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N O V E M B E R  1 9 9 9

(The online version of this article appears in four parts. Click here to go to parts one, two, and four.)

"How Much Justice Can You Afford?"

Photograph by Loren Santow/Impact Visuals
  Sentenced to death: January 11, 1994.
  Freed: October 4, 1996. After
  the murder of his parents Gauger
  was interrogated for eighteen
  hours without a lawyer and
  without food or sleep. No
  physical evidence linked him
  to the crime. His conviction
  was later overturned on
  constitutional grounds. Members
  of a motorcycle gang have
  since been indicted for the murders.

NO doubt most judges, police officers, and prosecutors are committed to the principle that a defendant is innocent until proven guilty. The single greatest threat to an innocent defendant, however, may be his or her own attorney. In Illinois, Gary Gauger was sentenced to die in 1994 for murdering his parents, after his well-paid attorneys failed to conduct a serious investigation into the prosecution's paper-thin case. Eventually Gauger was released and members of a Wisconsin motorcycle gang were indicted for the crime.

Perhaps Gauger was just unlucky. After all, anyone can hire a bad lawyer. The average capital defendant doesn't have the money to hire O. J. Simpson's "dream team." More likely than not, he has no money at all. At the very least, three fourths of state-prison inmates and half of federal-prison inmates have taxpayer-financed court-appointed counsel. The quality of this representation is questionable.

In its historic 1963 decision in Gideon v. Wainright the Supreme Court stated, "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him." Since then the Court has ruled that in all criminal proceedings that carry prison sentences adequate counsel also means access to expert witnesses and investigative services. But how those rights are implemented has been left entirely to the states, and often such rights in fact belong only to those who can afford them.

Eighteen death-penalty states lack statewide public-defender organizations, and many of those that have them underfund them so seriously that lawyers end up handling huge caseloads that would be considered unconscionable, to say nothing of impractical, in the private sector. Most public defenders are so poorly paid that many talented lawyers tend to shy away from this sort of practice. Some jurisdictions award capital cases to the attorney making the lowest bid. In one Georgia county the low-bid public-contract attorney tried fourteen cases, entered a grand total of seven motions, and entered 262 guilty pleas for his court-assigned clients from 1993 to 1998. Other states randomly assign lawyers from a general list, a system that almost ensures that lawyers lacking appropriate qualifications will frequently be found. Aden Harrison Jr., a black man indicted for murder in Georgia, was assigned an eighty-three-year-old attorney who had been an imperial wizard of the Ku Klux Klan. Dennis Williams, one of the four men exonerated in 1996 with the help of Northwestern University students, was defended on a murder charge in Illinois by a lawyer who was simultaneously defending himself in disbarment proceedings. Federico Martinez-Macias was represented in Texas by a court-appointed attorney who failed to present witnesses, including an alibi witness who could have disputed the prosecutor's case. Martinez-Macias spent nine years on death row and came within two days of execution before a pro bono attorney in Washington, D.C., having thoroughly investigated his case, managed to demolish the state's evidence. In ruling that Martinez-Macias had been denied his constitutional right to counsel, the court noted that the defendant's trial attorney had been paid $11.84 an hour by the state and that "unfortunately, the justice system got only what it paid for."

In March of last year, on the thirty-fifth anniversary of the Gideon decision, Attorney General Janet Reno wrote in USA Today, "No prosecutor wants to prosecute someone whose defense counsel lacks the necessary skills and experience to put up a defense, and face the likelihood of having the conviction reversed on appeal." In the real world, however, one doesn't hear the National Association of Attorneys General making the case for better-funded defense lawyers, or complaining that indigents have been defended by law students, clerks, and lawyers with no courtroom or capital-defense experience. In Texas, where a state bar committee has estimated that defending a post-conviction capital client requires 400 to 900 hours of work, the Court of Criminal Appeals limits state-funded attorney compensation to 150 hours. When judges routinely reject defense requests for investigators or expert witnesses, prosecutors don't jump to their feet to object that this will make the proceeding unfair, even though they face no similar constraints on resources. Nor does one hear prosecutors carping about the lack of a level playing field in Mississippi, where attorneys are paid no more than $1,000, plus a small allowance for overhead, to try a capital case. (A private attorney defending a capital case would typically earn $100 to $500 an hour.) If these lawyers actually put in the hours needed to defend complex death-penalty cases, they would earn less than the minimum wage. Many don't put in the necessary time, and their clients pay the price.

Asked if they would favor a judicial system in which only the prosecution could present its case, most Americans would presumably be aghast. But in many courtrooms such ex parte proceedings are, for all intents and purposes, what happens. The adversary system simply doesn't exist. Convicted by Juries, Exonerated by Science found that a major cause of wrongful convictions was incompetent attorneys who neglected to examine the prosecution's forensic evidence or failed to have it tested. Nancy Gist, the director of the Bureau of Justice Assistance, which dispenses $1.7 billion a year to state and local criminal-justice systems, has described the quality of counsel in capital cases as "mostly abysmal." One innocent man spent eleven years on Georgia's death row because his lawyer failed to have a vital piece of evidence analyzed by a laboratory. In Kentucky an investigation by the Department of Public Advocacy found that 25 percent of death-row inmates had been represented at trial by attorneys who had since been disbarred or had resigned to avoid disbarment. A 1990 study found that 13 percent of the defendants executed in Louisiana had been represented by lawyers who had been disciplined, a rate sixty-eight times as great as that for the state bar as a whole. The pervasive inadequacy of defense counsel in capital cases was a major reason that the American Bar Association's House of Delegates overwhelmingly approved a 1997 resolution calling for a moratorium on executions. "In case after case," a report accompanying the resolution stated, "decisions about who will die and who will live turn not on the nature of the offense the defendant is charged with committing, but rather on the nature of the legal representation the defendant receives."

Death-penalty advocates are right to insist that the public should not be required to provide every capital defendant with a team of $400-an-hour lawyers. Nevertheless, no one seriously doubts that a defendant's prospects -- whether he is guilty or innocent -- will be improved by a skilled attorney. A study commissioned by the Texas Judicial Council in the mid-1980s showed that a defendant's chances of being convicted in a capital case were 28 percent higher if he was represented by court-appointed counsel than if he retained counsel. The study also showed that 55 percent of those who retained counsel but 79 percent of those with appointed counsel were sentenced to death. Walter Rowe, of George Washington University, says that for a defendant in state court the "unfortunate fact of life is, if you ain't got bucks, you're going to take it in the shorts." Rowe says he asks defendants who solicit his services as an expert witness, "How much justice can you afford?" "Numerous innocent people are presently incarcerated because of the inadequacy of their attorneys," he says.

"One Half Justice"

ALMOST thirty-seven years after Gideon v. Wainright it is difficult to escape the unpleasant conclusion that the failure of state and local jurisdictions to provide adequate legal representation in criminal cases is anything other than a deliberate policy -- one that probably arises from a pervasive belief that most criminal defendants are guilty and therefore unworthy of competent counsel. This inattention -- by now a matter of tacit national policy -- to what should be a fundamental constitutional right is bolstered by a self-justifying logic that becomes almost irresistible when one considers the tangible "benefits." By failing to fund counsel for indigents adequately a state or locality not only saves an enormous amount of money but also makes meaningful defenses difficult if not impossible, thus easing the government's burden in winning convictions and imposing death sentences, and diminishing the likelihood that heinous errors will ever be discovered. In providing counsel to the poor "we set our sights on the embarrassing target of mediocrity" and "halfway justice," Harold Clarke, the chief justice of Georgia, said in 1993. "To my way of thinking, one half justice must mean one half injustice, and one half injustice is no justice at all."

Public officials see themselves, of course, not as skimping on justice or constitutional rights but as conscientious guardians of the budget who are tough on crime and determined to provide law-enforcement authorities with the very best tools possible to get criminals off the streets. Death-penalty advocates avoid questions about the condemning of innocent people by focusing on the number of murderers never prosecuted or mistakenly freed and by asking "How many innocent people will die if we do not execute vicious murderers?" Most prosecutors I have interviewed seemed to accept as an article of faith that adequate legal resources are provided to capital defendants, even when those prosecutors hadn't a clue what the actual resources were in their respective states.

If a hospital assigned a cosmetic surgeon to perform a heart-bypass operation, the hospital would be held accountable when the patient died. But when states make a practice of appointing cosmetic attorneys to defend indigents, they declare that justice has been served, regardless of the outcome. Astonishingly, the Supreme Court has endorsed that position, ruling that jurisdictions appointing incompetent attorneys bear virtually no responsibility for the miscarriages that occur. "The government is not responsible for, and hence not able to prevent, attorney errors," the Supreme Court ruled in 1984 in Strickland v. Washington. Who, then, is responsible? According to the Supreme Court, apparently, the defendant is responsible. Under its landmark ruling state courts have typically found no violation of the Sixth Amendment, which guarantees the assistance of counsel in all criminal prosecutions, even when lawyers have been addicted to heroin or cocaine during a trial, have come to court drunk, have conducted no investigation of their clients' claims, or have been unable to cite a single relevant capital case. In one death-penalty case a lawyer presented no evidence during the penalty phase of a trial and made the following closing argument (quoted in its entirety): "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say." The defendant was executed. In a Texas case in which the defense lawyer slept through most of his client's trial, the judge found no denial of due process. "The right to be heard," the Supreme Court ruled in 1932, in the famous Scottsboro Boys case, "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." But the Texas court didn't think it essential that defense counsel hear the case, or even be conscious: "The Constitution doesn't say the lawyer has to be awake," the judge ruled.

How does the highest court in the land justify what to a layman appears to be a brazen denial of due process? By referring the hapless defendant to the healing succor of his national or local bar association. "The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance," the Strickland court ruled. "It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions."

It's an extraordinary presumption. The legal profession has, after all, produced reams of ethical and professional standards to guide lawyers, but they are widely ignored and largely unenforced or unenforceable, and the justices of the Supreme Court know this better than anyone. In 1989 the American Bar Association approved "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases," which set rigorous standards. Invaluable though these guidelines may be in establishing goals for state and local governments, they remain purely hortatory and are rarely put into practice. The ABA's "Rules of Professional Conduct" require attorneys to communicate adequately and promptly with their clients, and forbid conflicts of interest. The ABA's "Model Rules" include a pie-in-the-sky provision that stipulates, "Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay." Yet in a country with a million lawyers more than 200 condemned prisoners await execution without counsel, and thousands of indigents accused of crimes are processed through the courts each year with only the barest semblance of counsel. Naturally, the ABA also has standards regarding ability ("A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle"), but lawyers routinely handle matters they know little or nothing about with the full complicity of the courts -- often with grave consequences to their clients and not a whimper from the state or local bar. The world would truly be a better place if all good people heeded the wisdom of the bar's sage oracles, but they don't. Justice Thurgood Marshall knew they wouldn't when he wrote in his dissent to Strickland, "To tell lawyers and the lower courts that counsel for a criminal defendant must behave ... like 'a reasonably competent attorney,' is to tell them almost nothing."

The predicament of an innocent defendant represented by an incompetent lawyer has been further complicated by Supreme Court rulings on what is known as "procedural default," which effectively punishes the client for his lawyer's incompetence or stupidity. In practice, procedural default sets up a classic Catch-22 situation. An indigent defendant is assigned a lawyer who fails to investigate the case properly, puts on a perfunctory defense, ignores exculpatory evidence, and collects his fee, while his client goes to prison. When the defendant, now a convicted felon, tries to have the exculpatory evidence raised on appeal, it is barred by the court, which announces that it should have been presented by counsel at the initial trial. Meanwhile, any claim against the lawyer is conveniently excused, thanks to Strickland.

In one of its most controversial procedural-default rulings the Supreme Court allowed Roger Coleman to be executed in Virginia after finding that he had no right to present in court what he claimed was evidence of innocence, because his attorney had missed a filing deadline by three days. In a ruling that seemed to give process precedence over life and liberty, the Court concluded that Coleman "must bear the risk of attorney error that results in a procedural default." Justice O'Connor wrote one of the more astounding death-penalty decisions in recent memory: "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus" claims -- habeas being the procedure that allows prisoners to petition state and federal courts to determine whether a sentence violates the laws or the Constitution of the United States. A 6-3 majority of the Court appeared to be saying that state procedures were more important than Coleman's claim of innocence, and the defendant was executed. Justice Blackmun called the execution "an affront to principles of fundamental fairness," adding, "The more the Court constrains the federal courts' power to reach the constitutional claims of those sentenced to death, the more the Court undermines the very legitimacy of capital punishment itself."

Not only has the Supreme Court given its seal of approval to incompetent counsel; in some capital cases it has even sanctioned a lack of any counsel whatsoever. Coleman's execution was justified by the Court in part on the basis of another precedent-setting Virginia case, Murray v. Giarratano, in which the Court ruled that a capital defendant is not entitled to a court-appointed lawyer in a post-conviction proceeding. Citing Giarratano, the Court ruled that because Coleman had no right to counsel, he had no basis on which to make a claim of ineffective counsel. But why would the Supreme Court under any circumstances conclude that a person facing the ultimate sanction did not need an attorney -- particularly since federal law does recognize a right to counsel in post-conviction proceedings? Because, the Court reasoned, a state "may quite sensibly decide to concentrate the resources it devotes to providing attorneys for capital defendants at the trial and appellate stages of a capital proceeding." This sounds reasonable enough. But the Court's abstract rationale bears no relation to reality. Had the justices bothered to examine what resources Virginia was actually devoting to trials and appeals, they would have found that the state has one of the worst records on indigent defense anywhere in the nation, and routinely ignores the needs of the poor at both the trial and appellate stages.

Then again, perhaps the justices believe that a post-conviction appeal, one of the most complex areas of death-penalty law, is best handled by an illiterate high school dropout facing a lethal injection or the electric chair. If so, they might want to examine the abysmal success rate of capital defendants who try to play lawyer. Stephen Bright, the director of the Southern Center for Human Rights and one of the nation's pre-eminent capital-defense attorneys, says the chance that a person of normal intelligence could successfully represent himself without counsel on a murder charge is "equivalent to our going to the airport, and the pilot isn't there, and we say, 'Well, we'll just fly the Concorde to Paris ourselves.'" Bright recalls the 1996 case of Exzavious Gibson, a man with an IQ below 85, who was condemned to die by the State of Georgia and was forced to represent himself in a state post-conviction proceeding. "It was a farce, of course. The state had an expert lawyer and the defendant had no idea what he was doing."


The online version of this article appears in four parts. Click here to go to parts one, two, and four.

Alan Berlow is a freelance journalist and the author of Dead Season: A Story of Murder and Revenge (1998).

Photographs by Loren Santow/Impact Visuals.

Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11 (Part Three); Volume 284, No. 5; page 66-91.