Representation News and Developments: 2004

California Plans $220 Million Death Row While Inmates Wait 4 Years to Start Appeal

California already has the largest death row in the country and is now planning to build a new $220 million facility designed to house more than 1,400 death row inmates. State Supreme Court Chief Justice Ronald M. George said that the large death row reflects the consequences of a careful appeals process that is designed to ensure due process for those facing execution. "The virtues of the system also represent its vices because it does end up causing a lot of delay," stated the Chief Justice, a former prosecutor who notes that the leading cause of death on California's death row is old age. Currently, there is a four-year wait for inmates to be assigned a lawyer to begin their first appeal and 118 people on death row have not yet been assigned a lawyer. "We take great care to try and appoint competent counsel....I could take care of that backlog in two days if I were not following the very rigorous standards that California has established."
Since the state reinstated capital punishment in 1977, it has carried out 10 executions. There are 641 people currently on the state's death row. (New York Times, December 18, 2004). See Costs.

Louisiana's Death Penalty Record Comparable to Illinois': Moratorium Called For

A review of Louisiana's death penalty in recent years revealed that twice as many condemned inmates have walked free from death row than have been executed. Since 1999, of the 22 people whose cases were finally resolved, 12 had their death sentences reversed and were ordered to serve lesser sentences, 6 were freed after courts ordered their charges dismissed, 1 died of natural causes, and 3 were executed. Of the three who were executed, two were represented by attorneys no longer allowed to practice law. One of the disbarred lawyers was found to have participated in a long list of improper behavior over several cases, and the other attorney lost his license because of mental health problems. "That 27% of all capital convictions led to exonerations is shocking. I can't see how any criminal justice system can tolerate that level of error, particularly in the matter of the death penalty. It is unacceptable," said Stuart Green, a Louisiana State University law professor specializing in constitutional and criminal justice issues.
Four years ago, the State Bar of Louisiana adopted a resolution asking the governor to halt executions while state death penalty statutes were reviewed. At the time, then-Governor Mike Foster refused to take that step, but current Governor Kathleen Blanco has stated that she would consider a moratorium if statistics indicated problems. Backed by the numbers of mistakes, many attorneys and legal experts are urging Blanco and other lawmakers to impose a moratorium and authorize a capital punishment review in order to ensure the fairness and accuracy of the system. "No matter how you feel about the death penalty, people of integrity want to make sure that we take particular care when the sentence is death. These numbers say we are not careful," said Denise LeBoeuf, director of the Capital Post-Conviction Project of Louisiana. (The Advocate, November 29, 2004). See Innocence.


Editorials Note Growing Unease With Death Penalty

Editorials in papers around the country have noted that many Americans are rethinking the death penalty because it is deeply flawed. Among the recent editorial observations were the following:

New Jersey's Star-Ledger

Fewer people are being given the death penalty in the United States, according to the Justice Department, which says such sentences are at a 30-year low. Last year, the number of people who were sentenced to die totaled 144.

While these numbers are heartening in that they reflect a decrease in executions, they ought to cause states to rethink the wisdom and fairness of the death penalty altogether.
. . .
Getting sentenced to death has become just what the U.S. Supreme Court, in its landmark 1972 Furman vs. Georgia ruling, said it should not be -- a punishment so "wantonly and so freakishly imposed" that it is like getting struck by lightening.
. . .
Whatever one's moral views on the death penalty, there are compelling reasons to consider getting rid of it.

Cost is one. It takes from $2.3 million to $3.2 million to bring a death prosecution in New Jersey.

Human error is another reason. In recent years, more than 100 death-row inmates nationwide have been exonerated, mostly using DNA evidence.

The question is whether anybody is willing to kill this badly broken system. (Star Ledger Editorial, November 20, 2004).

Florida's Daytona Beach News-Journal

Over the past 10 years, Americans have been forced to face reality: Death penalty laws are deeply flawed.

More than 100 death row inhabitants have been freed after their convictions were overturned, many of them exonerated by DNA evidence that conclusively proves their innocence. Years, sometimes decades, pass between conviction and execution. And executions gruesomely botched have many recoiling in horror.
. . .
Why are Americans turning away from this vestige of frontier justice? One possible explanation is the growing international pressure on the United States as the last industrialized nation to so enthusiastically apply the death penalty. But a more likely theory hits closer to home. The continuing spate of stories about inequities in the way the death penalty in administered has forced many to consider whether the notion of retributive justice is itself fundamentally flawed.

The myth that capital punishment is a deterrent has been exploded. Death penalty proponents argue that over the past 10 years, the number of executions increased while murder rates have decreased. But that's true in states that don't have the death penalty -- and on average, their murder rates are dropping faster than they are in the states that still execute, the Death Penalty Information Center reports.

The other likely contributer is the number of death sentences overturned, a statistic that throws the permanent, irrevocable nature of the death penalty into sharp focus. As DNA evidence has freed increasing numbers of inmates, the number of Americans who say they favor the death penalty has remained fairly stable -- but the number of Americans who say they oppose the death penalty has steadily increased. While 60 to 70% of Americans say they approve of the death penalty, the number drops to about half when they are asked to choose between death and life in prison without parole.

This growing uneasiness about the death penalty is already bearing fruit. Last month, President Bush signed the Justice For All Act, which (among other things) provides more hope to inmates awaiting DNA tests that could prove their innocence. The act does not go far enough -- it limits access to other scientific tests, for example -- but it will provide $25 million to states over the next five years to conduct post-conviction DNA tests.

Yet too many death penalty inmates are still tried, convicted and sentenced in states that deny them adequate legal representation. Without a competent lawyer at trial, the accused lose much of their ability to appeal wrongful convictions.
. . .
A better solution -- the right solution -- is to recognize the death penalty for what it is -- inefficient, ineffective, expensive, slow, unjust and morally reprehensible -- and abolish it now, rather than wait for it to wither away. (Daytona Beach News-Journal Editorial, November 17, 2004).

Colorado's Denver Post

It's probably too early to call it a radical change, but there's a flicker of hope that American society is coming to think of capital punishment as a cruel anachronism. . . .[A] new report has found that the number of death verdicts hit a 27-year low last year. Possible factors include the exoneration of about 100 death-row inmates and the fact that jurors now have the option of imposing life without parole in 47 states.
. . .
Despite support in public-opinion surveys, jurors seem less enthusiastic about capital punishment. "I'm not surprised at the reluctance on the part of American juries to impose the death penalty," said U.S. District Judge John Kane, who speculated that some death-penalty jurors may hesitate because of news reports and television shows about errors in death-penalty cases.
. . .
Over time, the Supreme Court has narrowed application of the death penalty, banning execution of the mentally retarded, for example. Early this year, the court agreed to re-examine execution of defendants who were juveniles when their crimes were committed.

The Post has opposed capital punishment since 1965. Perhaps growing antipathy for actually imposing the death penalty will someday lead the court to conclude that it has truly become a "cruel and unusual punishment" and ban it altogether. (Denver Post Editorial, November 21, 2004).

See Editorials. See also Innocence, Costs, and Deterrence.


California Bar Association Urges Death Penalty Moratorium

A group of 450 attorneys participating in the Conference of Delegates of the California Bar Association has urged a moratorium on the death penalty in California until the state reviews whether capital punishment laws are enforced fairly and uniformly. "If you make a mistake, it's not like you can go back and correct a mistake because the person is dead," said Los Angeles County Deputy District Attorney Danette Meyers, supporter of the measure and a member of the Bar Association that represents prosecutors, criminal defenders and civil attorneys from dozens of bar groups throughout the state. The group called on California lawmakers and Governor Arnold Schwarzeneggar to impose a two-year moratorium on executions and to create an independent committee focusing on race, the reliability of convictions and whether the condemned had adequate legal representation. It also requested an inquiry into the financial cost of capital punishment and whether capital punishment is imposed too often. Executions are rare in California even though it has the nation's largest death row of 640 inmates. One reason for the delay is that more than a quarter of those on California's death row have not been given a lawyer for their first and mandatory appeal to the state's Supreme Court. The state has carried out 10 executions since the death penalty resumed in 1976. (Associated Press, October 17, 2004) See Costs, Race, and Innocence.


Federal Judge Vacates One of California's Oldest Death Sentences

A federal judge has overturned one of California's oldest death sentences based on his finding that the 1979 trial of Earl Lloyd Jackson was tainted by unreliable jailhouse informants and poor representation. "The special circumstance finding and the death sentences in this case rest on an evidentiary foundation constructed largely from the false testimony of two jailhouse informants," wrote U.S. District Judge Edward Rafeedie in his ruling. Rafeedie further found a "dereliction of duty" by prosecutors and Jackson's defense attorney, noting that prosecutors allowed two jailhouse informants to lie to the jury about favorable deals they received in exchange for their testimony, and that Jackson's attorney failed to put on any defense during the penalty phase of the trial. This is the 6th death sentence to be overturned in California this year, and more than 85 cases have been reversed by the state or federal courts since 1987. Jackson, who has been on California's death row longer than all but 3 of the more than 620 prisoners awaiting execution, remains in prison for the crime. (Knight Ridder Tribune, September 9, 2004) See Sentencing.


POSSIBLE INNOCENCE: Federal Judge Throws Out Texas Capital Conviction

A federal judge has thrown out Ernest Ray Willis' capital conviction after finding "strong reason to be concerned that Willis may be actually innocent" and that West Texas authorities needlessly drugged him and concealed evidence at his trial. The decision casts doubt on Willis' 1987 conviction for the arson-murder of two women in Pecos County, a crime that another death row inmate, David Long, later confessed he had committed. In his ruling, U.S. District Judge Royal Furgeson said that anti-psychotic medication used incorrectly by prison guards to treat Willis' chronic back pain hampered his ability to defend himself, and that his defense attorneys did not adequately represent him during the proceedings. Furgeson also noted that during Willis' trial, prosecutors suppressed a psychologist's report revealing that Willis was not dangerous, a key issue in death penalty cases. Furgeson stated that Texas' highest criminal court erred when it dismissed these serious concerns and then he reiterated concerns raised by a state trial judge who four years ago ruled that Willis never received a fair trial. Willis remains on death row in Texas while state prosecutors decide whether to appeal the ruling, seek a new trial, or set him free. Officials have until November 18th to make their decision about how to proceed with the case. (San Antonio Express-News, July 27, 2004) See Innocence.


Good Quality Representation Makes All the Difference in Death Penalty Cases

In the 11 years since the Defender Association of Philadelphia began to represent clients facing murder charges, it has compiled an enviable record: Not one of its 994 clients has been sent to death row. (During the same time, scores of defendants in Philadelphia represented by appointed private attorneys have been sentenced to death.) "It stands out as something that is not matched anywhere else," said David J. Carroll of the National Legal Aid and Defender Service. The Defender Association of Philadelphia, a non-profit corporation financed by the city, has a homicide unit comprised of 11 attorneys who represent a fifth of the city's indigent murder defendants using an annual budget of $2 million. Each capital defendant is assigned two attorneys, one to handle the guilt phase of the trial and one to handle the sentencing phase should the defendant be found guilty. Investigators, social workers, and mitigating experts are all part of the Association's staff, and capital defense attorneys have the ability to hire knowledgeable outside experts. "What they''e done is develop a model for capital defense, which really should be done across the country," said attorney David Rudovsky, who sits on the Defender Association's Board of Directors and believes the Philadelphia team's all-encompassing approach should be implemented in all 38 death penalty states. Common Pleas Court Judge Benjamin Lerner, the Association's chief defender from 1975-1990, said, "Their representation, including not only the quality of their lawyers, but the totality of services they offer - is at least as good as the best private representation that money can buy." (Philadelphia Inquirer, May 25, 2005)

Freed Death Row Inmate Awarded Large Settlement Based on Poor Representation

Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. Miranda's conviction and death sentence were thrown out in 1996 when a federal judge ruled that the defense attorney who represented him during his 1982 trial had committed glaring errors. The judge ordered a new trial, but prosecutors declined to proceed with the case and Miranda was then freed from prison. He filed a civil complaint two years later in 1998, arguing that his civil rights were violated when public defenders did virtually nothing to defend their Spanish-speaking client after he performed poorly on a polygraph examination by an English speaking examiner. He also claimed that police withheld exculpatory evidence during his trial. At first, a federal judge threw out the suit, finding that Miranda could not sue the county or the public defenders office regarding his representation. The Court of Appeals for the Ninth Circuit later reinstated the case, and the U.S. Supreme Court declined to review the Ninth Circuit's ruling, thereby opening the door for similar suits around the country. Miranda's attorney, JoNell Thomas, stated, "There's no amount of money that will give him back those 14 years." (Associated Press, June 29, 2004; see also Spence, Maoriarity & Shockey Press Release, June 29, 2004).

North Carolina Lawyers' Group Recommends Overhaul of Death Penalty

After a review of North Carolina's death penalty, the North Carolina Academy of Trial Lawyers has issued a series of 11 recommendations that aim to address issues of fairness and accuracy in the state's capital punishment statutes. In addition to recommendations addressing hidden evidence, mistaken eyewitness identifications, discrimination, and unreliable confessions, the group urged North Carolina lawmakers to enact a moratorium on executions while they consider implementing reforms to make the system more reliable. James Exum, former Chief Justice of the North Carolina Supreme Court, stated, "The Academy's analysis includes important questions of legal procedure and process. We should address them to insure that we are doing all we can not only to prevent an innocent person from being executed, but also to protect the public by making sure that the right person is convicted and kept off our streets." The Academy's recommendations come as North Carolina's legislature prepares to consider imposing a moratorium on executions, and just weeks after the exoneration of two North Carolina men who had been wrongly convicted of murder, Alan Gell and Darryl Hunt. Hunt spent 18 years in prison, while Gell had spent many years on death row. (North Carolina Academy of Trial Lawyers Press Release, May 6, 2004) Read the Press Release and Recommendations. See also, Innocence.


Alabama's Death Penalty Problems Continue

Questions about the accuracy and fairness of Alabama's death penalty continue to surface as illustrated by a series of recent federal court rulings granting two new trials and one new sentencing hearing. All of the rulings were based on inadequate representation provided to the defendants. "Counsel simply provided no defense to the death penalty," Chief U.S. District Judge U.W. Clemon of Birmingham wrote March 31 in giving one of the inmates a new trial. The man has been on death row 22 years. Most of Alabama's death row inmates were convicted when the state had extremely low caps on indigent defense fees at trial. In addition, the state has not modified its law to comply with the U.S. Supreme Court decision in Atkins v. Virginia (regarding the mentally retarded), and maintains that no changes are needed to comply with Ring v. Arizona (regarding the jury's role in determining death eligibility). Bryan Stevenson, an Alabama defense attorney and director of the Equal Justice Initiative, noted: "What that means is that every month, every season, more people are being tried and sentenced to death in what are probably unconstitutional procedures. Rather than deal with it now and save family members of victims, and taxpayers, prosecutors and defense lawyers all the agony of years of appeals, we're acting as if it's not a problem." Moreover, he said, "We're the only state that does nothing to make sure Death Row prisoners get legal representation to pursue their post-conviction appeals. And the reason why that's a huge deal is that many innocent Death Row prisoners, those prisoners whose convictions have been illegally obtained, have proved their innocence or the illegality of those convictions in these post-conviction appeals." (Associated Press, May 2, 2004) See Supreme Court, Innocence, and Mental Retardation.

POSSIBLE INNOCENCE: Texas Man May Soon Be Freed From Death Row

More than two decades after Max Soffar was sentenced to die for a Houston-area triple murder, an appellate court has ruled that his court-appointed attorney inadequately represented him during his 1980 trial and that he deserves to be retried within 120 days or freed from Texas's death row. Although no evidence linking Soffar to the crime was ever found and his accounts of the murders, contained in what are believed to be false confessions, varied vastly from several eyewitnesses, Soffar's defense attorney failed to pursue evidence that could have proven his client's innocence. The attorney did not interview the sole surviving witness to the murders nor conduct a ballistics investigation that could have strengthened his case. In its opinion, the court wrote, "Defense counsel offered no reasonable explanation for why they did not take advantage of these opportunities. [It was] likely the result of indolence or incompetence."

Three years ago, when the Fifth Circuit of the U.S. Court of Appeals rejected's Soffar's earlier motion for a new trial, Judge Harold R. DeMoss wrote in dissent: "I have laid awake nights agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record. However, my colleagues…have shut their eyes to the big picture and have persuaded themselves that piecemeal justice is sufficient in this case…I am glad I will not be standing in their shoes, if and when Soffar is executed." Soffar's current attorney has said that he believes the more recent Fifth Circuit ruling will stand. (Dallas Morning News and KHOU News, April 22, 2004) Read the opinion Soffar v. Dretke. See Innocence.

New Jersey Death Sentence Overturned After 18 Years

A federal court has ordered a new sentencing hearing for Robert Marshall after determining that his trial attorney failed to adequately represent him at his 1986 trial. In its ruling, the court noted: "This is not a case where, after reasonable investigation, Zeitz (the attorney) determined that it was tactically a better choice not to put on a mitigating case. Rather, it is a situation where Zeitz inadequately prepared for the penalty phase and put on no mitigating evidence because he had none to present." (Emphasis added). Marshall, who has been on death row for 18 years, must be resentenced and has been removed from New Jersey's death row. Additional problems with inadequate defense, the lethal injection process, and other concerns about the state's capital punishment system continue to surface. Celeste Fitzgerald, executive director of New Jerseyans for a Death Penalty Moratorium, stated that Marshall's case is "another example of how the capital punishment system is broken, how it's impossible to write a set of rules to implement the death penalty in a way that ensures swift, fair and accurate justice." She added, "The death penalty hasn't worked in New Jersey. These cases go on and on - because a life is at stake and everyone agrees we need to be cautious. Many states don't have the death penalty, and I think it's time to follow that lead and implement a policy of life imprisonment without possibility of parole." (The Star-Ledger, April 8, 2004) See Life Without Parole.

Expert Defense and Resources Make Difference Between Life and Death in Philadelphia

About half of Pennsylvania's death row of 240 inmates comes from Philadelphia. Yet in the 11 years that the Defender Association of Philadelphia has been handling capital cases, not one of their clients has been sentenced to death. The Defender Office handles one of every five capital cases in the city. The difference between life and death appears to rest with the quality of representation and often comes down to dollar and cents. “What is going on in Philadelphia is really a model example of what can be done when capital defense is adequately funded. In jurisdictions where the public defender received adequate funding . . . it makes a striking difference in the quality of defense that is provided,” said Terri Mascherin, chairwoman of the American Bar Association’s Death Penalty Representation Project. The Defender Association provides each client with 2 lawyers and a private investigator. In addition, a team of psychologists and mitigation experts explores evidence that might help jurors decide against a death sentence. By comparison, the court-appointed attorneys who still handle 80% of the capital cases in Philadelphia sometimes get as little as $2,000 for expenses and receive only $400 in fees for each day of trial. (Associated Press, April 6, 2004)

Military Death Sentence Vacated

An Army Court of Criminal Appeals has vacated the death sentence of William Kreutzer, a Fort Bragg soldier who was sent to the military’s death row for killing a fellow soldier and wounding others in 1995. The Court cited a number of grounds for the ruling that opens the door for rehearings on some charges and the sentence. For example, Kreutzer’s attorneys failed to adequately explain the significance of their client’s mental health problems for the panel that determined his guilt and sentence. In the ruling, Col. James S. Currie noted, “Appellant’s trial can be summed up in one sentence: Three defense counsel who lacked the ability and experience to defend this capital case were further hampered by the military judge’s erroneous decision to deny them necessary expert assistance, thereby rendering the contested findings and the sentence unreliable.” Court documents revealed that Kreutzer had considered suicide at age 16 and “fantasized out loud” about killing fellow soldiers after they teased him and played practical jokes on him. The Appeals Court criticized the trial judge for refusing to grant a defense request for a “mitigation specialist,” who could explain how Kreutzer’s mental health problems contributed to his actions. See Military Death Penalty.

States Slow to Implement ABA Defense Counsel Guidelines

More than a year after the American Bar Association overwhelmingly passed guidelines to raise the quality of defense counsel in death penalty cases, no state has adopted the standards and the ABA continues to voice concern that trials are proceeding under "a system that is desperately broken." Although the ABA does not take a position on capital punishment other than their opposition to executing juveniles and those with mental retardation, the organization's 2002 guidelines delineate the responsibilities of counsel and of states and the federal government to individuals from the moment of arrest through, if necessary, clemency proceedings. Attorney competence and attorney independence are key elements of the guidelines, as is the establishment of an independent appointing authority. The ABA, which has called for a moratorium on executions until concerns about innocence and fairness are addressed, says that states should embrace the full package of recommendations in order to correct current problems and ensure accuracy. Some states have voiced concern over increased costs that may accompany the reforms. "It's tempting to say some change is better than none, but it's like trying to fix a broken-down car with new tires. It would not bring about the overhaul of the capital defense system that is urgently needed," said Robin Maher, director of the ABA Death Penalty Representation Project. (National Law Journal, January 5, 2004).