Ineffective defense counsel Far too often, people are given the death penalty not for committing the worst crimes, but for having the worst lawyers. Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center In most civilized countries it is a major principle that the defendant shall have the benefit of doubt and be sentenced only after a fair trial with a competent defense counsel. This is allegedly also the principle in American court rooms, but it is far from reality. It seems that in many death penalty courses the primary concern is to have the accused found guilty, while the question whether he is guilty is less important for many of the courts. And so is the question whether there are mitigating evidence that could give another sentence than death. At least many courts accept a standard of defence counselling which provides no guarantee at all for the defendant to have a fair trial, resulting in the risk of innocent persons being executed or people being executed in spite of mitigating evidence. 95% of the immates on death row are indigent and have never been able to provide the money for a decent defense lawyer, so their only option was to accept a public defender, normally appointed by the court. And many judges repeatedly appoint incompetent lawyers who are supposed to provide a twisted form of "speedy justice." They ease the pursuit of the death penalty by putting on a tepid defense, filing few motions on behalf of their clients, expediting the trial, and filing only a perfunctory appeal. By doing so they cause less trouble for the court and the judge than attorneys who conscientiously challenge the state at every step of the proceedings. The fact that it also dramatically increases the risk of execution an innocent person seems to be less important. Just a few examples: Judy Haney's court-appointed lawyer was so drunk during the trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney came out of the cellblock and the trial resumed. But being drunk in court was just the tip of the iceberg. This same lawyer failed to present hospital records showing that Haney was a battered spouse, a key factor in why she had her adulterous husband killed. Many other women have successfully used such abuse in their defense. Despite this shoddy representation, Haney's death sentence was upheld by the Alabama Supreme Court in 1992 and she remains on death row. Sylvester Adams was executed in South Carolina on August 17 1995. Adams was a poor, black man suffering from mental retardation and mental illness. But his court-appointed lawyer failed to mention those critical facts at trial. Later, at least one of the jurors came forward and said that she would not have voted for death if she had known Adams was retarded. Her vote for life would have spared Adams. John Young was represented at trial by an attorney who was addicted to drugs. Shortly after the trial in which his client was sentenced to death, the attorney himself was incarcerated on federal drug charges. However, the lawyer was not found to be ineffective, and John Young was executed in 1985. Jesus Romero's attorney, failed to present any mitigating evidence at the sentencing phase of the trial. His closing argument was 29 words. No ineffectiveness was found, and Romero was executed in 1992. Larry Heath's attorney failed to appear for oral argument before the Alabama Supreme Court. He filed a brief containing a one-page argument, citing only a single case. Heath was executed in 1992. In Houston, Texas, the death penalty capital of the country, attorney Ron Mock has represented about 10% of the people the county has sent to death row, probably more than any other defense attorney in Texas. Mock starts each day not as a member of the bar, but at the bar he owns in downtown Houston, Buster's Drinkery. Of his 15 capital clients, 12 ended up on death row, including Gary Graham, a 17-year-old who was convicted largely on the basis of a single eyewitness and no physical evidence. Mock's investigator, Merv West, said Mock discouraged him from working hard on the case: "I remember that from the first Ron Mock insinuated that Gary was guilty, and that definitely affected my investigation. Since we both assumed Gary was guilty, I decided not to waste time trying to substantiate his alibi. . . ." By taking a large number of cases, Mock has consistently been a leader in receiving the most money among court-appointed attorneys in Houston. Not far behind Ron Mock is Joe Frank Cannon, who also practices in Houston and who has had ten clients sent to death row. Cannon boasts of hurrying through trials "like greased lightning." Candelario Elizondo, past president of the Harris County Criminal Lawyers Association, said that it is "generally reputed in the Harris County legal community" that Mr. Cannon received capital appointments "because he delivers on his promises to move the courts' dockets." One of Mr. Cannon's former clients closest to death is Calvin Burdine. The jury foreman from Burdine's trial has submitted an affidavit in court asserting that Cannon repeatedly fell asleep during the trial. Cannon also used slurs such as "queer" and "fairy" in court papers for Burdine, an openly gay man. According to The Wall Street Journal, Mr. Cannon doesn't remember the details of the Burdine case. "I don't have to prove anything," he remarked. "My record speaks for itself." Judy Haney's court-appointed lawyer was so drunk during the trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney came out of the cellblock and the trial resumed. But being drunk in court was just the tip of the iceberg. This same lawyer failed to present hospital records showing that Haney was a battered spouse, a key factor in why she had her adulterous husband killed. Many other women have successfully used such abuse in their defense. Despite this shoddy representation, Haney's death sentence was upheld by the Alabama Supreme Court in 1992 and she remains on death row. When James Brewer was found guilty of murder, his attorney thought the sentencing phase of the trial would occur much later. Instead, the judge, following the usual practice, denied any continuance and began the sentencing hearing at 9:00 a.m. the next business day. The attorney's preparation for this critical phase of the trial consisted of a couple hours of discussion with his client. He waived the opportunity to make an opening argument, presented no character witnesses, and presented no evidence of his client's history of severe mental illness. Instead, the attorney simply put his unprepared client on the stand, and the jury returned a death sentence. The federal court which reviewed this attorney's behavior found that even a cursory investigation of Brewer's mental health history would have revealed that he was treated with shock therapy, that he had brain damage resulting from blows to the head, that he had been evaluated as "mentally defective," and "fixated at a very dependent and infantile level," with an IQ between 58 and 67. The sentencing jury knew nothing of this. California attorney, Donald Ames, went out of his way to assist the prosecution in his ten minute closing argument for his client, Melvin Wade. Ames told the jury that his client "can't live with that beast from within any longer," and that a death sentence might be "the gift of life." With that invitation, the jury voted for death. The federal Court of Appeals, which overturned the death sentence because of Ames's conduct, held that his argument "effectively relieved the jury of any doubt or anguish it might feel in sentencing Wade to death." A Georgia lawyer in a capital case was asked to name any criminal cases, from any court, with which he was familiar. The lawyer could name only two, one of them being a civil case. But the most amazing part of this sad story is not that the lawyer had such poor knowledge of criminal law, but rather that he was found competent in the case where this challenge arose and went on to try other death penalty cases while satisfying the lax standards for effective representation. John Smith and his codefendant Rebecca Machetti were sentenced to death by juries selected under the same Georgia statute. Machetti's attorneys successfully challenged the statute under a recent Supreme Court decision winning Machetti a new trial and ultimately a life sentence. Smith's counsel was unaware of the Supreme Court decision, however, and failed similarly to object. Smith was executed in 1983. Jack House was represented at his capital trial by a husband and wife team in Georgia who had never read the state's death penalty statute. The lawyers never visited the crime scene or interviewed the state's witnesses, made no attempt to discover the state's evidence (they were "too busy"), and barely spoke to their client. One of them left during the testimony of a key prosecution witness (whom he later cross-examined), and they presented no mitigating evidence at sentencing because they were unaware that there even was a sentencing phase to the trial. When their client was sentenced to death, they submitted a boilerplate motion for a new trial but failed to point out that three credible neighbors had surfaced who claimed to have seen the victim after the state's certified time of death. Their client had an iron-clad alibi for that time. Worse still, the lawyers even failed to appear to argue their own motion. The U.S. Court of Appeals in 1984 charitably characterized this shambles by saying that the attorneys' "state of preparation qualified them only as spectators." One of the attorneys was later disbarred for his performance. Even with two attorneys, Jack House stood alone at his trial. Gary Nelson spent eleven years on Georgia's death row. During that time, fifteen people were taken to the electric chair and executed. Nelson says the smell of burnt flesh is something he'll never forget. Nelson was represented at his two-day trial by a sole practitioner who had never tried a death penalty case. During a time when Nelson's attorney was personally experiencing financial problems, he was paid between $15 and $20 per hour. His request for co-counsel was rejected. No funds were provided for an investigator, and the attorney didn't even ask for funds for an expert witness. The attorney's closing argument at trial was 255 words. Gary Nelson was sentenced to death. His trial attorney was later disbarred for other reasons. Fortunately, Nelson's appeal was taken over by a respected Atlanta law firm, and eventually he was cleared of all charges and released in 1991. The prosecution admitted that "there is no material element of the state's case in the original trial which has not subsequently been determined to be impeached or contradicted." If this thorough defense had been mounted at trial, it would have saved the state the enormous costs of a decade of litigation. It also would have saved eleven years of Gary Nelson's life. Today, there is even less of a chance that a Gary Nelson would be spared the electric chair. With over 3,000 people on death row and with the resource centers, which assisted law firms in taking cases, on the brink of elimination, an inmate's claim that he was poorly represented at trial will fall on deaf ears. Aden Harrison, Jr. The court-appointed counsel for this African American man was 83-year-old James Venable, who had been an imperial wizard of the Ku Klux Klan for over 15 years. A Georgia judge who reviewed Venable's representation in 1990 said the lawyer all but abandoned his client and suffered from "advanced age, and numerous lapses of judgment." Venable was later disbarred for other matters. Source: Death Penalty Information Center Do you find these cases consistent with a civilized judicial system? Incompetent counsel shouldn't be what kills prisoners Editorial in Dallas Morning News, November 23, 1998 Ricky Eugene Kerr had a near-death experience earlier this year. Convicted of murder and sentenced to die, Mr. Kerr's final state appeal was handled by a state-appointed attorney so incompetent he later admitted he didn't understand the appeals process. The Texas Court of Criminal Appeals refused to appoint a new attorney or stay Mr. Kerr's lethal injection. 2 days before his scheduled death, a federal judge stepped in and halted the execution. Ricky Kerr's court-appointed lawyer was at fault, but Mr. Kerr almost paid for the mistake. Death row inmates Laroyce Smith and Paul Richard Colella have also been punished for their attorneys' missteps. Their lawyers, who were appointed by the Court of Criminal Appeals, missed statutory deadlines for filing certain documents. They made mistakes. But rather than appoint new lawyers who could meet deadlines, the court simply refused to consider the late applications. This isn't how justice is supposed to work. Texas' death penalty statute was rewritten in 1995. It was supposed to accelerate executions by ensuring each condemned prisoner received one full, fair set of appeals. The state agreed to appoint and pay lawyers to handle a final tier of appeals, known as writs of habeas corpus. In exchange, the law established rigid deadlines for filing appeals. Though well intentioned, this statute has seriou flaws. It doesn't define "competent counsel" or offer relief to convicts who wind up with incompetent appellate attorneys. It has inflexible deadlines that leave the Court of Criminal Appeals with little ability to accept late filings. There is no monitoring system that flags prisoners whose appeals have not been filed on time. These problems could be fixed with only minor changes in the law. The Texas legislature should be able to correct the statute when it reconvenes in January. Those revisions have become even more critical because of this year's elections. Next year, 2 death penalty watchdogs, Charlie Baird and Morris Overstreet, will not be on the appeals court. These jurists often remarked on shortcomings in the state's capital appeals process; Judge Overstreet repeatedly decried the court's willingness to penalize convicts for their attorneys' mistakes. With these judges leaving, and the statute not revised, simply having the bad luck to get the wrong court-appointed attorney could prove a fatal mistake. Transscript from National Public Radio (NPR) SHOW: MORNING EDITION March 12, 2001, Monday STEPHEN BRIGHT, A LAWYER WHO GAVE UP HIS BIG-CITY LAW CAREER TO DEFEND DEATH-ROW INMATES AND PRISONERS DENIED MEDICAL CARE BOB EDWARDS, host: This is MORNING EDITION from NPR News. I'm Bob Edwards. With the rise and fall of the dot-com sector, there have been a lot of stories about entrepreneurs striving to create successful companies and becoming millionaires. There are a lot of people who work just as hard to launch non-profit enterprises. Some consider them to be social entrepreneurs. NPR's Chris Arnold profiles an Atlanta lawyer who spent the last 20 years building an organization to help prisoners who can't afford an attorney. CHRIS ARNOLD reporting: A dinner in Silicon Valley drew dozens of wealthy entrepreneurs and venture capitalists and corporate lawyers who spend their days immersed in the high-tech business world. But this evening, they're being asked to invest their money in a different kind of venture, the Southern Center for Human Rights, which is run by a lawyer named Stephen Bright. Mr. STEPHEN BRIGHT (Attorney): It's my guess that most of you have not dealt a great deal with the criminal justice system or with--I guess I'm right about that. (Soundbite of laughter) ARNOLD: Stephen Bright didn't mean that as a joke and the reaction underscores how removed this audience is from the prisoners' rights work that he does. To put a human face on these issues, Rubin "Hurricane" Carter, who's on the center's board, is here to talk about the 19 years he spent wrongfully incarcerated. Mr. RUBIN "HURRICANE" CARTER: Defending people in prison is not a popular thing. Those people who have the money who can be philanthropic, their lives are not disturbed. ARNOLD: But while there are different worlds colliding here, the high-tech investors that organized this event think Stephen Bright shares many of the same skills and traits that mark successful entrepreneurs. After growing up on a family farm in Kentucky, Bright became a lawyer and moved to Washington, DC. One day in 1979, he got a phone call from the ACLU requesting that he take a death penalty case in Georgia, which was odd, Bright thought, since he had no experience with the death penalty or Georgia state law. But Bright was told the client was desperate because Georgia does not provide lawyers to death-row inmates after they've lost their first appeal. Mr. BRIGHT: They needed a lawyer, which just struck--I couldn't believe somebody was under a death sentence and doesn't have a lawyer. It was just really shocking to me. ARNOLD: Bright took the case and he took others that the ACLU brought to him. He says he continued to be shocked by a whole range of problems within the criminal justice system in the South. He says he saw court-appointed lawyers who were drunk or asleep during trials, prisoners being abused, and in 1982, he decided to move to Atlanta to take over a small prisoners' rights center that was bankrupt and falling apart. Mr. BRIGHT: The problems down here were so major and there was such a need here. ARNOLD: Bright didn't take a salary for nine months and spent most of his savings. Over the past 20 years, he's dedicated his life to building the Southern Center for Human Rights. (Soundbite of storm) ARNOLD: On the morning we visited the center, a spectacular thunderstorm provided an appropriately Vognarian(ph) backdrop. (Soundbite of storm) ARNOLD: Inside the front door of the downtown Atlanta center, a copy machine cranks endlessly away. Bright now has a staff of 25, including nine investigators and 11 lawyers. Many of the young attorneys come from Harvard, Yale and Emory where Bright teaches courses. Yale graduate Tammy Sun gave up a hundred thousand dollar a year salary at a big firm to work here for $30,000 a year. Ms. TAMMY SUN (Yale Graduate): We certainly are not here for the money. ARNOLD: The center gets no government funding whatsoever, raising its entire budget from private contributions. The clients can't afford to pay anything. Bright can only offer subsistence salaries. So as a business proposition, the level of difficulty is in some ways higher than it is at a for-profit company. Still, Tammy Sun says the around-the-clock work environment here is very similar to what it's like at high-tech start-ups where some of her friends work. Ms. SUN: The sleeping under the desk thing, I mean, frankly I don't think Steve sleeps. I also think it's believing in what you're doing and whether it's, you know, the entrepreneur who's building his e-commerce company or it's someone like Steve Bright or Steve, you know, building something from the ground up and nurturing it. ARNOLD: Sun says the difference here is that while the economic incentives are non-existent, the work itself is more gripping than she's found anywhere else. Mr. STOYIN McHANEY: I was about to go crazy. I didn't know who to talk to. ARNOLD: Forty-four-year-old Stoyin McHaney(ph) recently became a client when the center sued the Fulton County jail in Georgia over inadequate medical care. McHaney is HIV positive. He says he has substance abuse and alcohol abuse problems and was arrested on a minor charge. McHaney says despite his pleading for his medication, the jail nurses failed to give him his protease inhibitors for as long as 45 days, then gave him the wrong medications. And he says they kept him in a cell with a very sick inmate. Mr. McHANEY: And I couldn't believe that those people were continuing to allow me to go on and on and on without putting me back on a life-sustaining drug. That was just driving me insane. ARNOLD: McHaney was not alone. Stephen Bright says scores of inmates arrested on petty charges were being denied medical care. Mr. BRIGHT: Renaldi Usher(ph), one of our clients, was a man who... ARNOLD: At the fund-raising dinner in Silicon Valley, the light-hearted spirit of the crowd has grown dead somber as Stephen Bright recounts the story of another HIV-infected inmate at the Fulton County jail. Mr. BRIGHT: He was arrested for shoplifting $ 40 at the Home Depot. When he came in, he was taking his protease inhibitors. He was healthy. He was almost pers' rights center that was bankrupt and falling apart.200 pounds. He was taken off his medicine cold turkey and he was put in a cell with two people that had TB. And by the time we got to know Rudy(ph), he was down to a hundred and twenty pounds. The jail released him at 12 midnight. He can't walk anymore. And so Rudy crawled into a parking lot and underneath a car. The next morning, he called us and someone from the office picked him up and got him breakfast and cleaned him up. Rudy Usher died just a month ago. ARNOLD: Records introduced before the lawsuit was settled last year showed that 23 inmates died at the Fulton County jail in a period of two years. A court-appointed medical monitor says most of those deaths were due to severe illness during a time when medical care was, quote, "appalling." The federal district judge in the case used the word 'horrendous' to describe the jail conditions and mandated reforms. Since then, the monitor reports a dramatic improvement and only two deaths, one from suicide over the past year. Work like this has won Bright praise from prominent judges and lawyers, but trying cases, teaching and fund-raising takes a toll. While Bright looks slender and fit, he's had a heart condition and friends worry that he pushes himself too hard. Bright has had two marriages fall apart. When Silicon Valley venture capitalist Michael Leventhal looks at Stephen Bright, he sees the same intense drive and singularity of purpose shared by some of the most visionary entrepreneurs. Mr. MICHAEL LEVENTHAL (Venture Capitalist): The characteristics we look for in an entrepreneur. You know, it is that passion, ability to lead people--Steve has all that. And you see the command he has over an audience, whether it be the audience of two or the audience of 200. People just realize that there's this tremendous sort of gravitational force, if you will. He's truly that sort of magical kind of person in the ways of, you know, the Ellisons and the Jobs and the Jim Clarks. ARNOLD: Bright doesn't see himself as all that remarkable and maintains an all-in-a-day's-work sort of attitude. And as for making some noble sacrifice in terms of his small paycheck, Bright shrugs that off, too. He says he's never wanted to do anything else and seems genuinely puzzled about why so many talented people choose to spend their lives making a lot of money but working on things that he sees as much less vital. He, of course, is interested in raising money for his center's work. And to that end, Mike Leventhal wants to invest in Bright. As a result of the fund-raising dinner, Leventhal is close to raising a million dollars, enough to fund Bright's center for a full year.