(Cite as: 103 Yale L.J. 1835)

Yale Law Journal

May, 1994




Stephen B. Bright [FNd]

Copyright © 1994 by the Yale Law Journal Company, Inc.; Stephen B. Bright

After years in which she and her children were physically abused by her adulterous husband, a woman in Talladega County, Alabama, arranged to have him killed. Tragically, murders of abusive spouses are not rare in our violent society, but seldom are they punished by the death penalty. Yet this woman was sentenced to death. Why?

It may have been in part because one of her court-appointed lawyers was so drunk that the trial had to be delayed for a day after he was held in contempt and sent to jail. The next morning, he and his client were both produced from jail, the trial resumed, and the death penalty was imposed a few days later. [FN1] It may also have been in part because this lawyer failed to find hospital records documenting injuries received by the woman and her daughter, which would have corroborated their testimony about abuse. And it may also have been because her lawyers did not bring their expert witness on domestic *1836 abuse to see the defendant until 8 p.m. on the night before he testified at trial. [FN2]

Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources, and commitment to handle such serious matters. This fact is confirmed in case after case. It is not the facts of the crime, but the quality of legal representation, [FN3] that distinguishes this case, where the death penalty was imposed, from many similar cases, where it was not. [FN4]

The woman in Talladega, like any other person facing the death penalty who cannot afford counsel, is entitled to a court-appointed lawyer under the Supreme Court's decision in Powell v. Alabama. [FN5] But achieving competent representation in capital and other criminal cases requires much than the Court's recognition, in Powell and in Gideon v. Wainwright, [FN6] of the vital importance of counsel and of "thoroughgoing investigation and preparation." [FN7] Providing better representation today than the defendants had in Scottsboro in 1931 requires money, a structure for providing indigent defense that is independent of the judiciary and prosecution, and skilled and dedicated lawyers. As Anthony Lewis observed after the Gideon decision extended the right to counsel to all state felony prosecutions:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright-the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. [FN8]

*1837 More than sixty years after Powell and thirty years after Gideon, this task remains uncompleted, the dream unrealized. This Essay describes the pervasiveness of deficient representation, examines the reasons for it, and considers the likelihood of improvement.


Arbitrary results, which are all too common in death penalty cases, frequently stem from inadequacy of counsel. The process of sorting out who is most deserving of society's ultimate punishment does not work when the most fundamental component of the adversary system, competent representation by counsel, is missing. [FN9] Essential guarantees of the Bill of Rights may be disregarded because counsel failed to assert them, and juries may be deprived of critical facts needed to make reliable determinations of guilt or punishment. The result is a process that lacks fairness and integrity.

For instance, the failure of defense counsel to present critical information is one reason that Horace Dunkins was sentenced to death in Alabama. Before his execution in 1989, when newspapers reported that Dunkins was mentally retarded, at least one juror came forward and said she would not have voted for the death sentence if she had known of his condition. [FN10] Nevertheless, Dunkins was executed.

This same failure of defense counsel to present critical information also helps account for the death sentences imposed on Jerome Holloway-who has an IQ of 49 and the intellectual capacity of a 7-year old-in Bryan County, Georgia, [FN11] and William Alvin Smith-who has an IQ of 65-in Oglethorpe County, Georgia. [FN12] It helps explain why Donald Thomas, a schizophrenic youth, was sentenced to death in Atlanta, where the jury knew nothing about his mental impairment because his lawyer failed to present any evidence about his condition. [FN13] In each of these cases, the jury was unable to perform its constitutional obligation to impose a sentence based on "a reasoned moral response to the defendant's background, character and crime," [FN14] because it was not informed by defense counsel of the defendant's background and character.

*1838 It can be said confidently that the failure to present such evidence made a difference in the Holloway, Smith, and Thomas cases. After each was reversed-one of them for reasons having nothing to do with counsel's incompetence-the pertinent information was presented to the court by new counsel, the death sentence was not imposed. But for many sentenced to death, such as Horace Dunkins, there is no second chance.

Quality legal representation also made a difference for Gary Nelson and Frederico Martinez-Macias, but they did not receive it until years after they were wrongly convicted and sentenced to death. Nelson was represented at his capital trial in Georgia in 1980 by a sole practitioner who had never tried a capital case. [FN15] The court-appointed lawyer, who was struggling with financial problems and a divorce, was paid at a rate of only $15 to $20 per hour. [FN16] His request for co-counsel was denied. [FN17] 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. [FN18] Nevertheless, the appointed lawyer was not provided funds for an investigator [FN19] and, knowing a request would be denied, did not seek funds for an expert. [FN20] Counsel's closing argument was only 255 words long. [FN21] The lawyer was later disbarred for other reasons. [FN22]

Nelson had the good fortune to be represented pro bono in postconviction proceedings by lawyers willing to spend their own money to investigate Nelson's case. [FN23] 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. [FN24] Indeed, they found that the Federal Bureau of Investigation had previously examined the hair and found that it could not validly be compared. [FN25] As a result of such inquiry, Gary Nelson was released after eleven years on death row.

Frederico Martinez-Macias was represented at his capital trial in El Paso, Texas, by a court-appointed attorney paid only $11.84 per hour. [FN26] Counsel *1839 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. [FN27] Martinez-Macias was sentenced to death.

Martinez-Macias received competent representation for the first time when a Washington D.C., firm took his case pro bono. After a full investigation and development of facts regarding his innocence, Martinez-Macias won federal habeas corpus relief. [FN28] An El Paso grand jury refused to re-indict him and he was released after nine years on death row. [FN29]

Inadequate representation often leaves the poor without the protections of the Bill of Rights. An impoverished person was sentenced to death in Jefferson County, Georgia, in violation of one of the most basic guarantees of our Bill of Rights-the right to a representative jury selected without discrimination on the basis of race. [FN30] African-Americans make up 54.5% of the population of that county, but the jury pool was only 21.6% black, a severe underrepresentation of over 50%. [FN31] But this issue was not properly raised and preserved by the court-appointed lawyer for the accused. The defendant had the extreme misfortune of being represented-over his protests-by a court- appointed lawyer who, when later asked to name the criminal law decisions from any court with which he was familiar, could name only two: "Miranda and Dred Scott." [FN32] As a result of the lawyer's failure to challenge the racial discrimination at or before trial, the reviewing courts held that the defendant was barred from vindication of his constitutional rights. [FN33]

The difference that representative juries and competent counsel make in capital cases is illustrated by the cases of two codefendants, John Eldon Smith and Rebecca Machetti. They were sentenced to death by unconstitutionally composed juries within a few weeks of each other in Bibb County, Georgia. [FN34] Machetti's lawyers challenged the jury composition in state court; Smith's *1840 lawyers did not because they were unaware of the Supreme Court decision prohibiting gender discrimination in juries. [FN35]

A new trial was ordered for Machetti by the federal court of appeals. [FN36] At that trial, a jury which fairly represented the community imposed a sentence of life imprisonment. [FN37] The federal courts refused to consider the identical issue in Smith's case because his lawyers had not preserved it. [FN38] He was executed, becoming the first person to be executed under the Georgia death penalty statute upheld by the U.S. Supreme Court in 1976. [FN39] Had Machetti been represented by Smith's lawyers in state court and Smith by Machetti's lawyers, Machetti would have been executed and Smith would have obtained federal habeas corpus relief.

In these examples, imposition of the death penalty was not so much the result of the heinousness of the crime or the incorrigibility of the defendant-the factors upon which imposition of capital punishment supposedly is to turn-but rather of how bad the lawyers were. In consequence, a large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received.

A member of the Georgia Board of Pardons and Paroles has said that if the files of 100 cases punished by death and 100 punished by life were shuffled, it would be impossible to sort them out by sentence based upon information in the files about the crime and the offender. [FN40] A justice of the Mississippi Supreme Court made the same observation about the imposition of death sentences in his state in testimony before the U.S. Senate Judiciary Committee:

I dare say I could take every death sentence case that we have had where we have affirmed, give you the facts and not tell you the outcome, and then pull an equal number of murder cases that have been in our system, give you the facts and not tell you the outcome, and challenge you to pick which ones got the death sentence and which ones did not, and you couldn't do it. [FN41]

*1841 Although it has long been fashionable to recite the disgusting facts of murder cases to show how deserving of death particular defendants may be, [FN42] such renditions fail to answer whether the selection process is a principled one based on neutral, objective factors that provide a "meaningful basis for distinguishing the few cases in which the [death] penalty is imposed from the many cases in which it is not." [FN43] Virtually all murders involve tragic and gruesome facts. However, the death penalty is imposed, on average, in only 250 cases of the approximately 20,000 homicides that occur each year in the United States. [FN44] Whether death is imposed frequently turns on the quality of counsel assigned to the accused.


Inadequate legal representation does not occur in just a few capital cases. It is pervasive in those jurisdictions which account for most of the death sentences. The American Bar Association concluded after an exhaustive study of the issues that "the inadequacy and inadequate compensation of counsel at trial" was one of the "principal failings of the capital punishment systems in the states today." [FN45] Justice Thurgood Marshall observed that "capital *1842 defendants frequently suffer the consequences of having trial counsel who are ill equipped to handle capital cases." [FN46] The National Law Journal, after an extensive study of capital cases in six Southern states, found that capital trials are "more like a random flip of the coin than a delicate balancing of the scales" because the defense lawyer is too often "ill trained, unprepared ... [and] grossly underpaid." [FN47] Many observers from a variety of perspectives and from different states have found the same scandalous quality of legal representation. [FN48]

These assessments are supported by numerous cases in which the poor were defended by lawyers who lacked even the most rudimentary knowledge, resources, and capabilities needed for the defense of a capital case. Death sentences have been imposed in cases in which defense lawyers had not even read the state's death penalty statute or did not know that a capital trial is bifurcated into separate determinations of guilt and punishment. [FN49] State trial *1843 judges and prosecutors-who have taken oaths to uphold the law, including the Sixth Amendment-have allowed capital trials to proceed and death sentences to be imposed even when defense counsel fought among themselves or presented conflicting defenses for the same client, [FN50] referred to their clients by a racial slur, [FN51] cross-examined a witness whose direct testimony counsel missed because he was parking his car, [FN52] slept through part of the trial, [FN53] or was intoxicated during trial. [FN54] Appellate courts often review and decide capital cases on the basis of appellate briefs that would be rejected in a first-year legal writing course in law school. [FN55]

There are several interrelated reasons for the poor quality of representation in these important cases. Most fundamental is the wholly inadequate funding *1844 for the defense of indigents. As a result, there is simply no functioning adversary system in many states. Public defender programs have never been created or properly funded in many jurisdictions. The compensation provided to individual court-appointed lawyers is so minimal that few accomplished lawyers can be enticed to defend capital cases. Those who do take a capital case cannot afford to devote the time required to defend it properly. As a result, the accused are usually represented by lawyers who lack the experience, expertise, and resources of their adversaries on the prosecution side.

Many state court judges, instead of correcting this imbalance, foster it by intentionally appointing inexperienced and incapable lawyers to defend capital cases, and denying funding for essential expert and investigative needs of the defense. The minimal standard of legal representation in the defense of poor people, as currently interpreted by the Supreme Court, offers little protection to the poor person stuck with a bad lawyer.

A. The Lack of a Functioning Adversary System

Many death penalty states have two state-funded offices that specialize in handling serious criminal cases. Both employ attorneys who generally spend years-some even their entire careers-handling criminal cases. Both pay decent annual salaries and provide health care and retirement benefits. Both send their employees to conferences and continuing legal education programs each year to keep them up to date on the latest developments in the law. Both have at their disposal a stable of investigative agencies, a wide range of experts, and mental health professionals anxious to help develop and interpret facts favorable to their side. Unfortunately, however, in many states both of these offices are on the same side: the prosecution.

One is the District Attorney's office in each judicial district, whose lawyers devote their time exclusively to handling criminal matters in the local court systems. These lawyers acquire considerable expertise in the trial of criminal cases, including capital cases. There are, for example, prosecutors in the District Attorney's office in Columbus, Georgia, who have been trying death penalty cases since the state's current death penalty statute was adopted in 1973.

The other office is the state Attorney General's office, which usually has a unit made up of lawyers who specialize in handling the appeals of criminal cases and habeas corpus matters. Here, too, lawyers build expertise in handling capital cases. For example, the head of the unit that handles capital litigation for the Georgia Attorney General has been involved in that work since 1976, the same year the Supreme Court upheld Georgia's death penalty statute. She brings to every case a wealth of expertise developed in seventeen years of litigating capital cases in all the state and federal courts involved in Georgia cases. She and her staff are called upon by district attorneys around the state *1845 for consultation on pending cases and, on occasion, will assist in trial work. It is the normal practice in Georgia that briefs by both the district attorney and the attorney general are filed with the Georgia Supreme Court on the direct appeal of a capital case.

The specialists in the offices of both the district attorneys and the attorneys general have at their call local, state, and, when needed, federal investigative and law enforcement agencies. They have a group of full-time experts at the crime laboratory and in the medical examiner's offices to respond to crime scenes and provide expert testimony when needed. If mental health issues are raised, the prosecution has a group of mental health professionals at the state mental facilities. No one seriously contends that these professional witnesses are objective. They routinely testify for the prosecution as part of their work, and prosecutors enjoy longstanding working relationships with them.

In Alabama, Georgia, Mississippi, Louisiana, Texas, and many other states with a unique fondness for capital punishment, there is no similar degree of specialization or resources on the other side of capital cases. A poor person facing the death penalty may be assigned an attorney who has little or no experience in the defense of capital or even serious criminal cases, [FN56] one reluctant or unwilling to defend him, [FN57] one with little or no empathy or understanding of the accused or his particular plight, [FN58] one with little or no *1846 knowledge of criminal or capital punishment law, or one with no understanding of the need to document and present mitigating circumstances. [FN59] Although it is widely acknowledged that at least two lawyers, supported by investigative and expert assistance, are required to defend a capital case, some of the jurisdictions with the largest number of death sentences still assign only one lawyer to defend a capital case. [FN60]

In contrast to the prosecution's virtually unlimited access to experts and investigative assistance, the lawyer defending the indigent accused in a capital case may not have any investigative or expert assistance to prepare for trial and present a defense. A study of twenty capital cases in Philadelphia in 1991 and 1992 found that the court "paid for investigators in eight of the twenty cases, spending an average of $605 in each of the eight" and that the court "paid for psychologists in two of them, costing $400 in one case, $500 in the other." [FN61] It is impossible even to begin a thorough investigation or obtain a comprehensive mental health evaluation for such paltry amounts.

Although the Supreme Court has held that indigent defendants may be entitled to expert assistance in certain circumstances, [FN62] defense attorneys often do not even request such assistance because they are indifferent or know that no funds will be available. [FN63] Courts often refuse to authorize funds for investigation and experts by requiring an extensive showing of need that frequently cannot be made without the very expert assistance that is sought. [FN64] *1847 Many lawyers find it impossible to maneuver around this "Catch 22," [FN65] but even when a court recognizes the right to an expert, it often authorizes so little money that no competent expert will get involved. [FN66]

An indigent accused facing the death penalty in Columbus, Georgia, was assigned counsel by the local trial judge, a former district attorney who had tried high profile capital cases on the way to becoming a judge. [FN67] Neither of the two lawyers appointed had ever tried a capital case before. The lawyers were denied any funds for an investigator or expert assistance. The case was prosecuted by an assistant district attorney with over fifteen years of experience in trying capital and other criminal cases. The defense was unable to investigate the case or present any expert testimony in response to the state's fingerprint and identification technicians, ballistics expert, coroner, and medical examiner.

An Alabama attorney, appointed without co-counsel and granted only $500 for expert and investigative expenses to defend a highly publicized capital case, facing three prosecutors and an array of law enforcement agencies and expert witnesses, described his situation:

Without more than $500, there was only one choice, and that is to go to the bank and to finance this litigation, myself, and I was just financially unable to do that. It would have cost probably in excess of thirty to forty thousand dollars, and I just could not justify taking those funds from my practice, or my family at that time. [FN68]

Not surprisingly, the attorney was simply unable to investigate the case properly:

As a result, much of the investigation simply was not done and critical evidence was not presented. [FN70] With regard to the lack of funds for expert witnesses, the lawyer testified that in civil cases, which constituted ninety percent of his caseload, he would have hired the required experts because failure to do so would have constituted malpractice. [FN71]

An attorney involved in the defense of many capital cases in Arkansas has described how lawyers in that state are forced to perform "a sort of uninformed legal triage," ignoring some issues, lines of investigation, and defenses because of the lack of adequate compensation and resources. [FN72] He described the costs of such an approach: "The lawyer pays some in reputation, perhaps, but it is his client who must pay with his liberty or life." [FN73]

The adversary system often breaks down at the appellate level as well. The poor defendant usually does not receive representation equal to that of the prosecution in a state like Georgia, where on direct appeal of capital cases, specialists in the offices of the Attorney General and District Attorney both file briefs for the state. The poor person sentenced to death may be represented by a lawyer with little or no appellate experience, no knowledge of capital punishment law, and little or no incentive or inclination to provide vigorous advocacy. For example, in one Georgia case, the court-appointed attorney filed a brief containing only five pages of argument, and that only after the Georgia Supreme Court threatened to impose sanctions. [FN74] The lawyer did not raise as an issue the trial court's charge to the sentencing jury, which was later found by the U.S. Court of Appeals to have violated the Constitution, did not appear for oral argument, and did not file a supplemental brief on the jury instruction issue even after requested to do so by the court. [FN75] Nevertheless, the Georgia Supreme Court did not appoint other counsel or require adequate briefing. Instead, with nothing more before it than counsel's deficient performance, the court upheld the conviction and death sentence. [FN76] The death sentence was later set aside by the U.S. Court of Appeals. [FN77] There have been numerous *1849 other instances of grossly deficient representation on appeal in cases of those condemned to die. [FN78]

B. The Lack of Indigent Defense Programs

In many jurisdictions where capital punishment is frequently imposed, there are no comprehensive public defender systems whose resources can parallel the prosecutorial functions of the district attorneys' offices. [FN79] There are no appellate defender offices that parallel the function of the capital litigation sections of the attorneys general's offices. In fact, there is no coherent system at all, but a hodgepodge of approaches that vary from county to county.

In many jurisdictions, judges simply appoint members of the bar in private practice to defend indigents accused of crimes. [FN80] The lawyers appointed may not want the cases, [FN81] may receive little or no compensation for the time and expense of handling them, [FN82] may lack any interest in criminal law, and may not have the skill to defend those accused of a crime. As a result, the poor are often represented by inexperienced lawyers who view their responsibilities as *1850 unwanted burdens, have no inclination to help their clients, and have no incentive to develop criminal trial skills. Lawyers can make more money doing almost anything else. Even many lawyers who have an interest in criminal defense work simply cannot afford to continue to represent indigents while also repaying their student loans and meeting their familial obligations.

Some counties employ a "contract system" in which the county contracts with an attorney in private practice to handle all of the indigent cases for a specified amount. Often contracts are awarded to the lawyer-or group of lawyers-who bids the lowest. [FN83] The lawyer is still free to generate other income through private practice. Any money spent on investigation and experts comes out of the amount the lawyer receives. These programs are well known for the exceptionally short shrift that the poor clients receive and the lack of expenditures for investigative and expert assistance. [FN84]

A third system is the employment of a group of lawyers or an organization to handle all indigent criminal cases while not engaging in any outside practice. These lawyers are usually called "public defenders," although in some jurisdictions they lack the investigative and support staff that is considered part of a genuine public defender program. Some of these offices employ remarkably dedicated attorneys, whose jobs are nonetheless made almost impossible by overwhelming caseloads and low funding.

For example, the Fulton County Public Defender program, which serves the courts in Atlanta, has achieved nationwide notoriety for its high caseloads-an average of 530 felony cases per attorney for each year plus extraditions, probation revocations, commitment, and special hearings-and grossly inadequate funding. [FN85] A public defender in Atlanta may be assigned as many as forty- five new cases at one arraignment. At that time, upon first meeting these clients-chained together-for a nonprivate, nonconfidential "interview" in a holding area near the courtroom, she may plead many of them guilty and have them sentenced on the spot. As one public defender described disposing of seventeen indigent defendants: "I met 'em, pled 'em and closed 'em-all in the same day." [FN86] This system of criminal procedure is known as "slaughterhouse justice." When one lawyer in the office, after closing 476 *1851 cases in ten months and still carrying a caseload of 122, asserted her ethical obligation to limit her caseload, she was berated by the trial judge, who refused her request; she was eventually demoted to juvenile court by the director of her office. [FN87]

A public defender in New Orleans represented 418 defendants during the first seven months of 1991. [FN88] During this time, he entered 130 guilty pleas at arraignment and had at least one serious case set for trial on every single trial date during the period. [FN89] In "routine cases," he received no investigative support because the three investigators in the public defender office were responsible for more than 7000 cases per year. [FN90] No funds were available for expert witnesses. The Louisiana Supreme Court found that, because of the excessive caseloads and insufficient resources of the public defender office, the clients served by this system are "not provided with the effective assistance of counsel the [C]onstitution requires." [FN91]

The structure of indigent defense not only varies among states, it varies within many states from county to county. Some localities employ a combination of these programs. All of these approaches have several things in common. They evince the gross underfunding that pervades indigent defense. They are unable to attract and keep experienced and qualified attorneys because of lack of compensation and overwhelming workloads. [FN92] Just when lawyers reach the point when they have handled enough cases to begin avoiding basic mistakes, they leave criminal practice and are replaced by other young, inexperienced lawyers who are even less able to deal with the overwhelming caseloads. Generally, no standards are employed for assignment of cases to counsel or for the performance of counsel. And virtually no resources are provided for investigative and expertassistance or defense counsel training.

The situation has further deteriorated in the last few years. This is largely due to the increased complexity of cases and the increase in the number of cases resulting from expanded resources for police and prosecution and the lack of a similar increase, and perhaps even a decline, in funding for defense programs. [FN93] The quality and funding for defense programs often varies greatly *1852 from one county or judicial district to another in the same state. Texas, which has one of the largest death row populations and has carried out the most executions since the resumption of capital punishment in 1976, [FN94] is one of eight states in which indigent defense is handled at the county level with no state funding. [FN95] Funding for indigent defense varies significantly from county to county. [FN96] In Louisiana, the indigent defense system is funded by assessments from traffic tickets. As a result, there have been "wide variations in levels of funding," adding to a "general pattern ... of chronic underfunding of indigent defense programs in most areas of the state." [FN97] Alabama finances its indigent defense system through a tax on all civil and criminal filings in the court system. [FN98]

The deficiencies in representation resulting from such haphazard and underfunded approaches have been acknowledged. The vice president of the Georgia Trial Lawyers Association once described the simple test used in that state to determine whether a defendant receives adequate counsel as "the mirror test." "You put a mirror under the court-appointed lawyer's nose, and if the mirror clouds up, that's adequate counsel." [FN99] It is not surprising that such a dysfunctional system is incapable of providing legal representation in capital cases. Unlike the offices of the district attorneys and attorneys general, there is no structure in many states for training and supervising young lawyers in their initial years of practice to develop a cadre of attorneys who specialize in the defense of complex cases. There are no job opportunities in indigent defense for the young law graduates who want to become criminal lawyers. And, because of the financial incentives, most of those who have or develop good trial skills quickly move on to personal injury work or, if they remain in criminal law, the more lucrative defense of drug, pornography, and white collar cases.

*1853 C. Compensation of Attorneys: The Wages of Death

The United States Court of Appeals for the Fifth Circuit, finding that Federico Martinez-Macias "was denied his constitutional right to adequate counsel in a capital case in which [his] actual innocence was a close question," observed that, "The state [Texas] paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for." [FN100] What is unusual about the case is not the amount paid to counsel, but the court's acknowledgement of its impact on the quality of services rendered.

As we have seen, in many jurisdictions poor people facing the death penalty are not assigned specialists who work for indigent defense programs, but individual attorneys, often sole practitioners. In some jurisdictions, the hourly rates in capital cases may be below the minimum wage or less than the lawyer's overhead expenses. [FN101] Many jurisdictions limit the maximum fee for a case. At such rates it is usually impossible to obtain a good lawyer willing to spend the necessary time.

Alabama limits compensation for out-of-court preparation to $20 per hour, up to a limit of $1000. [FN102] In one rare Alabama case where two lawyers devoted 246.86 and 187.90 hours respectively to out-of-court preparation, they were still paid $1000 each, or $4.05 and $5.32 per hour. [FN103]

In some rural areas in Texas, lawyers receive no more than $800 to handle a capital case. [FN104] Generally, the hourly rate is $50 or less. [FN105] Attorneys appointed to defend capital cases in Philadelphia are paid an average of $6399 per case. [FN106] In the few cases where a second attorney has been appointed, it is often at a flat rate of $500. [FN107] A study in Virginia found that, after taking into account an attorney's overhead expenses, the effective hourly rate paid to counsel representing an indigent accused in a capital case was $13. [FN108] In Kentucky, the limit for a capital case is $2500. [FN109]

Sometimes even these modest fees are denied to appointed counsel. A capital case in Georgia was resolved with a guilty plea only after the defense *1854 attorneys, a sole practitioner and this author, agreed not to seek attorneys fees as part of the bargain in which the state withdrew its request for the death penalty. [FN110]

In cases involving financial as opposed to moral bankruptcy, Atlanta law firms charge around $125 per hour for their associates, $200 per hour for partners, and $50 to $80 per hour for paralegals. [FN111] In civil rights and other civil litigation, courts routinely order attorneys fees much higher than those paid to appointed lawyers in capital cases. [FN112] Paralegals and law clerks in civil rights cases may be compensated at rates equal to or better than what experienced attorneys are paid in capital cases. [FN113] A new attorney at the Southern Center for Human Rights, straight out of law school, was awarded $65 per hour by a federal court in 1990 for work on a prison conditions case. [FN114] More experienced lawyers on that case were paid at rates of $90, $100, and $150 per hour. Attorneys appointed to death penalty cases in state courts can never expect compensation at such rates.

A justice of the Georgia Supreme Court recently criticized that court's limitation of attorneys fees in an employment discrimination case. [FN115] Limiting the attorney to $50 per hour [FN116] instead of providing the opportunity to recover reasonable attorneys fees would, the justice argued, make it unduly difficult to find lawyers for those who were victims of discrimination and *1855 "effectively den[y] many Georgians the key to the courthouse door." [FN117] At lower rates it is even more difficult to find attorneys for capital cases.

Thus, it is unlikely that lawyers will seek appointments in capital cases when they can earn more handling other types of cases. It is undeniable that "[i]n our pecuniary culture the caliber of personal services rendered usually has a corresponding relationship to the compensation provided." [FN118] Lawyers who have been appointed to defend the poor in capital trials often vow never to handle another. It is financially disastrous, emotionally draining, [FN119] and, for the small-town sole practitioner, it may be very damaging to relations with paying clients. Even at $200 an hour, it would be difficult to attract lawyers to handle these cases.

Not surprisingly, a recent study in Texas found that "more experienced private criminal attorneys are refusing to accept court appointments in capital cases because of the time involved, the substantial infringement on their private practices, the lack of compensation for counsel fees and expert expenses and the enormous pressure that they feel in handling these cases." [FN120] "In many counties, the most qualified attorneys often ask not to be considered for court appointments in capital cases due to the fact that the rate of compensation would not allow them to cover the expense of running a law practice." [FN121] The same unwillingness to take cases because of the low fees has been observed in other states. [FN122] Consequently, although capital cases require special skills, [FN123] the level of compensation is often not enough even to attract those who regularly practice in the indigent defense system.

D. The Role of Judges: Appointment and Oversight of Mediocrity and Incompetence

Even if, despite the lack of indigent defense programs and adequate compensation, capable lawyers were willing to move to jurisdictions with many capital cases, forego more lucrative business, and take appointments to capital cases, there is still no assurance that those lawyers would be appointed to the cases. It is no secret that elected state court judges do not appoint the *1856 best and brightest of the legal profession to defend capital cases. [FN124] In part, this is because many judges do not want to impose on those members of the profession they believe to have more important, financially lucrative things to do. But even when choosing from among those who seek criminal appointments, judges often appoint less capable lawyers to defend the most important cases.

Judges have appointed to capital cases lawyers who have never tried a case before. [FN125] A study of homicide cases in Philadelphia found that the quality of lawyers appointed to capital cases in Philadelphia is so bad that "even officials in charge of the system say they wouldn't want to be represented in Traffic Court by some of the people appointed to defend poor people accused of murder." [FN126] The study found that many of the attorneys were appointed by judges based on political connections, not legal ability. "Philadelphia's poor defendants often find themselves being represented by ward leaders, ward committeemen, failed politicians, the sons of judges and party leaders, and contributors to the judge's election campaigns." [FN127]

An Alabama judge refused to relieve counsel even when they filed a motion to be relieved of the appointment because they had inadequate experience in defending criminal cases and considered themselves incompetent to defend a capital case. [FN128] Georgia trial judges have repeatedly refused to appoint or compensate the experienced attorneys who, doing pro bono representation in postconviction stages of review, had successfully won new trials for clients who had been sentenced to death. [FN129] In several of those cases, the Georgia Supreme Court ordered continued representation at the new trials by the lawyers who were familiar with the case and the client. Despite those precedents, a Georgia judge refused to appoint an expert capital litigator from the NAACP Legal Defense and Educational Fund to continue representation of an indigent defendant, even though the Legal Defense Fund lawyer had won a new trial for the client by showing in federal habeas corpus proceedings that he had received ineffective assistance from the lawyer appointed by the judge at the initial capital trial. [FN130] And the lower court judges who have been reversed for failing to allow continuity in representation are still appointing lawyers when new cases come through the system. Those new defendants have no one to assist them in securing competent representation.

*1857 A newly admitted member of the Georgia bar was surprised to be appointed to handle the appeal of a capital case on her fifth day of practice in Columbus, Georgia. Two days earlier she had met the judge who appointed her when she accompanied her boss to a divorce proceeding. Only after she asked for help was a second attorney brought onto the case. Another lawyer in that same circuit was appointed to a capital case, but after submitting his first billing statement to the judge for approval was told by the judge that he was spending too much time on the case. He was summarily replaced by another lawyer and the defendant was ultimately sentenced to death. For a number of years, judges in that circuit appointed a lawyer to capital cases who did not challenge the underrepresentation of black citizens in the jury pools for fear of incurring hostility from the community and alienating potential jurors. [FN131] As a result, a number of African-Americans were tried by all-white juries in capital cases even though one-third of the population of the circuit is African-American.

The many other examples of exceptionally poor legal representation documented by the American Bar Association (ABA), the National Law Journal, and others indicate that judges either are intentionally appointing lawyers who are not equal to the task or are completely inept at securing competent counsel in capital cases. The reality is that popularly elected judges, confronted by a local community that is outraged over the murder of a prominent citizen or angered by the facts of a crime, have little incentive to protect the constitutional rights of the one accused in such a killing. Many state judges are former prosecutors who won their seats on the bench by exploiting high- publicity death penalty cases. Some of those judges have not yet given up the prosecutorial attitude.

United States Congressman William J. Hughes, a former New Jersey prosecutor and leader on crime issues in the Congress, observed: "With some of the horror stories we've heard-lawyers who didn't call witnesses, who waived final argument-it is incredible that the courts allowed these cases to move forward." [FN132] What is even more incredible is that in most of these instances the judges appointed the lawyers to the case.

E. The Minimal Standard of Legal Representation Tolerated in Capital Cases

This sad state of affairs is tolerated in our nation's courts in part because the United States Supreme Court has said that the Constitution requires no more. Instead of actually requiring effective representation to fulfill the Sixth Amendment's guarantee of counsel, the Court has brought the standard down *1858 to the level of ineffective practice. Stating that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation," the Court in Strickland v. Washington [FN133] adopted a standard that is "highly deferential" to the performance of counsel. [FN134] To prevail on a claim of ineffective assistance of counsel, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," show that the attorney's representation "fell below an objective standard of reasonableness," [FN135] and establish "prejudice," which is defined as a reasonable probability that counsel's errors affected the outcome. [FN136]

As Judge Alvin Rubin of the Fifth Circuit concluded:

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 .... Consequently, accused persons who are represented by "not- legally-ineffective" lawyers may be condemned to die when the same accused, if represented by effective counsel, would receive at least the clemency of a life sentence. [FN137]

Much less than mediocre assistance passes muster under the Strickland standard. Errors in judgment and other mistakes may readily be characterized as "strategy" or "tactics" and thus are beyond review. [FN138] Indeed, courts employ a lesser standard for judging the competence of lawyers in a capital case than the standard for malpractice for doctors, accountants, and architects. [FN139]

The defense lawyer in one Texas case failed to introduce any evidence about his client at the penalty phase of the trial. The attorney's entire closing argument regarding sentencing was: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say." [FN140] A United States district court granted habeas corpus relief *1859 because of the lawyer's failure to present and argue evidence in mitigation, but the Fifth Circuit, characterizing counsel's nonargument as a "dramatic ploy," found that the attorney's performance satisfied Strickland. [FN141] The lawyer was later suspended for other reasons. [FN142] The defendant was executed.

Numerous other cases in which executions have been carried out demonstrate that the minimal standard for attorney competence employed in death penalty cases provides little protection for most poor persons accused of capital crimes. The case of John Eldon Smith, the first person executed in Georgia since the death penalty was restored, [FN143] is not exceptional. Smith's sentence was upheld and he was killed despite a constitutional violation because of his lawyer's ignorance of the law, while his codefendant won a new trial due to the same constitutional violation and later received a life sentence. The second person executed in Georgia after Smith was a mentally retarded offender, convicted despite a jury instruction that unconstitutionally shifted the burden of proof on intent; he was denied relief because his attorney did not preserve the issue for review. [FN144] The more culpable codefendant was granted a new trial on the very same issue. [FN145] Again, as with Smith and Machetti, switching the lawyers would have reversed the outcomes of the case.

John Young was sentenced to death in the same county as Smith. Young was represented at his capital trial by an attorney who was dependent on amphetamines and other drugs which affected his ability to concentrate. At the same time, the lawyer was physically exhausted, suffering severe emotional strain, and distracted from his law practice because of marital problems, child custody arrangements, difficulties in a relationship with a lover, and the pressures of a family business. [FN146] As a result, the lawyer made little preparation for Young's trial, where his performance was inept. Young was sentenced to death. A few weeks later, Young met his attorney at the prison yard in the county jail. The lawyer had been sent there after pleading guilty to state and federal drug charges. [FN147] Georgia executed John Young on March 20, 1985.

James Messer was "represented" at trial by an attorney who, at the guilt phase, gave no opening statement, presented no defense case, conducted cursory cross-examination, made no objections, and then emphasized the horror of the crime in some brief closing remarks that could not be fairly described as a "closing argument." [FN148] Even though severe mental impairment was *1860 important to issues of mitigation at both the guilt and penalty phases, the lawyer was unable to present any evidence of it because he failed to make an adequate showing to the judge that he needed a mental health expert. [FN149] He also failed to introduce Messer's steady employment record, military record, church attendance, and cooperation with police. In closing, the lawyer repeatedly hinted that death was the most appropriate punishment for his own client. [FN150] This too was good enough for a capital case in Georgia. Messer was executed July 28, 1988.

In light of Messer's case, one cannot help but wonder what progress has been made since the Supreme Court held that there is a right to counsel in capital cases in Powell v. Alabama. The nine black youths tried in Scottsboro, Alabama, in 1931 for the rapes of two white girls were represented by a lawyer described as "an able member of the local bar of long and successful experience in the trial of criminal as well as civil cases" who conducted "rigorous and rigid cross-examination" of the state's witnesses. [FN151] That is more than James Messer received at his capital trial.

Another case in which the attorney did nothing was that of Billy Mitchell, executed by Georgia on September 1, 1987. Following a guilty plea, Mitchell was sentenced to death at a sentencing hearing at which defense counsel called no witnesses, presented no mitigating evidence, and made no inquiries into his client's academic, medical, or psychological history. [FN152] A great deal of information of this kind was available and, if presented, could well have reduced the sentence imposed on Mitchell. In postconviction proceedings, new counsel submitted 170 pages of affidavits summarizing the testimony of individuals who could have appeared on Mitchell's behalf. Among them were family members, a city council member, a former prosecutor, a professional football player, a bank vice president, and several teachers, coaches, and friends. [FN153]

The same ineptitude is frequently tolerated on appeal. The brief on direct appeal to the Alabama Supreme Court in the case of Larry Gene Heath, executed by Alabama on March 20, 1992, consisted of only one page of argument and cited only one case, which it distinguished. [FN154] Counsel, who *1861 had filed a six-page brief on the same issue in the Alabama Court of Criminal Appeals, [FN155] did not appear for oral argument in the case. Although the United States Court of Appeals later found counsel's performance deficient for failing to raise issues regarding denial of a change of venue, denial of sixty-seven challenges for cause of jurors who knew about the defendant's conviction in a neighboring state arising out of the same facts, and use of the defendant's assertion of his Fifth Amendment rights against him, it found no prejudice. [FN156]

*1862 While such incompetence as has been described here passes muster as "effective assistance of counsel" under the Supreme Court's view of the Sixth Amendment, counsel's performance often fails to satisfy the increasingly strict procedural doctrines developed by the Supreme Court since 1977. Failure of counsel to recognize and preserve an issue, due to ignorance, neglect, or failure to discover and rely upon proper grounds or facts, even in the heat of trial, will bar federal review of that issue. [FN157] A lawyer whose total knowledge of criminal law is Miranda and Dred Scott may be "not legally- ineffective" counsel under Strickland, [FN158] but such a lawyer will of course not recognize or preserve many constitutional issues. The result has been what Justice Thurgood Marshall described as an "increasingly pernicious visegrip" [FN159] for the indigent accused: courts refuse to address constitutional violations because they were not preserved by counsel, but counsel's failure to recognize and raise those issues is not considered deficient legal assistance. [FN160]

Together, the lax standard of Strickland and the strict procedural default doctrines reward the provision of deficient representation. By assigning the indigent accused inadequate counsel, the state increases the likelihood of obtaining a conviction and death sentence at trial and reduces the scope of review. So long as counsel's performance passes muster under Strickland, those cases in which the accused received the poorest legal representation will receive the least scrutiny on appeal and in postconviction review because of failure of the lawyer to preserve issues.

In applying Strickland, courts indulge in presumptions and assumptions that have no relation to the reality of legal representation for the poor, particularly in capital cases. One scholar has aptly called the idea that bar *1863 membership automatically qualifies one to defend a capital case "lethal fiction." [FN161] The reality is that most attorneys are not qualified to represent criminal defendants and certainly not those accused of capital crimes. [FN162]

There is no basis for the presumption of competence in capital cases where the accused is represented by counsel who lacks the training, experience, skill, knowledge, inclination, time, and resources to provide adequate representation in a capital case. The presumption should be just the opposite- where one or more of these deficiencies exist, it is reasonable to expect that the lawyer is not capable of rendering effective representation. [FN163] Indeed, the presumption of competence was adopted even though the Chief Justice of the Supreme Court, who joined in the majority in Strickland, had written and lectured about the lack of competence of trial attorneys. [FN164]

Another premise underlying Strickland is that "[t]he government is not responsible for, and hence not able to prevent, attorney errors." [FN165] However, the notion of government innocence is simply not true in cases involving poor people accused of crimes. The poor person does not choose an attorney; one is assigned by a judge or some other government official. The government may well be responsible for attorney errors when it appoints a lawyer who lacks the experience and skill to handle the case, or when it denies the lawyer the time and resources necessary to do the job. In addition, as observed by Justice Blackmun:

The county's control over the size of and funding for the public defender's office, as well as over the number of potential clients, effectively dictates the size of an individual attorney's caseload and influences substantially the amount of time the attorney is able to devote to each case. The public defender's discretion in handling individual cases-and therefore his ability to provide effective assistance to clients-is circumscribed to an extent not experienced by privately retained attorneys. [FN166]

*1864 The assumption that deficient representation makes no difference, [FN167] which underlies a finding of lack of prejudice under Strickland, is also flawed. [FN168] In cases where constitutional violations were not preserved and the defendant was executed while an identically situated defendant received relief for the same constitutional violation, it is apparent that the ineptitude of the lawyer did make a difference in the outcome of the case. In other more subtle but equally determinative ways, competent legal assistance can make a difference in the outcome which may not be detectable by reviewing courts. [FN169]

A lawyer may muddle through a case with little or no preparation, but it is impossible to determine how the case might have been handled differently if he had investigated and prepared. Other difficulties may be even more difficult to detect. Rapport with the client and the family may lead to cooperation and the disclosure of compelling mitigating evidence that might not be found by a less skillful attorney. [FN170] Good negotiating skills may bring about a plea offer to resolve the case with a sentence less than death, and a good relationship with the client may result in acceptance of an offer that might otherwise be rejected. [FN171] Nor are reviewing courts able to determine after the fact the difference made by other skills that are often missing in the defense of criminal cases-such as conducting a good voir dire examination of jurors, effective examination and cross-examination of witnesses, and presenting well-reasoned and persuasive closing arguments.

The prejudice standard is particularly inappropriate for application to deficient representation at the penalty phase of a capital case. It is impossible for reviewing courts to assess the difference that investigation into mitigating circumstances and the effective presentation of mitigating evidence might make on a jury's sentencing decision.

The Supreme Court has consistently reaffirmed that in a capital case any aspect of the life and background of the accused offered by the defense must be considered as "mitigating circumstances" in determining punishment. [FN172] *1865 Those who have tried capital cases have found that the competent presentation of such evidence often results in sentences less than death. [FN173] But the right to have any of the "diverse frailties of humankind" [FN174] taken into account is meaningless if the accused is not provided with counsel capable of finding and effectively presenting mitigating circumstances.

A court-appointed defense lawyer's only reference to his client during the penalty phase of a Georgia capital case was: "You have got a little ole nigger man over there that doesn't weigh over 135 pounds. He is poor and he is broke. He's got an appointed lawyer.... He is ignorant. I will venture to say he has an IQ of not over 80." [FN175] The defendant was sentenced to death.

Had that lawyer done any investigation into the life and background of his client, he would have found that his client was not simply "ignorant." Instead, he was mentally retarded. For that reason, he had been rejected from military service. And he had been unable to function in school or at any job except the most repetitive and menial ones. His actual IQ was far from 80; it was 68. He could not do such basic things as make change or drive an automobile. After his death sentence was set aside because of failure to grant a change of venue, [FN176] an investigation was conducted, these facts were documented, and the defendant received a life sentence. [FN177]

In another case, an attorney, obviously under the influence of alcohol, came to the Southern Center for Human Rights, in Atlanta, after business hours on a Friday evening. He was clutching part of a trial transcript and said that he needed help preparing his brief to the Georgia Supreme Court for the direct appeal of a mentally retarded man he had represented at trial who had been sentenced to death. The brief was due the following Monday. Nothing had been written for the appeal. It was impossible even to assemble the entire record by Monday. Fortunately, an extension of time was obtained and eventually the case was remanded to the trial court. New counsel subsequently negotiated a life sentence. [FN178]

*1866 In these and other cases previously discussed in Section I, once the facts were discovered and brought out, life sentences were obtained for people previously sentenced to death. But these were cases where by sheer luck the defendants later received adequate representation on appeal or in postconviction proceedings. Many of these cases were returned for retrials for reasons having nothing to do with the poor legal representation at the original trials. But, as shown by the many cases summarized here in which executions were carried out, many of those facing the death penalty never receive the representation that would make such a difference.

III. The Failure To Keep the Promise of Gideon

The right to counsel is essential to protect all other rights of the criminally accused. Yet this most fundamental right has received the least protection. Nevertheless, many members of the judiciary and the bar-who have a special responsibility to uphold the rule of law in the face of public outrage and revulsion-stand by year after year, case after case, looking the other way, pretending that nothing is amiss, or calling upon someone else to solve the problem, but never engaging in a concerted and effective effort to change the situation. The United States Department of Justice, the state District Attorneys, and state Attorneys General, all of whom should have some concern about the fairness and integrity of the judicial process, use their power and influence to make the situation even worse. As a result, although some solutions to the problem are apparent, the situation continues to deteriorate and, tragically, to be increasingly accepted as the inevitable lot of the poor.

A. Minimal Reforms in Response to Major Crisis

Over ten years ago, the ABA and the National Legal Aid and Defender Association found the funding for indigent defense inadequate and deemed the promise of Gideon v. Wainwright unrealized, stating: "we must be willing to put our money where our mouth is; we must be willing to make the constitutional mandate a reality." [FN179] However, despite many reports with similar warnings, [FN180] another ABA report in 1993 still found that "long-term neglect and underfunding of indigent defense has created a crisis of extraordinary proportions in many states throughout the country." [FN181]

*1867 In Alabama, ten reports over eleven years pointed out the many defects in representation of indigent defendants. [FN182] Judges, court administrators, and the bar have recommended reform. A commission proposed in 1988 that the limits on attorneys fees in capital cases be eliminated or raised, [FN183] but the legislature has done nothing to change the limit on compensation for out-of-court time expended by attorneys in capital cases. [FN184] As a result, and despite repeated acknowledgement of the problem, the quality of indigent defense in Alabama remains a disgrace.

Limits on compensation have been struck down by courts in a number of states. [FN185] However, even as courts have recognized the unreasonableness of the low fees, the adverse impact of such low fees on the right to counsel and a fair trial, and their own constitutional duty to do something about it, [FN186] they have often ordered only minimal, inadequate reforms.

A challenge to Mississippi's limit of $1000 for compensation to lawyers appointed to defend capital cases was rejected by the state's supreme court. [FN187] The court held that lawyers were entitled to reimbursement for actual costs, including the overhead cost of operating a law office, so that "the attorney will not actually lose money," [FN188] but characterized the $1000 fee as "an 'honorarium' or pure profit." [FN189] One justice published a dissent, which had initially been prepared as the majority opinion, that carefully analyzed how the statutory limit on compensation adversely affected the right to counsel and *1868 the administration of justice in violation of the Constitution. [FN190] However, because that opinion was not supported by a majority of the court, an attorney appointed to defend a capital case in Mississippi, while no longer required to lose money, may still make less than the minimum wage. [FN191]

The Louisiana Supreme Court, considering a capital case in which assigned counsel was neither compensated nor reimbursed for expenses, held that counsel were entitled to reimbursement for out-of-pocket and overhead costs, overruling contrary state precedent, [FN192] but held that a "fee for service need not be paid" as long as the time required to defend the case does not reach "unreasonable levels." [FN193]

The South Carolina Supreme Court struck down that state's statutory limitations on compensation of appointed counsel in capital cases. [FN194] The statutes provided for $15 per hour of in-court time and $10 per hour of out-of- court time for attorneys, with a limit of $5000 per case for attorneys fees, expert and investigative services, and costs. [FN195] Even in doing so, however, the court discussed the fee limitations in the context of "the legal profession's traditional and historic role in the general society. It is a role anchored to the postulate that the practice of law is not a marketplace business or commercial venture but, rather, a profession dedicated primarily to service." [FN196] The court accordingly held that "[t]he appointed attorney should not expect to be compensated at market rate, rather at a reasonable, but lesser rate" to be fixed in the court's discretion at the conclusion of the trial. [FN197]

One would hope that such an undesirable assignment as defending a person in a capital case would be compensated at rates greater than market rates, not less. In civil rights cases, the undesirability of a case is a factor used to multiply or enhance an attorneys fee award. [FN198] For example, prison conditions cases have been found to be "undesirable" for purposes of determining whether to enhance attorneys fees. [FN199] However, legislatures and courts have simply been unwilling to pay sufficient rates to attract lawyers to handle capital cases.

*1869 There have been few systematic challenges to the inadequacy of legal representation for the poor, and they have produced only limited results. [FN200] Some hope of reforming Georgia's indigent defense system appeared when a federal court of appeals held that a challenge to deficiencies in the system stated a claim and should not have been dismissed. [FN201] However, after a change in the composition of the court, the case was dismissed on abstention grounds. [FN202] The federal courts also refused on abstention grounds to examine Kentucky's limit on attorneys' compensation in capital cases. [FN203]

Despite abundant documentation of the enormity of the need for substantive changes, some continue to suggest that the burden of providing counsel to the poor-even in capital cases-may be satisfied by the conscription of members of the legal profession. [FN204] However, it is the constitutional duty of the state, [FN205] not of members of the legal profession, to provide indigent defendants with counsel. Responses to the problems posed by ineffective assistance of counsel should be conceived in a way that gives effect to this principle. Georgia, a state in which there have been numerous egregious examples of deficient representation, has no difficulty coming up with local, state, and federal money to prepare for the Olympic Games, but it does not secure or appropriate funding to assure competent representation and equal justice in its courts. [FN206]

Though it is desirable for more members of the legal profession to shoulder their ethical obligations to provide legal assistance for the poor, the defense of capital cases often requires more expertise, commitment, and resources than individual lawyers are able to offer. And there are too many cases for the lawyers who do respond. Moreover, the absence of indigent *1870 defense programs limits the opportunity for young, committed lawyers to enhance their skills and learn to do the job properly. Beyond these difficulties, even the most conscientious lawyer needs proper investigative and expert assistance to defend a capital case.

Moreover, to ask for such major sacrifices for such an overwhelming and thankless job as defending a capital case from a few members of the profession is unreasonable. Judges are not presiding without compensation, and district attorneys are not prosecuting without decent salaries. And most members of the legal profession-particularly those at the high income law firms which have the litigation skills and resources equal to the task-are not being asked to share the burden of defending the poor. The supply of lawyers who are willing to make the sacrifice has never come close to satisfying the desperate needs of the many poor who face the death penalty throughout the country today.

Georgia Chief Justice Harold Clarke's description of Georgia's response to the need for indigent defense applies to most other states as well: "[W]e set our sights on the embarrassing target of mediocrity. I guess that means about halfway. And that raises a question. Are we willing to put up with halfway justice? To my way of thinking, one-half justice must mean one-half injustice, and one-half injustice is no justice at all." [FN207]

B. The Politics of Crime and the Lack of Leadership To Remedy the Situation

At this time, there appears to be little prospect of achieving even the level of mediocrity that Chief Justice Clarke described. What is needed to provide competent legal representation to any litigant, rich or poor, is no secret. But significant improvement in the quality of representation for the poor is unlikely because of the unpopularity of those accused and the lack of leadership and commitment to fairness of those entrusted with responsibility for the justice system.

A properly working adversary system will never be achieved unless defender organizations are established and properly funded to employ lawyers at wages and benefits equal to what is spent on the prosecution, to retain expert and investigative assistance, to assign lawyers to capital cases, to recruit and support local lawyers, and to supervise the performance of counsel defending capital cases. Judges are not equipped to do this. Management of the defense is not a proper judicial function. And, as previously described, all too often political and other improper considerations influence elected state court judges in their appointment of lawyers to defend those facing the death penalty.

*1871 What is needed is a system in which defense counsel's loyalty is to the client and not the judge; and in which defense counsel, as well as the prosecutor, understands the scientific and legal issues in the case and has access to the investigative and expert assistance needed to prepare and present the case. The ABA has promulgated standards for the appointment and performance of counsel in capital cases, [FN208] which are seldom followed today, but standards mean nothing without capable attorneys and well-funded defender organizations to implement them. [FN209]

Moreover, it must be recognized that defending capital cases is a most unattractive responsibility for most members of the legal profession. With the increasing number of state and federal capital prosecutions, it will be more and more difficult to find enough capable lawyers willing to defend the cases. It should be recognized that, as in other difficult and undesirable areas of practice, a significant financial incentive, considerably beyond what lawyers receive for far less demanding legal work, will be required.

Such a system would require a substantial commitment of resources. The argument has been made that some jurisdictions do not have the money to attract qualified lawyers and that in some areas, particularly rural areas, qualified counsel is simply not available. [FN210] But these considerations should not excuse the lack of adequate legal representation in capital cases. There are communities that have no pathologists, hair and fiber experts, evidence technicians, and others needed for the investigation and prosecution of homicide cases. However, when a murder occurs in those communities and is followed by a capital prosecution, the prosecution invariably brings in the experts needed and pays what it costs to do so.

There was a time when many localities did not have capable law enforcement agencies or pathologists, fingerprint examiners, ballistics experts, serologists, and other forensic scientists needed to investigate and prosecute crime. These deficiencies were remedied in most places, often with funding from the Federal Law Enforcement Assistance Administration as well as state and local governments. Crime laboratories were built, local police officers were sent to FBI training programs, and pools of experts were developed who travel around states to investigate crime scenes and testify in local prosecutions.

*1872 These jurisdictions could also establish defender organizations to provide lawyers with the expertise required to defend capital cases, and the investigators and expert assistance needed to prepare the defense of these cases. What is lacking is not money, but the political will to provide adequate counsel for the poor in capital and other criminal cases. Adequate representation and fairness will never be achieved as long as it is accepted that states can pay to prosecute a capital case without paying to defend one. Adequate representation and fairness will never be achieved until ensuring justice in the courts becomes a priority equal to public concern for roads, bridges, schools, police protection, sports, and the arts.

But the leadership needed to help bring about justice is missing. There was a time when the Attorney General of the United States and the attorneys general in many of the states were concerned not just with getting convictions, but also with fairness, integrity, and the proper functioning of the adversary system.

In that spirit, Attorneys General Walter F. Mondale of Minnesota and Edward J. McCormack, Jr. of Massachusetts, and twenty-one of their fellow attorneys general filed a brief in support of Clarence Earl Gideon's right to counsel in Gideon v. Wainwright. [FN211] It was out of that same concern that Attorney General Robert F. Kennedy helped secure passage of the federal Criminal Justice Act in 1963. But those days are gone.

Today, the United States Department of Justice, state district attorneys, and state attorneys general use their power and influence to make this shameful situation even worse. They take every advantage of the ignorant, incompetent lawyers foisted upon the poor. [FN212] They have defended in the courts even the *1873 most outrageous instances of incompetence on the part of defense counsel previously described and used the ineptness of counsel as a barrier to prevent courts from addressing constitutional violations in capital cases.

Despite abundant evidence of poor lawyering and egregious constitutional violations in capital cases, the Justice Department and many prosecutors have proposed shortcuts and procedural traps to paper over the problems and speed up the process of sending those sentenced to death at unconstitutional trials to their executions. In response to findings by federal courts of constitutional violations in state capital cases, prosecutors have urged stricter enforcement of procedural default rules to avoid dealing with the violations, [FN213] not better counsel to avoid those unconstitutional trials in the first place. Justice James Robertson of the Mississippi Supreme Court described as "unseemly" the arguments of that state's attorney general that the court "should hold [the defendant's] claims procedurally barred, not because such would promote the interests of justice, but rather that such would pull the rug out from under [him] when he ultimately seeks federal review of his case." [FN214] An accommodating Supreme Court has been willing to cut back drastically on the *1874 availability of the once great writ of habeas corpus, [FN215] and prosecutors have supported even more drastic legislative proposals to restrict it further. [FN216]

Many prosecutors have been unwilling to agree to even the most minor reforms to improve the quality of legal representation received by the poor. Federal legislation was proposed in 1990 that would have restricted imposition of the procedural default doctrines unless states improved the quality of defense counsel. One proposal would have required the establishment of an appointing authority for counsel in capital cases composed either of a statewide defender organization or of a death penalty resource center. [FN217] The appointing *1875 authority would have been responsible for securing qualified counsel and engaging in periodic review to ensure the competence of representation. The legislation would also have set standards for counsel and required payment for counsel "at a reasonable rate in light of the attorney's qualifications and experience and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases." [FN218]

This modest proposal evoked vehement opposition from the U.S. Department of Justice and state prosecutors. William P. Barr, then-Deputy Attorney General and later Attorney General, characterized the counsel provisions as "an elaborate and expensive system for appointing counsel" that were "inimical to the principles of federalism inherent in our constitutional system, and to the need for reasonable finality of state criminal judgments." [FN219] A letter signed by the attorneys general of twenty-three states which have the death penalty described the provisions as "so extreme as to be absurd." [FN220] The twenty-three attorneys general asserted: "The current problems which beset capital cases are not caused by the quality of representation they receive" and that "the focus in capital cases should be on the guilt or innocence of the defendant and the sentence he should receive" and not "how many seminars a defense attorney has attended, how well he is paid, and other collateral matters." [FN221] The National Association of District Attorneys adopted a resolution opposing the legislation, reiterating its support for the procedural default doctrines and "strongly oppos[ing] any legislation" which would "create new requirements concerning the experience, competency, or performance of counsel" beyond Strickland v. Washington. [FN222]

A bill introduced in 1993 would have required only a "certifying" authority to identify lawyers to defend capital cases, allowing judges to continue to appoint counsel and setting only minimal standards measured in terms of years of practice and number of cases with no inquiry into quality of work. [FN223] Although representatives of the state attorneys general and district attorneys associations were involved in drafting the legislation, [FN224] which *1876 would, in fact, do little to improve the quality of representation and could even worsen the situation, [FN225] it was opposed by many prosecutors. [FN226] One letter circulated among Senators criticized its "expansive and costly appointment of counsel provisions" and quoted the Attorney General of Georgia as saying that, if enacted, the bill would "effectively repeal the death penalty." [FN227]

Such hyperbolic statements have repeatedly greeted other efforts to improve the quality of legal representation in capital cases. When the Georgia legislature, after years of refusing to appropriate any funds for indigent defense, [FN228] finally responded grudgingly to the eloquent appeals of the chief justice of the state's supreme court [FN229] by creating in 1992 a small capital defender program that employed only four attorneys, [FN230] one district attorney criticized it as a step toward abolishing the death penalty in Georgia. [FN231] When a report to the Texas Bar described the serious deficiencies of the representation in capital cases in that state, the district attorney in Houston dismissed it as an argument against the death penalty. [FN232]

*1877 The enthusiasm of prosecutors to continue to take every advantage has not been tempered by the poverty and powerlessness of those accused of capital crimes. Nor has the situation motivated a new presidential administration or a new Attorney General to rein in the assaults on the Bill of Rights and habeas corpus or question the power that state courts should be allowed to exercise over the lives of persons who are not provided adequate representation. [FN233] Instead, the country is engaged in a crime debate in which politicians try to outdo one another in proposing crime bills which simultaneously expand the use of the death penalty and other severe penalties while restricting or eliminating procedural protections. Those who are supposedly leaders dismiss the Bill of Rights as a mere collection of technicalities. The debate is exceptionally one-sided. For, as Robert F. Kennedy said long ago, the poor person accused of a crime has no lobby. No member of Congress or a state legislature is likely to receive complaints about the quality of counsel for poor people accused of crimes. But lost in the effort to get tough on crime is concern about the fairness and integrity of the criminal justice system.

Completely missing from the crime debate and from the courts is the notion that if it is too expensive or impractical for some jurisdictions to provide competent counsel and the fairness and reliability that should accompany a judicial decision to take a human life, their power should be limited. If a local trial court cannot comply with the most fundamental safeguard of the Constitution by providing a capable attorney to one whose life is at stake, it should not be authorized to extinguish life. The solution is not to depreciate human life and the Bill of Rights by accepting what is available. Many small communities do not have surgeons, yet they do not rely on chiropractors to perform heart surgery.

Pronouncements about the importance of and the need for counsel do not make quality representation a reality. It has become apparent that the legislatures of most states, particularly those where the death penalty is frequently imposed, are not going to discharge their constitutional duty to appropriate funds and provide competent legal assistance for poor persons in criminal cases. It is also unlikely that the judiciary and bar, after years of neglect, punctuated by occasional moments of hand wringing, will respond effectively to this worsening situation.



The quality of legal representation in capital cases in many states is a scandal. However, almost no one cares. Those facing the death penalty are generally poor, often members of racial minorities, often afflicted with substantial mental impairments, and always accused of serious, terrible crimes. The crimes of which they are accused bring out anger, hatred, and a quest for vengeance on the part of most people, including judges, prosecutors, and, quite often, even those appointed to represent the accused. All of this leads to, at best, indifference and, more often, hostility toward the plight of those accused. And many outside the criminal justice system are indifferent because they are unaware of what passes for justice in the courts. There is a growing cynicism about the importance of due process and the protections of the Bill of Rights. Many of those who hold or aspire to public office find it impossible to resist the temptation to resort to demagoguery to exploit these sentiments.

But this reality does not excuse the constitutional responsibility of the judiciary and members of the legal profession to ensure that even the most despised defendants still receive the highest quality legal representation in proceedings that will determine whether they live or die. Justice William Brennan, with his usual eloquence, once observed in another context,

It is tempting to pretend that [those] on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.... [T]he way in which we choose those who will die reveals the depth of moral commitment among the living. [FN234]

Unfortunately, what has been revealed about the depth of moral commitment among legislators, members of the bar, and the judiciary is very discouraging. It is unlikely that the promise of Powell and Gideon will ever be fulfilled for most of those accused of criminal violations. Legislatures are unwilling to pay the price for adequate representation, most courts are unwilling to order it, and most members of the bar are unwilling or unable to take on the awesome responsibility of providing a vigorous defense without adequate compensation.

The best hope for most of those facing the death penalty is that capable lawyers will volunteer to take their cases and provide proper representation regardless of whether they are paid adequately or at all. A member of the New York Court of Appeals, citing the ethical obligation of lawyers to recognize *1879 deficiencies in the legal system and initiate corrective measures, [FN235] has urged lawyers to respond to the challenge of seeing that those who face the worst penalty receive the best representation.

During the civil rights movement of the fifties and especially the sixties, inspired attorneys, not all young neophytes, travelled often at great personal expense and real risk, including their own deaths, to make a difference. That spirit needs to be revived. Right now, it fuels only a few who are to be commended for what they are trying to do, but it has not motivated a sufficient number of people in our profession to do their needed parts, too. Until that conversion comes about, Lady Justice may as well keep her eyes blindfolded so as not to notice with shame the grotesque imbalance in the scales of justice that hang from her fingertips, because of the growing numbers of death penalty cases in this great country that are finally, really finally, resolved under such disproportionate odds and resources. [FN236]

Such spirit and commitment are desperately needed. When achieved, they will undoubtedly make a difference for those persons represented. Indeed it is hard to imagine how a member of the legal profession could make a greater difference than by saving a client from execution. But the response of individual lawyers will not be nearly enough to end the systemic problems previously described and provide adequate representation to the thousands of people facing the death penalty in this country.

Lawyers must not only respond, but in doing so they must litigate aggressively the right to adequate compensation, to the funds necessary to investigate, and for the experts needed to prepare and present a defense. Lawyers must also bring systemic challenges to indigent defense systems. Attorneys for the poor-whether in assigned counsel, contract, or public defender systems-must refuse unreasonable caseloads and insist upon the training and resources to do the job right. Where these problems make it impossible for attorneys to discharge their constitutional and ethical obligations, attorneys should frankly declare their inability to render effective assistance.

And lawyers must continue to bear witness to the shameful injustices which are all too routine in capital cases. The uninformed and the indifferent must be educated and reminded of what is passing for justice in the courts. The substandard quality of counsel for the poor and the lack of a structure and funding for indigent defense must become part of the debate on crime. The state and federal legislatures should not continue to enact capital crimes *1880 without considering the costs of adequate representation for the defendant and, even if the costs are met, whether there is anyone to defend those accused. Lawyers and law students need to be reminded that there continue to be people with desperate, unmet needs for competent representation. [FN237] They need to be informed that the protections of the Bill of Rights are often denied those most in need of them-poor, minority, and disadvantaged persons facing the death penalty. The danger of silence is not only that lawyers will be unaware of the need, but also that many in society will mistakenly assume that there is a properly working adversary system in the criminal courts.

It is only by the witness of those who observe the injustices in capital cases firsthand that others in society can be accurately informed. This knowledge may prompt questions about the system and its limits such as: whether the quest for vengeance receives too high a priority over the pursuit of justice in the courts; whether criminal courts should be allowed to dispatch people to their deaths without providing capable lawyers or even one penny for the investigators and experts necessary to present evidence that is constitutionally indispensable to the punishment decision; whether indigent and often mentally limited persons accused of crimes should continue to be denied the protections of the Bill of Rights under the procedural default doctrines because of the ineptness of lawyers they had no voice in choosing; whether the assignment of lawyers to defend the poor should be made by judges who must keep one eye on the next election and, with the other, often wink at the Constitution; and whether courts should continue to demean the Sixth Amendment by employing the Strickland v. Washington standard for "legally effective counsel."

These questions must be raised vigorously until courts and leaders of the bar realize that the judgments of the criminal courts cannot be seen as legitimate and entitled to respect so long as such poor quality of representation is tolerated. It is only by dealing squarely with these questions that there is hope that the courts will face reality and deliver on the promise of Powell and Gideon instead of indulging in wishful thinking and hollow pronouncements about the right to counsel. One must hope that a frank discussion of the deficiencies of the system will prompt courts to take their eyes off the embarrassing target of mediocrity and take aim at a full measure of justice for all citizens, especially those whose lives and freedom hang in the balance. One must also hope that some prosecutors, who recognize a higher calling in seeing that justice is done and making the adversary system work than in simply getting convictions and death sentences against inept lawyers, will add their voices regarding the need for adequate representation and limits on the power *1881 of the courts. And finally, some law schools must respond and prepare students better for defending criminal cases.

The Louisiana Supreme Court recently faced reality and created a presumption of incompetence of counsel where provision of indigent defense services are so lacking that defendants are not likely to be receiving effective representation. [FN238] Unless the state is able to rebut the presumption at a pretrial hearing, a trial court is not to let the prosecution go forward until the defendant is provided with reasonably effective counsel. [FN239] This approach responds much better to the reality of representation for indigents than Strickland. Nevertheless, Justice Dennis pointed out that the court could have done more:

This court should establish standards by setting limits on the number of cases handled by indigent defense attorneys, by requiring a minimum number of investigators to be assigned to each [public] defender, and by requiring specified support resources for each attorney. If a defendant demonstrates further error due to funding and resource deficiencies, the courts should be instructed to view the harm as state-imposed error, which would require reversal of the conviction unless the state demonstrates that the error was harmless. [FN240]

If systemic reforms are not attainable, other state courts could follow the example of the Louisiana Supreme Court and prohibit the prosecution from going forward in the absence of competent counsel. In addition, as long as trial judges remain in the business of appointing defense counsel, conscientious judges who are concerned about fairness can order the appointment of experienced, competent lawyers, and just compensation at enhanced rates for those lawyers. Trial judges could obtain the services of the best members of the profession, those equal to the task of handling the highest stakes in our legal system, but whose time generally is spent in more lucrative pursuits. The appointment of the top litigators, managing partners, and bar leaders from firms in Atlanta, Birmingham, Jackson, New Orleans, Philadelphia, Houston, and Dallas to defend capital cases would undoubtedly change the quality of indigent defense representation in those areas. It is remarkable that courts do not call upon those lawyers to respond to the need. [FN241] In addition to introducing litigation skills to the cases, the involvement of such lawyers might also result in some of them bringing their considerable power and influence to *1882 bear upon the systemic problems, if for no other reason than to avoid future appointments.

Such efforts, while urgently needed, will assure competent representation to only a small percentage of those facing death and, at best, may prompt reforms that will take years to accomplish. In the meantime, many will continue to be sentenced to death at trials where they will receive only perfunctory representation by lawyers who are not equal to the task of defending a capital case and are denied the resources to do the job properly. It is those poor people who will suffer the consequences of the failure of the legislatures and the judiciary to discharge their constitutional responsibilities.

The death penalty will continue to be imposed and new capital statutes enacted with the continuing promise that efforts will be made to improve the quality of counsel in the future. But this is surely backwards. A very high quality of counsel-instead of minimal representation-should not only be the goal, but the reality before a jurisdiction is authorized to take life. Moreover, the promise of adequate counsel is continually broken. It has been over sixty years since the Supreme Court held in Powell v. Alabama that those accused in Scottsboro and all poor people were entitled to a higher level of representation in capital cases than merely being accompanied to their trials by a member of the bar. Yet the representation in many trials today is no better than that provided to the accused in Scottsboro in 1931. This longstanding lack of commitment to counsel for the poor is one of the many reasons that the effort to achieve fairness and consistency in the administration of the death penalty is "doomed to failure." [FN242]


Courts have issued many pronouncements about the importance of the guiding hand of counsel, but they have failed to acknowledge that most state governments are unwilling to pay for an adequate defense for the poor person *1883 accused of a crime. Unfortunately, the Supreme Court has not been vigilant in enforcing the promise of Powell and Gideon. Its acceptance of the current quality of representation in capital cases as inevitable or even acceptable demeans the Sixth Amendment. It undermines the legitimacy of the criminal courts and the respect due their judgments. No poor person accused of any crime should receive the sort of representation that is found acceptable in the criminal courts of this nation today, but it is particularly indefensible in cases where life is at stake. Even one of the examples of deficient representation described in this Essay is one more than should have occurred in a system of true justice.

Providing the best quality representation to persons facing loss of life or imprisonment should be the highest priority of legislatures, the judiciary, and the bar. However, the reality is that it is not. So long as the substandard representation that is seen today is tolerated in the criminal courts, at the very least, this lack of commitment to equal justice should be acknowledged and the power of courts should be limited. So long as juries and judges are deprived of critical information and the Bill of Rights is ignored in the most emotionally and politically charged cases due to deficient legal representation, the courts should not be authorized to impose the extreme and irrevocable penalty of death. Otherwise, the death penalty will continue to be imposed, not upon those who commit the worst crimes, but upon those who have the misfortune to be assigned the worst lawyers.



Appellant contends that his constitutional rights guaranteed under the 5th Amendment of the United States Constitution and his rights guaranteed by Article I Section 9 of the Alabama Constitution prohibiting Double Jeopardy and Double Punishment have been violated. Further, Appellant contends that he relied upon his guaranteed Constitutional rights as set forth above in pleading guilty to a lesser included offense of murder of his wife, in the state of Georgia, and that the prosecution in the State of Alabama on the offense of murder during the course of kid napping [sic] of his wife, should be barred.

Therefore, after considering the facts, law and argument of Appellant, a Writ of Certiorari should be issued from this Court to the Court of Criminal Appeals correcting the errors complained of and reversing the judgment of the Court of Criminal Appeals and rendering such judgments as said Court have [sic] rendered in addition to such other relief as Petitioner may be entitled.

Respectfully submitted,


Appellant's Brief and Argument in Support of Petition for Writ of Certiorari, at 1-2, Heath v. Alabama, 455 So. 2d 905 (Ala. 1984). Alabama requires that the brief and petition for certiorari be submitted at the same time. ALA. R. CRIM. P. 32.2 (1990). Thus, the Alabama Supreme Court decided Heath's case on the basis of this brief alone.