Criminal Justice Legal Foundation


The Death Penalty Trojan Horse

by Kent Scheidegger

A Trojan Horse is slowly wheeling its way through Congress. The outside shell of the so-called "Innocence Protection Act" deals with DNA testing of death row inmates who claim to be innocent. Such testing is not controversial in principle, although some details need to be worked out. In the belly of the beast are hidden the saboteurs. Their mission is to grind the system of capital punishment to a halt. Astonishingly, some members of Congress who support capital punishment have been snookered into supporting this bill.

DNA testing is, of course, the most important advance in forensic science of our time. The tests are routinely getting done without special legislation and routinely confirming the guilt of the cause celebres. In Virginia, for example, Roger Coleman, Joseph O'Dell, and Derek Barnebei all demanded DNA tests before their executions, all got them, and all had their guilt confirmed. In a handful of cases, DNA tests have exonerated persons who were at one time on death row. Opponents never tire of citing the case of Kirk Bloodsworth as a "failure" of the system proven by DNA. But the supposedly failed system had already set aside Bloodsworth's death sentence before the DNA test was done.

States that have enacted DNA testing legislation have seen little effect. California has the nation's largest death row, at over 600, yet only one death row inmate has invoked the state's DNA testing law, enacted two years ago. Given that inmates in other cases where biological material is available have not asked for testing, the obvious inference is that they know the test will only confirm their guilt. Federal testing legislation is not really needed to protect the innocent. However, if it is drafted in a way to preclude the misuse of a test demand for an eleventh-hour stay and if Congress provides the capacity to do the tests without displacing other, badly backlogged tests, a DNA bill as such would be harmless.

The danger here is the use of a DNA bill for logrolling. That is precisely the strategy of the anti-death-penalty movement, to load up the "Innocence Protection Act" with provisions to obstruct capital punishment but having little or nothing to do with actual innocence.

Before 1996, the federal government funded organizations called death penalty resource centers. The laudable purpose of this funding was to provide competent counsel for death row inmates. When Congress authorized the funds, it evidently believed that the centers would assist lawyers to provide ethical representation, making the argument for substantial claims in an expeditious and professional manner. What we got instead was a group of taxpayer-funded nests of saboteurs who believed it was their mission to grind the system to halt. In an unusual moment of candor, the head of one of the resource centers wrote in a published article that it was the duty of the lawyer to file motions just to "make trouble." She was evidently untroubled by the clearly established rule that such conduct is unethical. The hard core of this movement believes that their holy crusade exempts them from the usual rules of professional ethics. In 1996, Congress finally woke up to what was being done with taxpayer money and defunded the resource centers.

Now Senator Patrick Leahy and other opponents of the death penalty seek to bring back the resource centers or their equivalent. They would require the states, as a condition of federal grant money, to set up an "effective" system of appointing counsel in capital cases. Everyone is in favor of that, but Leahy's bill goes on to define "effective" as having a centralized appointment authority independent of any branch of the state government, even the judiciary. This has nothing to do with an effective appointment process; it is a power and money grab by the anti-death-penalty movement.

Throughout the country, the appointment of trial counsel for defendants is handled at the trial court level. Typically, there is a public defender's office as the first choice. The trial court may also appoint a private attorney if the public defender is unavailable due to a conflict or simply as a matter of workload. It makes sense for trial judges to make the appointments, as they are the ones who have observed the attorneys in trial and know who is competent and ethical and who is not. Personal observation in action is a far better measure of competence than wooden criteria such as number of years of practice. In law, as in any other profession, some people become skilled quickly, while others plod for years. An exceptionally compelling case would have to be made to justify dumping a system that is established throughout the country and has, until recently, been universally accepted.

The case against local appointment is far from compelling. It consists largely of a handful of anecdotal stories, typically in old cases from states that have already passed important reforms. Certainly, out of the seven thousand cases in which death sentences have been rendered in the modern era, one can easily find a few cases of bad lawyering. However, the conclusion that we need to replace local appointment with centralized appointment authorities does not follow, for several reasons. First, these anecdotes do not reflect the norm. Second, the argument ignores the reality that underfunding, not local appointment, was the root problem in many jurisdictions, a problem that has already been addressed by the states. Third, there is already a mechanism in place to grant relief in such cases, and it not only grants relief in appropriate cases, but frequently overturns the sentences of inmates who were well represented. Fourth, it ignores the downsides of centralized appointment, including the removal of an important restraint on unethical conduct.

The first point is quite obvious. In any large barrel one can always find some bad apples. The anecdotes no more represent death penalty counsel generally than expelled Congressman James Traficant represents the Congress.

An attempt has been made to shore up the myth of widespread incompetence with a highly partisan study headed by a long-time opponent of capital punishment, Professor James Liebman. The study breathlessly announced that ineffective assistance claims make up a large percentage of the cases in which relief is granted in state post-conviction review. That is true but meaningless, as state post-conviction is the phase of the review process particularly geared to resolving claims of that type. By analogy, if a study on auto repairs stationed an observer in the auto center's tire shop, he would report that nearly all the cars observed there had tire problems. Such an observation, while literally true, would tell us nothing about the prevalence of tire problems among cars generally. This is one of the oldest tricks in statistical sleight of hand: the intentionally skewed sample.

This is not to say that there have not been systemic problems in some jurisdictions. Mississippi was widely, and justifiably, criticized in the past for a $1000 limit on attorney compensation. That limit, however, is history. The Mississippi Supreme Court effectively negated it 12 years ago. Two years ago, the Mississippi Legislature overhauled capital case representation in that state and created an innovative hybrid of central and local control. There is a central, statewide, state-funded Office of Capital Defense Counsel, but the trial court retains the ultimate appointment authority. Creative compromises such as this would be effectively banned if Congress enacts the Leahy legislation.

Texas is another state that has been widely criticized for its defense system, and here again the state legislature has already acted. The Texas Fair Defense Act, in its original form, was opposed by Texas judges and vetoed by then-Governor George W. Bush for precisely the reason that the Leahy bill is objectionable - it interfered with the trial court's control of appointment of trial counsel. This provision was not considered essential by its supporters, and the law was reenacted without it. The law provides for qualification standards, a system for establishing a fee schedule, state funding, and investigator and expert expenses. The trial judges retain primary responsibility for appointment. Even though prominent advocates for indigent defense have lauded this reform and called it "historic," the Leahy bill would brand it as ineffective, merely because it does not have a central appointment authority.

Our legal system already has a mechanism for granting relief in cases of ineffective assistance of counsel. These claims are reviewed not once but twice - in the state courts on state post-conviction review and again in the federal courts on habeas corpus. We have heard ad nauseum about the one case where the lawyer was supposedly asleep during brief periods of the trial, an allegation which remains disputed to this day. Whether the allegation was true or not, a new trial was granted in that case, by the reputedly conservative Fifth Circuit. On the other hand, in the Far West, the Ninth Circuit routinely overturns the death sentences of murderers who were well represented, simply by looking back at a trial strategy that did not succeed and concluding that a different strategy might have been more effective.

There are some old cases where this review system did not work properly. Again, we need to look at the reforms that have been made since then before concluding the present system is broken. One of the problems was that the Constitution does not require appointed counsel in state post-conviction review. Congress addressed that issue in its 1996 reform, the Antiterrorism and Effective Death Penalty Act. That law established incentives for states to create a right to post-conviction counsel in capital cases, with adequate compensation and standards of qualification. The state legislatures have responded. Again, much-criticized Mississippi provides an example. The legislature there established and funded a state Office of Capital Post-Conviction Counsel. In cases where private attorneys are appointed, they are paid at 80% of the rate that the federal courts pay. Similar reforms have been enacted throughout the country.

Further improvements are, of course, possible. One of the problems in review of attorney performance is that the excessive delays in the appeal process often postpone this review until years after the trial. By then, memories have faded, records are sometimes lost, and occasionally key players have died. Since the death penalty defense bar has evidently decided to attack the trial lawyer in every case, regardless of the actual quality of representation, it would make sense to have that review immediately after the trial rather than waiting for the conclusion of the direct appeal. Practical adjustments such as this would do more to safeguard the quality of the system than a wholesale transfer of the appointment power and the money that goes with it.

Having the trial lawyers appointed by a specialized, central authority remains the holy grail of opponents of capital punishment, and for good reason. If one's goal is to prevent a system from working, there is no better way to achieve that goal than to place an essential component of the system in the hands of someone who does not want it to work. If maintenance of an airplane's engine is placed in the hand of a mechanic who does not want the plane to fly, the chance of it ever flying are remote, to put it mildly.

The Leahy bill would require that the centralized appointment authority be independent of all three branches of the state government. Too much independence can be a dangerous thing. In the wake of Watergate, Congress created the creature known as the "independent counsel." That "reform" is now widely acknowledged to have been a disastrous mistake. When Congress let it die, there were few, if any, mourners.

We know from experience with the resource centers that specialized capital defense agencies are usually, if not invariably, captured by the hard core of death penalty opponents. We also know that the hard core regards obstruction as a legitimate means toward their goals, and that they feel unconstrained by the ethical rules against such tactics. If we make them the gatekeepers to decide who is a qualified attorney, they simply have no interest in ensuring that the pool is large enough to meet the demand. Quite the contrary, they will have an interest in constricting the supply. Further, qualified attorneys who seek to do an ethical, professional job of representing individual clients rather than joining an ideological crusade may find themselves excluded.

Keeping the appointment authority in the hands of the local courts provides an important check on unethical conduct by defense lawyers. This check is badly needed. The prosecution alone, of all litigants in our courts, cannot appeal after an adverse verdict. The prosecution's evidence, witnesses, arguments, and tactics are examined with a fine-toothed comb on appeal and habeas corpus, and a conviction may be reversed for misconduct. In contrast, even the most outrageous violations of professional standards by the defense side cannot endanger a verdict of acquittal. Once that verdict comes in, the defendant walks, no matter how clear his guilt may be. Bar discipline and contempt proceedings are available in theory, but in practice they provide little deterrent threat.

Because most murder defendants have appointed counsel, the simplest and most practical way to deal with unethical defense lawyers is to not give them any more appointments. The Leahy bill would take this valuable control away from the trial courts. This provision has nothing to do with protecting the innocent. Its purpose is to throw sand in the gears to shield the guilty.

Congress should pass a clean DNA testing bill, with appropriate safeguards against abuse, simply to shore up public confidence in the system. However, those members who have signed on as co-sponsors but who support capital punishment should insist that the misguided, ill-considered counsel provisions be deleted. Go ahead and wheel in the Trojan Horse, but leave the saboteurs outside the gate.

Kent Scheidegger is the Legal Director of the Criminal Justice Legal Foundation, Sacramento, California.

August 16, 2002