Representation

Lawyers for Khanh Dinh Phan asked the Georgia Supreme Court to dismiss the charges against him or to bar the state from seeking the death penalty because the state has been unable to pay for Phan's defense. After his arrest in 2005, Chris Adams and Bruce Harvey were appointed to represent Phan. "The state of Georgia has made Mr. Harvey and myself potted plants," Adams recently said. "We are lawyers in name only. ... The state of Georgia has failed, and failed miserably, in this case."  The case has yet to go to trial, and the state public defender system has been unable to pay for attorney fees, expert witnesses, and for investigators. Gwinnett District Attorney Danny Porter agreed that there has been no money for the defense, and that the state defender system is "fatally flawed," but urged the judges not to dismiss the charges or strike the death penalty. Porter said, "We all agree that funding has not been provided, and I don't know if there's a realistic possibility funding will be provided."  The Georgia Supreme Court is expected to rule in a similar issue in which a Pike County death penalty defendant has waited four years to go to trial because there was no funding for his defense.

On January 20, the U.S. Supreme Court affirmed the death sentence for Holly Wood for the 1993 shooting of his former girlfriend in Alabama, despite the fact that the attorney working on the penalty phase of the case failed to investigate or tell the jury about Wood's borderline mental retardation. A federal District Court had overturned his death sentence because of the inadequate performance of the inexperienced lawyer, although other lawyers working on the case had seen a report on Wood's mental status and did not use it. There was ample other evidence indicating Wood had an IQ of less than 70 and had been classified as mentally retarded that was not pursued by any of the attorneys.  The Supreme Court opinion, written by Justice Sonia Sotomayor, agreed with the U.S. Court of Appeals for the Eleventh Circuit that Wood failed to show that the lawyers were constitutionally ineffective. The Court stated, "[T]he state court’s conclusion that Wood’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts."  Justice John Paul Stevens, in a dissenting opinion joined by Justice Anthony Kennedy, noted, "There is a world of difference between a decision not to introduce evidence at the guilt phase of a trial and a failure to investigate mitigating evidence that might be admissible at the penalty phase… the only reasonable factual conclusion I can draw from this record is that counsel’s decision to do so was the result of inattention and neglect."

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.

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.

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."