podcast on representation.

Listen to podcasts on other issues.

Death Penalty Representation

From DPIC

Related Items