Why the Death Penalty Soon Will Be Abolished*

(*But not forever)

If you want to understand why more and more judges are becoming concerned, even alarmed, with the many procedural and substantive flaws in the system of capital punishment in America, take a look at what is going on down in Texas, where the courts, the lawyers, and the politicians all have conspired to neglect or undermine the constitutional guarantee that no man may be executed by the state without proper due process of law. As Chuck Lindell reported Sunday in the Austin American-Statesman, 273 men and women have been executed in Texas over the past 11 years during a time when too many court-appointed defense attorneys have failed to meet even minimal standards of legal representation. You may say: "So what. Those murderers got what they deserved." But bad legal work, and a legal system that countenances it, diminishes us all and ultimately is self-destructive.

Lindell's piece is long but worth the read. And no doubt some of the folks who will be reading it are members of the United States Supreme Court, which this term has already agreed to hear three death penalty cases arising out of Texas. There is a history there, between the Supreme Court on the one hand, and the appeals courts in Texas and the 5th U.S. Circuit Court of Appeals on the other hand. Several times, in recent years, the High Court has ordered those lower courts to revise, rework, revamp death penalty procedures. And several times those lower courts have failed or refused to do so in ways that some legal observers believe borders on willful disobediance. Reading Lindell's piece makes you understand a little more why this is so.

In Texas, as Lindell reports, an "indifferent Texas Court of Criminal Appeals" has allowed "lawyers to submit sloppy, lazy and inferior work" on behalf of their capital clients "with little oversight and no fear of consequences." One attorney, reports the paper, was allowed to file "a nearly incoherent collection of statements lifted almost verbatim from his death row client's letters..." Another attorney during a second-round of appeals simply copied the failed arguments that had been used (and rejected before) during the first round even though such arguments are not permitted during Round Two. This is the same state, remember, whose courts upheld a capital sentence even though the defendant's lawyer had slept through portions of the murder trial.

Either states like Texas will spend the time and money necessary to fix their problems or, ultimately, the Supreme Court will fix the problems for them. A generation ago, the Court simply declared unconstitutional the death penalty in America until states were willing and able to generate consistent standards for determining when a capital sentence was justifiied or not. It's not about to happen in the next few days, or months, or perhaps even years. But at the rate things are going, and with the mess in Texas being just a prominent tip of an iceberg that floats through states like Oklahoma and Florida as well, it is virtually a certainty that one day soon the Supreme Court will shut down the whole process again until things get fixed. And if and when that happens, death penalty proponents in Texas and elsewhere, the ones who allow men and women to be executed without getting decent legal help, will have no one to blame but themselves.

By Andrew Cohen |  October 30, 2006; 9:00 AM ET
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Why isn't a there public outrage directed at the prosecutors or judges who screw up criminal trials like the ones in Texas?

When courts reverse criminal convictions, there is usually outrage at the courts for freeing defendants on 'mere technicalities'. Why isn't there more of an effort to hold accountable the people directly responsible for these sorts of fiascos: the trial judges, the prosecutors, the politicians who refuse to provide adequate funding for criminal defense, and so on?

Posted by: dg | October 30, 2006 01:07 PM

DG, I could not agree with you more. There are valid processes for holding incompetent lawyers accountable, to disbar them, and judges, to impeach them.

But I would raise this to a higher level and ask why don't bar associations fund an organization to handle pro-bono, expert representation for ALL capital punishment cases? This could be tied to the ABA or to each state's bar association or the American Trial Lawyers Association (or whatever that is called these days) as a public service. Then everyone would have access to equal, excellent, certified and well funded representation when their life is at stake. Anyone who chooses -- the very wealth -- could select their own attorney at their own risk, but why would they want to if there is a pool of highly qualified and funded attorneys to represent them through their final appeal?

There is nothing that prevents this in our laws is there? Lawyers make a great deal of money, don't they? We could even apply a special "tax" (license fee) to fund this service.

I know that a number of law schools have set up a special practice to support capital cases, perhaps the University of Texas Law School, one of the best in the country, would like to get involved?

Not everything is the responsibility of the state and local governments, communities, associations, and individuals can get involved to address injustice as well. In the case of lawyers, I believe there are specific obligations to do so.

Posted by: Constitutionalist | October 30, 2006 01:25 PM

UT Law Capital Punishment Clinic:

Texas Center for Actual Innocence:

Posted by: MC | October 30, 2006 07:16 PM

MC, thanks for the links.

Still, a single university is limited in what they can do. Even Northwestern (School of Journalism), which ultimately highlighted the prosecutorial misconduct in Illinois and brought down that state's death penalty system, could not have sufficient resources for this.

I propose that every lawyer in America tithe salary equivalent to billings for one day per month as part of their license fee to fund legal services and provide legal education among the poor.

If one-third of that fund were dedicated to a virtual pro bono law firm dedicated to and expert in the representation of capital defendents at trial and on appeal, I am sure it would cover and exceed the resources available to prosecutors and help ensure just and fair representation for all through out the process.

(Personally I think the proceeds from one days billings on any corporate merger would address that. And imagine what the proceeds from a class action suit against Big Tobacco tithed for a single day would fund!)

Posted by: Constitionalist | October 30, 2006 07:49 PM

State Bar of Texas Survey of 2005 Pro Bono

A survey of 2005 pro bono services by Texas attorneys was administered in interviews of 500 attorney members of the State Bar of Texas. [Among]the main findings were as follows:

• Sixty-six percent of active in-state attorneys provided an average of 44 hours of pro bono legal or indirect legal services that benefited the poor in 2005. Based on that average, it is estimated that there was a total of 1.8 million hours of free legal or indirect services to the poor performed in 2005.

Some 68 percent of attorneys strongly agree or agree with the statement: The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer.


Posted by: MC | October 30, 2006 11:45 PM

For a look at the work of some of the lawyers identified and quoted in the Lindell article as well-regarded champions of justice, see, for example, Foster v. Quarterman, 2006 WL 2806686 (attorney Keith Hampton's purported reasons for failing to request a COA on an actual innocence claim, because he filed the "wrong brief," and failed to notice the omission in the previous pleadings, are nothing short of inexcusable). This case was published earlier this month, and was posted on the Fifth Circuit's website(No. 05-70019). See also an order in a death penalty case called Mariano Juarez Rosales v. Dretke, Cause No. H-03-1016, docket entry no. 16. Judge Gilmore ordered Gary Taylor and Mike Charlton to correct a pleading consisting of "twenty-three pages of general narrative summarizing his trial counsel's actions without informing the Court of any specific errors committed by trial counsel, or how those errors prejudiced his defense. Rosales' pleading leaves the Court and respondent without an intelligible basis for determining which alleged errors may potentially provide habeas relief. 'Judges are not like pigs, hunting for truffles buried in briefs.' (Citation omitted.) This Court expects a clear statement of a petitioner's grounds for habeas relief, expecially when petitoner is represented by counsel."

If these lawyers are such great champions for the condemned, then what, exactly, is going on here? Do these people really, truly represent the interests of the death-sentenced, or are they motivated, in whole or in part, by something else? It's hard to tell sometimes, since these lawyers can't be bothered to get the basics of briefing right, which is really the cheapest part of the case, one would think. But they're all over it when it comes to grant money, media attention, public funds, holding themselves out publicly as experts on state and federal habeas, blaming this mess on everybody but themselves, etc. The biggest scandal involving the death penalty is all the people tripping all over each other for the media attention, movie rights, money from the European fan clubs of the condemned, you name it. There are people out there with the skill, knowledge, commitment, and becoming modesty to do these cases quietly and correctly. Unfortunately, there are all those other people. Like those mega-firm civil lawyers who dash in to save a condemned person in a case that is already in good hands, and then brag about their firm's resolute commitment to pro bono work, when they do not know the first thing about federal habeas.

Everything about the death penalty is wrong, including, unfortunately, a number of the people who purport to champion the death-sentenced. And that's the strongest reason I can think of to just shut the whole thing down. Abolish the death penalty. No more busybody, celebrity nuns. No more narcissitic, grandiose condemned persons who think they're rock stars. No more grandiose, narcissistic lawyers who think they're rock stars. No more innocence projects scouring the Earth for the one, isolated, case of actual innocence that will justify their continued existence and provide a valuable learning experience for the kids. No more Barry Scheck claiming credit generally for DNA exonerations nationwide. No more books about life on death row. No more movie deals. No more giant firms stepping on solo practitioners just in time to claim the win in the Supreme Court (if they can figure out how in time). No more fights over who gets to control the money. No more self-seekers holding themselves out to be saints. No more short prosecutors showing the world how tough they are by sending someone to their death. No more lousy, result-oriented courts ignoring the constitutional rights of the condemned. No more trial judges handing out relatively lucrative capital appointments to their political supporters and friends. No more.

Stop the madness. Stop the roller coaster of pain for the condemned and their victims and everybody else. This fish stinks from the head down. Let the abolitionists claim the win and then, for God's sake, send them all home. Abolish the death penalty now.

Posted by: attorneyofrecord | November 1, 2006 12:01 AM

If I were to be murdered by somebody else, I will say now that I would want that person executed. Period, end of story, as far as I'm concerned.

Posted by: Anthony | November 1, 2006 12:47 AM

Hey you guys must thank Bush. Your enemies gained on you when you were discussing month after month the Monica Lewinsky issue. The whole world was mocking at you. You guys were making a mockery of your free speech. Bush is a great leader. But for his great visionary leadership your nation would have crumbled! Thank God for Bush!You are considered a Land of immoral people of Michael Jackson, Homosexuals, Pornography etc by the world. You Americans put your trust back in God!

Posted by: Babu | December 2, 2006 05:20 AM

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