Post by happyhaddock on Jan 21, 2007 14:46:58 GMT -5
Shortcut to Death Row
Probe: Inmates' defense often indefensible
By STEPHEN HENDERSON
McCLATCHY NEWSPAPERS
Last Updated: January 21, 2007, 10:27:56 AM PST
The jurors heard all about the convenience store holdup, the gunshots and the dead clerk. Their unanimous verdict came swiftly: Warren King was guilty of a senseless murder that shocked rural Appling County, Ga.
A death sentence almost certainly would be next, unless King's lawyer could convince the jury to spare his life. But G. Terry Jackson, King's state-appointed lawyer, didn't do much.
With little money to unearth details about his client's past, Jackson did not chronicle the mitigating circumstances that could have helped his client's cause. The jury learned almost nothing about the import of King's low IQ, his childhood in a log cabin with no plumbing or electricity, the savage beatings he took from his alcoholic parents or the succession of foster homes he shuttled through.
In desperation, Jackson turned to Jesus.
"WWJD," he said, invoking the popular bumper-sticker phrase "What Would Jesus Do?" Jackson told jurors to keep those four letters in mind as they weighed King's future.
A stunned prosecutor objected. The judge told the jury to ignore the comment. The jurors deliberated for 90 minutes and returned with their sentence: death.
Now, Warren King sits on death row in Georgia, one of many inmates whose lawyers, at the crucial point when jurors decide between life and death after conviction, made only feeble, incomplete or tragically laughable efforts to defend them.
Review of 80 cases
A broad review by McClatchy Newspapers of recent death-penalty cases in Georgia, Mississippi, Alabama and Virginia provides, for the first time, an assessment of how commonplace these failures have become.
McClatchy reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states. The review found that:
In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.
By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.
Appeals courts, for the most part, have ducked those Supreme Court directives about the importance of quality defense counsel. Only two of the 80death sentences have been overturned for bad lawyering.
In 11 of the cases, the defendants have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.
In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.
Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. None of that office's 46 clients has been sentenced to death.
Constitution not fulfilled
Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.
"For government, this is the ultimate policy decision outside of going to war," said Kenneth Starr, a former federal judge and independent counsel. Starr, who's now dean of Pepperdine University School of Law, has represented several death-row inmates on appeal, including one whose case was part of McClatchy's review.
"We are going to sit in judgment of one of our own and take their life. Not doing it right is unspeakably shameful," said Starr, who supports capital punishment.
Starr thinks that the trial lawyers for his client, Robin Lovitt, didn't do it right. Lovitt was found guilty of killing an Arlington, Va., pool hall manager during a robbery.
Lovitt's lawyers did almost nothing to look into his background.
They never interviewed fam-ily members, collected records or even planned how they might defend his life. Had they looked, they would have discovered a nightmare.
Lovitt's parents were drug dealers who beat their kids, forced them to help package and distribute narcotics, and had wild parties during which guests took turns molesting the children.
"There's no dispute that very able counsel simply failed to do the job in this case," Starr said.
Most of the other cases McClatchy reviewed reflect similar failures.
King's lawyer, Jackson of Savannah, Ga., knew he needed plenty of compelling evidence to save his client's life.
During the trial, jurors saw a videotape of the store holdup, and they could hear the muffled shots from the handgun that was used to kill 23-year-old Karen Crosby. They also saw her brother arrive at the store to find her body, and they heard his cries as he knelt by her side
To spare King's life, Jackson knew he'd have to make the jurors understand that his client's upbringing had helped make him a killer.
But he couldn't convince the judge to give him money to hire investigators to prove that point. Jackson was paid only a few thousand dollars to handle King's case.
"You're supposed to do everything you can for your client, but we ended up with far, far less than we should have had to defend this guy's life," Jackson said recently.
The attorney put King's sister on the stand to beg for his life. He found a foster parent who said King had been a "well-mannered young man." One of King's former parole officers hinted at the swirl of abuse and neglect that surrounded his childhood but offered very little detail.
By closing arguments, Jackson was desperate and reaching for anything to sway the jury. He said the appeal to Jesus was the best he could do.
"I just wanted them to look in their hearts. I knew we hadn't given them much else to work with," Jackson said. "The whole thing was just a nightmare."
A matter of law
It's all about the other side.
At death penalty trials, jurors are bombarded with grisly details of horrifying murders. They look through bloody pictures of the crime scene. They hear graphic accounts of penetrating wounds, shredded organs and gurgling last breaths.
It's the prosecution's job to focus on the murder's awful nature, and to insist to jurors that the person responsible must pay with his or her life.
But the idea that guilt and punishment must be determined through an adversarial process is a bedrock principle in the U.S. criminal-justice system. Jurors, to make an informed judgment, must hear both sides.
That's where defense attorneys come in. In capital cases, their roles take on special significance. They're faced not only with the task of defending their clients' presumed innocence; after conviction, death-penalty cases require a second proceeding, to determine whether death is the appropriate sentence.
This second trial, the penalty phase, requires as much focus and preparation as the first. In some cases in which the defendant's guilt isn't seriously in doubt, the penalty phase is everything.
The idea is to get jurors to see beyond the crime and the victim into the life of the accused.
"The prosecution is asking jurors to judge the defendant based on one act on one day, arguably the worst day of this person's life," said Thomas Dunn, executive director of the Georgia Resource Center, which handles appeals for many of the state's death-row inmates. "But no one is born a capital mur-
derer, and clearly something happened between the defendant's birth and the worst act of their lives. There's always a story to be told, and it's the defense lawyer's job to tell it."
Preparation for the penalty phase of a capital case is the essence of fulfilling a defendant's right to counsel, which is embedded in the Constitution's Sixth Amendment and which the Supreme Court has addressed several times.
In a 1984 ruling, Strickland v. Washington, the justices first established the framework for deciding when lawyers hadn't met their constitutional obligations. The case set standards for judging all lawyers' performance, but because Strickland was a death penalty case, it specifically addressed obligations in the penalty phase.
The ruling said defendants could have their sentences overturned if they could prove their lawyers' performances were deficient and that with better counsel there was a "reasonable probability" that they might have received different sentences.
Importantly, the justices took note of the American Bar Association's standards for capital lawyers, which focus heavily on background investigations and other preparation for the penalty phase.
The justices agreed that lawyers had a duty to conduct "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Low pay, low standards
Washington and the Supreme Court are a long way, though, from rural Georgia and dirt-road Alabama, from the Mississippi Delta and the Virginia hills.
The enthusiasm for the death penalty in those states brings lofty legal principles up against paltry means and makeshift standards for applying it.
Money is one of the biggest problems.
Mounting a proper defense in a capital case requires methodical research; deep, probing interviews; and intricate planning and strategizing. The hours can stretch into the thousands; the bills easily can reach six figures.
Proper funding, according to the ABA, would help pay attorneys sufficient hourly rates and also would provide for investigators and experts to help gather evidence.
In all of the states in McClatchy's review, proper funding has been an issue.
In Alabama, pay for defense work in capital cases was capped at $1,000 until 2000, then was raised to $2,000. Even now, after legislation to overhaul that pay structure, defense attorneys who handle death cases in the state are paid $60 an hour for in-court work and $30 for out-of-court work. That's less than many people pay for plumbers and less than half the rate that the federal government pays defense attorneys.
In the other three states, pay varies more than it does in Alabama but it still can be woefully inadequate.
Virginia has instituted some state support for defense work in capital cases, but great disparities in compensation remain. Some judges order as much as $120 per hour for attorneys, others as little as $60.
Mississippi has a small, state-funded office that helps with some death penalty trials, but its work is focused more on appeals. Most cases in the state are funded locally, with judges deciding how to pay capital defenders. Many get as little as $50 an hour.
Georgia may be emerging as a bright spot on funding, after years of meeting its obligations spottily. For years, a small office of experienced death-penalty lawyers assisted in a handful of cases. Now, a centralized statewide office of defense lawyers and investigators is handling about half the load.
Still, money played a big role in many of the Georgia cases that McClatchy reviewed.
Tamara Jacobs handled two of the cases in northeast Georgia.
In one, John Thomas Yates stabbed an ex-girlfriend to death. In another, Leeland Mark Braley slashed an insurance agent's throat when she refused to give him money.
In both, Jacobs' experience is typical of many that McClatchy reviewed. She got some money to probe her clients' backgrounds and order psychological work-ups. But she knew it wasn't enough, and it forced her to leave crucial aspects of their lives unexplored.
In her first capital case, assigned in the 1980s, Jacobs took it upon herself to do all the investigation, on her own dime. She wound up with $30,000 in credit card debt and her law practice nearly bankrupt.
She said she wanted to give the Yates and Braley cases that kind of dedication; she just couldn't.
"You do the best you can with what you're getting," Jacobs said. "I think the judges have a lot to juggle. They try to be fair and reasonable, and they balance the limited funds against the defendants' rights, but a lot of the time it just doesn't work out for the defense."
Beyond money, the four states fail to ensure that lawyers have the training and experience to try capital cases competently. In all four, bar associations hold training sessions to teach lawyers how to conduct mitigation investigations and to prepare proper cases for the penalty phase of a death penalty trial.
But none of the states requires that lawyers attend those sessions before they try cases. Most require previous experience assisting or leading a capital defense, but that standard's not calibrated for quality; a lawyer who represented someone poorly a few years ago is considered experienced enough in Alabama or Virginia to represent someone else today.
The quality of representation is frequently at its worst in Alabama, experts agree. The state requires no training for lawyers who handle these cases, and says only that attorneys who serve as lead counsel should have handled at least two capital trials before.
Under those standards, John Floyd, a Gadsden, Ala., lawyer, was qualified to represent Geoffrey Todd West and was appointed to his case. West and his girlfriend were convicted in 1999 of shooting a convenience store clerk to death during a robbery.
Floyd didn't ask for investigative help or a psychologist, or look far into West's past, and he put on no case after his client was convicted.
"The defense rests" was all he said when it came time to argue that the jury should spare West's life.
"There were a lot of things we could have done," Floyd said, "I know that now, but I really didn't then." He said he feels guilty now about his performance but that he knew it wasn't unusual.
"We didn't do what we should have, but nobody did back then," he said. "Now, I think people know you have to, so maybe it's getting better. I just don't know."
Probe: Inmates' defense often indefensible
By STEPHEN HENDERSON
McCLATCHY NEWSPAPERS
Last Updated: January 21, 2007, 10:27:56 AM PST
 | G. Terry Jackson was the state-appointed attorney for Warren King, who was sentenced to death for the murder of a store clerk. Jackson says he didn't receive the resources from the state to defend King properly. STEPHEN BEREND/McCLATCHY NEWSPAPERS |
The jurors heard all about the convenience store holdup, the gunshots and the dead clerk. Their unanimous verdict came swiftly: Warren King was guilty of a senseless murder that shocked rural Appling County, Ga.
A death sentence almost certainly would be next, unless King's lawyer could convince the jury to spare his life. But G. Terry Jackson, King's state-appointed lawyer, didn't do much.
With little money to unearth details about his client's past, Jackson did not chronicle the mitigating circumstances that could have helped his client's cause. The jury learned almost nothing about the import of King's low IQ, his childhood in a log cabin with no plumbing or electricity, the savage beatings he took from his alcoholic parents or the succession of foster homes he shuttled through.
In desperation, Jackson turned to Jesus.
"WWJD," he said, invoking the popular bumper-sticker phrase "What Would Jesus Do?" Jackson told jurors to keep those four letters in mind as they weighed King's future.
A stunned prosecutor objected. The judge told the jury to ignore the comment. The jurors deliberated for 90 minutes and returned with their sentence: death.
Now, Warren King sits on death row in Georgia, one of many inmates whose lawyers, at the crucial point when jurors decide between life and death after conviction, made only feeble, incomplete or tragically laughable efforts to defend them.
Review of 80 cases
A broad review by McClatchy Newspapers of recent death-penalty cases in Georgia, Mississippi, Alabama and Virginia provides, for the first time, an assessment of how commonplace these failures have become.
McClatchy reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states. The review found that:
In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.
By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.
Appeals courts, for the most part, have ducked those Supreme Court directives about the importance of quality defense counsel. Only two of the 80death sentences have been overturned for bad lawyering.
In 11 of the cases, the defendants have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.
In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.
Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. None of that office's 46 clients has been sentenced to death.
Constitution not fulfilled
Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.
"For government, this is the ultimate policy decision outside of going to war," said Kenneth Starr, a former federal judge and independent counsel. Starr, who's now dean of Pepperdine University School of Law, has represented several death-row inmates on appeal, including one whose case was part of McClatchy's review.
"We are going to sit in judgment of one of our own and take their life. Not doing it right is unspeakably shameful," said Starr, who supports capital punishment.
Starr thinks that the trial lawyers for his client, Robin Lovitt, didn't do it right. Lovitt was found guilty of killing an Arlington, Va., pool hall manager during a robbery.
Lovitt's lawyers did almost nothing to look into his background.
They never interviewed fam-ily members, collected records or even planned how they might defend his life. Had they looked, they would have discovered a nightmare.
Lovitt's parents were drug dealers who beat their kids, forced them to help package and distribute narcotics, and had wild parties during which guests took turns molesting the children.
"There's no dispute that very able counsel simply failed to do the job in this case," Starr said.
Most of the other cases McClatchy reviewed reflect similar failures.
King's lawyer, Jackson of Savannah, Ga., knew he needed plenty of compelling evidence to save his client's life.
During the trial, jurors saw a videotape of the store holdup, and they could hear the muffled shots from the handgun that was used to kill 23-year-old Karen Crosby. They also saw her brother arrive at the store to find her body, and they heard his cries as he knelt by her side
To spare King's life, Jackson knew he'd have to make the jurors understand that his client's upbringing had helped make him a killer.
But he couldn't convince the judge to give him money to hire investigators to prove that point. Jackson was paid only a few thousand dollars to handle King's case.
"You're supposed to do everything you can for your client, but we ended up with far, far less than we should have had to defend this guy's life," Jackson said recently.
The attorney put King's sister on the stand to beg for his life. He found a foster parent who said King had been a "well-mannered young man." One of King's former parole officers hinted at the swirl of abuse and neglect that surrounded his childhood but offered very little detail.
By closing arguments, Jackson was desperate and reaching for anything to sway the jury. He said the appeal to Jesus was the best he could do.
"I just wanted them to look in their hearts. I knew we hadn't given them much else to work with," Jackson said. "The whole thing was just a nightmare."
A matter of law
It's all about the other side.
At death penalty trials, jurors are bombarded with grisly details of horrifying murders. They look through bloody pictures of the crime scene. They hear graphic accounts of penetrating wounds, shredded organs and gurgling last breaths.
It's the prosecution's job to focus on the murder's awful nature, and to insist to jurors that the person responsible must pay with his or her life.
But the idea that guilt and punishment must be determined through an adversarial process is a bedrock principle in the U.S. criminal-justice system. Jurors, to make an informed judgment, must hear both sides.
That's where defense attorneys come in. In capital cases, their roles take on special significance. They're faced not only with the task of defending their clients' presumed innocence; after conviction, death-penalty cases require a second proceeding, to determine whether death is the appropriate sentence.
This second trial, the penalty phase, requires as much focus and preparation as the first. In some cases in which the defendant's guilt isn't seriously in doubt, the penalty phase is everything.
The idea is to get jurors to see beyond the crime and the victim into the life of the accused.
"The prosecution is asking jurors to judge the defendant based on one act on one day, arguably the worst day of this person's life," said Thomas Dunn, executive director of the Georgia Resource Center, which handles appeals for many of the state's death-row inmates. "But no one is born a capital mur-
derer, and clearly something happened between the defendant's birth and the worst act of their lives. There's always a story to be told, and it's the defense lawyer's job to tell it."
Preparation for the penalty phase of a capital case is the essence of fulfilling a defendant's right to counsel, which is embedded in the Constitution's Sixth Amendment and which the Supreme Court has addressed several times.
In a 1984 ruling, Strickland v. Washington, the justices first established the framework for deciding when lawyers hadn't met their constitutional obligations. The case set standards for judging all lawyers' performance, but because Strickland was a death penalty case, it specifically addressed obligations in the penalty phase.
The ruling said defendants could have their sentences overturned if they could prove their lawyers' performances were deficient and that with better counsel there was a "reasonable probability" that they might have received different sentences.
Importantly, the justices took note of the American Bar Association's standards for capital lawyers, which focus heavily on background investigations and other preparation for the penalty phase.
The justices agreed that lawyers had a duty to conduct "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Low pay, low standards
Washington and the Supreme Court are a long way, though, from rural Georgia and dirt-road Alabama, from the Mississippi Delta and the Virginia hills.
The enthusiasm for the death penalty in those states brings lofty legal principles up against paltry means and makeshift standards for applying it.
Money is one of the biggest problems.
Mounting a proper defense in a capital case requires methodical research; deep, probing interviews; and intricate planning and strategizing. The hours can stretch into the thousands; the bills easily can reach six figures.
Proper funding, according to the ABA, would help pay attorneys sufficient hourly rates and also would provide for investigators and experts to help gather evidence.
In all of the states in McClatchy's review, proper funding has been an issue.
In Alabama, pay for defense work in capital cases was capped at $1,000 until 2000, then was raised to $2,000. Even now, after legislation to overhaul that pay structure, defense attorneys who handle death cases in the state are paid $60 an hour for in-court work and $30 for out-of-court work. That's less than many people pay for plumbers and less than half the rate that the federal government pays defense attorneys.
In the other three states, pay varies more than it does in Alabama but it still can be woefully inadequate.
Virginia has instituted some state support for defense work in capital cases, but great disparities in compensation remain. Some judges order as much as $120 per hour for attorneys, others as little as $60.
Mississippi has a small, state-funded office that helps with some death penalty trials, but its work is focused more on appeals. Most cases in the state are funded locally, with judges deciding how to pay capital defenders. Many get as little as $50 an hour.
Georgia may be emerging as a bright spot on funding, after years of meeting its obligations spottily. For years, a small office of experienced death-penalty lawyers assisted in a handful of cases. Now, a centralized statewide office of defense lawyers and investigators is handling about half the load.
Still, money played a big role in many of the Georgia cases that McClatchy reviewed.
Tamara Jacobs handled two of the cases in northeast Georgia.
In one, John Thomas Yates stabbed an ex-girlfriend to death. In another, Leeland Mark Braley slashed an insurance agent's throat when she refused to give him money.
In both, Jacobs' experience is typical of many that McClatchy reviewed. She got some money to probe her clients' backgrounds and order psychological work-ups. But she knew it wasn't enough, and it forced her to leave crucial aspects of their lives unexplored.
In her first capital case, assigned in the 1980s, Jacobs took it upon herself to do all the investigation, on her own dime. She wound up with $30,000 in credit card debt and her law practice nearly bankrupt.
She said she wanted to give the Yates and Braley cases that kind of dedication; she just couldn't.
"You do the best you can with what you're getting," Jacobs said. "I think the judges have a lot to juggle. They try to be fair and reasonable, and they balance the limited funds against the defendants' rights, but a lot of the time it just doesn't work out for the defense."
Beyond money, the four states fail to ensure that lawyers have the training and experience to try capital cases competently. In all four, bar associations hold training sessions to teach lawyers how to conduct mitigation investigations and to prepare proper cases for the penalty phase of a death penalty trial.
But none of the states requires that lawyers attend those sessions before they try cases. Most require previous experience assisting or leading a capital defense, but that standard's not calibrated for quality; a lawyer who represented someone poorly a few years ago is considered experienced enough in Alabama or Virginia to represent someone else today.
The quality of representation is frequently at its worst in Alabama, experts agree. The state requires no training for lawyers who handle these cases, and says only that attorneys who serve as lead counsel should have handled at least two capital trials before.
Under those standards, John Floyd, a Gadsden, Ala., lawyer, was qualified to represent Geoffrey Todd West and was appointed to his case. West and his girlfriend were convicted in 1999 of shooting a convenience store clerk to death during a robbery.
Floyd didn't ask for investigative help or a psychologist, or look far into West's past, and he put on no case after his client was convicted.
"The defense rests" was all he said when it came time to argue that the jury should spare West's life.
"There were a lot of things we could have done," Floyd said, "I know that now, but I really didn't then." He said he feels guilty now about his performance but that he knew it wasn't unusual.
"We didn't do what we should have, but nobody did back then," he said. "Now, I think people know you have to, so maybe it's getting better. I just don't know."
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