Shoddy Defense by Lawyers Puts Innocents on Death Row
By DIRK JOHNSON
CHICAGO, Feb. 4 -- As Illinois examines what went wrong with a justice system that sent 13 innocent men to death row, one common thread has already emerged: poorly financed, often incompetent defense lawyers who failed to uncover and present crucial evidence. The mistakes go far beyond the 13.
In one case, a defense lawyer failed to prepare any strategy for his client at the death penalty hearing the day after the conviction, saying he had been hoping that the jury would opt for manslaughter charges.
Another defense lawyer rambled so incoherently during a death penalty trial that the proceeding "would border on the comical if only it were make-believe," a State Supreme Court justice wrote.
A third lawyer failed to attend some critical hearings, arrived late at others and neglected to call witnesses who had volunteered to testify about a defendant's character.
"The legal defense for death row inmates has simply been inadequate," said Elisabeth Semel, who heads an American Bar Association project that focuses on legal representation for people facing the death penalty. Other legal experts add that the situation in Illinois is mirrored in many other states.
t is not surprising that opponents of the death penalty criticize the legal system for failing to provide adequate defenses. But in Illinois, the same criticism is now being offered by some supporters of executions, many of whom now back Gov. George Ryan's decision this week to place a moratorium on implementation of the death penalty until a panel can study it.
The governor, a moderate Republican who supports the death penalty, announced the moratorium after new evidence cleared 13 men who had been convicted and sent to death row since 1977.
In supporting the governor's decision, Mayor Richard M. Daley of Chicago, who prosecuted some of the death penalty cases as Cook County state's attorney in the 1980's, said the defense lawyers in some of those cases were incompetent, and even when they were competent, they often did not have the money to conduct their own thorough investigations and compete against the police and prosecutors.
Not all the cases involved questions of poor defense work. Some resulted in accusations of overly aggressive police officials and prosecutorial misconduct. But it is striking that in three cases, college students working on class projects at Northwestern University were able to find evidence that had escaped the attention of defense lawyers.
While a proper defense in a death penalty case takes months of research and costs $250,000 or more, Ms. Semel said, defendants in these cases are often represented by lawyers who are paid a few thousand dollars, or less, and spend only two days on a case.
Separate hearings in each case determine whether a defendant should be executed, and that adds to the cost.
Unable to afford good legal help, the families of defendants often settle, in desperation, for any lawyer who will take a case, regardless of reputation. The results are not surprising. A Chicago Tribune examination of death penalty cases found that 33 defendants sentenced to die were represented by a lawyer who has been disbarred or suspended.
The fate of these inmates, in some cases, depends on volunteers unearthing evidence, or just plain luck.
Richard G. Younge, 75, the lawyer who failed to prepare a strategy for the death penalty hearing for his client, had never handled a death penalty case. Mr. Younge said he was unaware that the hearing would come only a day after the conviction. A state judge voided the sentence.
Earl Washington, the lawyer who missed some hearings and arrived late to others, had taken the case of Bernon Howrey, of Kankakee, for a flat $8,000 fee.
The closing argument of George Pease, a defense lawyer in the case of a suburban Chicago man sentenced to death, was described by a federal judge as "a rambling, incoherent discourse." The defendant was ultimately resentenced to 60 years in prison.
While a spotlight has been cast on the Illinois system, accounts have emerged from around the nation of defense lawyers who slept through trials, or came to court drunk. Courts have assigned death penalty cases to lawyers, like those specializing in tax law, who have never tried a criminal case. And for many of the decent, hardworking lawyers who take death penalty cases, the money paid by poor families is generally so paltry that paying for a thorough investigation is impossible.
"You get these families who go shopping for a lawyer with, say, $10,000, which seems like all the money in the world to them," said Lawrence Marshall, a law professor who heads the Center on Wrongful Convictions at Northwestern University. "A good lawyer will tell them it can't possibly be done for that money. So they keep looking, until they find someone who will take the case. It's usually a down-on-the-luck lawyer who figures the case is probably going to plead anyway, so it's a quick $10,000."
Seymour Simon, a former Illinois Supreme Court justice and longtime foe of the death penalty, said he believed the poor legal representation for defendants made the death penalty unjust.
The Illinois Supreme Court in 1982 denied an appeal of a death sentence that was made on the grounds of incompetent legal representation -- only to turn to a case weeks later on the disbarment of the lawyer, Archie Weston, who had represented the condemned man, Dennis Williams. "He was accused of looting an estate," Justice Simon said of the lawyer. "We asked him why he had missed a disciplinary hearing. He said at the time he was so stressed out he couldn't think straight." As it turned out, Mr. Weston had been representing the death row defendant at the time. A new trial was ordered, which resulted in another conviction. The case was one of the 13 cited by Governor Ryan. Ultimately, DNA evidence proved Mr. Williams innocent of two murder charges. He was freed in 1996 after spending 18 years in prison.
The wrongful conviction cost Cook County nearly $13 million in damages to Mr. Williams.
Lawmakers have recently cited the accounts of such mistakes and poor legal representation in calling for changes to federal execution law. Senator Russell D. Feingold, Democrat of Wisconsin, said it seemed obvious that mistakes caught in Illinois were occurring in other states.
But while concerns have grown over poor legal representation and mistaken convictions, laws in recent years have nonetheless cut legal aid for defendants who cannot afford their own lawyers.
In 1996, Congress eliminated spending for the 20 Death Penalty Resource Centers, which existed to help mount the appeals of death row inmates, who are usually poor.
In Florida, there has been little effort to improve legal help for poor defendants, even though 20 wrongful convictions resulted in inmates being sent to death row -- the most in the nation. Lawmakers in Florida recently enacted a so-called fast-track system that shortens times for appeals for inmates sentenced to die.
Poor people charged with serious crimes have been entitled to legal assistance since the Gideon v. Wainwright decision in 1963. But that aid varies sharply among the states.
Even prosecutors acknowledge that defense lawyers typically start at a disadvantage when they go up against experienced prosecutors. Richard Devine, the state's attorney in Cook County, noted that his office has 300 lawyers. "By the time someone is trying a capital case, they have had a lot of experience," Mr. Devine said.
Ms. Semel used a boxing analogy to describe the disparity in resources and experience between prosecutors and defense lawyers in most death penalty cases. "It's like a match between Mike Tyson and Martin Short," she said, "and the referee -- the judge -- is on Tyson's payroll."