Litigating in the Shadow of Death: Defense Attorneys in Capital Cases.

• Author: O'Brien, Sean D.
• Position: Book review

LITIGATING IN THE SHADOW OF DEATH: DEFENSE ATTORNEYS IN CAPITAL CASES. By Welsh S. White. Ann Arbor: University of Michigan Press. 2006. Pp. 219. Cloth, $60; paper, $21.95.

INTRODUCTION

Professor Welsh S. White's (1) book Litigating in the Shadow of Death: Defense Attorneys in Capital Cases collects the compelling stories of "a new band of dedicated lawyers" that has "vigorously represented capital defendants, seeking to prevent their executions" (p.3). Sadly, Professor White passed away on New Year's Eve, 2005, days before the release of his final work. To the well-deserved accolades of Professor White that were recently published in the Ohio State Journal of Criminal Law, (2) I can only add a poignant comment in a student blog that captures his excellence as a scholar and educator: "I wanted to spend more time being taught by him." (3)

Another colleague stated, "He believed very strongly that the way [in] which the death penalty is carried out in the United States is unfair and inhumane and violates the Constitution. He stood up for what he believed and was very influential in doing that." (4) Professor White's book is a wonderful parting gift from a scholar and humanitarian. The book advances his cause by exposing the Achilles Heel of capital punishment: the Court's unwillingness to guarantee adequate legal representation to every person accused of a capital crime. It may be his most influential publication on the death penalty.

The book explores the work of defense attorneys, both good and bad, on behalf of prisoners in capital cases. Professor White interviewed over thirty lawyers "identified as among the most skilled capital defense attorneys in the country" (p. 10). He also examined records in capital cases, "including cases in which attorneys superbly represented capital defendants and others in which their representation was problematic for some reason" (p. 11). By presenting his findings, Professor White establishes that the current system of providing representation to people accused of capital crimes contributes significantly to the arbitrariness of the death penalty. As the recent verdict in the trial of Zacarias Moussaoui amply demonstrates, a defendant fortunate enough to be appointed a dedicated capital defense attorney can avoid the death penalty even in the most aggravated case. (5) On the other hand, a defendant represented by less conscientious or less experienced counsel runs a substantial risk of being executed, even if he is innocent. (6) Professor White's book illustrates the role that each type of lawyer plays in the current system of capital punishment.

The best way to appreciate the significance of Professor White's book is to begin with portions of his final paragraph: "Following the example of Anthony Amsterdam in the pre-Furman era, defense attorneys have transformed our understanding of the modern system of capital punishment, identifying fundamental problems with the way it operates" (p. 208). Executions will most likely continue at a rate of over fifty per year, yet Professor White believes that:

[J]ust as a defense attorney's compelling narrative of injustice can produce a favorable result for a particular capital defendant, defense attorneys' compelling narratives of the series of injustices perpetrated by the modern system of capital punishment may lead to a continuing decline in the use of the death penalty, and eventually to its outright abolition." (p. 208) Most readers who undertake the journey described in Professor White's book will find themselves in agreement with him.

This review focuses on White's discussion of capital defense attorneys and the current judicial and ABA standards that govern them. Part I discusses the Strickland standard for deciding claims of ineffective assistance of counsel and how it has failed to ensure that capital defendants receive competent representation. Part II discusses Professor White's exploration of the differences between dedicated capital defense lawyers and less experienced or less committed lawyers and their approaches to innocence claims, aggravated cases, plea bargaining, and appeals. Professor White contends that if courts were to more rigorously apply some of their ineffective assistance precedents--particularly those about investigating mitigating factors--we would see fewer individuals sentenced to death. While I agree with Professor White's conclusion, I believe we are missing an important part of the story. Professor White correctly concludes that exhaustive investigation marks the difference between effective capital defense attorneys and other defense lawyers, but he provides few details about the investigative process behind the successful defenses discussed in his book. It would have been helpful to hear how the dedicated lawyers portrayed in his book obtained the time and resources needed to assemble a competent defense team and thoroughly investigate the client's life history.

1. THE STRICKLAND STANDARD'S WEAK PROTECTION

   Professor White suggests that "one approach to upgrading the quality of lawyers' representations in capital cases would be to rigorously enforce the constitutional guarantee to effective assistance in all criminal cases, or at least in all capital cases" (p. 13). Unfortunately, the standard adopted by the Supreme Court in Strickland v. Washington (7) "gave capital defendants relatively weak protection against ineffective representation" (p. 13). Under Strickland, a capital prisoner must show not only that counsel's performance "fell below an objective standard of reasonableness," (8) but also that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (9) In Strickland and in subsequent cases, the Court indicated "that it might be difficult for a capital defendant to establish that his lawyer's deficient performance resulted in prejudice" (p. 16).

   An overview of capital representation in America makes it clear that Strickland does not adequately safeguard these defendants. Professor White notes, "As the pace of executions increased, it became increasingly clear that defense attorneys' representation of capital defendants was sometimes shockingly inadequate" (p. 3). A 1990 study by the American Bar Association uncovered widespread problems with legal services for capital defendants. (10 Professor White substantiates these condemnations with specific examples of glaring incompetence, or worse, on the part of attorneys purporting to represent capitally charged defendants.

   One attorney, for example, was out of the courthouse parking his car while the key prosecution witness was testifying. Another attorney, in front of the jury, referred to his client as a 'nigger.' ... Yet another attorney stipulated all of the elements of first degree murder plus two aggravating circumstances. (11) The system of capital defense in America has operated in a constant state of crisis since the resumption of capital litigation in the wake of Gregg v. Georgia. (12) Professor White observes, "The states with the most executions have done the least to ensure that capital defendants are provided with effective representation at trial" (p. 4). Texas is a prime example; the hallmarks of its indigent defense system are "inadequate structure for appointing attorneys for indigent capital defendants and inadequate pay for the attorneys who are appointed" (pp. 4-5). Texas does not have a monopoly on incompetent capital defense; Professor White gives stark examples of inept representation in Illinois, Pennsylvania, Georgia, Alabama, Mississippi, Louisiana, Missouri, and even California (pp. 5-10). In state after state, he found examples of neglectful lawyers who were frequently appointed by the court, perhaps because they would do little to obstruct a death verdict. (13)

   Professor White explains that a significant obstacle to any solution is the apparent indifference of public officials to the quality of defense in capital cases. A reporter who watched defense attorney Joe Cannon sleep through Carl Johnson's capital trial asked a Texas judge why the trial was allowed to continue. The judge replied, "'The Constitution doesn't say the lawyer has to be awake.'" (14) In 2001, six judges of the Fifth Circuit Court of Appeals agreed with him. The Court en banc barely mustered enough votes to grant habeas corpus relief to Calvin Burdine, a Texas death row inmate defended by Cannon, who "'repeatedly dozed and/or actually slept during substantial portions of [Burdine's] capital murder trial....'" (15) Professor White pro vides other examples of capital defendants who were executed, even though objective observers would agree that they were inadequately defended at trial (p. 17). From these instances it is clear that Strickland has not adequately protected defendants on death row.

   Professor White's concern that Strickland offers insufficient protection against inadequate defense is grounded in research uncovering many cases in which lawyers failed to search for mitigating evidence, often making weak claims of "trial strategy," but where courts nevertheless relied on Strickland to affirm capital convictions and sentences (p. 18-19). Although Professor James Liebman's research demonstrates that many death row inmates have obtained relief under Strickland, (16) "lower courts in jurisdictions with the most executions were least likely to grant relief" (p. 17). Such relief is almost unheard of in Virginia and Texas (p. 18), although no one would argue that those states provide the best defense lawyers.

   Professor White suggests the fault lies in the Strickland standard itself, which "did not have enough teeth to ensure that it would provide consistent protection to capital defendants or any incentive to states to impose stricter standards for attorneys representing capital defendants" (p. 19). Further, Professor White observes, "the Court's test [is]...