Ineffective
Assistance of Counsel
as a Matter=
of
Social Justice:
Death Penal=
ty
Appeals
James Ledbetter
Social Justice (CCJ 5026)<= o:p>
Dr. Bullington
School of Criminology
and
Criminal Justice
Florida State University
April 16, 2001<=
span
style=3D'mso-bidi-font-family:Arial;color:black'>
· =
;
“You are an extremely intelligent jury. You’ve got
that man’s life in your hands. You can take it or not. That’s a=
ll I
have to say.” - Entire closing argument of one capital defense counsel
(Bright,1994).
· =
;
A brief penalty phase with no opening statements, no
cross-examination, and no witnesses for the defense (Coyle, Strasser, Lavel=
le,
1990).
· =
;
A capital defendant counsel is arrested on the way to the
courthouse with a .27 blood alcohol level (Kreitzberg, 1995)
· =
;
Out-of-state lawyers paid $2.22 and $2.07 per hour, respective=
ly
for their time and were not compensated for lodging, meals, and telephone c=
alls
(Kreitzberg).
· =
;
71.2% of surveyed lawyers said that fees were insufficient to =
fund
an adequate defense (Firsthand,1990).
· =
;
Defense counsels that sleep through portions of the trial, use
narcotics during the trial, or have permitted the defendant to wear the same
clothes to court that were worn on the day of the crime (Kassel,1993).
Introduction
The American legal system =
has
its foundation in the adversarial process, yet the economic pressures of the
death penalty appeals process serve as shifting sand that underlies this
foundation, undercutting the defense of the poor and making death penalty j=
ustice
and due process a tool of the rich.
The legitimacy of the legal system and the confidence that is placed=
in
it can be traced to the Sixth Amendment’s right to counsel and the
adversarial process, which assumes that the state and the individual are eq=
ually
and adequately represented by counsel (Di Giulio,1999). Whatever the definition of social
justice, one of the key components is a belief in equity and fundamental
fairness. The capital trial, =
along
with the appeals process, is the most expensive trial process in the legal
system, yet the state stacks the deck in its favor by placing restrictions =
on
the amount of money that the defense can spend, and requiring few, if any
standards for those that defend the condemned, leading to a defense that ca=
nnot
hope to compare to the power of the state to investigate and prosecute the
defendant to death. All of the
power of the state is mustered against the poor and the indigent, who are
forced to place their very existence in the hands of an over-worked, under-=
paid,
poorly trained public defender, who battles the state with a dulled sword of
justice.
The purpose of this paper =
is to
demonstrate the inequities that exist in the present process of the death
penalty appeal, and how these inequalities affect the administration of jus=
tice
and social justice in such a context.
The dramatic quotes at the beginning of this paper are intended to
demonstrate the shocking nature of the behavior of attorneys who make life =
and
death decisions for those that cannot afford adequate counsel. One common thread that runs throug=
hout
the issue of ineffective assistance of counsel is economics - how can the p=
oor
hope to contest the power of the state and ensure due process and equal pro=
tection
of law? How can the state cla=
im that
justice has been served when the defense is doomed to fail?
Introduction
The Supreme Court of the U=
nited
States did not uphold a defendant’s Sixth Amendment right to counsel =
in
capital cases until the 1932 case, Powell v. Alabama. While the Supreme Court (hereafter=
, the
Court) gave right to counsel in the capital trial, since Powell, the
Court has granted no constitutional provision for post-conviction appellate
right to counsel in capital cases.
Despite this omission, counsel is typically appointed by the judge in
the appeals process, and the counsel is selected from a pool of public
defenders. The Court has been
unwilling to interpret the Sixth Amendment’s right to counsel as mean=
ing
a right to effective counsel, and herein lies the social justice issue.
The Court has made proving
ineffective assistance of counsel a significant and daunting task for those
that wish to appeal their conviction and sentence based on such a claim.
Unfortunately, a private
attorney is almost always out of the question for those of modest or indige=
nt
means, especially for the amount of work that goes into the capital appeals
process. The problem does not so much lie with the public defender as with =
the
structure of the process as a whole.
The typical public defender will make little more than minimum wage =
in a
capital trial appeal, owing to the stinginess of the state to fund such a
defense and the vast amount of labor that is implicit in a death penalty
appeal. The only attorneys wh=
o take
death penalty appeals are those that take the case out of a duty to practice
law, regardless of the monetary rewards, or those that are forced to do so =
by
the presiding judge. Varying
accounts place the amount of time required to mount an adequate death penal=
ty
appeal from 1,000 to 3,000 hours.
Due to spending caps placed on the defense attorneys, this hefty amo=
unt
of work with little, if any remuneration, makes the task of finding any
counsel, much less effective counsel, difficult, if not impossible. How do we recognize
ineffectiveness of counsel as a problem of the justice and social justice
system, and where do we go from here?
First, a little history.
Right to Counsel in Capital Trials
In Powell v. Alabama (1932=
), the
Court ruled that capital defendants have right to counsel for their defense=
in
the trial. This case involved=
the
“Scottsboro Nine” and revolved around the accused rape of two w=
hite
women by nine black males, between the ages of thirteen and twenty-one. The judge in the original trial
appointed all members of the local bar as counsel to the Scottsboro Nine, y=
et
no attorney consulted the defendants until the day of the trial. In three separate trials, with eac=
h trial
lasting a day, the Nine were each convicted and sentenced to death. The conviction and sentence were
appealed to the Court, where the precedent for indigent representation was
formed. This quote summarizes=
the
view of the Court in regard to the constitutional right to counsel, but
especially for the uneducated and indigent:
Even the intelligent and educated layman has small and
sometimes no skill in the science of law.&=
nbsp;
If charged with crime, he is incapable, generally, of determining for
himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the ai=
d of
counsel he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both t=
he skill
and knowledge adequately to prepare his defense, even though he have a perf=
ect
one. He requires the guiding =
hand
of counsel at every step in the proceedings against him. Without it, though he be not guilt=
y, he
faces the danger of conviction because he does not know how to establish his
innocence. If that be true of=
men
of intelligence, how much more true is it of the ignorant and illiterate, or
those of feeble intellect...All that is necessary now to decide, as we do
decide, is that in a capital case, where the defendant is unable to employ
counsel, and is incapable adequately of making his own defense... it is the
duty of the court, whether requested or not, to assign counsel for him (Mel=
lo
and Perkins,1998:249-250).
According to the Court, counsel must be appointed to the
defendants if they are unable to afford representation, yet this burden bec=
omes
even more manifest when dealing with defendants who do not understand the
process, due to their lack of education.&n=
bsp;
All of the Scottsboro Nine had very little education, were illiterat=
e,
and had low IQs, yet for all intents and purposes, save for last-minute tok=
en
representation, served as their own counsel for the trial. The lower court’s decision w=
as
overturned by the Court due to the inability of the defendants to participa=
te
in their own defense, due to their lack of education, in conjunction with t=
he
intricacies of the law and the trial process (Mello and Perkins;
Bedau,1997).
Right to Counsel in Capital Appeals
The most common method of =
post-conviction
appeal is the writ of habeas corpus Traditionally, the writ of <=
i>habeas
corpus allowed judges to inquire whether a person was being illegally
held against their will. The =
use of
this writ in post-conviction appeals traces its roots to the Congressional =
Habeas
Act of 1867, which allowed state prisoners to obtain federal court review of
alleged violations of federal constitutional rights. The constitutional right in this
instance is the imposition of the death penalty, in violation of the Eighth
Amendment’s protection from cruel and unusual punishment
(Bedau,1997).
The Court has never ruled =
that
the defendant has a constitutional right to post-conviction appellate
assistance of counsel in capital cases, although since 1967, no defendant h=
as
been refused such a right. In
addition, most states do make provisions for such appellate representation,
thus negating the need for the Court to rule on the issue. Right to counsel is not the only
consideration, rather the main point of contention is, is counsel putting f=
orth
an effective defense and does their behavior and actions portray an effecti=
ve
counsel?
While right to post-convic=
tion
counsel is recognized as essential by the states (not the Court), there is =
no
guarantee of right to effective counsel.&n=
bsp;
The most common habeas appeal is ineffective assistance of
counsel. In a capital
post-conviction appeal, the performance of counsel is a typical cause of
In Strickland v. Washin=
gton
(1984), the Fifth Circuit Court of Appeals and the Court each ruled on the
issue of establishing criteria to distinguish effective from ineffective
counsel, in an attempt to simplify and clarify habeas appeals. The Fifth Circuit Court of Appeals
established basic requirements of all post-conviction trial appeals to
determine ineffective assistance of counsel. In order to be effective counsel, =
the
attorney must investigate mitigating circumstances, pursuant to the protect=
ions
of the Sixth Amendment; at a minimum conduct “an independent examinat=
ion
of the facts, circumstances, pleadings, and laws involved” in the cas=
e;
substantially investigate each possible line of defense; and if ineffective
assistance of counsel is to be proved, it must be shown that counsel’s
errors “resulted in actual and substantial disadvantage to the course=
of
the defense” (Mello and Perkins,1998,263-265).
The Court overruled the Fi=
fth
Circuit Court of Appeals’ requirements and substituted a formula of i=
ts own. According to the majority opinion =
of the
Court, “[T]he benchmark for judging any claim of ineffectiveness must=
be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the proceeding cannot be relied on as having produ=
ced
a just result” (Fong,1987,469-470; Griffin,1994; Mello and Perkins,1998,265). The Court furthered its position by
establishing a two prong test for determining ineffective counsel:
counsel’s performance was deficient, according to “prevailing
professional norms,” and the deficient performance caused prejudice -=
if
not for the errors of counsel, a reasonable probability exists that the out=
come
would have been different (p.265). &n=
bsp;
The Issue
By virtue of its ruling in=
Strickland, the Court has set a high standard to prove ineffective coun=
sel,
most notably, the requirement that the actions of counsel were inferior,
according to the professional standards.&n=
bsp;
The Court also warned of overly scrutinizing previous counsel’s
actions, requiring the assumption that “counsel is strongly presumed =
to
have rendered adequate assistance” (Note,1994,1932). Lawyers are akin=
to
doctors in a malpractice suit, where it also must be proven that negligent
actions were outside that of professional standards; not many are willing t=
o be
the one who says that one of their colleagues acted inappropriately,
negligently, or was ineffective in their work. In addition, in order to be able t=
o file
such a claim of ineffective assistance of counsel, one must find a lawyer w=
ho
has the knowledge of this type of appeal, the tools to prove the high stand=
ard
established by the Court, and the willingness to second-guess prior
counsel. In a later decision =
(Keeney
v. Tomayao-Reyes [1992]) that showed the resolve of the Court to uphold=
its
Strickland decision, the Court ruled that inadequacy or ineffectiven=
ess
of counsel alone does not obligate a federal court to hear a habeas
appeal (Kassel,1993).
The Anecdotal Evidence
Evidence of the problem of
inadequate and ineffective representation in all types of trials is found n=
ot
just in empirical studies, but from the mouths of members of the bench who =
have
the most direct contact with the problem.&=
nbsp;
The dilemma becomes even more of a problem for capital defendants who
trust their lives to lawyers who are expected to be competent to practice l=
aw
in a courtroom. The myth of
reliance upon Powell’s “guiding hand of counsel” h=
as
been countered by the observations of the judges who preside over trials.
The Numerical Evidence
Empirical evidence certain=
ly
exists to corroborate the observations of former Chief Justice Burger and
former Chief Judge Bazelon:
· =
;
1978 2nd Circuit Federal judges poll - 7.1% of
attorneys appearing before them were incompetent, and a larger number were
inadequate.
· =
;
1978 Survey of 400 federal district judges - 41.3% responded t=
hat
the quality of advocacy in their courts was a “serious problem.”=
;
· =
;
1978 ABA survey of state and federal judges - 87% rated only 5=
0%
of the attorneys fully competent; 4% believed that all attorneys competent;
Conclusion: 20% of attorneys not competent.
· =
;
1978 survey of federal district and circuit judges - 8.6% of t=
rial
lawyers less than adequate.
Source:
(Mello and Perkins,1998,267-268).
In a 1990 study (Coyle,
Strasser, Lavelle) of six southern states (Alabama, Florida, Georgia,
Louisiana, Mississippi, Texas), euphemistically called the “death
belt,” the authors found evidence of capital defense attorneys that h=
ave
less than professional
behavior. In these six
states, which represent nearly eighty percent of the executions since 1976,
more than ten percent of attorneys that represented indigent capital defend=
ants
have been disbarred, suspended, or otherwise disciplined at a rate three to
forty-six times the average for those states (See Table 1)(Note,1994). Those disbarred were not
necessarily punished for offenses related to the trials of the capital
defendant, but it is telling that they were deemed to have some type of
unprofessional behavior, which led to their dismissal. The implication is that these disb=
arred
lawyers may not have been effective counsel, judging by their treatment aft=
er
the trial. In making the
argument that untrained attorneys are frequently assigned death penalty cas=
es,
the study found that one-third of attorneys whose clients received death
sentences practice civil law, and more than half of the attorneys were hand=
ling
their first capital trials when their client was sentenced to death. The study also found evidence of
incompetence in capital counsel, reporting that in one-fourth of cases stud=
ied,
no effort was made to present mitigating circumstances, which could lead a =
jury
to recommend a sentence other than death.&=
nbsp;
Table 1 summarizes the
disbarment and discipline rates mentioned previously, as well as the hourly
rate and spending caps that capital defense attorneys are limited to. Also included are methods of assig=
nment
of capital counsel and standards which must be met in order for a lawyer to
have capital clients. I=
n the
first column, the number in parentheses is the total number of executions in
the state since 1976.
Table 1 - =
The
Death Belt (1990)
|
|
Discipline Rates |
Hourly Rate* |
Maximum |
Assignment Methods |
Standards |
|
Alabama (7) |
.27/5.5% |
$40/$20 |
None/$1,000 |
local bar, contract |
5 years criminal law |
|
Florida (22) |
.83/2.5% |
Fixed |
None |
PD |
None |
|
Georgia (14) |
.13/3.4% |
$30/$20 |
$150 - counsel $500 - prep and investigation for
trial and appeal |
PD, low bid |
lead in 3 felony jury trials, one=
DP
case |
|
Louisiana (19) |
.19/8.9% |
$35/$25 |
$1,000 |
local bar, PD |
5 years legal practice |
|
Mississippi (4) |
.05/1.8% |
avg: $11.75 |
$1,000 |
2 full time PD, contract PD |
None |
|
Texas (35) |
.5/4.4% |
$40-50 |
None |
local bar |
None |
* - in court/out of court costs; PD - Public defender
What is most apparent from=
the table
is the tremendously inadequate economic means that are available to defend a
capital client, both in the initial capital trial and in the appeals
process. Counsel in capital c=
ases
have far less monetary compensation than is typical of other types of trial,
which makes taking a capital client a burden for some. While the hourly rate is the maxim=
um
that the defense counsel can receive in a capital trial, due to the amount =
of
hours required to conduct a capital trial or appeal, counsel frequently mak=
es
less than the federally mandated minimum wage. Capital counsel also have access to
fewer research and investigative resources than does the state. By capping the amount of investiga=
tion
that counsel can conduct, the state is effectively limiting the ability of =
the
defense team to successfully defend or appeal the verdict and sentence (Coy=
le,
Strasser, Lavelle,1990; Moss,1992; Bright,1994; Note,1994, ).
Also apparent is the relia=
nce upon
public defenders as the most common method of representation for the capital
defendant and the low standards for capital defense counsel in the death
belt. In four of the six stat=
es,
public defenders are the recipients of capital defendants, which further
burdens an already crowded caseload for those servants of the court. Capital trials and appeals require
counsel to be well-versed in procedural law, as well as the intricacies of
capital appellate law that limits the scope of many procedural challenges.<=
span
style=3D'mso-spacerun:yes'> The penalty phase of the capital t=
rial
is also dramatically different from other felony trials and requires counse=
l to
be able to present evidence of mitigating circumstances in an attempt to av=
oid
the death sentence. “Th=
e law
that governs capital trials differs from that of ordinary criminal trials at
virtually every stage - from jury selection to closing arguments to jury
instructions to proportionality review [ensuring that the death penalty is =
not
out of line with other punishments for the same crime]”
(Note,1994,1926). Only one st=
ate,
Georgia, requires counsel to have capital trial experience, and the remaind=
er
of the states either have no requirements or require a minimal experience w=
ith
criminal law. As a result, la=
wyers
with little or no capital trial or appeal experience are thrust into the mo=
st
complicated and convoluted aspect of the criminal law and are expected to be
effective counsel, yet are given neither the training or resources to be su=
ch
counsel.
Perhaps the most telling
indictment of the system of capital representation is the recent Justice
Project (Liebman, Fagan, West,2000), “A Broken System: Error Rates in
Capital Cases.” In a re=
view
of the 5,760 capital cases heard from 1973-1995, the authors found that in =
the
4,578 cases that were appealed, serious legal flaws were found in two-third=
s of
these cases, leading to the verdict and sentence being overturned. The most common flaw in those case=
s that
were overturned upon appeal - “egregiously incompetent” defense
lawyers, which accounted for thirty-seven percent of the errors (Liebman,20=
00;
Murder,2000). Obviously, a pr=
oblem
exists.
The Problems
The problems in the capital
representation dilemma lie with the delivery of legal services to the poor,
combined with the performance of the capital defense lawyers. Mello and Perkins (1998), summariz=
e the
problems that face the system of capital representation in this country:
inadequate compensation and underfunding; oppressive caseloads; lack of
motivation, supplemented by plea-hungry judges; and inexperienced lawyers w=
ho
learn by trial and error and experienced lawyers who burn out (p.268-270).<=
span
style=3D'mso-spacerun:yes'>
The Solution?
According to Esther Larden=
t, the
Director of the American Bar Association’s Postconviction Death Penal=
ty
Representation Project, “The notion that a society is going to impose=
the
death penalty without providing representation is absolutely incredibleR=
21;
(Feder,1988,121). The question remains, how do we begin to reform a system =
that
is rife with inequality, inefficiency, and ineffectiveness? The solution will certainly not co=
me
from Congress, who in 1995, eliminated federal funding for death penalty
resource centers in twenty states -
The
The
skill=
s in
managing complex litigation and negotiations, demonstrated ability in the
directions of investigations of guilt and mitigation, knowledge and experie=
nce
in dealing with mental health issues, writing and analytical skills as
evidenced in previously written briefs and memoranda, and trial advocacy sk=
ills
(Kreitzberg,1995,511).
Speci=
fically,
the ABA recommends (1) completion of trial advocacy sessions, such as those
offered by the National College of Criminal Defense or the National Institu=
te
of Trial Advocacy; (2) six to twelve hours, annually, of continuing legal
education; (3) at least five years experience in civil or criminal cases; a=
nd
(4) an organization or agency to enforce these guidelines, answering only t=
o an
independent review board.
Conclusion
The right to effective
assistance of counsel is a marginal constitutional right, as opposed to a
fundamental right, according to the U.S. Supreme Court. This interpretation of the Sixth
Amendment’s right to counsel and the Fifth and Fourteenth
Amendment’s guarantees of due process and equal protection under the =
law,
along with the guidelines established by Strickland, puts the Court in a
position of denying the full extent of the social justice issue of ineffect=
ive
assistance of counsel. This i=
ssue
is affected not only by the Court’s rulings, but by the unwillingness=
of
some states to provide more than the basic requirements for representation =
under
the Constitution, which includes adequate resources and compensation for th=
ose
that are appointed or choose to accept a death penalty case, either for tri=
al
or on appeal. The death penal=
ty
trial and appeal processes for the defense are grossly underfunded and
characteristically reliant upon the untrained and unwilling to serve as cou=
nsel
for the defense. While our sy=
stem
may be an adversarial system in name, the actual process is very much
influenced by economic factors, which constantly undermine the efficacy of =
the
system.
The courts are generally
unwilling to accept the accusation that the defense counsel was in some way
ineffective. In the death bel=
t, the
state Supreme Courts have made a total of fourteen findings (Florida - 9, M=
ississippi
- 2, Louisiana, Alabama, Georgia - 1, Texas - 0) of ineffective assistance =
of
counsel (Lavelle and Coyle,1990), despite the fact that the appeal based on
ineffective assistance of counsel is the most common appeal, and the Liebma=
n,
et al. study (2000) finding ineffective counsel to be the most frequent rea=
son
for a conviction or sentence being overturned upon appeal.
The logical conclusion to =
this
whole issue is, if the counsel cannot be depended upon to be effective, the
capital defendant is left to his own devices to mount an effective
defense. The Southern Poverty=
Law
Center studied the fifty-six members of
The current system of death
penalty representation makes the assumption that ineffective assistance of =
counsel
does not harm the defendant’s chances of due process of law, but how =
can
a defense be effective if it is not given the proper tools for its
protection? The only chance of
reform, and hence social justice, is to have equal resources for the state =
and
the defense at all levels of the trial, from pre-trial motions to appeals of
the verdict and sentence.
Short of eliminating the death penalty, equity in the judicial proce=
ss
of death is the only appropriate social justice response to this controvers=
y.
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Ledbetter 1