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Senator Hatch, in your opening statement you said there is not a systematic denial of counsel. What there is in many States is a systematic failure to provide counsel. That is the problem we have. I think what a lot of people don't realize is how many States there are that still don't have public defender offices.

We have offices that specialize in the prosecution of these cases. They have lawyers there who are trained, who are veterans, who know what they are doing, who bring an expertise to the table when they try these cases. Then on the other side, often we have a general practitioner or somebody like that representing people.

I will give you just one recent example, which is Gary Drinkard, one of our clients, Mr. Chairman, just 3 weeks ago acquitted at a capital trial. Mr. Drinkard is sitting right here directly behind me. What happened to him is typical, I am afraid, of too many cases in our system.

Gary Drinkard was at home with his family the night the crime took place. He had been to the doctor that day because he had had a disk problem and was in such pain he couldn't have committed this crime, physically couldn't have committed this crime. But he was appointed lawyers, one who was a collections and commercial lawyer with virtually no criminal experience, another lawyer who represents creditors in foreclosures and bankruptcies. That is the kind of representation people often get. A foreclosure lawyer should not be representing somebody in a death penalty case.

What happened was they never called the doctor to testify about his medical condition. They just dumped the medical records into the evidence. The jury didn't know what to do with that. There was nobody to explain, nobody to talk about the pain, nobody to talk about how disabling it was. So the jury didn't have that critical information.

There was a man about 70 years old who was just by the home that evening, didn't even know Mr. Drinkard, was there with somebody else who was there with him during the crime went down, the most objective person never called as a witness.

Now, fortunately, Mr. Drinkard was represented at his retrial by Richard Jaffe, a very distinguished and good lawyer from Birmingham, Alabama; John Mays, a lawyer from Decatur; and Chris Adams from our office. The two people who investigated that case are also here today, Kate Weisberg and Jason Marks. But that is the exception, Mr. Chairman.

Most people in Alabama, and I notice the attorney general—I will mention that I tried a case there, the Tomlin case. I tried the Tomlin case because I went to Mr. Tomlin's earlier trial and I watched the two court-appointed lawyers trying that case and I said after the case was over, if this case gets reversed, I am going to come back here and try this case, because the lawyering was just dreadful.

By the way, it said that Tomlin four times got the death sentence. Actually, in Mr. Tomlin's case the jury unanimously give him a life sentence. Judges in Alabama are allowed to override the jury, and they have. About a fourth of the death row, as I am sure Senator Sessions and Mr. Pryor know, are cases where juries in Alabama gave life, but the judges overrode and gave the death penalty.

That judge, Farrell McRae, was a judge who ran for office showing on his TV commercials all the people he had sentenced to death on the TV commercials. Now, that is the same judge who appoints the lawyers in these cases, which is why we need an independent appointing authority. Judges who run for election and who unfortunately can't resist sometimes the temptation to demagogue on some of these issues should not be appointing either the prosecutor or the defense. The judge ought to be fair and impartial.

There are other cases: Anthony Porter, who came within 2 days of execution in Illinois. His execution was stayed 2 days before it was to take place only because there was a question of whether he was mentally competent to be executed, only because it wasn't clear he could understand why he was being executed.

It was only after that that the journalism class at Northwestern became involved. And as I have often said, thank goodness those students decided to take journalism that semester instead of chemistry, because if they had taken chemistry, Anthony Porter would have been executed and we would never know. We would be saying no innocent people have been executed.

Look at Earl Washington, who is sitting right here beside me. Mr. Washington is a man who confessed to a crime he didn't do. It is a classic example of the vulnerability of some of the mentally retarded people who come into our criminal justice system. But for so many people, there is no journalism class, there are no lawyers like the ones that Senator Ellis described, the Guerra lawyers who come in and take the case.

I want to mention one other thing. It was said earlier that the sleeping lawyer cases are routinely thrown out. There have been three cases where the lawyers slept during the trial out of one jurisdiction alone, and that is Houston. And in all three of those cases, Senator Hatch, they have been upheld by the courts.

I was at the Fifth Circuit in January and saw 14 life-tenured United States judges agonizing over the question of whether the lawyer who slept during Calvin Burdine's trial denied him a fair trial. The panel held two to one that he was not denied, that in an 18-hour trial—that is all it took—that the fact that his lawyer slept through the trial didn't deny him a fair trial. Now, that is what it means to get the dream team if you are poor in this country. And that lawyer, Joe Cannon, put 14 people on death row.

I will say this: the judges in Houston are not appointing Mr. Cannon anymore, but I think it is only because he is no longer in life. I am not sure that that would be the case otherwise.

We need programs to provide competent legal representation, lawyers who are trained, who know what they are doing. They need to be independent. It has been suggested with this parade of horribles here, well, what if we get people who zealously want to defend these people? Well, the cases are zealously prosecuted. Why shouldn't they be zealously defended? My understanding is that is what the Constitution and what the Canons of Ethics require, is that the case be zealously defended.

Thank you, Mr. Chairman.

Chairman LEAHY. You would agree with Senator Ellis, if I might paraphrase him, that poor defendants should not be sentenced to a poor defense?

Mr. BRIGHT. Well, I wrote an article one time that said the death sentence for the worst lawyer, not for the worst crime. That is the system we have in Georgia, Alabama, Mississippi, Texas. In a number of the States that are sentencing the vast majority of people to death row, Mr. Chairman, in this country people are getting the death penalty not because they committed the worst crime, but because they often have lawyers who have no more business trying a death penalty case than I would have trying an antitrust case. That is just not right.

And somebody said we shouldn't have one-size-fits-all. The Constitution doesn't come in different sizes. Everybody, no matter where they are charged—whether it is Tupelo, Mississippi, or Mobile, Alabama, or Atlanta, Georgia, everybody is entitled to competent legal representation, with the resources necessary to investigate the case and present it. Thank you.

[The prepared statement of Mr. Bright follows:)

STATEMENT OF STEPHEN B. BRIGHT, DIRECTOR, SOUTHERN CENTER FOR HUMAN

RIGHTS, LECTURER, YALE, HARVARD AND EMORY LAW SCHOOLS Mr. Chairman and Members of the Committee:

Thank you for this opportunity to address the committee regarding Title II of the Innocence Protection Act of 2001, which is absolutely essential to minimizing the risk of executing innocent people.

I have been interested in the quality of legal representation for the poor for over 25 years, as a public defender, as the director of a law school clinical program here in the District of Columbia, for the last 19 years as director of the Southern Center for Human Rights, and, since 1993, as a teacher of criminal law, including the right to counsel, at Yale, Harvard and Emory Law Schools. I have testified as an expert witness on the subject in the courts and have written a couple of law review articles on the subject.1

People are wrongfully convicted because of poor legal representation, mistaken identifications, the unreliable testimony of informants who swap their testimony for lenient treatment, police and prosecutorial misconduct and other reasons. Unfortunately, DNA testing reveals only a few wrongful convictions. In most cases, there is no biological evidence that can be tested. In those cases, we must rely on a properly working adversary system-in which the defense lawyer scrutinizes the prosecution's case, consults with the client, conducts a thorough and independent investigation, consults with experts, and subjects the prosecution case to adversarial testing—to bring out all the facts and help the courts find the truth. But even with a properly working adversary system, there will still be convictions of the innocent. The best we can do is minimize the risk of wrongful convictions. And the most critical way to do that is to provide the accused with competent counsel and the resources needed to mount a defense.

I. We have been very fortunate that the innocence of some of those condemned to die in our courts has been discovered by sheer happenstance and good luck. A few of many examples illustrates the point.

Anthony Porter came within hours of execution before his innocence was established by the journalism class at Northwestern. Porter had been convicted by a jury. He had been sentenced to death. His case had been reviewed and affirmed on appeal by the Illinois Supreme Court. He had gone through the state and federal post-conviction processes and every court had upheld his conviction and sentence. He was scheduled to be executed.

However, a question arose as to whether Porter was mentally competent to be executed; that is, whether he understood that he was being put to death as punishment for the crime of which he had been convicted. A person who lacks the mental ability to understand this relationship cannot be executed, but is instead treated until he is “restored to competency.” When he has improved to the point that he can understand why he is being executed, he is put to death. Anthony Porter was a person of limited intellectual functioning and mental impairments. Because there was a question about whether he could understand why he was being executed, a court stayed his execution in order to determine his competency to be executed. 2

1“Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,” volume 103 of the Yale Law Journal, page 1835 (1994) and “Neither Equal nor Just: The Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake,” Volume 197 of the New York University Annual Survey of American Law, page 783 (1997) Both available at http://www.schr.org.

After the stay was granted, the journalism class at Northwestern University and a private investigator examined the case and proved that Anthony Porter was innocent. They obtained a confession from the person who committed the crime. Anthony Porter was released from death row.3 He was the third person released from Illinois's death row after being proven innocent by the journalism class at Northwestern.4 Since Illinois adopted its present death penalty statute in 1977, thirteen people sentenced to death have been exonerated and twelve have been executed.5

In 1994, the governor of Virginia, Douglas Wilder, commuted the sentence of a mentally retarded man, Earl Washington, to life imprisonment without parole because of questions regarding his guilt. Six years later, DNA evidence-not available at the time of Washington's trial or the commutation-established that Earl Washington was innocent.

Frederico Martinez-Macias was represented at his capital trial in Texas, by a court-appointed attorney paid only $11.84 per hour.? Counsel failed to present an available alibi witness, relied upon an incorrect assumption about a key evidentiary point without doing the research that would have corrected his erroneous view of the law, and failed to interview and present witnesses who could have testified in rebuttal of the prosecutor's case. Martinez-Macias was sentenced to death. Martinez-Macias received competent representation for the first time when the Washington, D.C., firm of Skadden, Arps, Slate, Meagher & Flom volunteered to take his case and represented him without charge. After a full investigation and development of facts regarding his innocence, Martinez-Macias won federal habeas corpus relief. A grand jury refused to re-indict him and he was released after nine years on death row.

Similarly, volunteer lawyers from the Houston firm of Vincent & Elkins established in federal habeas corpus proceedings that Ricardo Aldape Guerra had been convicted in violation of the Constitution and was innocent. He was released and he returned to Mexico.

Gary Nelson was represented at his capital trial in Georgia by a solo practitioner who had never tried a capital case. This court-appointed lawyer, who was struggling with financial problems and a divorce, was paid at a rate of only $15 to $20 per hour. His request for co-counsel was denied. The case against Nelson was entirely circumstantial, based on questionable scientific evidence, including the opinion of a prosecution expert that a hair found on the victim's body could have come from Nelson. Nevertheless, the appointed lawyer was not provided funds for an investigator and, knowing a request would be denied, did

not seek funds for an expert. Counsel's closing argument was only 255 words long. The lawyer was later disbarred for other

Nelson had the good fortune to have some outstanding lawyers volunteer to represent him in post-conviction proceedings, who devoted far more time to the case than had the court-appointed lawyer and spent their own money to investigate Nelson's case. They discovered that the hair found on the victim's body, which the prosecution expert had linked to Nelson, lacked sufficient characteristics for microscopic comparison. Indeed, they found that the Federal Bureau of Investigation had previously examined the hair and found that it could not validly be compared. As a result of such inquiry, Gary Nelson was released after eleven years on death row.

But for the vast majority of those sentenced to death, there are no journalism students or volunteer lawyers who come forward and examine their cases.

For example, Exzavious Gibson, a man whose IQ has been tested between 76 and 82, was forced to represent himself at his state post-conviction hearing in Georgia because he could not afford a lawyer. There are dozens of people on death row in

reasons.

2 Pam Belluck, “Class of Sleuths to Rescue on Death Row," New York Times, Feb. 5, 1999, at A14.

3 Jon Jeter, “A New Ending to an Old Story,” Washington Post, Feb. 17, 1999, at C1. 4Don Terry, “DNA Tests and a Confession Set Three on a Path to Freedom in 1978 Murders”, New York Times, June 15, 1996, at A6.

5 Ken Armstrong & Steve Mills, “Ryan Suspends Death Penalty: Illinois First State to Impose Moratorium on Executions,” Chi. Trib., Jan. 31, 2000, at 1.

6 Brooke A. Masters, "Missteps On Road To Injustice: In Va., Innocent Man Was Nearly Executed,” Washington Post, Dec. 1, 2000, at A1.

7 Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).

Alabama who do not have lawyers to represent them in post-conviction proceedings. And the statute of limitations is running on them.

Some of the lawyers provided in post-conviction proceedings are worse than no lawyer at all. Ricky Kerr was assigned a lawyer by the Texas Court of Criminal Appeals who had been in practice

only four years, had no capital experience and suffered serious health problems. Federal Judge Orlando Garcia said the appointment of the lawyer “constituted a cynical and reprehensible attempt to expedite [the] execution at the expense of all semblance of fairness and integrity.

If the journalism class had not become involved in Anthony Porter's case, he would have been executed and we would never know to this day of his innocence. Those who naively proclaim that no innocent person has ever been executed would continue to do so, secure in their ignorance. If Martinez-Macias, Guerra, Nelson and others had been left without any post-conviction representation, as was Exzavious Gibson in Georgia, or had been provided a lawyer like the one assigned by the Texas Court of Criminal Appeals to represent Ricky Kerr, they would be dead and their innocence would have gone to the grave with them.

We should not count on luck to discover the innocent. We do not know how many Anthony Porters have been put to death and we never will. We can be confident that innocent people will be convicted and sentenced to death so long as those accused receive inadequate representation at trial and equally inadequate representation-or no representation at all—during post-conviction review.

Some have said that the fact that Anthony Porter and others have been released shows that the system works. However, someone spending sixteen years on death row for a crime he did not commit is not an example of the system working. When journalism students prove that police, prosecutors, judges, defense lawyers and the entire legal system did not discover a man's innocence and instead condemned him to die, the system is not working. And it is not a system of justice. It is a cruel lottery.

II.

The major reason that innocent people are being sentenced to death is because the representation provided to the poor in capital cases is often a scandal. The state legislatures have been unwilling to provide the resources and structure necessary to provide competent legal representation. And the courts have been willing to tolerate representation that is an embarrassment to our legal system and the legal profession.

In at least four cases in Georgia, counsel referred to their clients before the jury with a racial slur. A woman in Alabama was represented by a lawyer so drunk that her trial had to be suspended for a day and the lawyer sent to jail to sober up. The next day, both lawyer and client were produced from jail and trial resumed. Defense lawyers in Alabama and Missouri cases had sexual relations with clients facing the death penalty. There have been far too many cases in which defense lawyers defending capital cases were impaired by alcohol, drugs or infirmity : In case after case, defense lawyers for people facing the death penalty are denied investigators and funds for expert assistance.9

Last January, 14 judges of the United States Court of Appeals for the Fifth Circuit earnestly considered the issue of whether a death sentence can be carried out in a case in which the one lawyer appointed to defend the accused slept through much of a trial that lasted only 18 hours. The Texas Solicitor General's office argued that Calvin Burdine's conviction and death sentence should be upheld because a sleeping lawyer is no different from a lawyer who is intoxicated, under the influence of drugs, suffering from Alzheimer's disease or having a psychotic break. The judges engaged the assistant solicitor general on this argument, asking whether there was not some difference between a lawyer who was merely impaired by alcohol and a lawyer who was completely unconscious. A panel of three members of that court had previously concluded in a 2-1 opinion that sleeping did not violate the right to counsel. The two judges in the majority held that the record did not show that the lawyer slept through an important part of the trial.10 Of course, the person responsible

8 See Jeffrey L. Kirshmeier, Drink, Drugs and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 Nebraska Law Review 425, 455-60 (1996) (citing cases in which convictions were upheld even though defense lawyers were intoxicated, abusing drugs, or mentally ill).

9 Numerous examples are collected in Stephen B. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,” volume 103 of the Yale Law Journal, page 1835 (1994) (also available at http://www.schr.org.)

10 Burdine v. Johnson, 234 F.3d 1339 (5th Cir. 2000), reversing Burdine v. Johnson, 66 F. Supp. 2d 854, 866 (S.D. Tex. 1999).

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