foregoing discussion demonstrates, the call for independence in the operation of indigent defense predates the development of the ABA's guidelines for capital represen

tation.

But, in addition to an independent appointing authority, there are a number of other components deemed essential to a system of capital defense representation specified in the guidelines. Included among these are the following:

• The appointment of two qualified attorneys at trial, on appeal, and in post-conviction proceedings, due to the complexity of capital defense litigation;

• Specific, detailed qualification standards to assure that attorneys appointed to capital cases are capable of rendering competent representation by virtue of their prior experience and training;

Adequate support assistance in the form of investigative, expert, and other services necessary to prepare and present an adequate defense;

• Mandatory training in capital defense representation as a precondition for continuing to be eligible to receive appointments in death penalty cases; and • Reasonable compensation paid to defense counsel for actual time and service performed, based upon a rate of hourly compensation that is commensurate with the provision of effective representation and taking into account the extraordinary responsibilities inherent in death penalty litigation. Obviously, there is a good deal of similarity between the ABA's guidelines for death penalty representation and the provisions of the Innocence Protection Act of 2001. In the view of the Association, the proposed statute is absolutely right in declaring that a "centralized and independent appointing authority," as specified in paragraph (c) of Title II, should be an element of an effective system for capital defense. The statute is also correct in granting to the independent authority broad responsibilities for administering the system of capital defense representation. The appointment of a National Commission on Capital Representation to develop national standards would be a monumental advance in addressing the many problems that exist in this country in capital defense representation.

III. WHY IS IT IMPORTANT THAT STANDARDS FOR DEATH PENALTY REPRESENTATION BE ENFORCEABLE?

The Innocence Protection Act of 2001 proposes that sanctions be imposed on states if they fail to maintain a system of capital defense representation consistent with the National Commission's standards. The sanctions would take the form of withholding from non-compliant states a portion of funds under prison grant programs and making habeas corpus relief more available to petitioners in capital cases from such states.

Although the Association has never addressed withholding funds from states failing to comply with national standards, in 1990 the ABA adopted a resolution urging that certain procedural barriers to habeas corpus review not apply if a state "failed to appoint competent and adequately compensated counsel to represent the defendAs the resolution explained, this would help "[t]o assure that the state provides competent representation and to avoid procedural delays as well as multiple reviews of the same issues.

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In addition, the Association adopted a resolution in 1998 calling upon state and local jurisdictions "to adopt minimum standards for the creation and operation of its indigent defense delivery systems" based upon previously approved standards, including the ABA's guidelines for capital defense representation. The resolution also calls upon government bodies, which fund indigent defense services, to insist that minimum standards for representation are being met "as a condition for receiving funds." As the commentary to the resolution explained, "standards have the greatest impact when the state or other funding entity reimburses a jurisdiction's indigent defense program for some or all of the cost of delivering services, but reimbursement is made only if the jurisdictions adopt and enforce standards for the delivery of indigent defense services."

In the commentary to this ABA resolution, Indiana is the state that is most prominently cited for linking compliance with standards to the funding of indigent defense. Pursuant to statute in Indiana, the Indiana Public Defender Commission is authorized in capital cases to reimburse counties for SO% of their defense service expenditures if county officials and the trial court certify compliance with the Supreme Court's requirements governing death penalty representation. The standards in Indiana are contained in a rule of the Indiana Supreme Court, which requires the appointment of two attorneys on trial and appeal; establishes experiential requirements for lawyers willing to serve as lead and co-counsel in capital cases at

trial and on appeal; sets caseload limitations for lawyers handling capital cases, as well as their rates of compensation; and requires that adequate investigative, expert and other services be provided to the defense.

Because counties do not want to forego 50% reimbursement of their defense expenditures in capital cases, which are often quite substantial, there has been almost complete compliance with the rule of the Indiana Supreme Court on capital defense representation. As noted earlier, there is also evidence that the system of indigent defense in Indiana has improved. However, the compliance of counties has not been 100%. Recently, as Chairman of the Indiana Public Defender Commission, I wrote to the Chief Justice of Indiana to advise him that the Commission has learned of instances where two attorneys were not appointed to a death penalty case and of capital cases where caseload restrictions of lawyers were violated. This leads, therefore, to this question: if you cannot achieve 100% compliance with a rule of the state's highest court on capital representation when a county has much to lose from non-compliance, are there not apt to be far more violations of requirements for death penalty representation if the officials have absolutely nothing to lose?

The incentives for a state to comply with requirements aimed at assuring that every capital defendant is vigorously represented must be strong. The history of the past 25 years in providing counsel in death penalty cases shows that many states are quite reluctant to spend the funds necessary to assure that every capital defendant is effectively represented. Although many legislators undoubtedly understand what is needed to improve the system, there is not a strong constituency advocating for reform of indigent defense in most states. If national standards are developed as envisioned in the Innocence Protection Act, the reality is that many state and/ or local jurisdictions are going to ignore them unless they decide it is simply too costly to do so.

The opposite of enforceable standards for capital defense representation is voluntary standards. Essentially, this is what we have had in the United States for many years. Ever since 1989 when the ABA adopted its guidelines for the appointment and performance of counsel in capital cases, a detailed blueprint has been available to every state and local jurisdiction to adopt. But this has not happened in any systematic or organized way, and in many jurisdictions nothing at all has been done. Meanwhile, enormous problems in the defense of capital cases have been experienced in virtually all 38 of the nation's death penalty states.

Statement of Steven D. Benjamin, Benjamin & DesPortes, P.C., Richmond,

Virginia

INTRODUCTION

I am a member of the Virginia State Bar, and have practiced in the Commonwealth of Virginia since 1979. I am admitted to practice in the United States District Court, Eastern and Western Districts of Virginia, the Fourth Circuit Court of Appeals, and the United States Supreme Court. I am a partner in the Richmond, Virginia, firm of Benjamin & DesPortes, P.C. My partner, Betty Layne DesPortes, and I limit our practice to the defense and appeal of criminal cases. I am a director of the Virginia College of Criminal Defense Attorneys and an active member of the National Association of Criminal Defense Lawyers. I am an adjunct professor of law at the University of Richmond School of Law. I present continuing legal education in all phases of criminal defense.

During my career, I have tried dozens of murder cases. I have represented as lead counsel approximately 15 to 20 defendants who were charged with capital murder in the Eastern District of Virginia, the City of Richmond, Henrico County, Chesterfield County, Fairfax County, Brunswick County, Henry County, and Ameba County. No defendant represented by me or Ms. DesPortes at the trial court level has ever received a death sentence.

In view of my experience and background, I have been asked to describe and comment generally on Virginia's provision of indigent defense in capital cases.

MECHANISM AND CRITERIA FOR APPOINTMENT

In Virginia, a Public Defender Commission is responsible for adopting standards for the appointment of counsel in capital cases which take into consideration the following criteria: (i) license or permission to practice law in Virginia; (ii) general background in criminal litigation; (iii) demonstrated experience in felony practice at trial and appeal; (iv) experience in death penalty litigation; (v) familiarity with the req

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uisite court system; (vi) current training in death penalty litigation; and (vii) demonstrated proficiency and commitment to quality representation. In addition, the Commission is required to maintain a list of counsel qualified to provide capital representation. In establishing this list, the Commission's mandate is to consider all relevant factors, including the Commissions's assessment of whether the attorney is competent to provide quality legal representation. In any case in which an indigent defendant is charged with a capital offense, the trial court judge is directed, but not required, to appoint one or more attorneys from that list.

To date, the Commission's promulgation of standards has been little more than a parroting of the statutory criteria. The list of qualified counsel has been compiled by the implementation of a questionnaire which requires only that an applicant confirm that he has met the specified criteria. The most egregious deficiency of this methodology is that the criteria of demonstrated proficiency and commitment to quality representation is satisfied on a purely self-reported basis. No administrative mechanism or procedure exists within the Commission or elsewhere to subjectively review this requirement or to deny placement on the list of any attorney who checks-off each of the specified criteria. Despite the statutory direction, the Commission undertakes no assessment of an attorney's competence to provide quality legal representation, and lacks any means to remove an attorney from the list.

The criteria in Virginia for capital appointment is meaningless and discretionary. As a consequence, attorneys who are only marginally competent in routine criminal cases are eligible for appointment even in those cases where a defendant might be sentenced to death. Because of a combination of factors in Virginia, the provision of indigent defense is characterized by the systematic appointment of attorneys who are either unqualified or too busy and conflicted with other cases to adequately represent their clients.

COMPENSATION

Virginia's compensation of assigned counsel in non-capital cases is wretchedly inadequate. Unlike any other state in the country, Virginia imposes an absolute, unwaivable cap on the compensation which can be paid to attorneys appointed to represent the poor in criminal cases. The maximum compensation for the defense of a single felony punishable up to twenty years is $318. If a felony carries a possible life term, the maximum compensation is $882. This inflexible disincentive to zealous representation is immune from pre-trial or post-conviction systemic review. The compensation for the defense of cases punishable by death is not capped. Instead, the amount and rate of pay is left to the discretion of the trial court. This allocation is questionable, as the provision of adequate representation can conflict with the management of an efficient docket. Trial courts may cut the hours submitted for compensation, leaving attorneys with no opportunity for review. Attorneys who complain are threatened with the loss of appointed work.

Virginia's trial courts have generally approved compensation to attorneys in capital cases for all time expended at a rate deemed reasonable for indigent defense. This practice will soon change. Trial courts are required by statute to consider any guidelines for compensation established by the Supreme Court of Virginia. Effective July 1, 2001, the Virginia Supreme Court has suggested that trial courts provide compensation at the hourly rates of $75 and $125 for the respective provision of outof-court and in-court representation. These levels represent a substantial reduction in the current rate of compensation. The (unintended) effect of this reduction will be to further discourage experienced and competent attorneys from undertaking the defense of these most serious and unpopular of cases.

SAME POOL

In any event, the absence of a cap on fees in capital cases accomplishes little towards the goal of ensuring the appointment of truly qualified attorneys. This is because the relatively generous death penalty fees are used to reward or subsidize the attorneys who accept the financially devastating non-capital fees. The result is that the attorneys who are appointed in capital cases are the same attorneys who depend on court-appointed work for their livelihood. Because the ordinary fees are hopelessly inadequate, the attorneys who handle the bulk of court-appointed representation must often carry staggering caseloads in a number of jurisdictions. Attorneys who are forced to rely on volume are reluctant to refuse appointment, especially in capital cases, and quite simply do not have the time to adequately defend any serious or complex criminal case. Some attorneys are appointed to defend multiple capital cases at the same time. Not surprisingly, these are the attorneys with multiple clients on death row. Regardless of an individual's motive for undertaking such crushing responsibilities, it is the client who suffers from the inevitable inattention

and neglect. Any system-such as Virginia's—which permits an attorney to assume the simultaneous responsibility for multiple lives asks too much, and sets up the innocent for execution.

EFFICIENCY

Another facet of capital appointment in Virginia is the premium placed on efficiency over zealousness. The attorneys who are appointed are only rarely known for innovation or indefatigable efforts on behalf of their clients. Instead, those attorneys are valued who can bring a capital case to judgment as smoothly and efficiently as possible. Unfortunately, these are often the same attorneys who file boiler-plate motions, raise no challenges, miss obvious objections, conduct ineffective voir dire, seek no forensic or investigatory assistance, preserve no record for competent counsel to appeal, and make little or no case for innocence or mitigation. Too often in Virginia the price of efficiency is the neglect of the client. Attorneys are not encouraged to rock the boat.

EXCEPTIONAL EFFORTS

Some courts diligently seek to provide capital defendants with the best representation available, and have reached out to a responsive private bar. In other instances, the quality of representation has been so manifestly inadequate that courts (or prosecutors) have intervened to correct an obvious injustice. That judges have done so is a testament to their commitment to the provision of adequate representation, and to an uncommon ability to divine omissions from an otherwise silent record. But a criminal justice system is flawed that depends on the judiciary or prosecution to discharge the responsibility of the defense. And a system lacks integrity which permits as does Virginia-the continued appointment of attorneys obviously unwilling or incapable of providing zealous and competent representation. It is rarely a secret to the bench or the bar who should not be practicing; it is a shame of unparalleled magnitude that the lives of the indigent accused should be held in such a precarious balance.

First rate representation is uncommon, and when it occurs, it is the product of personal sacrifice and extraordinary dedication by an individual attorney abiding the dictates of his conscience and the ethics of his profession. Virginia boasts an exceptional bar, but neither the standards for capital representation nor the logistics of appointment are designed to draw representation from that bar. The reality in Virginia is that the provision of appointed counsel is a haphazard event. The quality of representation is inconsistent at best, and at times, so abysmally deficient as to amount to a complete charade.

STATE OF SOUTH CAROLINA OFFICE OF THE SOLICITOR SIXTEENTH JUDICIAL CIRCUIT July 2, 2001

The Honorable Patrick Leahy

U.S. Senate Judiciary Committee 224 Dirksen Building

Washington, DC 20510

Dear Senator Leahy,

During my testimony before the committee on June 27, 2001, Senator Feingold asked me about an execution that I witnessed in August of 1995. In order for the record to be as complete as possible, I have researched the issues he inquired about and submit this letter to supplement my answers to his questions.

Senator Feingold first desired to know whether it was true that the defendant in that case, Sylvester Adams, had an IQ that was below normal. I am enclosing the psychiatric and psychological reports from his evaluation by the state Department of Mental Health in 1979. This was the agency charged by the court with the responsibility for making these determinations. These reports were made part of the court's record in Mr. Adams' Post-conviction Relief Hearings.

As you can see from the reports, the defendant "answers 'I don't know' to virtually every question and then asks why I am asking questions in a rather mocking manner". It goes on to say, his "entire demeanor is that of a coy cat and mouse game which he obviously enjoys".

The psychologist's scoring of his IQ test did place the defendant in the range of mild mental retardation, however "the psychologist reported) that he was uncooperative and made little effort during testing so that his intelligence is probably significantly higher than is reflected by the test data". In another section the psychologist puts it thus: "The lowered score on the performance section (of his IQ test) is a direct function of his negativism, belligerence and lack of concerted effort."

In addition, I also enclose copies of both sentencing reports that were filed by the two trial judges who presided over the two trials of this case. The judges in this case had the opportunity to interact with the defendant in court and both listed his intelligence level as "average".

I realize that the defense may tender evaluations performed by experts they paid to assist them however I do not believe that they are as credible as the evaluations I am submitting. Their experts have a financial interest in the matter and also can be chosen by the defense based on an anti-capital punishment bias. The South Carolina Department of Mental Health is not in any way beholden to our office and has often submitted reports and testified that capital defendant's are mentally ill.

The second area of inquiry focused on the post-trial status of Mr. Adams' attorney. I did not know who his attorney was at the various stages of litigation but have since informed myself on the topic. Sam Fewell represented the defendant at both his first trial and his retrial. He was also represented by James Boyd.

In the early 1990's, Fewell was convicted in federal court and sentenced to a term of imprisonment in a federal correctional facility. I believe this was due to a drug related conviction. I do not know whether or not he was incarcerated at the time of Adams' execution. That is irrelevant though as Fewell had no involvement with the appeal of the case

The question of his attorney's status is calculated to highlight the issue of attorney incompetence in capital cases. Instead, it only serves to highlight the type of specious logic employed by the anti-capital punishment groups to make their case. The fact that Fewell was convicted in 1991 or 1992 does not lead one to conclude that he was incompetent in 1981 or 1982. A former professor of mine has since been disbarred and removed from the faculty at the University of South Carolina. Should I be required to return my diploma?

In fact, Fewell's conviction in the early 90's was well known for some years before Adams was executed and if the defense were able to establish a connection between the two events, they surely would have. The issue of Fewell's competence was fully litigated and no basis found to warrant a new trial.

I hope this helps the committee as you grapple with these weighty and complex issues. If I may be of any further service to you at any time please do not hesitate to call me. Sincerely,

KEVIN S. BRACKETT
Deputy Solicitor

Statement of David I. Bruck, Federal Death Penalty Resource Counsel, Columbia, South Carolina

Chairman Leahy, Senator Hatch, and members of the Committee:

I appreciate the opportunity to submit this statement as the Judiciary Committee considers the important question of how indigent capital defendants are represented at trial in the courts of this country. I would like to focus on the two jurisdictions I know the most about-the state courts of South Carolina, and the federal courts throughout the United States.

I have been a criminal defense attorney in Columbia, South Carolina, for the past 25 years, and have devoted most of that time to the defense of capital cases. I have served as lead counsel in 17 death penalty trials in the South Carolina state courts, have argued some sixty death row inmates' appeals in the South Carolina Supreme Court, and six before the United States Supreme Court. I have also been a close observer of the federal death penalty since early 1992, when the federal defender system contracted with me and a colleague in Frankfort, Kentucky, to provide expert assistance on as "as-needed" basis to federal defenders and court-appointed counsel in federal capital cases. In the nine-and-a-half years since then I have worked roughly half-time in assisting counsel who have been appointed to defend the increasing numbers of federal death penalty prosecutions brought under the Anti-Drug Abuse Act of 1988, 21 U.S.C. 848(e), and later under the Federal Death Penalty Act of 1994 (18 U.S.C. § 3591 et seq.). In addition to working with individual