Counsel for the poor: the death sentence not for the worst crime but for the worst lawyer.

• Author: Bright, Stephen B.

After years in which she and her children were physically abused by her adulterous husband, a woman in Talladega County, Alabama, arranged to have him killed. Tragically, murders of abusive spouses are not rare in our violent society, but seldom are they punished by the death penalty. Yet this woman was sentenced to death. Why?

It may have been in part because one of her court-appointed lawyers was so drunk that the trial had to be delayed for a day after he was held in contempt and sent to jail. The next morning, he and his client were both produced from jail, the trial resumed, and the death penalty was imposed a few days later.(1) It may also have been in part because this lawyer failed to find hospital records documenting injuries received by the woman and her daughter, which would have corroborated their testimony about abuse. And it may also have been because her lawyers did not bring their expert witness on domestic abuse to see the defendant until 8 p.m. on the night before he testified at trial.(2)

Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources, and commitment to handle such serious matters. This fact is confirmed in case after case. It is not the facts of the crime, but the quality of legal representation,(3) that distinguishes this case, where the death penalty was imposed, from many similar cases, where it was not.(4)

The woman in Talladega, like any other person facing the death penalty who cannot afford counsel, is entitled to a court-appointed lawyer under the Supreme Court's decision in Powell v. Alabama.(5) But achieving competent representation in capital and other criminal cases requires much more than the Court's recognition, in Powell and in Gideon v. Wainwright,(6) of the vital importance of counsel and of "thoroughgoing investigation and preparation."(7) Providing better representation today than the defendants had in Scottsboro in 1931 requires money, a structure for providing indigent defense that is independent of the judiciary and prosecution, and skilled and dedicated lawyers. As Anthony Lewis observed after the Gideon decision extended the right to counsel to all state felony prosecutions:

It will be an enormous task to bring to life the dream of Gideon V.

Wainwright--the dream of a vast, diverse country in which every

person charged with a crime will be capably defended, no matter what

his economic circumstances, and in which the lawyer representing him

will do so proudly, without resentment at an unfair burden, sure of the

support needed to make an adequate defense.(8)

More than sixty years after Powell and thirty years after Gideon, this task remains uncompleted, the dream unrealized. This Essay describes the pervasiveness of deficient representation, examines the reasons for it, and considers the likelihood of improvement.

1. THE DIFFERENCE A COMPETENT LAWYER MAKES IN A CAPITAL CASE

   Arbitrary results, which are all too common in death penalty cases, frequently stem from inadequacy of counsel. The process of sorting out who is most deserving of society's ultimate punishment does not work when the most fundamental component of the adversary system, competent representation by counsel, is missing.(9) Essential guarantees of the Bill of Rights may be disregarded because counsel failed to assert them, and juries may be deprived of critical facts needed to make reliable determinations of guilt or punishment. The result is a process that lacks fairness and integrity.

   For instance, the failure of defense counsel to present critical information is one reason that Horace Dunkins was sentenced to death in Alabama. Before his execution in 1989, when newspapers reported that Dunkins was mentally retarded, at least one juror came forward and said she would not have voted for the death sentence if she had known of his condition.(10) Nevertheless, Dunkins was executed.

   This same failure of defense counsel to present critical information also helps account for the death sentences imposed on Jerome Holloway--who has an IQ of 49 and the intellectual capacity of a 7-year old--in Bryan County, Georgia,(11) and William Alvin Smith--who has an IQ of 65--in Oglethorpe County, Georgia.(12) It helps explain why Donald Thomas, a schizophrenic youth, was sentenced to death in Atlanta, where the jury knew nothing about his mental impairment because his lawyer failed to present any evidence about his condition.(13) In each of these cases, the jury was unable to perform its constitutional obligation to impose a sentence based on "a reasoned moral response to the defendant's background, character and crime,"(14) because it was not informed by defense counsel of the defendant's background and character.

   It can be said confidently that the failure to present such evidence made a difference in the Holloway, Smith, and Thomas cases. After each was reversed--one of them for reasons having nothing to do with counsel's incompetence--the pertinent information was presented to the court by new counsel, the death sentence was not imposed. But for many sentenced to death, such as Horace Dunkins, there is no second chance.

   Quality legal representation also made a difference for Gary Nelson and Frederico Martinez-Macias, but they did not receive it until years after they were wrongly convicted and sentenced to death. Nelson was represented at his capital trial in Georgia in 1980 by a sole practitioner who had never tried a capital case.(15) The court-appointed lawyer, who was struggling with financial problems and a divorce, was paid at a rate of only $15 to $20 per hour.(16) His request for co-counsel was denied.(17) The case against Nelson was entirely circumstantial, based on questionable scientific evidence, including the opinion of a prosecution expert that a hair found on the victim's body could have come from Nelson.(18) Nevertheless, the appointed lawyer was not provided funds for an investigator(19) and, knowing a request would be denied, did not seek funds for an expert.(20) Counsel's closing argument was only 255 words long.(21) The lawyer was later disbarred for other reasons.(22)

   Nelson had the good fortune to be represented pro bono in postconviction proceedings by lawyers willing to spend their own money to investigate Nelson's case.(23) They discovered that the hair found on the victim's body, which the prosecution expert had linked to Nelson, lacked sufficient characteristics for microscopic comparison.(24) Indeed, they found that the Federal Bureau of Investigation had previously examined the hair and found that it could not validly be compared.(25) As a result of such inquiry, Gary Nelson was released after eleven years on death row.

   Frederico Martinez-Macias was represented at his capital trial in El Paso, Texas, by a court-appointed attorney paid only $11.84 per hour.(26) Counsel failed to present an available alibi witness, relied upon an incorrect assumption about a key evidentiary point without doing the research that would have corrected his erroneous view of the law, and failed to interview and present witnesses who could have testified in rebuttal of the prosecutor's case.(27) Martinez-Macias was sentenced to death.

   Martinez-Macias received competent representation for the first time when a Washington, D.C., firm took his case pro bono. After a full investigation and development of facts regarding his innocence, Martinez-Macias won federal habeas corpus relief.(28) An El Paso grand jury refused to re-indict him and he was released after nine years on death row.(29)

   Inadequate representation often leaves the poor without the protections of the Bill of Rights. An impoverished person was sentenced to death in Jefferson County, Georgia, in violation of one of the most basic guarantees of our Bill of Rights--the right to a representative jury selected without discrimination on the basis of race.(30) African-Americans make up 54.5% of the population of that county, but the jury pool was only 21.6% black, a severe underrepresentation of over 50%.(31) But this issue was not properly raised and preserved by the court-appointed lawyer for the accused. The defendant had the extreme misfortune of being represented--over his protests--by a court-appointed lawyer who, when later asked to name the criminal law decisions from any court with which he was familiar, could name only two: "Miranda and Dred Scott."(32) As a result of the lawyer's failure to challenge the racial discrimination at or before trial, the reviewing courts held that the defendant was barred from vindication of his constitutional rights.(33)

   The difference that representative juries and competent counsel make in capital cases is illustrated by the cases of two codefendants, John Eldon Smith and Rebecca Machetti. They were sentenced to death by unconstitutionally composed juries within a few weeks of each other in Bibb County, Georgia.(34) Machetti's lawyers challenged the jury composition in state court; Smith's lawyers did not because they were unaware of the Supreme Court decision prohibiting gender discrimination in juries.(35)

   A new trial was ordered for Machetti by the federal court of appeals.(36) At that trial, a jury which fairly represented the community imposed a sentence of life imprisonment.(37) The federal courts refused to consider the identical issue in Smith's case because his lawyers had not preserved it.(38) He was executed, becoming the first person to be executed under the Georgia death penalty statute upheld by the U.S. Supreme Court in 1976.(39) Had Machetti been represented by Smith's lawyers in state court and Smith by Machetti's lawyers, Machetti would have been executed and Smith would have obtained federal habeas corpus relief.

   In these examples, imposition of the death penalty was not so much the result of the heinousness of the crime or the incorrigibility of the defendant--the factors upon which imposition of capital punishment supposedly is to...