Death Penalty

We often say that those who end up on death row are usually not the "worst of the worst" but those with the worst lawyers.  Yesterday Senator Russell Feingold held a hearing on The Adequacy of Representation in Capital Cases; the witnesses suggested that bad lawyering was a central problem with the death penalty in the US.  Innocent people can be convicted when their lawyers are bad (that should go without saying), but bad lawyers also sabotage their client's chances during the appeals process: by failing to raise important issues early, good lawyers cannot raise them later. 

Among the examples of bad lawyering testimony from Bryan Stevenson of the Equal Justice Initiative in Alabama at this hearing revealed:

• A lawyer who called no witnesses and waived opening and closing statements in the sentencing phase of a death penalty trial
• A lawyer abusing alcohol and addicted to drugs who went into rehab 3 weeks after the trial and was so hostile to his client that, at one point, he asked guards to remove his client's handcuffs so he could "kick his ass"
• A lawyer who moved his office without notifying the court or his client and thus missed a deadline for filing an appeal

There are of course many other examples; the legacy of sleeping lawyers, overworked lawyers, and lawyers more interested in pleasing the court than in defending their client is well known.

Death penalty cases are inherently complicated, and the stakes are life and death, so it would seem natural that we should endeavor to ensure that the best lawyers take these cases.  In fact, few lawyers want these cases, because they are difficult both technically and emotionally, and because funding is almost always inadequate to do the job required (most capital case defendants are indigent, and many states limit the amount a public defender can get to represent someone in a capital case, limits that are usually way too low). 

There is also no right to counsel during the appeals process, and there are time limits for death row prisoners to find a lawyer and for lawyers to file appeals.  Failing to object or raise issues early, or missing deadlines, are the kinds of technicalities that appeals courts cite all the time to deny hearings on questions of bias, misconduct or even innocence.  And the deference to state courts that is enshrined in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has often shielded bad lawyering and other problems at the state level from meaningful review at the federal level.

What is to be done?  The hearing was short on suggested solutions, beyond the obvious needs for more money and better training, but many of these problems are particular to the capital punishment.  The death penalty is the only punishment we have that is implemented AFTER the appeals process has run its course, and this has created a natural incentive to speed things up, to set up time-limits and procedural bars that allow the courts to gloss over errors caused by bad lawyering (among other things) so we can get to the finality of an execution.  Without the death penalty, we wouldn't have this rush to finality; the quality of representation could get the review it deserves.  And we wouldn't end up killing somebody because his lawyer was one of the "worst of the worst".

Brian

DPAC