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Burrell about his alibi. The response was that Mr. Burrell refused to talk with police without a lawyer being present and that Mr. Mullins later refused to permit the police to interview Mr. Burrell. The State could never have even mentioned Mr. Burrell's invocation of his right to remain silent but for Mr. Mullins pitiful examination. In another example, after a critical prosecution witness had admitted that the man she had seen on the night of the murders was not Mr. Burrell, Mr. Mullins bumbled his way through the remainder of the examinaiton that by the time it was completed, the witness was claiming that perhaps it was possible the man she saw was his client. The message that Mr. Mullins communicated to the jury during that exchange must have been that he thought his own client guilty.
Mr. Mullins was also unable to demonstrate even basic trial skills, such as impeaching witnesses. Almost every time he made an attempt at the impeachment of a witness during the course of the trial (such opportunities were numerous in a case that the prosecutor had originally opined should not even be presented to the grand jury), the State's objections were sustained. Mr. Mullins was not able to follow the correct procedures. At one point, the trial judge took pity on Mr. Mullins and actually explained the steps he needed to follow in order to lay proper foundation for reputation testimony. Even then, Mr. Mullins was unable to lay the foundation and failed to get the testimony before the jury. This list of the lawyers' shortcomings is, by no means, exhaustive. These are just some of the examples.
Incompetence alone, however, does not explain the poor defense that Mr. Burrell received from the lawyers. After Mr. Burrell's conviction and death sentence, Keith Mullins was indicted in federal court in Louisiana for cocaine trafficking. He ultimately pled guilty to a marijuana charge and was sentenced to serve a prison term. He did, however, receive a downward departure from the federal sentencing guidelines because of his own previously undisclosed mental illness. He was subsequently disbarred from the practice of law.
His associate, Mr. Gibson, was also criminally charged after Mr. Burrell's conviction. He ultimately pled guility to stealing client money. He too has been disbarred.
Mr. Burrell never had a chance. Between the unscrupulous prosecution and the incompetent defense, Mr. Burrell's fate was certain. Thankfully, we prevented the State of Louisiana from killing him and were able to secure his release after the State concluded following its own investigation that there was no credible evidence tying him to the murders. Today, Albert Burrell lives on a very small ranch in Texas with his sister.
The Innocence Protection Act is a critical first step to helping ensure that cases such as Mr. Burrell's do not recur. I strongly urge its adoption.
CHARLES J. LLOYD
Statement of Clive Stafford Smith, Director, Louisiana Crisis Assistance
Center Chairman, Members of the Committee:
Thank you for inviting me to address the problems with the defense of those charged with capital crimes in the State of Louisiana. As a lawyer, I have been involved in defending capital cases for 17 years. Since 1993, I have been the director of the Louisiana Crisis Assistance Center, a not-for-profit legal services organization founded to address the crisis in capital defense representation in that state.
There is an old saying in capital defense circles in the United States that 'capital punishment means them without the capital get the punishment.' Nowhere was this adage more true in 1993 than Louisiana. At that time, people facing the death penalty were represented by lawyers paid next to nothing for their work on these complicated and emotionally difficult cases. The caseload, and lack of resources, of some of the public defenders had reached such crisis limits that one lawyer in the western part of the state attempted suicide on the morning of a capital trial.
Plus ça change, plus ça reste même. A decade ago, a study commissioned by the state Supreme Court indicated that a minimum of $21 million was needed to provide basic defense services in Louisiana. Ten years on, and the vast majority of the funds have not been forthcoming.
The profile of indigent defense in Louisiana is balkanized chaos. The first major problem is the inadequate funding. Most states fund indigent defense through a central government. Not so Louisiana, where the majority of the inadequate funding comes from traffic tickets issued by the local police. In one parish, when the public defender was too aggressive, the police stopped writing tickets, bringing the office close to bankruptcy. The local indigent defender boards are appointed by the judges, and must ask the judges for any increase on the ticket assessment. They come under heavy pressure not to rock the political boat, and 35 of the 41 districts do not even collect the maximum income permitted, $35 per ticket.
The second problem is the quality of counsel in both capital and non-capital cases. In the vast majority of Louisiana's 41 districts, public defenders are part time. This means that they have private practices on the side or, to be more honest, they have public defender jobs “on the side.” In New Orleans, for example, a public defender is permitted to ask a client to retain him (generally, upon the promise that he can expect better representation that way).
The number of lawyers available is wholly inadequate. We are currently conducting a study of three of the largest districts, in New Orleans, Baton Rouge and Lake Charles. In Baton Rouge, public defenders average 3 80 open cases at any given moment. The numbers that are opened during a year range to a high of over 700 cases. Given that most of us do not know that many people in the world, it is obviously impossible to provide that number of clients with effective representation. This is all the more true when one considers that even the director is part time, and most of them probably spend less than half their time on their indigent work.
Since 1994, there has theoretically been a requirement that lawyers be “certified” for trying capital cases. Unfortunately, when the regulation was enacted, opponents ensured that a rider was added saying that the provision would create no rights that could be raised on appeal. Thus, Dan Bright was sentenced to death for a crime he did not commit after being represented by a lawyer who was drunk during the trial. The lawyer only called one witness (Mr. Bright's mother) at the penalty phase, and asked her only two questions—her name and whether she knew her own son. Shareef Cousin, sixteen year old, was likewise sentenced to death for a crime he did not commit; his lawyer's first step in preparing for a penalty phase was a phone call made to my home after the guilty verdict.
Overall resources are pitiful. In Lake Charles, the average time the lawyers spend visiting their felony clients at the jail (including capital clients) was 69.6 seconds per year. With only one investigator, the office generates only one witness interview memo per two hundred clients. I have never tried a case, capital or non-capital, without consulting an expert on some subject or other; in Lake Charles, they average only one expert per two hundred cases.
The lack of investigative assistance is a monumental problem in capital and noncapital cases alike. No criminal charge, from a car accident to a capital case, should proceed without a complete investigation. “At the heart of effective representation is the independent duty to investigate and prepare.” Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982). Yet Lake Charles has one investigator who is responsible for a current office caseload of roughly 9,000 cases, including, at the moment, twelve capital cases. The New Orleans public defenders have only six investigators who are meant to provide assistance in 16 felony courts, as well as another dozen juvenile, magistrate and municipal courts. At a most basic level, the imbalance between prosecution and defense is reflected by the fact that the Office of the District Attorney has 24 investigators, in addition to the assistance of the thousands of officers with the NOPD. The public defenders receive no federal funds, while grants are made readily available to the prosecution.
Consider the impact of this inequity: In an experiment from January 1999 to June 2000, my office took over the burden of capital preliminary hearings from the public defenders. We were ultimately involved in precisely 100 cases where citizens had been arrested for capital murder, and preliminary hearings were held. Where, before, there had been no investigation to determine whether the client was properly charged, we put an investigative team on each case. When we exposed the truth, the State chose to dismiss the charges against almost half (49) of these citizens. In that 18 month period, in not one case where we did the preliminary hearing was the client ultimately found guilty of first degree murder, let alone receive the death penalty.
This might be considered a success story; sadly, it is not. First, we must remember the hundreds of men and women who were arrested before 1999. Angola Penitentiary holds 90 people on Death Row, and over 3,460 serving life without the possibility of parole. The Australian State of Victoria, with a population roughly twice as large as Louisiana, does not have that many people in prison for any charge. Yet many of those serving life or death in Louisiana stem from New Orleans convictions, and were apparently victims of the earlier system. Second, and perhaps even more sad, my office's intervention was so successful that we came under heavy criticism from those committed to the status quo ante, who prefer that the PD's ineffectual boat remain afloat. We have recently been forced out of providing this critical service.
The availability of expert assistance is also critical to fairness. In 1985, the United States Supreme Court held that an indigent capital defendant has the right to a state-funded expert. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Louisiana, enormous problems are posed by scientific evidence that is downright bogus. This is partly due to the inadequate funding and expertise in the local crime labs, and partly due to the lack of experts available to the defense. In one of the smaller parishes, for example, an experienced public defender admitted to using just one independent expert in twenty years.
The same is true across the state. Ricky Coston spent two years awaiting a trial for his life in New Orleans, before being acquitted in December 1998. The only evidence that purportedly linked him to the crime was a single fiber. The NOPD crime lab technician simply should not have been acting as an expert in any kind of criminal case. He began doing fiber analysis in criminal cases before he had his first training seminar in the speciality, and initially issued a report saying that a fiber from Ricky's jacket matched the victim's green blanket. He amended the report to reflect that it matched a blue sweater. The sweater turned out to be a pair of socks. My office secured two independent experts to review the work-apparently, the first time the defense had ever challenged his findings—and determined that the picture of the “matching” fibers was falsified. I reported this profound misconduct to the NOPD, which took no action. I filed a federal civil rights suit on behalf of Mr. Coston, which the NOPD felt constrained to settle. Still they took no action against the technician, who is still working on capital cases.
In recent years, the Orleans Parish public defender office has been faced with several thousand clients, and dozens of people charged with capital murder every year. The office has a total budget of only $2 million, representing a handful of dollars a case. Faced with a choice between paying staff salaries and the experts needed for the defense, the office actively opposes lawyers seeking funds for independent experts, and the director recently sought to fire a staff attorney for asking for one.
Across the United States, there is much talk of DNA as a significant forensic tool. However, it is not relevant to the vast majority of criminal prosecutions and, even where it might prove helpful, it is rarely used in Louisiana. My office has been involved in more than 150 capital cases in the past five years, and DNA has been used in only one. While a DNA testing bill was passed by the state legislature this year, it is the same old story: No funds were appropriated to pay for it, and the legislature refused to include a provision mandating that the state preserve evidence for possible testing. The vast majority of those who could benefit are at the Angola State Penitentiary without lawyers or resources, yet they must prove to a judge that the evidence can demonstrate innocence before they will even have a right to testing
Another major factor, that implicates the lack of resources for a defense investigation, is the lack of discovery in criminal cases. To an average citizen, the law must seem bizarre: The contents of the police file are not discoverable until after the client is on death row, and has lost his first appeal of right—in other words, until after it is most needed. Unfortunately, there has een a pattern of abusing even these limited discovery obligations. New Orleans has a particularly shocking reputation in this regard. Curtis Kyles was on death row for several years until the United States Supreme Court ordered a new trial based on the suppression of evidence. Kyles v. Whitley, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). And yet his case is by no means the most extreme example. John Thompson came within days of execution two years ago before it came to light that the prosecutor had destroyed blood evidence that categorically excluded him as the perpetrator of the robbery that enhanced his case to one where the death sentence would be imposed.
So far, six persons sentenced to death in Louisiana have subsequently been found innocent by the state process. Shareef Cousin was, at the age of sixteen, the youngest person sentenced to Death Row in the world. In 1995, Shareef was charged with a politically sensitive crime in New Orleans that “had to be solved.” A white tourist in the French Quarter was tragically killed by a group of three black youths. Not only did defense lawyers fail to call upwards of twenty witnesses who could have demonstrated beyond any doubt that a videotape of Shareef playing basketball in a neighborhood gym was being taped at the precise time of the crime; but the prosecution literally kidnaped four alibi witnesses and held them in the D.A.'s office until the trial was over.
Our office took over his case on appeal, and for the retrial. Our investigation uncovered even greater misconduct on the part of the police and prosecutors. The authorities knew the identities of the actual perpetrators just days after the crime, but declined to arrest and prosecute them. Along with four hundred pages of information that led directly to the real perpetrators, the prosecution intentionally suppressed the sole eye-witness's statement in which she said she had not been wearing her glasses, and could not identify anyone. Shockingly, one NOPD detective apparently secured the $10,500 Crimestoppers reward by calling in a false tip against Shareeâ After we exposed some of this abuse, the district attorney's office was forced to dismiss the case.
We were so horrified by the misconduct that permeated the local authorities that we felt that something had to be done on a systemic level. However, our research revealed that no local prosecutor had ever been prosecuted for these kinds of criminal acts-after all, which prosecutor is going to place a brother or sister prosecutor in prison? More surprising, no prosecutor from New Orleans has ever been sanctioned by the bar for such actions. Mr. Cousin's sister reported the prosecutor who suppressed evidence in that case to the bar association, and yet no action has been taken on her charges in four years.
Left with only one option, we filed a federal civil rights suit against the prosecutors who were responsible. Recently, United States District Judge Sarah Vance dismissed the suit against them, holding that prosecutors were “absolutely immune” from suit for any actions taken in the course of the prosecution—including kidnaping witnesses, falsifying evidence, and acting out of racial animus. What has the world come to, when a prosecutor can rely on the federal courts to grant him immunity for the criminal offenses he committed in placing a child on Death Row for a crime he did not commit? This is very much a federal concern-the federal courts fashioned this “immunity” out of whole judicial cloth, without any input by Congress, casting a protective blanket over state prosecutors even when they are guilty of intentional criminal acts taken in bad faith. It is, with due respect, Congress that should take that blanket back. Those charged with defending capital clients in Louisiana, for one, do not have the resources to keep on fighting this hopeless battle against such misconduct.
Indeed, there is a desperate need for federal intervention in the way that federal employees contribute to the imbalance in capital cases in Louisiana. Two weeks ago, I was conducting a postconviction hearing in the case of Dan Bright, who was originally sentenced to death in 1996. At the time of the trial, the State knew that the co-defendant had written statements insisting that Mr. Bright was innocent, but they manipulated the case so the co-defendant could not be called as a witness. As I previously mentioned, Mr. Bright was represented by a lawyer who was inebriated during the capital trial, and an innocent man was sentenced to death. In post-conviction proceedings, we filed a Freedom of Information Act request, and the DOJ provided a page of materials that was heavily redacted. It reflected a statement by an informant (whose name was likewise redacted) saying:
that daniel bright, aka “poonie" is in jail for the murder committed by
The name of the true perpetrator of this murder was blacked out. Thus, the DOJ knew of a witness who could expose the real killer before Mr. Bright's state court trial. The DOJ knew Mr. Bright was on trial for his life, and did not bring this information to the attention of the state or the defense. Even worse, the United States Attorney is now actively opposing the defense request for either the name of the informant or the name of the perpetrator now. The U.S. Attorney has filed a motion to remove our subpoena to federal court and quash it. He provides no discussion of why the federal government should suppress evidence of the real killer, but rather seems to be saying that Might makes Right: “We have the power, so therefore we will [ab]use it.
Indeed, the Fifth Circuit has judicially fashioned a rule of “sovereign immunity” that allows any federal agency to refuse to honor subpoenas issued in state court. State of Louisiana v. Sparks, 978 F. 2d 226, 232-3 (5th Cir. 1992). This is another rule fashioned out of judicial whole cloth; it is within the power of the federal government to amend it and, with all due respect, this Committee should get on with the task.
Another huge factor in the conviction of the innocent in Louisiana is, sad to say, the number of corrupt police officers. Without meaning to denigrate the large numbers of fine officers on the beat, the number of bad apples is frightening. In various capital cases, we secured judicial findings that New Orleans police officers had committed perjury. We brought these to the attention of the NOPD hierarchy; they did not even bother to ask for the documentary evidence. We notified the ŇOPD that the lead detective in the Cousin case had apparently falsified the evidence in order to collect the $10,500 CrimeStoppers award; they showed no interest. In another capital case, we were representing a witness who had been told by an NOPD officer that they had the “winning” Crimestoppers number, and she could have it if she toe'd the right line; we met with representatives of the U.S. Attorney, with a view to setting up a sting on the officer, but was told that this, and all our other complaints, were matters for the state authorities.
The resources in post-conviction are also pitiful. To be sure, this year the State of Louisiana established a post-conviction office. However, the legislature refused to fund the new mandate. Rather, the state simply did away with the fund for expert assistance that had previously existed, and raided some of the other limited funds that had been dedicated to capital litigation. Additionally, this came five years after the elimination of federal funding for a similar office. Now, then, there are three full-time lawyers for the 90 people who expect to be in post-conviction over the next couple of years. As a result, my office is trying to help in seven cases, although we are told that we will receive not one cent for this work next year.
It is no fun trying to defend a capital client without resources, and with both hands tied behind your back. Yet the problems of the defense lawyer are utterly inconsequential compared to the horrors of facing a capital charge, or sitting on Death Row, for a crime that one did not commit. I have had the privilege of being involve in the defense of more than 50 men, women and children who faced death for something they patently did not do. Even as I prepare this statement for this Committee, I could name at least two people on Death Row who I think are almost definitely innocent. I could name half a dozen who are now serving life without parole. How can we possibly allow such tragedies to persist?
Statement of Charles J. Press, Director, Mississippi Post-Conviction
Counsel Project Chairman, Members of the Committee:
I appreciate the opportunity to address the Committee on this extremely important issue. As an attorney, I have been representing death row prisoners on direct appeal, state post-conviction, and federal habeas corpus proceedings for nearly 9 years, both in California and Mississippi. Since December of 1998, I have been the Director of the Mississippi Post-Conviction Counsel Project, a two-person, non-profit office which directly represents death sentenced prisoners in post-conviction and federal habeas corpus proceedings, and assists lawyers handling capital cases in all stages of litigation. Having observed how the judicial system treats capital cases in both California and Mississippi has given me a unique perspective on how the amount of resources available to represent those facing the death penalty is perhaps the single most important factor in ensuring that the unfathomable never happens: the execution of an innocent person.
Mississippi is the poorest of the 50 states, and the resources devoted to the defense of those facing the death penalty are a reflection of that. There is no statewide public defender system in Mississippi. Of the 82 counties in Mississippi, only 3 counties have full-time public defender offices: Hinds County, which includes Jackson, the largest city in Mississippi; Washington County, which includes Greenville, the fifth largest city; and Jackson County, which includes Pascagoula, the ninth largest city. Not surprisingly, of the 63 persons on Mississippi's death row, only 4 of these are from Jackson County, and none are from either Hinds or Washington County. This is despite the fact that the homicide rates in Jackson and Greenville are among the highest in the state, and Jackson has one of the highest homicide rates in the nation.
The overwhelming majority of people in Mississippi facing the death penalty, nearly all of whom are indigent, are represented by court-appointed counsel with little, or no experience in handling death penalty_cases. Mississippi has no standards for appointment of counsel in capital cases. Recently, a lawyer who had been admitted to the Mississippi Bar for less than a year was appointed to represent a criminal defendant facing the death penalty. In fact, his only criminal experience prior to this appointment was defending HIMSELF on a charge of driving while intoxicated.
Most attorneys who represent criminal defendants facing the death penalty have a busy private practice and take criminal appointments in capital cases to supplement their income. Unfortunately, the income these attorneys derive from capital cases is scant. In Mississippi, under Miss. Code Ann. Section 15–17, attorneys handling capital cases are only entitled to $1,000 as compensation. Furthermore, attorneys are only entitled to be reimbursed for actual expenses or a presumptive rate of $25 per hour. See Wilson v. State, 574 So. 2d 1338 (Miss. 1990).