Ethics

Peter A. Joy and
Kevin C. McMunigal

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

DNA testing has demonstrated that our criminal justice system convicts an alarming number of innocent people. Recently, DNA evidence helped to free the 100th person wrongfully convicted, many of them death row inmates. In almost every state, the incidence of wrongful convictions continues to grow. Even these numbers fail to capture the full scope of the problem because DNA testing is capable of revealing inaccuracy only in cases in which the police obtain evidence—such as blood, semen, or hair—that can be submitted for DNA testing. Since the causes of wrongful conviction are not restricted to such cases, there is every reason to believe that an even greater number of wrongful convictions occur in the many cases in which DNA testing cannot be used.

The subject of wrongful conviction has received national attention in recent years and provides the focal point for this issue of Criminal Justice. This column considers how ineffective assistance by defense lawyers contributes to wrongful convictions.

Recent research reveals a constellation of causes for wrongful convictions. Mistaken eyewitness identification is a leading factor, along with police and prosecutorial misconduct, false confession, unreliable informants, faulty scientific evidence, and racial bias. Unfortunately, inadequate representation by defense counsel has also been revealed as a major contributing cause.

Just as wrongful convictions are linked to a variety of factors, including bad lawyering, one can trace bad lawyering, in turn, to another group of factors. Professor Adele Bernhard identifies several of these in her contribution to the book Wrongfully Convicted: When Justice Fails (Adele Bernhard, Effective Assistance of Counsel, in Wrongly Convicted: When Justice Fails 220 (Saundra Westervelt & John Humphrey eds. 2001). Quality control mechanisms for defense lawyers are lacking in part because of the difficulty in defining what constitutes good lawyering in the criminal defense context. The restrictive Strickland standard for reversal on the basis of ineffective assistance—requiring "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different"—allows most bad lawyering to go unremedied and undeterred by the grant of a new trial. Similarly, malpractice standards in criminal cases effectively insulate bad lawyering from monetary disincentives. A convicted defendant must prove innocence to sustain a malpractice claim against a criminal defense lawyer in most states, and some states insulate public defenders entirely from civil lawsuits by former clients through governmental immunity.

The pressure to cooperate with prosecutors and judges generated by our criminal justice system’s reliance on plea bargaining also discourages vigorous advocacy. More than 90 percent of criminal cases end in guilty pleas, and criminal defense lawyers often bargain against the same prosecutors in cases before the same judges. Many defense counsel work on a high volume of cases in a culture of compromise that tends to assume rather than question a defendant’s guilt. The need to obtain concessions from prosecutors in such an environment pressures defense lawyers not to vigorously challenge guilt, police or prosecutor conduct, or the reliability of confessions and eyewitness identifications. Some commentators describe the dynamics of negotiating guilty pleas as turning many defense lawyers into "double agents" who pressure or "con" defendants to plead guilty instead of thoroughly investigating cases and zealously representing their clients.

Inadequate funding plays a major role in contributing to bad lawyering. Lack of funds makes it difficult for those charged with crimes to retain good lawyers and for lawyers to give adequate time to preparing cases. Shortage of funds also poses a barrier to gaining help from investigators and forensic experts. Appointed counsel and public defenders face these same handicaps, in addition to having high caseloads that exacerbate these problems.

The ethical shortcomings of inadequate representation are obvious. Lawyers are ethically bound to provide competent representation. Model Rule of Professional Conduct 1.1 "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Lawyers also have a duty of diligence that requires them to "take whatever lawful and ethical means are required to vindicate a client’s cause." (Model Rule of Prof’l Conduct 1.3 cmt. [1].) Diligence also requires that a "lawyer’s work-load must be controlled so that each matter can be handled competently." (Model Rule 1.3.) The limited resources of many defendants who hire private lawyers, the chronic underpayment of appointed counsel, and the underfunding of public defender services mean that lawyers are unlikely to meet these ethical commands simply because they do not have the time or resources to do so. The stringent standards for reversal in Strickland and for malpractice liability also create little incentive for defense lawyers to meet their ethical obligations.

In addition to undermining adherence to ethical obligations of competence and diligence, inequality in resources undermines in a broader sense the functioning of the entire adversary system that underlies and justifies many procedural and ethical rules in criminal practice. The adversary system assumes each side has the resources with which to discover and demonstrate the legal and factual strengths of its position and the legal and factual weaknesses of its opponent’s position. As the two sides present their cases and challenge those of their opponent’s, the strength or weakness of that showing in theory should reflect the merits of their positions. But if one side lacks resources to investigate, prepare, and present its case and challenge its opponent’s case, then the weakness in its showing and its inability to challenge the opponent may have little to do with the merits. It may simply reflect lack of resources.

West Virginia’s investigation of Fred Zain, as described by Professor Paul Giannelli, illustrates the insidious effect lack of defense resources may have on the adversary system. (Paul Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439 (1997).) The head serologist at the West Virginia State Police crime laboratory, Zain was a prosecution witness against Glen Dale Woodall in a double rape case. Zain testified at trial that Woodall’s blood type matched that of the assailant. Woodall was convicted and sentenced to a long term of imprisonment in 1987. Five years later, DNA testing exonerated Woodall of the rapes and led to an investigation of Zain. That investigation revealed that Zain had falsified test results in as many as 134 cases from 1979 to 1989. Zain’s typical modus operandi was to falsify his tests to confirm the prosecution’s theory of the crime.

How, one might well ask, could Zain have gotten away with such falsification in so many cases? Why would he have the temerity to try to falsify so many records? The adversary system’s classic response to false testimony is to subject it to the rigors of cross-examination and counterproof. Zain’s testimony in theory should have been exposed by rigorous cross-examination and counterproof by defense experts. The fear of such exposure should have deterred Zain from even attempting such falsification. But Zain had little reason to fear. Lack of resources for expert witnesses is a chronic problem in defense representation and, without such resources, neither rigorous cross-examination nor counterproof is present to keep prosecution experts honest.

Zain, in theory, was operating in an adversary system that should have provided powerful checks against false testimony. In fact, he was operating in a system that relied entirely on forensic testimony from only one side: the government. This imbalance in resources is hidden from public view by a preoccupation with high-profile cases, such as the O.J. Simpson case, in which wealthy defendants have access to lawyers well versed in forensic science and experts who can match those presented by the government. The same is not true for defendants who lack resources.

How can we remedy this imbalance in resources that undermines effective representation and the fairness and accuracy of the criminal justice system? One measure that has been called for frequently by critics of the criminal justice system is to provide defendants with greater resources. The current crisis in state budgets, the hardening of public attitudes toward criminals, and the fact that the inadequacy of defense resources has been pointed out repeatedly for years without remedy suggest that this avenue does not hold much promise. Perhaps, though, the notoriety and concern generated by the wave of recent DNA exonerations will change that.

If more defense resources are not forthcoming, another remedial avenue would be to concede that we lack a functioning adversary system when it comes to things such as forensic evidence and move toward a more cooperative model. If the defense regularly lacks resources to hire forensic experts, we could institute structural changes to transform government experts from partisan witnesses allied with the prosecution to a more neutral stance. One way would be to make them more independent of the prosecution. Under such a redesigned system, crime labs would no longer be allied with the police and prosecutors but would be independent entities functioning under the supervision of the state or federal courts. Scientific standards, including standards for personnel qualifications, would be established, and safeguards for reliability, such as blind testing and the use of protocols, would be adopted.

Except in rare instances where a showing of good cause and scientific basis for doing so are demonstrated, the forensic personnel working in these labs would no longer be given information about who the police "think" committed the offense. Instead, forensic personnel would conduct most investigations free from the input and influence of police and prosecutors. If the prosecution wished to hire consulting or testimonial experts separate and apart from those affiliated with an independent crime lab, it would be barred from doing so unless equal funds were made available to the defense for the same purpose.

The mounting number of wrongful convictions has shed light on serious flaws in our criminal justice system. Actual innocence proved by DNA testing demonstrates that defendants, who are most often poor, are vulnerable to erroneous conviction through mistaken identification, false confession, unreliable informants, police and prosecutorial misconduct, racial bias, and faulty scientific evidence. Inadequate representation provided by overworked and underfunded defense lawyers greatly enhances that vulnerability. Though elimination of the risk of erroneous conviction may not be possible, recognizing and responding to the realities of criminal defense practice could greatly reduce the risk. If the right to counsel for criminal defendants is to have any real meaning, we must take steps to remedy the gross imbalance between prosecution and defense in representation and resources. If we fail to take such steps, our system will continue to convict far too many who are innocent.

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