minimum requirement for justice in these cases, and I believe that federal leadership is necessary to ensure that every person on trial for his or her life receives qualified legal representation.

Mr. Chairman, we are very lucky in Oregon to have one of the most progressive systems in America for ensuring adequate legal representation in capital cases. Defense attorneys undergo a rigorous state approval process. Prospective capital defense attorneys must have several years of experience, including experience with murder cases, must attend regular legal training or education programs on capital cases, and must be able to provide at least five letters of recommendation from state judges, defense attorneys, or district attorneys attesting to the attorney's fitness for defending death penalty cases. These are all minimum requirements in the state of Oregon.

In addition, Mr. Chairman, Oregon spends far more defending the indigent than it does prosecuting them. Next year, Oregon will likely spend in the neighborhood of $80 million for indigent defense and approximately $50 million on prosecutions. Oregon has also centralized its indigent defense funding at the state level to ensure that the quality of defense will not vary with the economic fortunes of individual counties. I understand that legal representation cannot always be measured by dollar figures, but I believe that Oregon's commitment to competent counsel is reflected in the resources the state has dedicated to ensure it.

I believe that the federal government must ensure that we, as a nation, are also fully committed to nationwide standards for competent counsel. I have been fortunate to work with the chairman of this committee on legislation that would lead to the development of national standards for legal services in capital cases. I believe that the federal government should study existing systems for appointing counsel in capital cases, determine the minimum standards that states should meet in providing representation, and ensure that states abide by these standards. By establishing these requirements, the federal government's leadership can help secure the nation's confidence in our application of the death penalty.

Mr. Chairman, I'm not here because I believe that incompetent defense counsel has become the norm in courtrooms across America. But our system of justice simply cannot tolerate severely overworked, underpaid, and even unqualified attorneys representing Americans on trial for their lives. I want to urge this committee to do all it can to make our excellent system of justice even better. Helping ensure competent counsel nationwide is a good step in that direction. We cannot afford mistakes in death penalty cases, and Americans must be confident that defendants in capital cases are receiving adequate representation.

Statement of Maurie Levin, Texas Defender Service
BACKGROUND

My name is Maurie Levin. I am the Managing Attorney of the Austin office of Texas Defender Service (TDS), a private nonprofit with offices in Austin and Houston, Texas. Since 1995, TDS has provided direct representation to indigent inmates on Texas's death row, consulted with other lawyers litigating capital cases at the trial and post-conviction level, and intervened in unusual cases where expert legal assistance was urgently needed. Senator Leahy's office asked that I describe for this Committee the appointment and compensation process in Texas.

Texas Defender Service is the only organization in Texas, public or private, that concentrates exclusively on tracking capital cases and representing indigent defendants charged with and/or facing a capital sentence. We thus serve as a primary source of information about the death penalty in Texas for other organizations, the public, and the press. In October 2000, TDS released A State of Denial, the most comprehensive report to date on the administration of the death penalty in Texas.1 Local, national, and international media covered its release. The nine chapters of the report outlined many of the deficiencies in the Texas system, including official misconduct, the use of phony experts, racism and the death penalty, the execution of the mentally retarded, and the inadequacies in the representation provided. It also underscored the fact that the deficiencies in the system are all exacerbated, masked, and allowed to continue when defense counsel fails to fulfill her role as a zealous advocate for the defendant and due process.

1 The report is available on our web site at: www.texasdefender.org.

THE STATE OF INDIGENT CAPITAL DEFENSE IN TEXAS

Texas is replete with the horror stories that result from the inadequate counsel that is provided to inmates facing a sentence of death. Texas, of course, is home to the now infamous sleeping lawyer cases where capital trial counsel actually slept through significant portions of trial, and where the Texas appellate court deemed that to be nonetheless adequate representation. And lest we dismiss those stories as rare aberrations of the past, recent studies from a variety of sources confirm that the typical attorney appointed to represent an indigent capital defendant in Texas is a solo practitioner who may or may not have any capital experience, is eight times more likely than the next lawyer to have suffered some form of disciplinary action for ethical lapses, and will get paid an hourly rate that cannot even cover her office overhead, and only for a fraction of the hours necessary to do a competent job. In addition, she will be fully aware that zealous advocacy may risk future appointments from the Court that hands her the cases that provide her day-to-day livelihood. In short, it is a system that makes it a fairly safe bet that counsel cannot and will not do a competent job representing their capital clients.

Despite the increased attention to these problems, and the reforms implemented in the last legislative session, they still exist. While the Fair Defense Act, courageously championed and skillfully stewarded through to passage by Senator Rodney Ellis, takes crucial first steps to improve indigent defense overall, its effect on capital cases will be extremely limited. Moreover, it does not affect the quality of postconviction representation at all—the crucial stage of the appeals where people are discovered to be innocent, and exonerated. In short, we still have a long, long way to go.

To fully understand the nature and extent of the problem, it is necessary to understand how the Texas system works. In explaining the process, and providing examples and statistics, I rely upon TDS' Report, A State of Denial, the capital chapter of The Fair Defense Report, released this past year by Texas Appleseed,2 an earlier study by a Subcommittee of the State Bar, reflecting the results of a comprehensive survey of attorneys, judges, and courthouse personnel,3 and newspaper studies and articles. Each of these reports bears out the anecdotal evidence and describes numerous profoundly disturbing systemic deficiencies.

The Texas system is marked by the following features:

• Disparity in the manner in which counsel are appointed, the quality of counsel, and the compensation and funding provided. Texas' appointment system is county-based. There are 254 counties, and numerous courts within each county. Some say that there are 800 different appointment and compensation systems—a different one for each court.

• A lack of meaningful statewide standards. Up until 1995, there were no standards whatsoever governing the appointment of counsel in capital cases. Anyone, even a tax attorney, could be appointed to represent a defendant facing a sentence of death-and were. In 1995, legislative revisions required that each of the nine administrative regions establish regional standards, but the results were minimal at best, and the failure to comply with the statute bore no consequences except for the defendant.

For example, the Dallas Morning News recently found that 24 attorneys who had been designated as qualified to represent capital murder defendants had been disciplined for misconduct, one having been suspended from practice twice. As the News observed: "The judge who ordered the most recent suspension [of this attorney]. ... delayed its activation so the attorney could finish a capital murder case he had been appointed to handle. He has since received other death penalty casesas well as another reprimand from the bar." The same News study confirmed that the trial lawyers who had represented Texas death row inmates had been disciplined at approximately eight times the rate of lawyers as a whole.4

In a study conducted by the Chicago Tribune, they found that in one out of three of the cases examined, the trial lawyer presented no evidence, or only one witness at the sentencing phase of trial-the phase where the jury decides whether their client should live or dies.5

2 A copy of The Fair Defense Report may be obtained from Texas Appleseed at www.appleseeds.net/tx.

3 See Allan K. Butcher & Michael K. Moore, Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas 12 (Sept. 22, 2000), at http://www.uta.edu/pols/moore/indigent/ whitepaper.htm.

4 Defense Called Lacking for Death Row Indigents, But System Supporters Say Most Attorneys Effective, DALLAS MORNING NEWS, Sept. 10, 2000, at 1A.

5 Steve Mills and Ken Armstrong, Flawed Trial Lead to Death Chamber, CHICAGO TUNE, June 11, 2000, at Sec. 1, p. 1.

One particularly egregious example is that of Joe Lee Guy, whose attorney ingested cocaine on the way to trial, consumed alcohol during court breaks, and had been disciplined numerous times both before and after Guy's capital trial. In fact, he could not complete the appeal of Guy's case because of a recent suspension. These facts only came to light after TDS intervened on the eve of Mr. Guy's scheduled execution, and recruited a law firm to represent Mr. Guy on a pro bono basis. It is worthwhile noting that Mr. Guy, the lookout, was the only one of the three defendants who was sentenced to death-his two co-defendants, the "shooters," were both sentenced to life after their attorneys presented a compelling case for life on their behalf. It is a particularly good example of the title of Stephen Bright's oftquoted statement: "the death sentence not for the worst crime, but for the worst lawyer."

While the Fair Defense Act establishes, for the first time, minimum statewide standards for capital trial counsel, the standards that Texas legislators were willing to pass are fairly minimal, requiring only that counsel have five years of experience in criminal litigation (defense or prosecution), and only "significant" felony experience as defense counsel. Moreover, without the funding necessary to enable qualified counsel to litigate these cases, and the concomitant support and independence necessary to make that possible, these standards will affect very little change, and will not prevent horror stories such as sleeping or drug-addicted capital counsel. Impermissible factors, irrelevant to questions of qualifications, affect the elected judiciary's appointing decisions and compromise the quality and independence of appointed counsel. According to the State Bar Study, nearly half the judges reported that their peers "sometimes appoint counsel because they have a reputation for moving cases, regardless of the quality of defense they provide," and over half indicated that the "attorney's need for income" influenced the appointment decision. Significant numbers of judges reported that their appointment decisions were affected by whether a defense attorney was a personal friend (39.5%), a political supporter (35.1%), or a contributor to the judge's reelection campaign (30.3%).7

While the Fair Defense Act permits and encourages counties to establish a different, more neutral appointment system, it does not require them to do so, and in fact permits them to retain their current system. There is nothing to say that judges will not continue to appoint attorneys based not on their qualifications, but on the basis of how quickly and cheaply they move cases through the courts, or how much was donated to the appointing judge's reelection campaign.

Trial courts do not provide the resources necessary to defend a person accused of a capital crime. Compensation varies drastically between the counties. In many of the more rural counties, it is not enough to cover overhead expenses. In others, "fixed" or "flat" fee structures provide incentives for attorneys to do as little work as possible on the case. In one county, compensation for out of court time is limited to 60 hours-one twentieth of the amount of time that is spent, on average, preparing for a federal capital trial. Until 1995, Texas law capped the entire amount defense counsel could request for investigative and expert expenses at $500, and anecdotal evidence indicates that many judges still apply the old limits.

For example, the attorney who represented Paul Richard Colella in his 1992 Cameron County capital murder trial was not reimbursed for an investigator and was not paid until almost two years after the trial ended. When he was paid, he received only $9,000 for handling both the trial and the initial appeal of the case. Dividing this payment by the attorney's estimates of the number of hours he worked yields an average of approximately $20 per houror less than one-third the hourly overhead rate in the average Texas criminal defense attorney's practice.9

There is a lack of any centralized body of expertise upon which attorneys might draw for resources and assistance. The State Bar Study found that 66% of the appointed lawyers were solo practitioners and the vast majority of the remainder practiced in small firms, most of which were merely clusters of lawyers sharing office expenses. Most of the attorneys reported that only half of their practice involved criminal cases, while the remainder involved civil matters. 10 Thus, most lawyers

6 Dan Malone and Steve McGonigle, Questions of Competence Arise in Death Row Appeal: Lawyer with History of Problems Defends Handling of Case, DALLAS MORNING NEWS, Sept. 11, 2000, at A1. See also Linda Kane, Death Row Inmate's Lubbock Attorney Used Drugs, Alcohol, LUBBOCK AVALANCHE-JOURNAL, Sept. 10, 2000, at 12A; A State of Denial, p. 111. 7 BUTCHER & MOORE, MUTING GIDEON'S TRUMPET 12 (Sept. 22, 2000).

8 Application for Writ of Habeas Corpus at 61-62 and Exh. 62, Ex parte Colella (CCA No. 37,418).

9 BUTCHER & MOORE, MUTING GIDEON's TRUMPET 15 (Sept. 22, 2000) (reporting that Texas criminal defense attorneys report overhead costs of $71/hr).

confronting a capital case, if they are interested in providing an adequate defense, must grapple alone with a body of unfamiliar and complex death penalty law, and direct an investigation into the client's background, which can require expertise far beyond the typical criminal case. Unlike the cadre of experienced prosecutors trying these cases, many attorneys appointed to capital cases must start, each time, learning the law from the ground up.

The courts do not take responsibility for correcting the egregious problems such as snoozing counsel-that are clearly displayed before them. The judge presiding over Calvin Burdine's trial (whose lawyer slept through significant portions of the trial) stated that "the Constitution doesn't say the lawyer has to be awake." The Texas Court of Criminal Appeals routinely denies any remedy to inmates whose court-appointed lawyers perform poorly. Thus, that (elected) Court denied relief to two death row inmates whose lawyers slept through trial, and in the past five years have achieved one of the lowest reversal rates for capital cases in the entire country: three percent.

Errors are generally not revealed in post-conviction proceedings-the appellate proceedings which are supposed to serve as the safeguard to our system-because appointed counsel are profoundly inexperienced, inadequate, and underfunded. In fact, the post-conviction appointment system simply repeats the errors replete at trial, thus making it highly likely that we are not even aware of many of the horror stories regarding what occurs at trial.

In Joe Guy's case, discussed above, the state post-conviction attorney appointed to represent him failed (in her nine page petition) to raise the fact either that trial counsel was struggling with drug and alcohol addiction, or that the investigator appointed to assist counsel had become the beneficiary of the surviving victim's estate. It was only by chance that TDS discovered the case, and its horrifying facts, shortly before Mr. Guy's scheduled execution.

Moreover, the courts appear indifferent to the glaring inadequacies of the work produced. For instance, in a study of over half the post-conviction appeals filed in Texas since 1995, we found that in 42%, post-conviction counsel appeared to have conducted no new investigation, and raised no extra-record claims-even though these are the only type of claims that can be considered for review at this stage.11 In many cases, appointed attorneys merely repeated, verbatim, claims which had already been rejected by the courts in a previous appeal. In almost one out of five of the cases reviewed, the post-conviction application was less than fifteen pages long-barely long enough to contain the minimal procedural formalities. In a number of cases where such patently inadequate applications were filed, subsequent investigation has revealed significant constitutional errors—such as that of Joe Guy, as well as a possible claim of innocence-that were not included, and would have remained undiscovered if TDS had not become involved.

CONCLUSION

The lethal consequences of the Texas capital system are concrete. Every year, Texas leads the country in number of executions. Last year, Texas set a "record " for the number of executions in one year: 40. We execute disproportionate numbers of people of color, persons who are mentally ill, mentally retarded, and juveniles. Because of the inadequacies of the system—primarily the inadequacies of trial and post_conviction counsel-it is also highly likely that we are executing people who are innocent or not eligible for a sentence of death. Tragically, it is the hallmark of the Texas system that its most pervasive feature is its efficiency in burying its mistakes. The Innocence Protection Act is an essential step in bringing these problems to light, and in providing the resources and enforcement mechanisms necessary to provide indigent inmates facing a sentence of death the competent counsel to which they are constitutionally entitled.

Statement of Denise Young, Attorney, Tempe, Arizona

I am an attorney licensed to practice law in Arizona since 1982. Since 1989, my practice has been devoted entirely to representing defendants under sentence of death in appeal and post-conviction proceedings in the state and federal courts, and assisting other defense counsel in representing their clients in all stages of capital proceedings including pre-trial, trial and post-conviction proceedings. I was also the

11" See A State of Denial, supra, pp. 104-118.

former director of the Arizona Capital Representation Project, a capital post-conviction defender organization, from 1989 until July, 1996.

I have been asked to describe the manner in which the Arizona courts appoint and compensate counsel for indigent persons in potential capital trials in Arizona. The answer to that question is not an easy one because Arizona has no statewide capital defense office, and no unified system of indigent capital defense. As a result, the costs of capital trials are largely borne individually by each of Arizona's fifteen counties. Due in no small part to Arizona's failure to provide a statewide system of indigent defense with quality counsel and adequate funding for experts and resources, Arizona's reversible error rate is shockingly high. A comprehensive study conducted by Professor James Liebman recently found that Arizona's overall reversible error rate for capital cases is 79 per cent.

State funds account for a very small portion of expenditures on indigent defense in Arizona. In 1999, the state allocated $5 million over two years for prosecution, indigent defense services, and the court system. A rough estimate suggests that of this $5 million, no more than $1 million, approximately one-fifth of total state funding, went to indigent defense.

Compared with other states that provide funds, Arizona ranks at the very bottom in state assistance towards indigent defense representation. Twenty-three states fund indigent defense entirely at the state level. In about half of the remaining twenty-seven states, state funds account for at least 50% of the money spent on indigent defense. Only two states, Pennsylvania and South Dakota, provide no state funding. Assuming that Arizona does indeed spend at least $1 million annually on indigent defense, it ranks last among the 48 states which provide some state funding, based on a per capita comparison of state expenditures.

Because indigent defense services in Arizona are administered at the county level, each county has responsibility for establishing and managing its own system to find, appoint and compensate counsel to represent the person charged with first degree murder where the state is seeking a death sentence. Not surprisingly, the practices in this system vary widely from county to county, with no systematic statewide procedure for compensation, defense training or support. Capital representation at trial is undertaken primarily by a scattering of public and legal defender offices, sporadiIcally located in some counties. Because these offices are typically grossly underfunded and overworked, contract attorneys represent a substantial number of capital defendants at trial. The majority of attorneys handling first degree murder cases at any stage do not practice exclusively in the highly technical and specialized area of capital defense.

Defense procedures vary widely from county to county and there is no systematic procedure for ensuring adequate compensation, litigation expenses, training or support. Since 1996, the Arizona Rules of Criminal Procedure have provided some qualifications for appointment of attorneys. The qualifications, however, speak only to the number of years in criminal work, not to the quality of work done over those years. Arizona Rule of Criminal Procedure 6.8 (b) requires that capital trial counsel have "practiced in the area of state criminal litigation for five years" before appointment, and been "lead" counsel in nine felony jury trials and lead or co-counsel in one capital murder jury trial. It is left to individual courts and counties to determine whether those minimal qualifications are met. Trial co-counsel, upon whom major responsibility is frequently thrust, need have no prior legal experience. Nonmandatory provisions of the rule recommend that appellate and post-conviction counsel should have some appellate or post-conviction experience in felony cases, but the lawyer need not have any capital experience. Additionally, trial counsel is to complete, within one year before the initial appointment, six hours of training in "the area of capital defense." After appointment, no further capital training is required, although “within one year prior to any subsequent appointment” in a capital case, trial counsel must have completed twelve hours of training "in the area of criminal defense.'

Trial defense attorneys who are handling these cases in Arizona's counties do not receive adequate resources or assistance, including necessary investigative and expert assistance to competently handle the guilt and penalty phases of the capital case. For example, in Pima County (the second most populous county), private contract attorneys represent about 83% of the county's capital defendants. As is characteristic of defense attorneys statewide, most of these attorneys do not practice exclusively in capital defense. Pursuant to these contracts, an attorney is paid $3000 for providing representation in a serious felony case, and $800 for other felonies. In first-degree murder cases, lead defense counsel is paid $75 per hour up to a maximum of $15,000, compensating about 200 hours of work, and co-counsel receives