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for making the record was the lawyer. And he was asleep. The entire Court is now reconsidering the case.
The standard for counsel is so low that Judge Alvin Rubin of the U.S. Court of Appeals for the Fifth Circuit, once observed that, “The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel.” 11 A trial judge in Houston put it even more bluntly, saying that while the Constitution guarantees a lawyer, "[t]he Constitution doesn't say the lawyer has to be awake.” That judge presided over the case of George McFarland, another of the three capital cases tried in a single city, Houston, in which the defense lawyers slept through trial. The Houston Chronicle described McFarland's trial as follows:
Seated beside his client-a convicted capital murderer-defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep. His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again. Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan. When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial. "It's boring,” the 72-year old longtime Houston lawyer explained. Court observers said Benn seems to have slept his way through virtually
the entire trial.12 The Texas Court of Criminal Appeals affirmed McFarland's conviction and death sentence, as it did in the cases of Calvin Burdine and Carl Johnson 13 Johnson was executed by Texas in 1995.14
For poor people facing the death penalty, this is what is means to be represented by the “dream team.”
The old adage “you get what you pay for” applies with particular force in the legal system, and many states pay very little to lawyers appointed to defend capital cases. Studies of capital cases in Nlinois, Kentucky and Texas have found that about onethird of those sentenced to death in those states were represented by lawyers who were later been disbarred, suspended or convicted of crimes.15
States also fail to provide a structure, such as there is on the prosecution side, so that lawyers defending the poor are trained and supervised and develop an expertise in criminal law and the sub-speciality of capital punishment law. The lawyer who defended Wallace Fugate at his capital trial in Georgia had never heard of Furman v. Georgia, the case which declared Georgia's death penalty law unconstitutional in 1972, or Gregg v. Georgia, the case which upheld Georgia's current death penalty law in 1976. He could not recall ever having had an investigator in over 40 years of defending people in court-appointed cases and thought he may have had an expert on one occasion. He failed to find out that the gun, which his client said had fired accident had a design defect that made it susceptible to accidental discharge.
Another lawyer who handled the cases of a several people sentenced to death in Georgia, when asked to name all the criminal cases with which he was familiar, answered, “the Miranda and Dred Scott.” (Dred Scott was not a criminal case.)
These are only a few of the most egregious examples of the poor quality of legal representation that one sees every day in states that lack a structure for providing indigent defense, that fail to provide the resources to defend a case properly and that fail to provide for the independence of defense counsel from the judiciary. But they tell you how urgently this legislation is needed.
11 Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring).
12 John Makeig, “Asleep on the Job; Slay Trial Boring, Lawyer Said,” Houston Chronicle., Aug. 14, 1992, page A35.
13 Burdine v. Johnson, 66 F. Supp. 2d 845 (S.D. Tex. 1999).
14 A full description of the case is provided by David R. Dow in his article, “The State, the Death Penalty, and Carl Johnson,” published in volume 37 of the Boston College Law Review page 691 (1996).
15 Ken Armstrong & Steve Mills, “Inept defense cloud verdicts,” Chicago Tribune, November 15, 1999 (reporting that in 33 of the 285 cases in which death was imposed in Illinois the defense lawyers were later disbarred or suspended); Steve Mills & Ken Armstrong, “Flawed trials lead to death chamber,” Chicago Tribune, June 11, 2000 (reporting that in 43 of the 131 most recent executions in Texas prior to publication of the story the defendants were represented by an attorney who was later disbarred, suspended or otherwise sanctioned).
Unfortunately, many jurisdictions—including many which are sending large numbers of people to their death rows-still do not have a working adversary system, even in cases in which a person's life is at stake. In those states, it is better to be rich and guilty than poor and innocent because the poor are represented by courtappointed lawyers who often lack the skill, resources, and, on occasion, even the inclination to defend a case properly.
There are exceptions. Some states, like Colorado and New York, not only have public defender offices, but capital defender offices that specialize in the defense of capital cases. But other states, such as Alabama, Georgia, Mississippi, Texas and Virginia have no state-wide public defender system. There are some outstanding lawyers who will occasionally take a capital case, but they find those cases drain them emotionally and financially. In states where at any one time there are hundreds of people facing capital trials and hundreds more on death row whose cases are under review in the courts, there are not nearly enough good lawyers willing to take the cases for the small amount of money paid to defend them. There are also lawyers who, although lacking in experience, training and resources, make conscientious efforts to do the best they can in defending people in capital cases, but many find it simply impossible to overcome these disadvantages in these complex and difficult cases. And, unfortunately, there are too many lawyers who are taking court-appointed cases because they can get no other work and do not even make conscientious efforts.
One of the very important provisions of Title II is the requirement of an independent authority for appointing attorneys in capital cases. Lawyers are ethically, professionally and constitutionally required to exercise independent professional judgment on behalf of a client. 16 The appointment of counsel by judges createsat the least—the appearance that lawyers are being assigned cases to move dockets and that lawyers may be more loyal to the judge than to the client. A lawyer's conduct in a case should not be influenced in any way by considerations of administrative convenience or by the desire to remain in the good graces of the judge who assigned the case. However, because some lawyers are dependent upon judges for continued appointments—which, in some cases, are the only business the lawyer receives-a lawyer may be reluctant to provide zealous advocacy for fear of alienating the judge. Some lawyers have remarked that one way to avoid being assigned indigent cases is to provide a vigorous defense in one.
Almost half of the judges in Texas, responding to a survey, said that an attorney's reputation for moving cases quickly, regardless of the quality of the defense, was a factor that entered into their appointment decisions. 17 One-forth of the judges said an attorney's contribution to the judge's campaigns was a factor in appointing counsel. When the judges were asked whether contributions influenced appointments by other judges they knew, over half said that judges they knew based their appointments in criminal cases in part on whether the attorneys were political supporters or had contributed to the judge's political campaign. The perception of lawyers and court personnel is that the influence of campaign contributions on elected judges decisions is even more significant, with 79 percent of the lawyers and 69 percent of the court personnel saying they believe campaign contributions effect judges' decisions.
The same factors influence some judges in other states. But even if a judge appoints laywers based their reputation for providing competent representation, there is the danger that some lawyers may not always provide the zealous representation that the Constitution requires because of the fear-whether justified or not—that the lawyer risks losing future appointments from the judge. For lawyers whose entire practice is made up of appointments from the court, such fears may considerably chill their performance.
This is a system riddled with conflicts. A judge's desire for efficiency conflicts with the duty to appoint indigent defense counsel who can provide adequate representation; a lawyer's need for business taints the constitutional and ethical requirement of zealous advocacy. And later, if there is a claim of ineffective assistance, the judge who appointed the lawyer is the one to decide the claim. This is not a good way to run a system of justice. Judges do not appoint prosecutors to cases. Judges should be fair and impartial. They should not be managing the defense.
16 American Bar Association, Canons of Ethics, Canon 5.
17 See Allan K. Butcher & Michael K. Moore, Committee on Legal Services to the Poor in Criminal Matters, Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas (Sept. 22, 2000), available at http://www.edu/pols/moore/indigent/whitepaper.htm. Judges in the survey were specifically asked to discount their experiences in capital cases, but there is no reason to believe that their motivations for appointment decisions would vary depending on the type of case.
Accordingly, Standard 5-1.3 of the American Bar Association's Criminal Justice Standards, provides:
(a) The legal representation plan for a jurisdiction should be designed to guarantee the integrity of the relationship between lawyer and client. The plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. The selection of lawyers for specific cases should not be made by the judiciary or elected officials, but should be arranged for by the administrators of the defender, assigned-counsel and contract-for-service programs. (b) An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees. Assigned-counsel and contract-for-service components of defender systems should be governed by such a board. Provisions for size and manner of selection of boards of trustees should assure their independence. Boards of trustees should not include prosecutors or judges. The primary function of boards of trustees is to support and protect the independence of the defense services program. Boards of trustees should have the power to establish general policy for the operation of defender, assigned-counsel and contractfor-service programs consistent with these standards and in keeping with the standards of professional conduct. Boards of trustees should be precluded from interfering in the conduct of particular cases. A majority of the trustees on boards should be members of the bar admitted to practice in
the jurisdiction. The Innocence Protection Act will bring jurisdictions to where they should have been long ago in having independent defender programs whose primary concern is providing zealous and effective representation to those facing the death penalty so that the adversary system can work properly.
CONCLUSION The states have received enormous amounts of federal funds to improve their law enforcement and prosecution functions. But they have failed to develop and maintain a properly working adversary system in criminal cases involving poor defendants. Many states—those I have mentioned and many others—lack the key elements of an effective indigent defense system: a structure, independence from the judiciary and the prosecution, and adequate resources.
It is much easier to convict a person and obtain the death penalty when the defendant is represented by a lawyer who lacks the skill and resources to mount a defense. And it is much easier to execute people who are not adequately represented in post-conviction proceedings. But there is a larger question than whether adequate indigent defense systems make it harder for prosecutors to obtain convictions and for attorneys general to carry out executions swiftly. There is the question of fairness. It is not supposed to be easy to convict someone. Under our system required by our Constitution, the prosecution's case is supposed to undergo a vigorous adversarial testing process.
The American people are realizing that we have sacrificed fairness for finality and reliability for results. They want protection from crime, but they want fairness. The system is woefully out of balance. The many exonerations from DNA evidence as well as the release of over 95 people those sentenced to death shows that the system is broken. A major component, the defense function, lacks the structure, independence and resources to contribute to a fair, reliable and just result. It is not unreasonable for Congress to require the states as a condition of receiving millions of federal dollars to implement an adequate indigent defense system to protect the innocent at least in capital cases.
Chairman LEAHY. I want to make sure that General Pryor gets a chance to give us his views on that, too.
To give you an example of what happens, Michael Graham was wrongly convicted of murder. He spent 14 years on death row in Louisiana. The majority of U.S. Senators have not served here in the Senate for 14 years. Last December, after a 9-month investigation, the Louisiana Attorney General dismissed the charges against Mr. Graham and his co-defendant, who had also been sentenced to death, citing the total lack of credible evidence linking either of them to the crime.
STATEMENT OF MICHAEL R. GRAHAM, ROANOKE, VIRGINIA
Mr. GRAHAM. Thank you, Mr. Chairman. It is an honor to be here.
My name is Michael Graham. In 1986, I was 22 years old, working as a roofer and living with my mom and my two little brothers in Virginia Beach. That summer, I met a family from Louisiana and became friends with their son, Kenneth. They suggested that I return with them to Louisiana for a vacation and I took
While down in Louisiana, Kenneth and I got arrested for writing some bad checks. I wasn't an angel back then, but I never physically hurt anyone and was never accused of hurting anyone, that is until a couple of months later. While in jail for the bad checks, I was arrested for the brutal murders of an elderly couple. I couldn't believe it and I told the police that I didn't know anything about the murders and I had never met the couple. All the time, I was sure that the truth would come out and I would be found innocent. It seems funny now, but I even asked one of my public defenders if he would represent me in a false arrest lawsuit.
My trial was in early 1987. One of my two lawyers had some criminal law experience, but had never tried a death penalty case. My other lawyer just graduated from law school. The State didn't have any physical evidence against me. Basically, all it had was three witnesses, including a jailhouse snitch with a history of serious mental illness.
The lawyers had a tough time at the trial. They didn't investigate the snitch's deal with the prosecution. They didn't know the rules of evidence. They didn't object to a jury instruction that I later learned was totally illegal under Louisiana law. They did nothing to prepare for my sentencing phase. They didn't ask my mother to come down and testify on my behalf.
My trial only lasted a few days. When the jury convicted me of capital murder, I was stunned. So was my experienced lawyer, who disappeared. That left with my inexperienced lawyer, just 1 year out of law school, to handle the sentencing hearing by himself.
When the jury sentenced me to death, I could hardly talk and I was in a state of shock. A few months later, my co-defendant, Albert Burrell, was also convicted and given the death sentence. I understand that his lawyers were even worse than mine.
I will never forget my first night on death row. The night before, the State had executed another inmate and I was given his cell. During the night, I looked down on the floor and completely freaked out. I thought I saw a pool of blood and it turned out to be rusty water. That pretty much set the tone for the next 14 years.
I spent 23 hours a day in my 5-by-10-foot cell alone. I was allowed out 1 hour a day to shower and walk up and down the tier. Three times a week, I could go outside and spend an hour by myself in an exercise yard. Whenever I left my tier, my hands and legs were shackled. Everyone in my world was either a prison guard who considered me an animal or a condemned man.
The guards told me when to wake up and when to go to sleep, and just gave me a few minutes to eat. I tried not to go crazy by reading and praying to the Lord. I also passed the time by trying to keep up on my case and what was happening in the outside world. I studied for the GED, but the prison ended the program right before I was going to take the test.
Each day, I would beg the Lord to make sure nothing happened to my family. My family was poor, and my mother was only able to visit me twice. My brothers never made it. The Lord answered my prayers, but my co-defendant wasn't so fortunate. My co-defendant's mother died while we were on death row. One of the guards told me that it was the hardest thing he has ever had to do.
As in many cases, there was no DNA evidence to exonerate me and Albert, but we were two of the lucky ones. We both had pro bono lawyers who worked diligently for us and stuck with our cases for many years. If we had depended on State lawyers, we probably would still be on death row, or worse.
After years of hard work, my attorneys got me a new trial on March 3, 2000. It was the second greatest day of my life. My lawyers proved that the prosecution had withheld evidence showing I was innocent. They also proved that the jailhouse snitch was a pathological liar. They got sworn statements from the two other witnesses recanting their testimony. They even got a statement from the prosecutor saying that the case should never have been brought to trial to begin with because the evidence was too weak.
Ten long months later, in December, the State dismissed the case against me and Albert. The attorney general said that there was a total lack of credible evidence linking us to the crime. On December 28, 2000, the best day of my life, I was released from Louisiana's death row, where I had spent close to 14 years for two murders I did not commit. I was the 92nd innocent person released from death row since 1973. My co-defendant was released a few days later and became the 93rd innocent person released.
Half of my adult life had been taken from me. I had been falsely branded as a murderer in connection with horrible crimes. Meanwhile, the suffering family of the victims was misled into believing that the crime was solve when, in fact, the real murderer or murderers had not been brought to justice.
In compensation, the State gave me a $10 check and a coat that was five sizes too big, not even the price of a bus ticket back to Virginia. My lawyers had to buy that for me.
At first when I got back to my family in Virginia, I was afraid to go out. I thought people would guess from my complexion that I had just come out of prison. I couldn't stop guzzling down my food and pacing the floor. Men in uniform freaked me out. Nowadays, I am just trying to put my life back together. I am getting to know my family again, including my brothers, who are now young men. I have a job as a roofer and I am getting married in October.
During my 14 wasted years on death row, I always hoped that my nightmare would count for something. That is why I am here today. Mistakes like my nightmare are real. I never figured that