Understanding the Death Penalty Study Commission Report

Lawyers and bar associations cannot do much to eliminate the arbitrariness of the application of capital punishment, but they can act to require competence and ethical behavior of all lawyers involved in capital cases.

by Talbot D'Alembe

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One of the most memorable summaries of the problems with capital cases in the United States was made by Steve Bright, founder of the Southern Center for Human Rights and renowned lawyer and teacher of capital litigation. Steve observed that the death penalty is imposed not on those who have committed the worst crimes but rather on those who have been unfortunate enough to have the worst lawyers.

U.S. Supreme Court Justice Ruth Bader Ginsberg made the same point when she told a public audience that she had “yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial” and that “[p]eople who are well represented at trial do not get the death penalty.” Ginsburg Backs Ending Death Penalty, Associated Press,Apr. 9, 2001, www.truthinjustice.org/ginsburg.htm.Some of her colleagues share that view. Retired Justice Sandra Day O’Connor has urged that minimum standards be adopted for counsel in death cases, and Justice Stephen Breyer has pointed to the inadequacy of counsel as a factor that “aggravates the other failings” of the capital punishment system. Similarly, Florida Supreme Court Justice Raul Cantero testified before the Florida Commission on Capital Cases in 2005 that the work of private attorneys handling appeals for death row inmates is “some of the worst lawyering I have seen.” Gary Blankenship, Registry Lawyers Defended at Committee Meeting, Fla. B. News, Apr. 1, 2005.

With this high-level attention to the adequacy of representation in death penalty cases, it is not surprising that the American Bar Association (ABA) also has spoken out about the problem. In fact, the ABA first developed guidelines for the appointment and performance of defense counsel in death penalty cases in 1989 and most recently revised them in 2003. Happily, the courts have embraced the guidelines; both state and federal courts have recognized them as the standard by which lawyer performance should be judged in capital litigation, including postconviction proceedings.

Capital punishment has been a challenge to the justice system in large part because its application has proven to be so arbitrary. Not only do differences exist from state to state, they also crop up from community to community within each of the thirty-eight states that currently authorize the death penalty.

Lawyers and bar associations cannot do much to eliminate this arbitrariness, but they can act to require competence and ethical behavior of all lawyers involved in capital cases.

Maricopa County (Phoenix), Arizona, now appears to have displaced Harris County (Houston), Texas, as the jurisdiction with the greatest number of capital cases. The Maricopa County prosecutor’s decision to seek the death penalty in a significant percentage of filed cases, leaving to jurors the ultimate decision whether to impose death in a given case, has placed an extraordinary burden on the courts and the small number of qualified capital crimes attorneys. In Arizona, the recent work of the court and the bar in adopting the ABA guide­lines has provided an important baseline for judicial administration and a principled basis for providing defense counsel. The role of the bar in states where capital punishment is permitted begins with a commitment to high standards of competence and ethical behavior for prosecutors and defense counsel alike. Advocacy supporting court adoption of the ABA guidelines is a good starting point, but lawyers also have a special responsibility to see that defense counsel are properly trained, compensated, and provided with resources for investigation and necessary expert testimony.

In addition, the bar should take an active role in monitoring the conduct and performance in capital cases. It is extraordinary that the instances of abuse by defense lawyers and prosecutors have not been occasions for lawyer discipline. We look in vain for a way to connect most court reports of lawyer negligence or ethical transgression with a companion bar prosecution. The bar disciplinary system is too frequently blind to situations where defense lawyers sleep through proceedings or come to court drunk, or to instances where lawyers lacking the training and background necessary for capital case representation nevertheless become postconviction counsel through court appointment and then miss deadlines, to the prejudice of their clients. The system also has been inattentive to the extraordinary ethical lapses of prosecutors who fail to disclose information beneficial to the defense, in violation of duties clearly imposed upon them by the law, including the important Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963), or who engage in inappropriate public comments about pending capital cases merely to gain political mileage.

In the future, Americans may look back on this period of capital punishment with regret, much as other Western countries now do. But even in the current environment, lawyers and their bar associations can help ensure that competent counsel are available to those who cannot afford counsel and that departures from standards of competence and ethical behavior are not tolerated in death penalty cases, the most sensitive work that lawyers do.

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Talbot (Sandy) D’Alemberte, currently a professor at Florida State University College of Law and chair of the Advisory Committee of the ABA Death Penalty Moratorium Project, was ABA president in 1991–92 and also is a past president of the American Judicature Society.