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| INADEQUATE REPRESENTATION AT TRIAL IN DP CASES - HOW IT WORKS "A person may be condemned to die in Texas in a process that has the integrity of a professional wrestling match" (Stephen Bright, Director of the Southern Center for Human Rights in Atlanta) The Wedding Cake Model of Homicide Highly publicized homicides (celebrities, gruesome cases, etc.) High culpability homicides (multiple, torture, child victim, etc.) Medium culpability homicides (unintended felony-related, gang/drug related, etc.) Low culpability homicides (routine homicides - argument, acquaintance, alcohol) Homicide, the DP, and the Wedding Cake Model Low culpability cases are rarely DP cases. These cases usually involve routine homicides in which poor people kill other poor people and/or minorities kill other minorities, and which are not planned or particularly brutal, and so on. Publicized cases in general seriously mislead the public about how the US legal system works - "show trials" like the O.J. Simpson, Scott Peterson, and Phil Spector cases show the public a dramatic and drawn-out production involving flashy lawyers, sober and serious judges, brilliant expert witnesses and trial testimony, and so on � a process that in reality is very rare. Most DP cases are not highly publicized at all and take very little time (a few days). A few normal DP cases eventually become publicized because of appeals, or because they turn out to be mistakes, or for other reasons. Most DP cases involve high and medium culpability homicides. A large proportion of high culpability cases in DP jurisdictions are typically selected for DP prosecution, but there are relatively few of these cases. A much smaller proportion of medium culpability cases are selected for DP trial, but there are many more of these cases. The result of the selection process in most jurisdictions is a mix of a few high culpability cases and many medium culpability cases, and almost all indigent defendants � medium culpability defendants who can afford a private attorney are usually allowed by prosecutors to �plea bargain� to avoid DP prosecution. Inadequate Representation at Trial According to the US Constitution and Supreme Court rulings, criminal defendants are entitled to a qualified attorney, and this right is usually fulfilled by a public defender or court-appointed attorney, because most defendants are indigent. Public defenders are usually more effective at trial than appointed attorneys, but they are also typically much more expensive and are usually available only in larger cities. Since many poorer states and jurisdictions almost entirely depend on appointed attorneys, especially in the south where the DP is more common, they will be used as the primary example here. Good lawyers usually won't take indigent defendant cases � most DP cases � for a number of reasons. Instead they want paying and/or publicized cases (which might bring in paying cases later). If they accepted cases as court appointed attorneys in most DP jurisdictions, the pay would be very low, there would be few resources for investigation and trial preparation, and the cases might be �bad for business� � with low pay, few resources, and mostly-guilty clients who are poor/minority defendants accused of killing while middle class victims, lawyers are likely to not only lose cases but also be ostracized by the public for defending their clients to begin with. DP cases tend to be intense cases (angry victims families, a life at stake, etc.) and can be very costly to the attorneys in other ways. The lawyer will get to know the accused person as a person rather than as a �vicious killer� who deserves execution, and since the lawyer can't do a very good job with low pay and no resources, the defendant, whether guilty or not, has very little chance at trial. Most defendants are guilty and will be convicted, and many will be sentenced to death and some executed, and this likely to be painful to the lawyer as well. Further, the lawyer will usually be accused of incompetence when the case goes to appeal - usually correctly since s/he had no resources to do a good job to begin with. Note: the American Bar Association Recommendations for DP trial attorneys call for two attorneys, one experienced in capital trials, the other experienced in felony trials, plus adequate resources for full trial preparation, investigation, witnesses, etc. � this rarely happens because it would be very expensive. The end result of the process is that most appointed attorneys are systemically incompetent � they are underexperienced and underfunded, in trouble with the courts and/or the law, unskilled, etc., and are often lawyers who are unable to get regular paying cases, and that is why they accept appointments. Then the situation gets worse: judges who appoint these attorneys (often the same attorneys again and again) prefer cooperative attorneys who will move cases quickly, make no troublesome motions, etc. Trial judges are often former prosecutors who have been promoted for winning cases - against the same incompetent defense attorneys that they now appoint to represent indigent defendants in their court. Sham Trials The result of the above process when the cases go to trial (as all DP cases do) are sham trials. In our �adversarial� legal system, appointed defense attorneys might be incompetent, but the prosecutors in these cases are not � they tend to be the elite of prosecutors, with the highest seniority, the best training and trial records, etc., and with full access to resources for investigation, trial preparation, expert witnesses, etc. Further, since most cases tend to go into local courts, the prosecutors will know the local unskilled defense attorneys, so they know that the trial will be a sham, that little evidence will be required to convict, and this is where mistakes and discrimination originate - prosecutors (almost all white) have the discretion to choose which cases to prosecute and even know that they can win cases where there is little evidence against the defendant � and these easy cases lead to high conviction rates, public approval, and promotion to judge). Almost all of these indigent defendant cases result in convictions, and about half result in death sentences. Overall, most death sentences are a result of sham trials and this creates problems for the legal system later, when the case goes to appeals. Since the key to understanding problems with sham trial DP cases lies in what defense attorney did not do, problems tend to be "invisible" to appeals courts (because what the defense attorney did not do is not in the trial record) and to the media/public. This is why these cases often look "scandalous" when the media occasionally do stories about the shoddy way the system works. Note: Because of sham trials, patterns of discrimination and mistakes also characterize defendants who were convicted but not sentenced to death (about half of all cases), and most of these cases are never appealed! Why the appeals process doesn't correct the problems Appeals are designed to adjudicate the legal process, not substantive issues regarding particular cases, so the appeals courts in DP cases find themselves in an awkward situation. They can�t require that trials really be fair because the Supreme Court has ruled that incompetent appointed attorneys are acceptable, but they can also clearly see the results of the sham trial system in the appeals that come forward. On appeal, many cases get skilled attorneys with some resources (there are many fewer cases, appeals are not as expensive or time consuming as trials, some very competent anti-DP lawyers take these cases, as do pro-bono and sometimes non-criminal lawyers. The most obvious grounds for appeal involve issues not raised at trial - because of sham trials. But now there is a legal "catch 22" - if an issue was not raised at trial, it usually can't be raised later on appeal, the procedural right to raise it has been "waived" by the incompetent trial lawyer. This leads to what appears to non-lawyers as an appeals "circus" - skilled appeals lawyers search for legal technicalities to get around the waiver problem which prevents them from raising the real issues in a case - thus the "endless appeals" process. If they can get a new trial, the waiver doesn't apply and real issues can be raised at new trial. Prosecutors vigorously oppose new trials partly because it is hard to win weak evidence cases in a real trial. Summary Most defendants are indigent (non-indigent get plea bargains) and the system provides only sham trials. Systemic sham trials give prosecutors discretion to pursue weak-evidence cases, and this leads to mistakes (in both high and medium culpability cases) and discrimination (mostly in medium culpability cases). Appeals don�t correct the problems because the whole sham trial system has been adjudged by a very conservative US Supreme Court to meet Constitutional standards - Strickland v. Washington 1984. Can the �Broken System� Be Fixed? It would be enormously expensive to provide fair trials for indigent defendants, and many of these defendants, including guilty ones, would be acquitted in fair trials, enraging the public. Imagine the public reaction if O.J. Simpson's attorneys had been paid with tax money! Plus, the system actually works pretty well for everybody except the defendants (who are mostly poor, minority and accused of murder) and appeals attorneys: - Politicians appear tough on crime; cheaper and less complicated system than real trials. - Judges appear tough on crime; record leads to reelection, promotions to appeals courts. - Prosecutors appear tough on crime; conviction record gets them promoted to judges. - Defense attys paid for doing little work, can't get other cases anyway. - The Public thinks that it all works well (because they only know about the publicized cases!) There are politicians, judges, and prosecutors in the system with integrity who oppose and work to improve the system. But because of the politics of the DP, they are likely to be punished - voted out of office, denied promotions, criticized as "soft on crime" etc. Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |
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