YOU HAVE A RIGHT TO
AN ATTORNEY …
Right to (Effective) Counsel & the
Death Penalty
The Right To Counsel in the Constitution
Why is a good lawyer so important?
A good defense lawyer is always important, but especially in
death penalty cases, which:
• Are exceedingly complex
• Include a separate sentencing phase that requires
attorneys with particular knowledge and experience
• Require more resources than other cases (for hiring of
experts, investigators, etc. for the sentencing phase)
Gideon v. Wainwright – what did it say?
50 years ago, on March 18, 1963, the US Supreme Court
unanimously ruled in Gideon v. Wainwright that all criminal
defendants have the right to an attorney.
Clarence Gideon (far left)
personally hand-wrote his
petition (left) to the Supreme
Court
They made a TV movie about the Gideon case, in 1980,
starring Henry Fonda, nominated for 3 Emmys
You can see the whole movie here:
http://www.youtube.com/watch?v=gAnb40298IU
Gideon v. Wainwright – what did it NOT
say?
This ruling said nothing about the quality of the attorney you
have a right to.
A 1984 case, Strickland v. Washington, attempted to
establish a right to adequate counsel, but subsequent rulings
created a very low bar for what is considered “adequate”.
Choice quotes about “adequate” counsel
By the 1990s, courts were saying things like:
"Although defense counsel slept during portions of the trial,
counsel provided defendant meaningful representation."
(People v. Tippins, 1991)
"Proof of a defense counsel's use of narcotics during trial
does not amount to a per se violation of constitutional right
to effective counsel." (Counsel admitted using heroin and
cocaine throughout the trial.) (People v. Badia, 1990)
By the turn of the century, studies began
to show how bad the inadequate
counsel in death penalty cases problem
had become …
• Chicago Tribune: 12% of those sentenced to death from
1976-1999 represented by "an attorney who had been, or
was later, disbarred or suspended--disciplinary sanctions
reserved for conduct so incompetent, unethical or even
criminal that the state believes an attorney's license
should be taken away." (November, 1999)
• Charlotte Observer: In North Carolina at least 16 death
row inmates, including 3 who were executed, were
represented by lawyers who have been disbarred or
disciplined for unethical or criminal conduct. (September,
2000).
• The Dallas Morning News: One in four condemned
inmates represented by attorneys who have been
disciplined for professional misconduct at some point in
their careers. (September, 2000)
• Seattle Post-Intelligencer: One-fifth of the 84 people who
have faced execution in the past 20 years were
represented by lawyers who had been, or were later,
disbarred, suspended or arrested. (August, 2001)
• Texas Defender Service: “Death row inmates face a onein-three chance of being executed without having the
case properly investigated by a competent attorney and
without having any claims of innocence or unfairness
presented or heard." (2002)
The Damage Inadequate Counsel Can
Cause
The death penalty is supposed to be reserved for the “worst
of the worst” – those with “mitigating factors” that make them
less responsible for their crimes should not get the death
penalty. Yet death sentences are often passed wrongfully on:
• Those who should not have received a death sentence
due to mental impairments
• Those who should not have received a death sentence
due to traumatic childhoods
• Those who may have been innocent
Those who should not have received a death sentence
due to mental impairments:
Examples:
Abdul Awkal
Wanda Jean Allen
Daniel Cook
Abdul Awkal (Ohio)
 Abdul Awkal was only found competent to stand trial after
increased dosages of anti-psychotic medication
 While trying to present an insanity defense, none of the three
experts his lawyer called to testify were helpful:
One was not licensed
One was not certified
The third said Awkal was sane at the time of the crime.
 Abdul Awkal’s execution has been indefinitely postponed in 2012
on the grounds that he is not mentally fit to be put to death.
Wanda Jean Allen (OK)
 Wanda Jean Allen's lawyer had never tried a capital case, and sought
to be removed from the case, or to at least have assistance from the
public defender's office or an experienced investigator. An Oklahoma
court turned down all of these requests.
 Her lawyer failed to discover the existence of information on her
“mental retardation” and mental disability, despite a well-documented
history of it. Had a jury been told of Allen's disabilities, they might
have spared her life.
 Allen's counsel was paid only $800.
 Wanda Jean Allen was executed in 2001.
 A documentary film, The Execution of Wanda Jean, was produced by
HBO in 2002
Daniel Cook (AZ)
 As a child, Daniel Cook was subjected to severe and repeated
physical and sexual abuse from family members. He was diagnosed
with schizophrenia, acute psychosis, alcohol addiction, passive
aggressive personality, depression, and dependent personality
disorder all at different times in his life.
 Cook’s appointed lawyer at the time was suffering from bipolar
disorder and drinking heavily. Cook waived his right to counsel,
preferring to represent himself. The lead prosecutor recalled that the
appointed defense lawyer was “at the low end of the competency
scale” and “appeared neither capable nor willing to put forth the effort
necessary”. He added that Cook “was clearly not competent to act as
his own counsel.”
 Cook was executed August 8, 2012.
Those who should not have received a death sentence
due to traumatic childhoods:
Examples:
Harold McQueen
Samuel Lopez
Stephen West
Richard Smith
Harold McQeen (KY)
 During the penalty phase of his trial, Harold McQueen’s lawyers
failed to investigate or present mitigating evidence. One of his
attorneys testified later that he didn’t even speak to McQueen’s family
prior to the sentencing hearing.
 The jury heard no evidence of McQueen's long-term drug addiction,
and resulting brain damage. The jury never knew that Harold had
been severely neglected as a child. The jury knew nothing of Harold's
demeanor and personality off drugs.
 Harold McQueen was executed in 1997.
Samuel Lopez (AZ)
 Samuel Lopez grew up in an environment of extreme poverty,
and violence. He witnessed his mother being repeatedly beaten
and was beaten, neglected, and isolated as a child as well as
being beaten himself. He began abusing various substances at
a very young age, and became addicted by early adulthood.
 At his first trial Lopez was represented by a lawyer who had
never handled a death penalty case before and presented no
evidence at the first stage of the trial and no witnesses at either
stage. This lawyer acknowledged that he had had “no concept
of mitigation” and “did not conduct a mitigation investigation”. At
his re-sentencing, Lopez’s new lawyer also failed to investigate
his client’s family or life history.
 Samuel Lopez was executed June 2012 in Arizona.
Stephen West (TN)
 West was born in a mental institution, and from that time until
he left for the army, he was severely physically abused by
both his parents. He was beaten, punched, thrown into walls,
and subject to other forms of cruelty including public
humiliation, degradation, captivity, and isolation.
 West was represented at trial by two lawyers, neither of
whom had worked on a death penalty case before. They
failed to investigate and present the evidence of severe
parental abuse in Stephen West’s childhood.
 West remains on death row in Tennessee.
Richard Smith (OK)
 Richard Smith was physically abused by his father, and then
stepfather. The abuse led to him run away from home. When he
returned he was beaten severely by his stepfather and handcuffed
and locked in a cupboard every night for two weeks.
 At the sentencing phase of the trial, Smith’s defense lawyer
presented almost no evidence, and no expert testimony. The lawyer’s
presentation at the sentencing was described in 2005 by a federal
District Court judge as “shocking in its brevity, its failure to humanize
[Smith] or to explain his actions”.
 Richard Smith’s sentence was commuted to life without parole by the
governor following the recommendation of the Parole Board.
Those who were executed (or almost executed) despite
significant evidence of innocence:
Examples:
Troy Davis
Shawn Hawkins
Cameron Willingham
According to the Innocence Project, 54 of first 255 DNA
exonerations raised ineffective counsel claims, but 81% of
those were rejected.
Troy Davis (GA)
 The state of Georgia shamefully executed Troy Davis on
September 21, 2011 despite serious doubts about his guilt.
 The case against him consisted entirely of witness testimony,
and all but two of the state's non-police witnesses from the trial
eventually recanted or contradicted their testimony, while many
others implicated an alternative suspect.
 During his state appeals, Davis was represented by a resource
center with 2 attorneys and 80 clients, which did not have the
capacity to investigate the witnesses and gather the
recantations in a timely fashion.
 Once Davis had adequate legal representation, in federal court,
the recantations were acquired, but the federal courts ruled they
should have been produced earlier.
Shawn Hawkins (OH)
 Shawn Hawkins was convicted of a double murder based solely
on the testimony of Henry Brown, whose version of events
changed multiple times in interviews with police. Brown was
offered immunity in exchange for implicating Hawkins.
 After Hawkins was convicted of both murders, his lawyer was
not prepared for the sentencing phase and, instead of
presenting a mitigation case, berated the jury for their decision
to convict Hawkins. The following day, the jury voted for the
death sentence.
 In May 2011, the Ohio clemency board voted to commute
Hawkins’ sentence, since it was “not confident in the death
sentence in this case.”
 On June 8, Governor John Kasich commuted Hawkins’
sentence to life without possibility of parole.
Cameron Todd Willingham (TX)
 Willingham was convicted and executed
for the alleged murder of his three
daughters by arson.
 In 2011, the Texas Forensic Science
Commission published a report
concluding that unreliable fire science
led to Willingham’s 1992 conviction and
2004 execution.
 After the unreliability of Willingham’s conviction became clear, the
lawyer who defended him argued strongly that he had been guilty, and
stated that they confirmed the state’s (false) theory of arson by pouring
lighter fluid on a carpet and burning it and comparing that to pictures
from the crime scene.
Inadequate Counsel & the Death Penalty
Inadequate lawyering is another way the US death penalty
becomes arbitrary:
• It disproportionately affects the poor (who can’t hire quality
counsel)
• It allows those who should be exempt from execution (the
mentally disabled, those who endured tragic childhood
abuse or neglect, the innocent) to be sentenced to death
and executed anyway.
What Can Be Done?
The so-called “worst of the worst”
(those for whom the death penalty is
supposed to be reserved), are
instead those with the worst lawyers.
Fixing this problem would require
pouring tremendous additional
expenses into a highly complex
capital punishment system that
already costs significantly more than
alternative sentences.
Abolish the Death Penalty!
Ending the death penalty would:
• Eliminate this expensive and overly complicated system
• Allow more resources for everyone facing a criminal
charge to have a good lawyer
• Result in more fairness and justice for everybody.
The promise of the 6th Amendment, and of Gideon, could
finally be realized.
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