Indigent Defense In Capital Cases

The Tuscaloosa News has had two recent articles (here, and here) discussing Alabama’s death penalty system. They don’t say anything new, really, but are worth emphasizing.

Basically, both articles discuss the inadequate manner in which Alabama provides defense attorneys in capital cases and the ways in which that problem is exasperated by the manner in which Alabama appoints lawyers for appeals.

The first thing to get straight is that if there is a systematic failure to provide adequate attorneys, that would be a major problem. Our legal system is adversarial. We trust that if both sides have an equal opportunity to argue their case that the truth will be the result. But if one side is somehow prevented from adequately presenting its case, then the system won’t work properly. The decision-maker (the jury) will only hear one side of the story. Maybe that side was the right one, maybe not, no-one will ever know because no-one ever heard the other side. The important thing is to make sure that both sides are fully and vigorously presented.

So the question becomes whether or not Alabama has failed to ensure that the defense’s side is adequately presented. That seems to be the common wisdom, and my experience confirms it. We’ve handled several post-conviction cases where trial counsel was obviously unprepared.

That is not to say the attorneys were bad attorneys. They may have been excellent attorneys. But trying a capital case requires an enormous amount of resources. The attorney has to be an obstructionist; she has to raise every possible argument against every move by the state. At the same time, the defense attorney needs to know everything about the client, and also needs to know the significance for trial of everything about the client. That requires investigations and experts. It is very expensive to properly try a capital case.  

Alabama, though, pays defense counsel forty dollars an hour for out of court work and sixty dollars an hour for in court work. As for experts, you’ve got to go beg the judge for extra funds. In order to adequately defend the capital case, the attorney needs to dedicate a huge portion of his time to it, and at those rates, that just is not possible. The result is cut-rate defenses.  

I do not think the solution is better pay. Rather, it would be to establish a centralized group whose only job is defending capital cases. Then the attorneys will not only have the expertise to properly defend, but they will have all the time and resources they need to carry out that defense. They won’t have to worry about bringing in enough money to pay for secretaries, and electricity, and still put food on their tables.

The Tuscaloosa News has another article discussing how this type of program has worked in Georgia:

Firefighters pulled four charred bodies out of the wood clapboard flophouse on Troup Street in/sValdosta, Ga., after a white-hot blaze in October 2005 melted windows up and down the block and left the house a smoldering heap.

Within hours, Cynthia Allen was arrested for setting the fire and thrown in jail.

Georgia prosecutors soon will present a jury with a simple argument: She did it. She must die.

It would be an easy case if it weren’t for Boyd Young and his colleagues. They intend to make the jury’s choice — life or death — much more difficult.

As Allen’s lawyers, they’ve spent months combing through the wreckage of her life, trying to follow clues that might demystify her behavior.

What explains the vacant look in Allen’s eyes, and her tendency to answer the simplest questions with rambling incoherence? Is there more to the stories in Valdosta/sthat cast Allen as an aggrieved tenant of the flophouse and a constant target of violent physical and mental abuse?

These hints point toward a dreadful existence for Allen, stretching as far back as her childhood in a dangerous New Orleans housing project.

Chasing down those clues is taking Young and his colleagues on an arduous and emotional journey through a world thick with poverty, dysfunction and tragedy.

They’ve essentially become Allen’s biographers, documenting every important facet of her life and preparing to explain it — and why it matters — to a jury.

This is how they’ll defend her, because it’s the only choice they have.

“Cynthia is just not somebody who belongs on death row, not even close,” Young said. “That’s what we’ve got to prove.”

This is the new face of capital defense in Georgia.

Allen’s lawyers work for the Office of the Georgia Capital Defenders, a state-funded, centralized operation of well-trained lawyers and investigators who were assembled in 2005 to handle nothing but the state’s death penalty cases.

In each case, the office assigns at least two attorneys and a full-time investigator. One attorney is on staff; the other is typically a private practice lawyer from the town where the case is being tried.

They spend what’s necessary. They do what’s necessary. They work every case as if it were their only one. . . .

Their record: 23-0.

Some may object to this because it means fewer executions. There is no point arguing with a person who raises that objection.

Others may question the cost of such an office. To that, I say I do not know. The state would no longer be spending money on individual appointments. It would also save on appellate litigation, as the better representation at trial will make the appeals much less complicated. But I’m sure the expenses would exceed these savings. So the question becomes how much we are willing to spend to make sure the death penalty is fairly administered?

By fairly administered, I don’t mean simply making sure we don’t kill innocent people. I mean making sure we kill only people who are guilty and who truly deserve to die. When Alabama executes someone, that person’s blood is on all of our hands. I, for one, am willing to pay a fairly high price to make sure that blood is justified.

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7 Comments on “Indigent Defense In Capital Cases”

  1. walt moffett Says:

    Sounds like a good idea and would be in favor of a county/state funded Public Defenders office also. When we deprive someone of their liberty and/or property, it also leaves a stain.

    Of course, this will mean higher taxes or cuts elsewhere, because you can’t get something for nothing. Would suggest taxing pension income over say 30K per year and/or increase Fair Trial Tax in court costs.

    And then there is the need for more funding for the dept of forensic sciences and so on.

  2. wheeler Says:

    “there is the need for more funding for the dept of forensic sciences and so on.”

    we’re handling an appeal right now in which one of the issues is a nearly five-year delay between arrest and trial that was due in no small part to problems getting stuff back from dfs.

  3. CheifManyTypos Says:

    The Shelby County system seems to work really well, it contracts out the work to certain attys.

    A lot of attys will fight steering work to a limited group of attys; the money may not be that great, but a lot of folks want it and wont want to be shut out of the work….

  4. walt moffett Says:

    I hope you win the appeal on those grounds. As I think Yogi Berra said, Justice delayed is justice denied. Who knows, a few more reversals might wake up somebody.

  5. Willie Says:

    To pay for this, I say tax the good old boy phone companies that charge prisoners exorbitant rates for collect calls at a 80% rate!

  6. wheeler Says:

    “A lot of attys will fight steering work to a limited group of attys; the money may not be that great, but a lot of folks want it and wont want to be shut out of the work….”

    that’s the big reason i don’t really trust that system. appointments and contracts create an incentive to please the appointing authority. the client’s best interests, though, often require actions adverse to that authority, or that the authority may not like.

    up here in jeffco, they use individual appointments, and the temptation is to just play the administrative game – rather than fight tooth and nail for the client – because the lawyer wants more appointments. the same problem exists with contracts. more so, because more money is at stake.

    i’d much rather have an independant office; one in which the lawyer answers only to the client.

  7. Dystopos Says:

    Hey Yogi, watch me pull Justice Gladstone out of my hat!


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