Doctoring Up the Capital Defense System: Raising the Standards for Louisiana s Death Penalty Lawyers

• Author: Julie Hayes Kilborn
• Pages: 141-175

Page 141

The author extends special appreciation to Phyllis Mann and Tom Lorenzi for their invaluable insight and support during the creation of this article. Thanks are also due to Professors Christine Corcos, Paul Baier, and James Bowers for their guidance and encouragement during this writing.

Introduction

Serious questions are being raised about whether the death penalty is being fairly administrated in this country. If statistics are any indication, the system may well be allowing some innocent defendants to be executed.

-;Supreme Court Justice Sandra Day O'Connor¹

There are currently ninety-two inmates sitting in silence on death row at Louisiana State Penitentiary, Angola, Louisiana.² The majority of those inmates were represented at trial by court-appointed counsel because of their indigency. At least 192 additional indigent capital defendants are awaiting trial in Louisiana.³ As early as 1932, the United States Supreme Court held that where a criminal defendant stands "in deadly peril"⁴ of his life, the notions of due process mandate the appointment of counsel to represent him. Over two decades later, the Court again held that death is different: "[t]he taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights."⁵ After almost another two decades, the Court reaffirmed this declaration, holding that "the penalty of death is qualitatively different from a sentence of imprisonment, however long."⁶ The Court explained that "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."⁷ Though the members of the Court have changed through the years, the opinion of the Court that death is different has remained constant. This difference between capital Page 142 punishment and any other criminal sanction commands a "qualitatively" raised standard for the attorneys representing the defendants whose lives are in "deadly peril."

This article will address the woefully inadequate standards of competency currently required of appointed capital defense counsel in Louisiana. Because death is different, different standards are not only appropriate, but mandated.⁸ Part I of this article explores the extent of the problems relating to ineffective assistance of counsel in capital cases, including the defendant's burden in proving ineffectiveness. Part II explains the current standards for capital defense counsel as recommended by the American Bar Association and contrasts those with Louisiana's current competency standards. Part III of this article examines the complex responsibilities held by an attorney representing a capital defendant. Part IV explores the specialized training of a surgeon as well as the specialized form of review of medical malpractice claims. Finally, Part V parallels the critical and complex nature of a surgeon's responsibilities to that of capital defense counsel and recommends a completely new scheme for Louisiana in death penalty cases.

I The Magnitude And Scope Of The Problem

When we execute a capital defendant in this country, we rely on the belief that the individual was guilty, and was convicted and sentenced after a fair trial, to justify the imposition of state-sponsored killing. . . . My 24 years of overseeing the imposition of the death penalty from this Court have left me in grave doubt whether this reliance is justified and whether the constitutional requirement of competent legal counsel for capital defendants is being fulfilled.

-;Supreme Court Justice Harry A. Blackmun⁹

Page 143

A The Extensiveness of Ineffectiveness

Every criminal defendant has a constitutional guarantee to the "assistance of counsel for his defence,"¹⁰ "not for [his] own sake, but because of the effect it has on the ability of the accused to receive a fair trial."¹¹ Likewise, the Louisiana Constitution guarantees a fair trial to every person charged with a crime in Louisiana.¹² These constitutional mandates of the assistance of counsel and a fair trial require that each capital conviction be reviewed before the sentence can be executed. Death sentences take years to carry out. The average capital convict in Louisiana sits on death row for six years before execution.¹³ Delays include direct appeal,¹⁴ state post-conviction proceedings,¹⁵ and federal habeas corpus claims.¹⁶ At some point in this process, the convicted capital defendant almost always raises an ineffective assistance of counsel claim. Much time and judicial resources are expended in reviewing these claims post-trial.¹⁷ Unfortunately, the defendant's burden of proof in ineffective assistance claims is obscure.¹⁸

Page 144

In Strickland v. Washington,¹⁹ the United States Supreme Court delineated two requirements for a successful claim of ineffective assistance of counsel. First, the defendant must show that trial counsel's performance was deficient. This requires a showing that counsel erred so seriously that counsel was not functioning as the "counsel" which the Sixth Amendment guarantees. Second, the defendant must show that the deficient performance prejudiced the defense. Satisfying this second prong requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial-;a trial whose result is reliable.²⁰ Thus, Strickland requires counsel's assistance to be effective and further holds that assistance which is ineffective in preserving fairness does not meet the constitutional mandate.²¹ The United States Supreme Court has also recognized that "the right to counsel is the right to the effectiveassistance of counsel."²² Accordingly, merely having an attorney by the defendant's side during trial fails to satisfy the guarantees of the Sixth Amendment. For a Stricklandclaim to prevail, the defendant must prove that "but for counsel's unprofessional errors, there is a reasonable probability that the sentencer would have weighed the balance of aggravating and mitigating factors to find that the circumstances did not warrant the death penalty."²³

The long line of cases interpreting Strickland reflects various attitudes, viewpoints, and ideas about what constitutes ineffective assistance of counsel. All of these various attitudes, viewpoints, and ideas aside, one simple truth remains: ineffectiveness does exist in defense counsel. And regardless of the legal test used, that ineffectiveness prejudices the very defendant that the Sixth Amendment was written to protect. Studies by The Innocence Project reveal that of the first seventy recent DNA exonerations, bad lawyering was a common factor that led to wrongful conviction in twenty-three of those cases,²⁴ or thirty-two percent. Another comprehensive study shows that egregiously incompetent defense lawyering accounts for thirty-seven percent of state post-conviction Page 145 reversals.²⁵ Other extensive research has found that the reversal rate due to incompetent lawyering is as high as forty percent.²⁶

On ineffectiveness, Justice Johnson of the Texas Court of Criminal Appeals recently described the pitfalls of the criminal justice system by pointing out that before appellate review, neither criminal defendants, trial judges, nor opposing counsel can stop an ineffective performance by defense counsel. He noted that following trial, "even if we as appellate justices believe in good conscience that we have identified an ineffective performance, we are unable to satisfy the standard of review imposed upon us . . . The bar has no effective program to identify, mentor, or eliminate ineffective defense counsel."²⁷ The problem lies not just in the competency of trial counsel but also in applying the standard of review at the appellate, post-conviction, and habeas levels. Nonetheless, the problem beginsat the trial level. In his June 18, 2002 testimony before the United States Senate Committee on the Judiciary, Barry Scheck, co-founder of The Innocence Project at the Benjamin N. Cardozo School of Law, Yeshiva University, stated, "[N]othing guarantees the conviction of the innocent more than incompetent, ill-trained, or ineffective defense counsel."²⁸

Applying the statistical research of reversals for ineffectiveness to the current number of Louisiana death row inmates, over one-third of those currently sitting on death row will most likely have their convictions overturned because of the ineffectiveness of their counsel. Assuming all 192 currently awaiting trial are convicted and sentenced to death, over two-thirds of those could ultimately be reversed due to bad lawyering.

B Ineffective Assistance of Counsel Claims in Other States

Not only are the reversal rates high for ineffective assistance of counsel claims, but the statistics reveal even more. The Table in Appendix A shows that in thirty capital case opinions rendered in the previous five years by state and federal courts wherein either a reversal was ordered based upon the ineffective assistance of counsel Page 146 or a remand for an evidentiary hearing was ordered, in ninety-seven percent of the cases counsels' errors could have been avoided with additional education and training. As...