Representation

Georgia Supreme Court to Consider Effects of Delayed and Unfunded Representation in Death Penalty Case

On November 10, the Georgia Supreme Court will hear arguments from attorneys for a capital defendant, Jamie Weis, and from the state concerning a three-and-a-half year delay in bringing his case to trial.  For two years of that delay, the Weis defense team had no funding, and for 14 months he was completely without representation.  During this entire time, the state was staffed and funded to prepare its prosecution of Weis.  The Court will decide whether Weis's constitutional right to a speedy trial was violated and whether that requires a dismissal of charges, or at least prevents the state from seeking the death penalty.  Weis was arrested and charged with murder in 2006.  He was assigned two attorneys, but because of a crisis in the state's indigent defense system, they were forced to resign and were not reassigned with pay until close to the trial date.  Weis suffers from psychosis, depression and anxiety, and has been detained in a county jail.  He has attempted suicide three times while awaiting trial.

LAW REVIEW: Death Penalty Stories

The University of Missouri-Kansas City Law Review recently published a symposium issue of Death Penalty Stories, highlighting the role of the narrative in the defense of death penalty cases. The compilation includes contributions from litigators who have used persuasive narrative in support of a life sentence. Russell Stetler’s The Unknown Story of a Motherless Child chronicles the case of Edgar H., who was convicted of killing four men in California. Edgar’s traumatic childhood was influential in negotiating a sentence of life instead of death. Dr. Craig Haney’s article, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, introduces the concept of the "master narrative," the official story--often laden with inflammatory rhetoric--that public officials supply to the media and that sets the stage for a capital trial ending in a death sentence. Haney argues that “more accurate information about the role of adverse social histories and powerful social conditions" might lead to more informed public debate over the utility of capital punishment.

STUDIES: Disparities in Legal Representation in Harris County, Texas

Scott Phillips, a professor in the Department of Sociology and Criminology at the University of Denver, recently published a study that revealed disparities in who receives the death penalty inTexas. Phillips studied the 504 death penalty cases that occurred between 1992 and 1999 in Harris County (Houston and surrounding areas). Harris County is the largest jurisdiction in the United States to use a court-appointment system for selecting lawyers to defend indigent defendants. Phillips’s research showed stark differences between the defendants who were represented by hired counsel and those who were not, regardless of their socio-economic status.  His study revealed that “those who can hire counsel for the entire case, or even a portion of the case, appear to be treated in a fundamentally different manner than those who cannot.” For the 504 death penalty cases examined, hiring counsel for the entire case eliminated the chance of a death sentence and resulted in more acquittals, and hiring counsel for at least a portion of the case substantially reduced the chance of a death sentence.

Supreme Court to Review Effect of "Gross Negligence" by Death Penalty Attorney

On October 13, the U.S. Supreme Court agreed to hear Holland v. Florida, a case raising the question of "whether 'gross negligence' by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client." (scotusblog.com).  In his petition for certiorari to the Court, the defendant stated, "Despite the State of Florida's promise to Petitioner that he have counsel to competently and effectively represent him in both his state and federal postconviction litigation, a promise that would be purportedly enforced by judicial monitoring, Petitioner's state collateral attorney, Mr. Collins, failed to timely file a (habeas corpus) §2254 petition on behalf of Petitioner."  The defendant then filed his own petition for habeas corpus and, while admitting it was filed late, asked that the deadline be extended because of the serious error by his appointed attorney.

OPINION: Florida’s Death Penalty System Still ‘Fraught with Problems’

A recent op-ed in the Florida Times-Union pointed to continuing problems in Florida’s death penalty system despite prior recommendations for change in an American Bar Association report three years ago. The article was written by Raoul Cantero III, a former Florida Supreme Court justice appointed by Gov. Jeb Bush, and Mark Schlakman, a senior program director for Florida State University's Center for the Advancement of Human Rights.  The authors state that little has been done by either the state government or the Florida Bar Association in response to the ABA's findings. The ABA report addressed the often abysmal legal representation of defendants in post-conviction proceedings, socioeconomic and geographic bias in seeking the death penalty versus a life sentence, and lack of fairness and accuracy in the system. The authors note that these problems remain, but there is a chance that new political leaders could still bring about change: "The challenge for those who hold and aspire to elected office is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems.  Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive."

Congress Conducts Hearings on the Innocence Protection Act

steve brightOn September 22, the House Subcommittee on Terrorism, Crime and Homeland Security of the Judiciary Committee held hearings on the re-authorization of the Innocence Protection Act.  Among those making presentations were noted defense attorneys Stephen Bright (pictured), President of the Southern Center for Human Rights in Atlanta, and Barry Scheck, Co-Director of the Innocence Project in New York.  Mr. Bright emphasized that the best way to prevent wrongful convictions is to provide defendants with adequate representation:  "The best protection against conviction of the innocent is competent representation for those accused of crimes and a properly working adversary system.  Unfortunately, a very substantial number of jurisdictions throughout the country do not have either one."  He noted that DNA testing is no substitute for good lawyers, especially since such evidence is not available in most cases: "Some people believe that we can rely on DNA testing to protect the innocent, but DNA testing reveals only a few wrongful convictions. In most cases, there is no biological evidence that can be tested. In those cases, we must rely on a properly working adversary system to bring out all the facts and help the courts find the truth."

COSTS: Georgia Death Penalty Case Still Waiting for Trial After Four Years Due to Lack of Funding

Georgia is seeking the death penalty for Khan Dinh Phan, a Vietnamese immigrant charged with murder, but after four years the case has not come to trial because the state has failed to adequately fund the defense.  Phan's defense attorneys are asking the Georgia Supreme Court to dismiss the death penalty part of the prosecution.  "You don't have to have the death penalty in Georgia, but if you have it, the Constitution requires you must provide the defense the basic tools to prepare," said Chris Adams, one of Phan's attorneys. "Georgia has failed to provide Mr. Phan basic resources for several years, and there is no end in sight."  The prosecutor in the case, Gwinnett District Attorney Danny Porter, agreed that the state is obligated to provide the necessary funds for the defense, "The state voluntarily took on this obligation of the public defender system. It's up to them to adequately fund it."  A typical defense in a capital case in Georgia costs about $150,000 to $200,000.  Phan's attorneys are seeking funds for overseas travel and interpreters so that they can interview his relatives and witnesses in Vietnam.

RECENT LEGISLATION: Texas to Open First Capital Defense Office for Death Penalty Appeals

Following recently passed legislation, Texas will open an office with nine attorneys to manage post-conviction appeals in death penalty cases.  In the past, appointed attorneys sometimes missed filing deadlines or filed inadequate briefs, thereby jeopardizing their clients' cases.  The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account.  The office will oversee the part of the appeals process known as state habeas corpus where constitutional issues outside the trial can be raised.  This important phase can address issues such as new evidence of innocence, prosecutorial misconduct, and inadequate representation.  Eventually, this office will handle most state habeas appeals, which currently number about 10 a year.  "I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues," said Andrea Marsh, executive director of the Texas Fair Defense Project. "We saw too many cases where poor state habeas representation forced people to lose appeals."

Public Defenders' Capital Defense Funding Falls Short

The Illinois Cook County Public Defender’s Office has run out of funds to cover the expenses needed to provide adequate death penalty representation.  Cook County Public Defender Abishi Cunningham Jr. said the shortfall originated from former-Gov. Rod Blagojevich’s veto of a bill that would have increased the public defender budget from $1.75 million to $2.25 million.  Without that $500,000, Cunningham said they have run out of money to pay for expert witnesses, forensic testing, and the other expenses that drive the cost of a death penalty case towards $2 million. "I urge those interested in justice to recognize that if the policy of this state is to have a death penalty, that policy must be accompanied by an appropriate financial commitment to the defense of the accused," Cunningham added.  Now the office is forced to file dozens of motions asking judges to bar the state from seeking the death penalty or allow public defenders to withdraw from capital cases since they do not have the funds to provide adequate defense.  If public defenders withdraw from death penalty cases, judges are compelled to pay private attorneys to serve as defense counsel from a different $2 million portion of the state litigation fund. 

U.S. Supreme Court Agrees to Hear Two Death Penalty Cases

On May 18, the U.S. Supreme Court granted certiorari in two death penalty cases. Both cases are likely to be argued in the fall.  The Court accepted the defendant's petition in Wood v. Allen (No. 08-9156), a case from Alabama. Holly Wood claimed ineffective assistance of counsel, mental retardation, and discrimination in the jury selection process during his trial. After the trial, state and defense experts found that Wood, with an IQ below 70, had serious deficits in intellectual functioning and in at least one area of adaptive functioning--clear evidence of mental retardation.  However, despite obvious pre-trial indications of this disability, the defense attorney presented no mitigating evidence on this issue to the jury during the penalty phase of the trial. The novice attorney had no experience in death penalty cases or in any criminal law. In federal habeas proceedings, the District Court vacated Wood’s death sentence due to ineffectiveness of counsel, stating that “[c]ounsel’s failure to investigate and present any evidence of intellectual functioning…is sufficient to undermine confidence in the application of the death sentence.”

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