Inadequate Representation

Document Date: October 8, 2003

Delma Banks, Jr.
U.S. Supreme Court accepted case for review April 2003

Delma Banks, Jr. was charged in the 1980 murder of Richard Whitehead of Texas. The only evidence against Banks was the testimony of an informant who in exchange for his testimony received $200 and the dismissal of an arson charge that could have resulted in his life sentence as a habitual offender. Banks’ lawyer did not vigorously cross-examine the informant, nor did he investigate the case. Had he done so, he would have learned of strong evidence that Banks was in another city at the time of the crime. Banks received such poor representation that former FBI director and United States District Court Judge William Sessions weighed in to urge the Supreme Court to temporarily stay his execution. On April 21, 2003 the U.S. Supreme Court accepted Banks’ case for review.

Wanda Jean Allen
Executed January 2001 in Oklahoma.

Wanda Jean Allen was convicted of the murder of her lover. Her lawyer had never tried a capital case. Realizing that he was ill-prepared to try a capital case, Allen’s attorney sought to be removed from the case, or to at least have assistance from the public defender’s office or an experienced investigator. An Oklahoma court turned down all of these requests. Wanda Jean Allen’s lawyer failed to discover the existence of this information, despite a well-documented history of mental retardation and mental disability. Had a jury been told of Allen’s disabilities, they might have spared her life. Allen’s counsel was paid only $800.

Judy Haney
On death row in Alabama

Judy Haney’s court-appointed lawyer was so drunk during her trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney were brought from their cells and the trial resumed. Her lawyer failed to present hospital records showing that Haney was a battered spouse. Despite her substandard representation, the Alabama Supreme Court upheld Haney’s death sentence in 1992 and she remains on death row.

Troy Lee Jones

Troy Lee Jones was convicted of murder in California in 1982 when his defense attorney failed to interview potential witnesses, obtain a relevant police report, or seek pretrial investigative funds. Moreover, the attorney elicited damaging testimony against his own client during the cross-examination of a witness. The California Supreme Court ruled that Jones should have a new trial and instead of re-trying the case, the prosecution announced that it was dropping all charges against Jones in November 1996, after he had been on death row for 14 years. Had Jones been adequately represented, he may never have been on death row.

“”I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial?People who are well represented at trial do not get the death penalty.””

– Supreme Court Justice Ruth Bader Ginsburg, April 9, 2001

Capital cases are among the most emotionally and financially draining cases imaginable. Lawyers must be extremely knowledgeable and diligent to navigate the complex maze of federal and state procedures governing capital cases. These cases demand hundreds of hours of preparation and extensive resources. Since most defendants cannot afford a lawyer, they must rely on the state to provide them with representation. And few states provide adequate funds to compensate lawyers for their work or to investigate cases properly. As a result, capital defendants are frequently represented by inexperienced, often over-worked, and in many cases incompetent, lawyers.

In June 2003, the U.S. Supreme Court overturned the death sentence of Kevin Wiggins and ordered a new sentencing hearing because his lawyers’ assistance fell well below the standard of competent legal representation. Wiggins, a black man from Maryland, had been convicted and sentenced to death for the 1998 murder of Florence Lacs; he was arrested because he was in possession of Lacs’ car and credit cards. Wiggins’ counsel failed to conduct a thorough investigation into Wiggins’ history of severe emotional, physical, and sexual abuse as a young child. Despite the fact that such an analysis is routine in capital cases, his counsel introduced no mitigating evidence and failed to even prepare a social history or hire an expert to do so. This omission is critical because juries often reject death and impose a life sentence when such evidence is presented.

Harsh reports about the abysmal quality of state-appointed legal representation for people accused of murder are common. A recent report on indigent defense by the Texas Defender Service found that judges often appointed defense attorneys not based on their competence or experience, but based on their reputation for rapidly moving cases through the system. The study concluded that death row prisoners “”face a one-in-three chance of being executed without having the case properly investigated by a competent attorney or without having any claims of innocence or unfairness heard.””

A review of attorney conduct in Tennessee capital cases revealed that in one-forth of capital cases, attorneys offered no mitigating evidence during trial. In Philadelphia, 60 percent of all capital cases went without proper investigation or experienced attorneys. Professor James Liebman of Columbia University examined every capital sentence from 1973 to 1995 and found that 68 percent of the cases had been reversed. Inadequate representation was one of the primary reasons for the high reversal rate.

In addition to inadequate funding, most states do not have meaningful competency standards. In 2003, the American Bar Association (ABA) published its revised Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases that include: requiring the attorneys to have abilities, expertise, and skills in representing clients in capital cases; providing two attorneys, an investigator, and a mitigation specialist in every case; and providing full-funding to the defense. According to the ABA, no state has yet established standards that meet its minimum requirements. And writing for the majority in Wiggins, Justice Sandra Day O’Connor mentioned that Wiggins’ defense counsel fell short of the standards for capital defense set by the ABA.

There is bi-partisan federal legislation that would go along way toward addressing this issue. “”The Advancing Justice Through DNA Technology Act of 2003″” (S. 1700; H.R. 3214) includes provisions requiring states to examine their indigent defense systems and where appropriate improve standards of representation. Senator Russ Feingold (D-WI) introduced the “”National Death Penalty Moratorium Act of 2003,“” (S. 132) which would halt federal executions, and study whether or not the death penalty is being applied fairly both on the federal level and in the states. The study would examine the adequacy of legal representation.

There is little question that in capital cases, a competent attorney can mean the difference between life and death. Executing people because of who their attorney was, instead of what their crime was, only adds to the arbitrary and discriminatory nature of the death penalty.

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