Justice Sandra Day O’Connor has generally staked out pro-death penalty positions since she joined the U.S. Supreme Court 20 years ago. So opponents of capital punishment were surprised and heartened by her remarks in a July 2 speech. “If statistics are any indication, the system may well be allowing some innocent defendants to be executed,” O’Connor said. Since 1973, she noted, 90 prisoners have escaped execution after being exonerated while on death row.
“Perhaps it’s time to look at minimum standards for appointed counsel in death cases,” she added. Another Supreme Court justice, Ruth Bader Ginsberg, stated the point more bluntly in a speech she made in April. “I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial,” she said.
Comments like these catch considerable attention in North Carolina, which has emerged as one of the front lines in the national debate over capital punishment. The state provides fertile ground for attorneys seeking to right some of the wrongs that have come to characterize the administration of the death penalty.
One of those wrongs–inadequate defense work by court-appointed lawyers–compelled three local law school graduates to found the Fair Trial Initiative. The new group intends to train young lawyers how to conduct the best defense in a capital trial. Such cases test the mettle of even the best lawyers, on the rare occasions that top-quality attorneys are appointed. More often, indigent defendants are assigned lawyers who either don’t know the intricacies of capital law or don’t mount a solid defense for other reasons.
The Fair Trial Initiative was launched by Zephyr Teachout (Duke School of Law, ’99), and David Neal and Matt Stiegler (UNC-Chapel Hill School of Law, ’01), after a brainstorming session last summer. Their strategy is to take lawyers fresh out of school and put them to work assisting qualified attorneys working on do-or-die capital cases. There they will nurture the skills needed to represent capital clients of their own.
“There was this crisis out there that drove us to tears, but no one was really addressing it,” Stiegler explains. “We wanted to find a way to harness this energy that young lawyers increasingly have for doing something about the death penalty.”
Jim Exum, the former chief justice of the N.C. Supreme Court, has been an active opponent of capital punishment since the 1970s. As long as the death penalty is still on the books, he says, the state has an obligation to see that capital trials and sentencing are as fair as is possible. “I think most fair-minded people agree that if we’re going to have the death penalty–the most severe penalty under our law–that people need to have adequate and competent representation throughout the process,” he says.
But Exum–and the staff of the Fair Trial Initiative–argue that North Carolina too often leaves defendants twisting in the wind with lousy lawyers.
Media attention surrounding capital punishment is often focused on a convict’s final moments, or the days and weeks directly preceding execution. But a capital defendant’s real needs arise much earlier, when the case is actually being tried. That’s when a lawyer trained in capital cases can do the most good, by minimizing trial injustices that can send a person to death row.
Currently, Stiegler says, “a lot of the lawyers who are working in the death penalty–most of the talent–goes into post-conviction [appeals] work after somebody’s already been convicted and sentenced to death.” While there’s often much that can be done, even at that late date, by then it’s exceedingly difficult to make up the ground lost by a lax defense. In 1996, Congress passed a law that drastically reduces chances for successful federal appeals of unfair state trials. “The law has become so unfavorable in that area that it is difficult to correct injustices after the trial,” Stiegler says. “So justice delayed ends up being justice denied.”
Some recent cases illustrate the tragic consequences of faulty representation in capital trials. The case lawyer for Willie Fisher, who was executed March 9, suffered from severe depression at the time of the trial, failed to present mitigating evidence, and spent a sum total of 56 hours on Fisher’s defense–instead of the hundreds of hours committed by more thorough attorneys. The lawyer was later suspended for mishandling cases and then disbarred for embezzling clients’ funds.
Bobby Lee Harris and Robert Bacon Jr. were slated to die in January and March, respectively, but both are still alive thanks to temporary stays by Superior Court judges.
Harris’ original lawyer was grappling with cancer during the trial; among the issues he never raised was Harris’ IQ, which charts in the 70s, right on the cusp of the official standard for mental retardation. Bacon’s trial lawyer failed to present mitigating evidence that could have changed his client’s fate.
Short of a suspension of the death penalty, injustices arising in cases like these can best be confronted by making qualified attorneys available to every capital defendant, say the staff of Fair Trial Initiative. “The quality of counsel a person receives at trial touches on almost every other right or issue around the death penalty,” Neal says. “The problems with race and the death penalty, with innocence and the death penalty, are intrinsically wrapped up with what kind of lawyer a person gets at trial.”
Neal says that a major problem is that “generalists have been expected to do death penalty representation”–a highly specialized field. “A metaphor thrown around a lot in this field is that it’s like expecting chiropractors to do brain surgery. It’s one of the most complicated kinds of legal representation, and people aren’t given the training or the resources to do it properly.”
To mount an effective defense in a capital case, attorneys must devote hundreds of hours before the trial even begins. Defense lawyers who do their job right scrutinize witness accounts, examine evidence, review police procedures, hire investigators, get fully acquainted with the client’s life and history, and conduct a painstaking review of all the relevant legal precedents. Once the trial is underway, a prepared defense lawyer will demonstrate a working knowledge of all the particularities of death penalty law.
Though there’s a widely acknowledged shortage of such attorneys, there are few opportunities for young lawyers who want to specialize in capital defense. “You need to go work for a law firm for 10 or 15 years before you’re doing litigation work, or go to a public defender and try all sorts of misdemeanors first,” Stiegler says. “There’s no way to get right on that track and begin doing that work.”
Now there is, at least in the Triangle. This fall, the Fair Trial Initiative will put its first two fellows, law graduates from Texas and Virginia, to work as full-time assistants to capital case defense lawyers. The fellowships last two years. For now, the staff of the group works out of the offices of the Center for Death Penalty Litigation in Durham, which is also providing technical support and the expertise of its staff to get Fair Trial Initiative off the ground. On a related note, the center recently secured a $40,000 grant, jointly awarded by the American Bar Association and the Open Society Institute, to fund a full-time attorney specializing in post-conviction advocacy for capital clients.
Fair Trial Initiative is making a strong start, thanks to the generosity of private donors and a $25,000 grant from the Arca Foundation. The group plans on adding new fellows every year, and expanding the scope of the project as funding allows. Besides adding to this state’s stable of qualified capital defenders, Fair Trial Initiative wants to place fellows in Texas and Virginia, two other states where there is mounting controversy over capital punishment. The possibilities, say the organizers, are limited only by the amount of donations the group can solicit.
Meanwhile, the Fair Trial Initiative will be closely watching the progress of the state’s new Office of Indigent Services, which will address the crisis in capital counsel by improving standards for adequate defense by appointed attorneys. The standards are “an important step, a basic minimum,” Neal says. “But if that’s all you do, how are you going to bring quality new people into the work? You can establish what it is people need to know, you can establish how many years they should practice, but states aren’t doing anything to make sure people get the necessary experience.”
As Teachout points out, the issue extends beyond capital cases. “The problem is that there are totally inadequate resources for indigent criminal defense, and I see the death penalty cases as the worst, but not the only, example of this. Defending capital cases also diverts a lot of resources that could be used for people sentenced to five, 10, 20 years. Across the board, poor people are not getting adequate defense.” 