Death Penalty and Death Row in USA

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A Lawyer For Every Death Plea?
Jenner & Block argues for extending right to counsel.
By Marcia Coyle, National Law Journal staff reporter
The National Law Journal, Monday, September 1, 1997

WASHINGTON-- In a pro bono effort that lays the groundwork for a landmark extension of the constitutional right to counsel, the Washington, D.C., office of Chicago's Jenner & Block has filed a federal civil rights suit challenging Mississippi's failure to provide lawyers to indigent death row inmates during state post-conviction appeals.

"All we're saying is people should get lawyers so they don't forfeit their claims," says Jenner Block partner Donald Verrilli, lead attorney on the suit. "We hope the courts will see this as elemental fairness."

Mr. Verrilli's client is Willie Russell, a mentally retarded man incapable of representing himself and on death row since 1990 for killing a prison guard says his lawyer. Russell v. Puckett 3:97CV596WS. But Mr. Russell's suit, to be made a class action, faces a formidable hurdle. In 1989, a divided U.S. Supreme Court held that neither the Eighth Amendment nor the due process clause requires states to appoint counsel to indigent death row prisoners seeking state post-conviction relief after unsuccessful direct appeals or after raising constitutional errors in their trials or sentences. Murray v. Giarratano, 492 U.S. 1. The Sixth Amendment right to counsel for all criminal defendants is triggered only at trial, and the initial appeal from a conviction and sentence, the majority reasserted.

But Justice Anthony M. Kennedy was the fifth, crucial vote in that ruling and in a separate concurrence, he left an opening that Mr. Verrilli and other death penalty litigators hope to fill. Justice Kennedy noted that the court could only decide the case before it--a Virginia capital case~and added: "While Virginia has not adopted procedures for securing representation that are as far reaching and effective as those available in other States, no prisoner on death row in Virginia has been unable to obtain counsel to represent him in post-conviction proceedings, and Virginia's prison system is staffed with institutional lawyers to assist in preparing petitions for post-conviction relief."

Virginia's death row inmates relied heavily back then on lawyers from federally funded death penalty resource centers, as did Mississippi inmates, notes Mr. Verrilli. But today those centers are gone, defunded by Congress. Since the centers' demise, Mr. Verrilli notes, all but two states - Mississippi and Wyoming - have taken steps, some grossly underfunded, to provide counsel.

As he heads into court, Mr. Verrilli says his case is boosted by a study commissioned by Jenner & Block and the Southern Poverty Law Center of Mississippi's 56 death row inmates. The study, which included extensive testing of the inmates by two psychologists, shows: the average verbal IQ was 81, two point above .the range of borderline mental retardation; 52 percent read at or below fourth grade level; and 70 percent at or below sixth grade level.

Prisoners Take the LSAT

Inmates also were tested on their comprehension of the state's post-conviction process. Out of a possible 96 points, the average inmate score was 15; pure guesswork would result in a score of 10. Two inmates scored zero. The death row inmates also took the Law School Admission Test: 70 percent scored at or below the lowest one percent of the nation; the remainder, including Mr. Verrilli's client, scored too low to get on the scale.

"Look at the population trying to make these legal claims," says Mr. Verrilli. "Not only are an overwhelming number of them at borderline retardation, but their access to legal material is one half hour every five weeks."

No Mississippi death row inmate is unrepresented, insists state Asst. Attorney General Marvin "Sonny" White, head of the capital appeals unit. "There is game-playing here. The inmates are filing papers pro se in the way they're labeled, but the papers are prepared by lawyers. If the inmates are borderline-retarded, they're certainly not writing the papers I see being filed.

"We're no longer dealing with the same legal landscape we were when Giarratano was decided," counters habeas scholar Ira Robbins of American University, Washington College of law, "This case presents... a colorable claim of denial of access to the courts and possibly even the most fundamental of injustices that one can see - deprivation of counsel when facing the punishment of death."