(Durham) October 16, 2002
By BOB BURTMAN
No one's surprised to find drug addicts, thieves and sex offenders in criminal courtrooms. Just not sitting in the defense counsel's chairs. But in North Carolina, those facing the death penalty have often been represented by lawyers with nasty legal troubles of their own--including drug addicts, thieves and sex offenders.
Douglas Osborne was appointed to handle the trial of capital defendant Kenneth Neal in 1996. Osborne, a former Rockingham County prosecutor, had served a year in prison after his 1990 conviction on a child pornography charge--a crime that scandalized the community. Neal got the death penalty; later, juror Pam Williams testified in an affidavit that having Osborne as his lawyer sealed Neal's fate. "I do not feel that Kenneth Neal could have done any worse than to have Mr. Osborne as his attorney," Williams wrote. "As a jury we knew about Mr. Osborne's pornography offenses because we talked about them during deliberations." Last year, the state added another line to his rap sheet after Osborne neglected to file four years' worth of state tax returns.
Terry Collins was disbarred in 1998 after pleading guilty to forging birth certificates to help his DWI clients fraudulently obtain drivers licenses, for which he served jail time. Collins represented five inmates currently on death row. In the case of Frank Chandler, Collins apparently failed to disclose that he and his co-counsel had previously represented a key prosecution witness in various felony charges (unbeknownst to Chandler), a conflict of interest that may be grounds for reversal. All five inmates claim that Collins did not provide an adequate defense.
David Tamer surrendered his law license in 2000 for misappropriating client funds, including those of death-row inmate Blanche Taylor Moore. Tamer later pleaded guilty to felony embezzlement and received a suspended sentence. The disbarment followed a three-year suspension levied in 1994 for ethical violations and other misconduct. He also had a history of mental problems that impaired his ability to service his clients: In the weeks before Tamer was to argue an appeal on behalf of death-row inmate Willie Fisher (executed last year), he was hospitalized for depression.
According to a report just released by the Common Sense Foundation, "Life and Death Lottery: Capital Defendants and the Lawyers Who Fail Them," those cases are appallingly typical. No fewer than 35 inmates currently on death row--one out of every six--were represented by lawyers who have been disbarred, suspended or otherwise disciplined by the state. That list doesn't include at least four inmates who have already been executed. Michael McDougall, for example, had the misfortune of having Jerry Paul appointed to his case. A judge who reviewed McDougall's appeal found that Paul had "acted unethically or even criminally" while defending his client.
It also doesn't include lawyers who have thus far escaped sanctions for their behavior. Tom Portwood admitted to drinking half a fifth of rum every evening while representing three clients on trial for their lives. One weekend while on appointment to defend Nathan Bowie, Portwood registered a .43 blood alcohol content, a near-lethal level, after being tested in connection with a car crash. Portwood has claimed that his alcoholism didn't interfere with his performance, but he was also in the midst of a crumbling marriage and was being pursued by the IRS for $100,000 in back taxes. Serious doubts about his work in all three cases have made headlines.
Nor does the list include those who, through no fault of their own, were incapable of doing the best job for their clients. Tim Merritt was dying of cancer during the trial of Bobby Lee Harris and took prescription drugs to ease his severe pain; his co-counsel was so alarmed at Merritt's erratic and damaging behavior that on one occasion he asked him, "Whose side are you on?"
The courts have occasionally acknowledged that criminal defendants are entitled to at least the semblance of a defense. In North Carolina, at least seven cases have been overturned on bad-lawyer claims since the death penalty was reinstated in 1977. In reversing the conviction of Thomas Jack Brown, a Lumberton judge found 36 botches by his lawyer, Ertle Chavis. While a thorough defense takes hundreds of hours to prepare, Chavis spent fewer than 40.
But judges have been quite stingy with such rulings, partly because the burden of proof is tough to meet: Defendants must show not only that the lawyer's work was substandard, but that it had a bearing on the outcome of the case. Judges in North Carolina also are well aware that a record of overturning capital convictions doesn't look very attractive on election resumés. How else to explain the lack of judicial sympathy for Russell Tucker, whose own attorney, David Smith, freely admitted sabotaging his defense by deliberately missing a filing deadline because he believed his client should die?
It goes without saying that all the attorneys in question were appointed by judges to represent poor defendants who could not afford to hire their own. Until recently, court-appointed lawyers were grossly underpaid and often inexperienced--David Junior Ward, for example, was assigned two attorneys with zero capital murder trials under their belts. Lead counsel DeLyle Evans specialized in real estate transactions and had previously handled one murder charge that was resolved before trial. Evans withdrew from the case because he lacked the ability to do the job, but a judge reappointed him, saying he couldn't find anyone else. Ward was sentenced to death and his appeals failed in large measure because of the lawyers' admitted lack of legal knowledge.
It also goes without saying that judges would never accept anything less than the best for their own defense. "If the standard was, would I allow this person to defend a member of my family, then judges would look at the quality of representation much differently than they do," says Bob Hurley, who in his role with the state's Indigent Defense Services assigns attorneys to potential death-penalty cases.
In 2000, the state legislature created Indigent Defense Services to fix some of the worst problems with the system of court appointments. The agency began operating last year, and Hurley says the change has already made a difference. The worst lawyers have been weeded out, and access to resources has been improved. "I think it's a very important first step," he says.
The numbers back him up. This year, juries have handed down only five death sentences. In 2001, the figure was 14, down from 18 the year before. "There's no question that the quality of appointments has improved," says Hurley.
Still, he says, it's too early to say the problem has been fixed. A lack of funds nearly drove many of the best lawyers from the program before the legislature added some cash in the waning days of the session, and budgetary concerns remain. A shortage of qualified attorneys plagues certain parts of the state, and the abilities of the attorneys on his eligibility list vary greatly. "It's not a list of the best and brightest in North Carolina," he says.
And the repair efforts do nothing to help those already on death row who had to take whatever lawyer they were given and were dealt the dead man's hand. The astonishing number of death-row inmates who had malfeasant and incompetent lawyers "raises serious concerns about the legitimacy of their convictions and death sentences," says Hurley. "It shows how broken the previous system was."
So broken that some defendants had not one, but two iffy lawyers help shepherd them to death row. Glen Chapman was assigned both Tom Portwood and another lawyer with a history of alcohol abuse, Robert Adams. Convicted of neglecting to pay his state income taxes for three years, Adams was also found by the State Bar to have avoided an IRS lien (again for failure to pay taxes) by funneling money into an account maintained at Portwood's office. Since 1991, Adams has been disciplined six times by the bar.
This is not simply a question of essential fairness, or even whether the defendants were guilty or innocent of their crimes. The U.S. Supreme Court has ruled that the constitutional right to a lawyer means an effective lawyer, which one might reasonably assume excludes drug addicts and criminals. Until judges--or the state's elected officials, who should establish a moratorium on executions until these and other problems with the death penalty can be resolved--acknowledge that this is not simply a technical question, North Carolina's capital punishment system stands as a cynical example of criminal injustice at its worst.