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court-appointed lawyers, our responsibilities as Resource Counsel include identification and recruitment of qualified, experienced defense counsel for possible appointment by the federal courts in death penalty cases, and development of training programs and publications, including a web site, www.caydefnet.org, to assist federal defenders and court appointed private counsel in death penalty cases.

In a few jurisdictions, the counsel standards in Title II of S. 486, the Innocence Protection Act of 2001, will effect little change, since these states already furnish highly-qualified and adequately-compensated counsel in capital cases. Other jurisdictions, however, have persistently refused to adopt the minimum safeguards that Title II would encourage. My own state of South Carolina is one of these.

SOUTH CAROLINA

1. THE PRESENT “SYSTEM"

South Carolina enacted its current death penalty statute in 1977. S.C. Code § 16– 3–20 (Supp. 2000). Although from the outset the statute required appointment of two lawyers for each death penalty defendant, of whom only one could be a public defender, state law set counsel fees and litigation expenses at $10 per hour out-ofcourt and $15 per hour in-court, with total allowable counsel fees capped at $1500. Expert and investigative expenses were likewise capped at $2000 per case. S.C. Code $$ 16–3–26(B), (C); 17–3–50 (1985). The only qualifications for this essentially pro bono service was that one of the two court-appointed lawyers had to have five years' bar membership and three years' felony trial experience. § 16–3–26(B).

In 1992, the state supreme court acknowledged the gross inadequacy of South Carolina's statutory counsel fees, and held that the local counties where capital prosecutions were brought had to provide minimally adequate counsel fees and expert funding. Bailey v. State, 424 S.E.2d 503 (S.C. 1992). As a result of Bailey, county officials were faced for the first-time with the problem of paying substantial legal bills in death penalty cases, and in 1994 the state legislature responded by increasing ten-fold the state funds available for attorney, expert and investigative services. S.C. Code $ 16–3–26 (Supp. 2000). Accordingly, current law now provides for payment of up to $25,000 per attorney (which can be exceeded upon a showing of necessity) at $50 per hour for out-of-court work and $75 per hour in-court. Expert and investigative costs are now capped at $20,000 per case, which limit can also be exceeded for good cause.

Despite increased funding for capital defense during the 1990s, South Carolina's method of selecting and appointing counsel has remained essentially unchanged. Every South Carolina county has some sort of locally-organized public defender system, S.C. Code § 17–3–60 (Supp. 2000), but this extremely decentralized system includes no statewide oversight or training. State judges have unfettered discretion to select and appoint counsel, subject only to the “five year/three year” restriction and a requirement that one of the two appointed attorneys be a public defender whenever possible. S.C. Code $ 16–3–26(B)(1) (Supp. 2000).1 A statewide agency created in 1994 to administer state indigent defense funding, the South Carolina Office of Indigent Defense, performs no function other than disbursement of funds, and has no role in identifying, training or selecting defense counsel in capital cases. S.C. Code $ 17–3–330 (Supp. 2000).

2. SOUTH CAROLINA REJECTS REFORM. In 1997, the South Carolina Bar approved and submitted to the state supreme court a proposal to create modest experience and training qualifications for trial counsel in death penalty cases. The Bar proposal would have required only that one of the lawyers appointed in a capital case have substantial capital or non-capital trial experience, and that both lawyers have received some specialized training in capital defense by the time of trial, and have “demonstrated that level of knowledge, skill and commitment to the defense of indigent persons expected of defense counsel in capital cases.” The South Carolina Supreme Court summarily rejected the Bar's

1 An additional restriction is that no attorney may be appointed and compensated in a death penalty case who is not both a South Carolina resident and a member of the South Carolina Bar. S.C. Code $ 17–3–330(C) (Supp. 2000). This restriction, which applies only in capital cases, was added as a direct legislative response to the appointment of Judy Clarke, a distinguished West Coast federal defender and University of South Carolina law graduate, as co-counsel in the highly-publicized Susan Smith death penalty case in 1995. Twila Decker, “Smith Case Spurs S.C. House to Rethink Indigent Defense,* The State B-5 (Mar. 9, 1995) (quoting sponsor as explaining amendment: “If people come here and kill our citizens, they ought to have to use our attorneys. ”).

proposal. Most recently, as part of a general revision of the court-appointment process in criminal and civil cases, the state court (without notice, hearings or public comment) promulgated the following rule:

CERTIFICATION OF ATTORNEYS IN DEATH PENALTY CASES (a) Classes of Certified Attorneys. There shall be two classes of attorneys certified to handle death penalty cases: lead counsel and second counsel. (b) Lead Counsel. Lead counsel shall have at least five years experience as a licensed attorney and at least three years experience in the actual trial of felony cases. The application for certification to act as lead counsel shall be on a form designated by the Supreme Court. (c) Second Counsel. Second counsel shall have at least three years experience as a licensed attorney. Second counsel is not required to be further

certified to be eligible for appointment. RULE 421, SCACR; SC Order 01-7 (May 29, 2001; effective September 1, 2001).

Given South Carolina's persistent refusal, over nearly 25 years, to adopt meaningful standards to govern selection of counsel in capital cases, it should come as no surprise that the actual performance of appointed counsel has been, to be charitable, uneven. South Carolina has the eighth-highest ratio of executions to population of the 38 death penalty states, with 25 post-Furman executions and approximately 70 prisoners currently on death row. The cases of South Carolina’s executed and condemned prisoners include:

State v. Mitchell Sims, in which court-appointed counsel began his penalty-phase summation as follows:

What we've got here is a very simple question of what do we do with our junk. In a few minutes [the defendant) will speak with you . I'm just going to ask you to listen to the junk that's been produced and that has done these unspeakable, heinous acts and then consider what to do. We kill our rabid dogs. And perhaps you may view him as that. And that's the question: What do we do with our junk? (Trial transcript at 1488–89).

This lawyer continues to be appointed on capital cases in the Charleston, South Carolina area; all but one of his capital clients have been sentenced to death, and two have already been executed.

State v. Joseph Gardner, a highly-publicized and racially-charged rape-murder case in which, a year prior to his appointment, lead defense counsel had participated as a prosecutor in a nationwide manhunt for the perpetrators.

State v. Robert Conyers, in which a 74-year-old parttime public defender, handling his first death penalty case along with an annual caseload of 400 other courtappointed clients, advised his client to waive a jury sentencing by pleading guilty to a murder that he had committed at age 16. A state circuit judge, reviewing the case, recently found the attorney's performance inadequate; the state is appealing.

State v. Johnny Ray, in which defense counsel began preparing for their client's capital re-sentencing just about a week before it began, and were later forced to acknowledge that their efforts were “disorganized, rushed seat-of-the-pants.” A state judge, granting sentencing relief, noted that counsel had 11 months notice of the sentencing hearing, but that “[i]nexplicably, little or nothing was done until panic set in about two weeks before. ." and concluded that if the defense accorded to Mr. Ray were constitutionally adequate, “then we should dispense with the legalese and simply admit that the Sixth Amendment has no meaningful role in capital defense litigation.” The state is appealing this ruling.

State v. Edward Lee Elmore is an interracial case involving the rape-murder of an elderly white woman and based entirely on circumstantial evidence. The county public defender was battling severe alcoholism at the time of the trial; his co-counsel, a private lawyer recruited and paid by other local attorneys hoping to avoid the appointment themselves, privately referred to his client as a red-headed nigger.” Neither lawyer challenged questionable physical evidence, and hair evidence suggesting the defendant's innocence remained tucked away in a state police locker for some 15 years. Raymond Bonner, “Old Evidence Resurfaces, Unsettling '82 Murder,” New York Times (Dec. 12, 2000).

State v. Robert Nance. Lead counsel in this capital case, a veteran public defender who gave up practicing law not long after this trial, suffered from mental impairment caused by dementia, alcohol abuse, heart disease, blood sugar fluctuations and four prescription medications, all of which have psychological side effects including sedation, disturbance of sleep, and impaired memory and planning ability.

State v. Ronnie Howard. In this case, a South Carolina circuit judge solved the problem of whom to appoint by selecting the first two names-Acker and Ander

son—from an alphabetical roster of the Greenville county bar. Neither lawyer had ever handled a capital case before, and failed to obtain such basic mitigating information as their client's school military records in time for the trial. However, their errors were held insufficiently prejudicial to interfere with Mr. Howard's execution on January 8, 1999.

This list could go on and on. Of course, not every South Carolina capital case has been marred by inadequate defense counsel, and some cases have been very welldefended. My point is simply that in the absence of any sort of system for identifying and training competent counsel, and then matching them with the cases where they're needed, compliance with the Sixth Amendment is hit-or-miss, and will remain so.

There are only between 15 and 20 death penalty cases in South Carolina in any given year (and, on average, about 5 new death sentences), so a reliable system for assuring adequate an defense in each case would not be difficult to create. A statewide capital defender unit with a staff of five or six lawyers could handle most of the work, supplemented by appointments (by the statewide capital defender office) from a small, carefully-screened list of private counsel. This is exactly the sort of system whose creation would be encouraged by Title II of the Innocence Protection Act. South Carolina, like many other states, has given every indication that in the absence of such encouragement, nothing will change.

THE FEDERAL COURTS The relatively small number of capital cases in the federal courts make it difficult to compare the federal system for assigning counsel with those of the states. That said, it is notable that the capital-case counsel provisions of 21 U.S.C. $848(q) and 18 Ú.S.C. $ 3005 have worked to ensure that the federal system provides adequate resources for the defense in such cases. While the federal system lacks an independent appointing authority, a 1994 amendment to 18 U.S.C. $ 3005 that mandates involvement of the Federal Defender system in the appointment process has provided some of the benefits of such a system. As a result, the federal courts have avoided replicating the seemingly chronic problems of under-funded, under-trained and under-motivated counsel that have plagued so many of the states' death penalty systems.

As amended by the 1994 Federal Death penalty Act, 18 U.S.C. 3005 provides, in pertinent part:

Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign two such counsel, of whom at least 1 shall be learned in the law applicable to capital cases In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization, or, if no such organization exists in the district, of the

Administrative Office of the United States Courts. Reflecting and explicating this statutory provision, Judicial Conference policy specifies that:

As required by statute, at the outset of every capital case, courts should appoint two counsel, at least one of whom is experienced in and knowledgeable about the defense of death penalty cases. Ordinarily, "learned counsel" should have distinguished prior experience in the trial . of federal death penalty cases, or . . . in state death penalty . . . that, in combination with co-counsel, will assure high quality representation.

Judicial Conference of the United States, Subcommittee on Federal Death Penalty Cases, Federal Death Penalty Cases: Recommendations Concerning the Cost and Ouality of Defense Representation (The “Spencer Committee Report”) http:// www.uscourts.gov/dpenalty/2TABLE.htm (May 1998). While the implementation of this statute has not been uniform, it has generally meant that in each federal capital case, the Federal Defender's office undertakes to identify highly-qualified capital defense counsel "with distinguished prior experience” for appointment. Most often, this effort to identify the best attorneys for appointment involves the assistance of contract counsel affiliated with the Federal Death Penalty Resource Counsel Project. The defender's recommendation is usually accepted by the court. Recruitment of topflight capital defense attorneys has been made possible by a fairly uniform practice of compensating counsel at the statutory maximum rate of $125 per hour. 21 U.S.C. $ 848(2)(10)(A).

It should be kept in mind that the federal death penalty system is still very small. Only a little over 200 capital prosecutions have been authorized by the Attorney General since enactment of the first modern federal death penalty statute in 1988, and most of those cases ended in a less-than-death sentence without the necessity of a jury trial. Given the relatively small scale of the federal death penalty to date, and the fact that federal judges can and do select counsel from the capital defense bar of the entire nation, it should not be surprising that the over-all quality of representation has been fairly high. Nevertheless, the federal experience does demonstrate that by allocating reasonable funding to the defense as well as the prosecution, and by relying on a recruitment process that emphasizes skill and experience instead of expedience or patronage, a court system can ensure that defendants in capital cases are adequately defended. This is an experience that the states can and should be encouraged to emulate.

FEDERAL DEATH PENALTY RESOURCE COUNSEL
COLUMBIA, SOUTH CAROLINA 29201

July 2, 2001
Senator Patrick Leahy
Chairman
Senator Orrin G. Hatch
Ranking Minority Member
Judiciary Committee
United States Senate
Washington, D.C. 20510

Dear Chairman Leahy and Senator Hatch, At last Wednesday's hearing on Title II of S. 486, the Innocence Protection Act of 2001, some factual issues arose involving recent South Carolina capital cases. I write to set forth the relevant facts, and ask that this letter be accepted as a supplement to the statement that I previously submitted.

In his written statement, Deputy Solicitor Kevin Brackett of South Carolina's Sixteenth Judicial Circuit noted that he had personally attended the first lethal injection in South Carolina. After Mr. Brackett described the defense furnished to a defendant in one recent capital case in his circuit, Senator Feingold asked whether the execution Mr. Bracket had attended was that of Sylvester Adams on August 18, 1995. Mr. Brackett acknowledged that it was, and that Mr. Adams' case originated from Mr. Brackett's home county of York. However, when Senator Feingold then asked whether Mr. Adams had been sentenced to death by a jury that had heard no mitigating evidence on his behalf, despite the fact that Mr. Adams' IQ scores were in the mentally retarded range, Mr. Brackett responded as follows:

Well, I didn't come prepared to discuss that in any detail. But I did review the file before I went down to see the execution . . . And it appeared from the files that the individual who tested his IQ at the Department of Disabilities and Special Needs found him to be malingering when they were attempting to determine what his IQ was. The expert that was appointed by the court to evaluate his IQ said that, basically, “I can't tell you what his IQ is because he appears to be attempting to fake the results to this test to possibly get an advantage.” But I think that is indicative that perhaps

he was not mentally retarded. Sen. Feingold then asked whether "on the day you watched Mr. Adams die, his lead defense attorney at his trial was sitting in federal prison?” Mr. Brackett responded that he had “no knowledge of who his defense counsel were at the various stages of the proceedings or where they might have been." I represented Sylvester Adams in state and federal post-conviction proceedings, and thus am in a position to provide the information that Mr. Brackett did not have.

Mental retardation. Prior to Sylvester Adams' first trial, a state-employed examiner reported that Mr. Adams had a full-scale IQ score of 65.1 This examiner did not, as Mr. Brackett claims, accuse Mr. Adams of "attempting to fake the results," but he did opine that Mr. Adams' true IQ level might be between 70 and 80. The state's chief forensic examiner nevertheless determined, and later testified in postconviction proceedings, that Mr. Adams suffered from mild mental retardation. Adams v. Aiken, 965 F.2d 1306, Joint Appendix at 1567 (4th Cir. 1992) (testimony of Herbert D. Smith, M.D.). After Mr. Adams' convictions and death sentence were

1 Mr. Brackett erroneously attributes this evaluation to the South Carolina Department of Disabilities and Special Needs. In reality, the IQ testing was performed by Mr. T. V. Smith, an employee of the Department of Mental Health with an M.A. degree in psychology.

reversed by the state supreme court, a second trial was held at which the defense presented no mitigation evidence whatever on Mr. Adams' behalf. He was again sentenced to death. In 1984, an experienced forensic psychologist retained by the defense retested Mr. Adams and found him to have a full-scale IQ of 69_still within the range of mental retardation. Application for Executive Clemency in the Matter of Sylvester Lewis Adams, Aug. 9, 1995, Appendix C ) 11 (Affidavit of David R. Price, Ph. D). As the Charlotte Observer summarized the facts in an editorial two days before Mr. Adams was executed, “the jurors who imposed the death sentence were never told that Sylvester Adams . is mentally retarded. Tests show he has an IQ of between 65 and 69." "Mercy Denied,” Charlotte Observer at 10-A (Aug. 16, 1995).

Defense counsel's subsequent imprisonment. Senator Feingold also inquired of Mr. Brackett about the whereabouts of Mr. Adams' “lead defense attorney at ... trial” on the day of his execution. While Mr. Brackett correctly recalled that I was present when Mr. Adams was executed, I did not represent him at trial. Mr. Adams' lead defense counsel at both of his trials was Samuel B. Fewell, Jr. Neither Mr. Fewell nor the young public defender who served as his co-counsel had ever tried another death penalty case. By the time of Mr. Adams' execution, Fewell had been disbarred, and was serving a federal prison sentence, after pleading guilty in federal court to tax fraud and possession of cocaine, and in state court to two counts of criminal conspiracy for having a client provide sexual favors to a family court judge in exchange for favorable rulings. In the Matter of Samuel B. Fewell, Jr., 450 S.E.Xd 46 (S.C. 1994). Bob McAlister, Mitigating circumstances are there for Sylvester Adams, too,The State (Columbia, S.C.) A-7 (Aug. 14, 1995).

In my statement to the Committee, I described several South Carolina capital cases in which the state clearly failed to provide minimally adequate defense representation. The Adams case was another. Mr. Brackett points to yet another York County case, State v. Bobby Lee Holmes, in which the quality of the defendant's legal representation was good.2

The conclusion that can and should be drawn from this record is that some capital defendants in South Carolina receive an adequate defense, and some don't. Until South Carolina and other states like it adopt some sort of fair and reliable system for identifying, training, appointing and monitoring the lawyers who represent the poor in death penalty cases—the sort of system that Title II of S. 486 would encourage capital cases will continue to resemble a lottery, in which the right to counsel and to a fair and reliable trial turns on the luck of the draw.

Yours truly,

DAVID I. BRUCK

Statement of Constitution Project's Death Penalty Initiative, Washington,

DC

SUMMARY OF RECOMMENDATIONS

I. EFFECTIVE COUNSEL

Every jurisdiction that imposes capital punishment should create an independent authority to screen, appoint, train, and supervise lawyers to represent defendants charged with a capital crime. It should set minimum standards for these lawyers'

2 Mr. Brackett's account of the Holmes retrial calls for some additional comments. His claim that a defense correctional expert received $500 per hour is incorrect. The expert to whom he referred was paid $125 an hour, and no other witness received anything the $500 rate about which he complains. His claim that he does not know “who paid" for Mr. Holmes, additional attorneys is hard to credit, since the trial record plainly reflects that these attorneys were volunteers from the Washington, D.C. firm of Akin, Gump, Strauss, Hauer & Feld who were not paid a penny, by anyone, for their unprecedented contribution to the defense of this indigent South Carolina death row inmate. Mr. Brackett also failed to note that Mr. Holmes' unusual defense team was assembled only after the trial judge arbitrarily refused to reappoint the lawyer who had successfully represented Mr. Holmes in post-conviction proceedings, former S.C. Death Penalty Resource Center Director John H. Blume.

Unfortunately, the Holmes case marks the only occasion in at least the past 25 years in which an out-of-state firm has volunteered to assist a South Carolina capital defendant at the trial level, and the appointment (or compensation) of any out-of-state attorney is expressly prohibited by South Carolina law. S.C. Code § 16–3–26(I) (Supp. 2000).

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