YOU HAVE A RIGHT TO AN ATTORNEY …Right to (Effective) Counsel & the Death Penalty

The Right To Counsel in the Constitution

A good defense lawyer is always important, but especially in death penalty cases, which:

•Are exceedingly complex•Include a separate sentencing phase that requires attorneys with particular knowledge and experience•Require more resources than other cases (for hiring of experts, investigators, etc. for the sentencing phase)

Why is a good lawyer so important?

50 years ago, on March 18, 1963, the US Supreme Court unanimously ruled in Gideon v. Wainwright that all criminal defendants have the right to an attorney.

Gideon v. Wainwright – what did it say?

Clarence Gideon (far left) personally hand-wrote his petition (left) to the Supreme Court

They made a TV movie about the Gideon case, in 1980, starring Henry Fonda, nominated for 3 Emmys

You can see the whole movie here:http://www.youtube.com/watch?v=gAnb40298IU

Gideon v. Wainwright – what did it NOT say?

This ruling said nothing about the quality of the attorney you have a right to.

A 1984 case, Strickland v. Washington, attempted to establish a right to adequate counsel, but subsequent rulings created a very low bar for what is considered “adequate”.

By the 1990s, courts were saying things like:

"Although defense counsel slept during portions of the trial, counsel provided defendant meaningful representation." (People v. Tippins, 1991)

"Proof of a defense counsel's use of narcotics during trial does not amount to a per se violation of constitutional right to effective counsel." (Counsel admitted using heroin and cocaine throughout the trial.) (People v. Badia, 1990)

Choice quotes about “adequate” counsel

By the turn of the century, studies began to show how bad the inadequate counsel in death penalty cases problem had become …

• Chicago Tribune: 12% of those sentenced to death from 1976-1999 represented by "an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away." (November, 1999)

• Charlotte Observer: In North Carolina at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (September, 2000).

• The Dallas Morning News: One in four condemned inmates represented by attorneys who have been disciplined for professional misconduct at some point in their careers. (September, 2000)

• Seattle Post-Intelligencer: One-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (August, 2001)

• Texas Defender Service: “Death row inmates face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard." (2002)

The death penalty is supposed to be reserved for the “worst of the worst” – those with “mitigating factors” that make them less responsible for their crimes should not get the death penalty. Yet death sentences are often passed wrongfully on:

•Those who should not have received a death sentence due to mental impairments•Those who should not have received a death sentence due to traumatic childhoods•Those who may have been innocent

The Damage Inadequate Counsel Can Cause

Examples:

Abdul AwkalWanda Jean AllenDaniel Cook

Those who should not have received a death sentence due to mental impairments:

Abdul Awkal (Ohio)

Abdul Awkal was only found competent to stand trial after increased dosages of anti-psychotic medication

While trying to present an insanity defense, none of the three experts his lawyer called to testify were helpful: One was not licensedOne was not certifiedThe third said Awkal was sane at the time of the crime.

Abdul Awkal’s execution has been indefinitely postponed in 2012 on the grounds that he is not mentally fit to be put to death.

Wanda Jean Allen (OK)

Wanda Jean Allen's lawyer had never tried a capital case, and sought to be removed from the case, or to at least have assistance from the public defender's office or an experienced investigator. An Oklahoma court turned down all of these requests.

Her lawyer failed to discover the existence of information on her “mental retardation” and mental disability, despite a well-documented history of it.  Had a jury been told of Allen's disabilities, they might have spared her life.  

Allen's counsel was paid only $800.   Wanda Jean Allen was executed in 2001. A documentary film, The Execution of Wanda Jean, was

produced by HBO in 2002 

Daniel Cook (AZ)

As a child, Daniel Cook was subjected to severe and repeated physical and sexual abuse from family members. He was diagnosed with schizophrenia, acute psychosis, alcohol addiction, passive aggressive personality, depression, and dependent personality disorder all at different times in his life.

Cook’s appointed lawyer at the time was suffering from bipolar disorder and drinking heavily. Cook waived his right to counsel, preferring to represent himself. The lead prosecutor recalled that the appointed defense lawyer was “at the low end of the competency scale” and “appeared neither capable nor willing to put forth the effort necessary”. He added that Cook “was clearly not competent to act as his own counsel.”

Cook was executed August 8, 2012.

Those who should not have received a death sentence due to traumatic childhoods:

Examples:Harold McQueen Samuel LopezStephen WestRichard Smith

Harold McQeen (KY)

During the penalty phase of his trial, Harold McQueen’s lawyers failed to investigate or present mitigating evidence. One of his attorneys testified later that he didn’t even speak to McQueen’s family prior to the sentencing hearing.

The jury heard no evidence of McQueen's long-term drug addiction, and resulting brain damage. The jury never knew that Harold had been severely neglected as a child. The jury knew nothing of Harold's demeanor and personality off drugs.

Harold McQueen was executed in 1997.

Samuel Lopez (AZ)

Samuel Lopez grew up in an environment of extreme poverty, and violence. He witnessed his mother being repeatedly beaten and was beaten, neglected, and isolated as a child as well as being beaten himself. He began abusing various substances at a very young age, and became addicted by early adulthood.

At his first trial Lopez was represented by a lawyer who had never handled a death penalty case before and presented no evidence at the first stage of the trial and no witnesses at either stage. This lawyer acknowledged that he had had “no concept of mitigation” and “did not conduct a mitigation investigation”. At his re-sentencing, Lopez’s new lawyer also failed to investigate his client’s family or life history.

Samuel Lopez was executed June 2012 in Arizona.

Stephen West (TN)

West was born in a mental institution, and from that time until he left for the army, he was severely physically abused by both his parents. He was beaten, punched, thrown into walls, and subject to other forms of cruelty including public humiliation, degradation, captivity, and isolation.

West was represented at trial by two lawyers, neither of whom had worked on a death penalty case before. They failed to investigate and present the evidence of severe parental abuse in Stephen West’s childhood.

West remains on death row in Tennessee.

Richard Smith (OK)

Richard Smith was physically abused by his father, and then stepfather. The abuse led to him run away from home. When he returned he was beaten severely by his stepfather and handcuffed and locked in a cupboard every night for two weeks.

At the sentencing phase of the trial, Smith’s defense lawyer presented almost no evidence, and no expert testimony. The lawyer’s presentation at the sentencing was described in 2005 by a federal District Court judge as “shocking in its brevity, its failure to humanize [Smith] or to explain his actions”.

Richard Smith’s sentence was commuted to life without parole by the governor following the recommendation of the Parole Board.

Those who were executed (or almost executed) despite significant evidence of innocence:

Examples:Troy DavisShawn HawkinsCameron Willingham

According to the Innocence Project, 54 of first 255 DNA exonerations raised ineffective counsel claims, but 81% of those were rejected.

Troy Davis (GA)

The state of Georgia shamefully executed Troy Davis on September 21, 2011 despite serious doubts about his guilt.

The case against him consisted entirely of witness testimony, and all but two of the state's non-police witnesses from the trial eventually recanted or contradicted their testimony, while many others implicated an alternative suspect.

During his state appeals, Davis was represented by a resource center with 2 attorneys and 80 clients, which did not have the capacity to investigate the witnesses and gather the recantations in a timely fashion.

Once Davis had adequate legal representation, in federal court, the recantations were acquired, but the federal courts ruled they should have been produced earlier.

Shawn Hawkins (OH)

Shawn Hawkins was convicted of a double murder based solely on the testimony of Henry Brown, whose version of events changed multiple times in interviews with police. Brown was offered immunity in exchange for implicating Hawkins.

After Hawkins was convicted of both murders, his lawyer was not prepared for the sentencing phase and, instead of presenting a mitigation case, berated the jury for their decision to convict Hawkins. The following day, the jury voted for the death sentence.

In May 2011, the Ohio clemency board voted to commute Hawkins’ sentence, since it was “not confident in the death sentence in this case.”

On June 8, Governor John Kasich commuted Hawkins’ sentence to life without possibility of parole.

Cameron Todd Willingham (TX)

Willingham was convicted and executed for the alleged murder of his three daughters by arson.

In 2011, the Texas Forensic Science Commission published a report concluding that unreliable fire science led to Willingham’s 1992 conviction and 2004 execution.

After the unreliability of Willingham’s conviction became clear, the lawyer who defended him argued strongly that he had been guilty, and stated that they confirmed the state’s (false) theory of arson by pouring lighter fluid on a carpet and burning it and comparing that to pictures from the crime scene.

Inadequate lawyering is another way the US death penalty becomes arbitrary:•It disproportionately affects the poor (who can’t hire quality counsel)•It allows those who should be exempt from execution (the mentally disabled, those who endured tragic childhood abuse or neglect, the innocent) to be sentenced to death and executed anyway.

Inadequate Counsel & the Death Penalty

The so-called “worst of the worst” (those for whom the death penalty is supposed to be reserved), are instead those with the worst lawyers.

Fixing this problem would require pouring tremendous additional expenses into a highly complex capital punishment system that already costs significantly more than alternative sentences.

What Can Be Done?

Ending the death penalty would:•Eliminate this expensive and overly complicated system•Allow more resources for everyone facing a criminal charge to have a good lawyer•Result in more fairness and justice for everybody.

The promise of the 6th Amendment, and of Gideon, could finally be realized.

Abolish the Death Penalty!

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