News and Developments 2009: Representation

COSTS: Indiana Death Penalty Cases Can Cost $1 Million

A single death penalty case in Indiana can cost taxpayers as much as $1 million. In Marion County, the costs of preparation for three potential death penalty trials have reached $659,000 this year alone, according to the Public Defender Agency. A high-profile death penalty case in the same county has cost nearly $850,000 and not all the bills are in. Pursuing a life sentence costs less than the death penalty, even considering the expense of a convict's longer incarceration, according to Indiana studies. Representation is more expensive for death penalty defendants because each must have two qualified attorneys. "Every dollar we spend attempting to do this, that's money we could have spent elsewhere," said Chief Public Defender Robert Hill. "(But) we have a constitutional mandate to defend our clients." Since 2000, Hill's agency reports, defense bills in Marion County death penalty cases have totaled $3.9 million. Statewide, costs to taxpayers for the defense in trials and appeals have been nearly $20 million since 1990, according to the Indiana Public Defender Commission.

BOOKS: Angel of Death Row

Renowned death penalty defense attorney Andrea Lyon's forthcoming book, Angel of Death Row: My Life as a Death Penalty Defense Lawyer, chronicles her 30 years of experience representing clients in capital murder cases.  In all of the 19 cases where she represented defendants who were found guilty of capital murder, jurors spared her clients’ lives.   Lyon, who was featured in the PBS documentary Race to Execution and was called the "angel of death row" by the Chicago Tribune, gives readers an inside look at what motivates her during these difficult cases and offers behind-the-scene glimpses into many dramatic courtroom battles. Lyon is the founder of the Center for Justice in Capital Cases based in Illinois and a professor of law at DePaul University College of Law.  The book includes a foreword by Alan Dershowitz, who calls Lyon "a storyteller par excellence."

ARTICLES: "Selective Empathy" at Issue in Recent Supreme Court Opinion

Linda Greenhouse, former Supreme Court writer for the New York Times, recently wrote about the reversal of a death sentence by the U. S. Supreme Court. The Court overturned George Porter Jr.'s death sentence because of the inadequate representation he received and the powerful mitigating evidence in Mr. Porter's life that his attorney failed to investigate and present to the jury considering his client's life.  The Court's opinion noted, "Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did." Ms. Greenhouse's article contrasted this ruling with one handed down last month in the case of Robert J. Van Hook, who also claimed inadequate counsel. In his case, the Court overtuned a federal appeals court's grant of relief, concluding that Van Hook's lawyer made "professionally reasonable" decisions regarding his case. Van Hook was also a military veteran, and like Porter, was also a product of a violent and abusive childhood.

Greenwood writes, "Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were - indeed, how common such childhoods were among the hundreds of death-row inmates… It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate. I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed…on one of that number."  Read the full article below.

Mental Retardation and Poor Representation Asserted in Upcoming Texas Execution

Attorneys for Bobby Wayne Woods are seeking to delay his December 3 execution because of his trial lawyer's incompetent representation and the fact that Woods is mentally retarded. Woods' current lawyer is asking the Texas Board of Pardons and Paroles for a 60-day reprieve so that it can assess Woods' mental competency for execution. Attorney Maurie Levin, an adjunct law professor at the University of Texas, said that the prior lawyer failed to plead Woods' mental disability, and, according to the clemency petition filed for Woods, "(the former attorney) has been suspended by the state bar and rebuked by and suspended from practice in the federal courts for his egregious missteps and incompetence as an appellate and post-conviction attorney for those condemned to death."  The U.S. Supreme Court ruled in 2002 that defendants with mental retardation cannot be executed.

U.S. Supreme Court Reverses Death Sentence Citing Veteran's War Trauma

On November 30, the United States Supreme Court overturned the death sentence of George Porter, a Korean War veteran from Florida who had been convicted of murder in 1988. The Court stated that Porter's trial lawyer failed to investigate and present ample mitigating evidence, including the fact that Porter's battle service in the war left him severely traumatized.  The U.S. Court of Appeals for the Eleventh Circuit had held that such evidence would not have made a difference at sentencing. The Supreme Court accepted Porter's petition and without dissent issued its opinion the same day, stating, "Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988."

NEW VOICES: Kentucky Public Defenders Call for Moratorium on Executions

On November 23, Kentucky Public Advocate Ed Monahan and Louisville Metro Chief Public Defender Dan Goyette called on the governor and the state's Attorney General to stay all executions until an assessment team formed by the American Bar Association can objectively review the state's death penalty. Monahan and Goyette wrote letters asking Attorney General Jack Conway not to request any further execution warrants and asking Governor Steven Beshear not to sign execution warrants until the ABA Assessment Team has concluded its study and issued a final report.

“There are serious and disturbing questions about the convictions of a number of inmates facing execution, particularly in those cases that were tried years ago by unqualified lawyers lacking adequate resources,” Dan Goyette said. “We should not proceed with executions until this independent evaluation is completed and we are assured that due process has been fully and properly provided in each and every case. To do otherwise would cast significant doubt on the fairness and propriety of imposing the ultimate punishment. We all have a fundamental responsibility to avoid at all costs the possibility of making an unjust and irreversible mistake.”