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Show Trials and Sham Trials: Inadequate Representation at Trial in Capital Cases Ernie Thomson University of La Verne A person may be condemned to die in Texas in a process that has the integrity of a professional wrestling match. Stephen Bright, Director, Southern Center for Human Rights The Constitution says that everyone's entitled to an attorney of their choice. But the Constitution does not say that the lawyer has to be awake. Trial Judge Doug Shaver, Texas District Court (Houston) Reflexive Statement The death penalty is a controversial and fascinating subject to many Americans today, and a growing number of sociology, criminology, and criminal justice professors have begun to offer college courses on the subject. A few textbooks and readers have even appeared, mainly to meet the demand created by these classes and provide supplemental material for other college classes. Unlike the non-academic discourse on this subject, which usually focuses on philosophical and moral questions, this newly-emerging academic approach is usually based on a legal perspective (Constitutional issues and landmark cases) often supplemented by social science research on a narrow range of topics related to these major legal issues (deterrence, discrimination, etc.). Largely missing from the academic discourses on capital punishment are a humanistic approach (what capital punishment means to the people involved in the systems) and also clear, accurate descriptions and explanations of how the capital legal processes actually work. Ten years ago, I began teaching a course on the death penalty employing a humanistic perspective and a strong focus on realistic commonsense explanations of how the various parts of the systems work. This paper describes what I have come to see as the single biggest problem with capital punishment in America � the show trial, sham trial system. Introduction In June 1998 an African American man named James Byrd, Jr. was chained to the bumper of a pickup truck and dragged to death near the east Texas town of Jasper. The case quickly became the focus of massive national media attention, which intensified several days later when three local white men linked to the white supremist movement were arrested for the killing. Over the next year, under the constant glare of the national media spotlight, the defendants were tried separately in high profile capital cases. In the end, two were sentenced to death and the third was sentenced to life in prison. Two of the defendants were legally indigent and thus were entitled to appointed attorneys for their trials. A story in the Houston Chronicle on July 15, 1998, described the defense attorneys appointed by the local trial judge to handle these highly-publicized cases: Beaumont - Veteran Beaumont defense attorneys will represent three white men charged with capital murder in the highly publicized slaying of a black man who was dragged for almost three miles behind a pickup truck outside Jasper. James Byrd Jr., 49, was killed early on June 7 while he was on his way home from a family gathering. The dragging of his body over a rough country road tore off his right arm and head. Bill King and Shawn Berry, 23-year-old Jasper residents, and Russell Brewer Jr., 31, of Sulphur Springs [Texas] were indicted by a Jasper County grand jury last week. On Tuesday, state District Judge Joe Bob Golden appointed attorney C. Haden "Sonny" Cribbs, Jr. to defend King and Douglas Barlow to defend Brewer. Berry earlier hired Joseph C. "Lum" Hawthorn to be his defense attorney. The article goes on to describe the impressive credentials of these three prominent Texas attorneys, who had served as Federal Attorneys, judges, and defense counsel in high profile cases. The national media remained in Jasper for months providing detailed daily accounts of the trials through conviction and sentencing. The following excerpt is a description of another Texas capital trial which, like a majority of capital trials in the United States, did not capture much attention from the media: On February 18 � the U.S. Supreme Court denied a hearing to George McFarland, who was sentenced to death in Houston in August 1992 for killing Kenneth Kwan, a convenience store owner� the case moved with bullet-train velocity. Opening statements on August 10, 1992; guilty verdict on August 12; death sentence on August 14. With lunch and the occasional recess, it required not more than sixteen hours � for Texas to transform George McFarland from Presumed Innocent into Dead Man Walking. Even cursory reading of that trial record is enough to suggest that Texas will likely send McFarland -- a 36-year-old petty thief -- to his death on the basis of evidence that in many states wouldn't make a parking ticket stick. But the most startling fact of McFarland's trial was not recorded in the transcript, and involved not McFarland but his lawyer, one John Benn. Here's how Houston Chronicle reporter John Makeig described what happened as McFarland stood on trial for his life: "Seated beside his client...defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep. His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again. Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the...arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan. When state District judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial. "It's boring," the 72-year-old longtime Houston lawyer explained... Court observers said Benn seems to have slept his way through virtually the entire trial." The idea of a lawyer sleeping through a murder trial may be a little disconcerting -- unless you are from Texas, where sleeping lawyer capital cases are a bona fide trend. In the past year alone, the Texas Court of Appeals has turned down three petitions from death-row inmates whose lawyers slept through significant parts of their trials. The Jasper trials and the McFarland case illustrate some key differences between the few highly publicized capital cases that help to shape public opinion about the death penalty - "show trials" like the Jasper trials - and the majority of routine capital trials that attract very little public or media attention, also mostly involve indigent defendants, and routinely involve "sham trials" like the infamous �sleeping lawyer� cases in Texas. Based on an examination of trial and appeal records from three death penalty jurisdictions, and supplemented by interviews with defense attorneys and prosecutors, this module describes how sham trial systems work, why appeals processes are ineffective in correcting problems with death penalty cases, and why death penalty jurisdictions resist changes to sham trial systems. What are sham trials? The American criminal law system is based on an adversarial system which assumes that a fair and just outcome will be reached if the prosecution vigorously presents the best possible evidence-based case against the accused while the defense vigorously presents the best case on behalf of the accused before a neutral judge and a jury composed of regular citizens (peers of the accused). Over the last century, two major trends have characterized the American criminal legal system. First, trials have been replaced by settlement systems (�plea bargaining�) developed to avoid the cost, delays, and inconvenience of trials. Today the vast majority of criminal cases are settled without trial. Second, for the small proportion of criminal cases which are not settled, there has been a gradual trend toward �balancing the playing field� between prosecution and defense by providing trained legal representation to defendants (e.g., public defenders). The sham trial system in capital cases The key to understanding the sham trial system lies in understanding how prosecutorial discretion works in capital cases, that is, how prosecutors decide whether to settle a potential capital case for less than a death sentence or take it to trial (a prerequisite for a death sentence), that is, why prosecutors decide to seek death sentences in some capital-eligible cases but not others. Our interviews with prosecutors and defense attorneys indicated that three factors played a major part in these decisions: the level of culpability of the accused, the strength of evidence in the case, and the quality of representation provided by (mostly appointed) attorneys. Levels of culpability David Baldus and his colleagues developed a scale of culpability for use in their study of death sentencing discrimination in Georgia, and their scale was generally consistent with the way both prosecutors and defense attorneys that we interviewed described capital cases. Georgia data showed that high culpability cases involved few racial disparities, because most of these cases were pursued as death penalty cases and little prosecutorial discretion was involved (lawyers sometimes refer to these cases as "slam dunk" cases). Low culpability cases also showed little evidence of racial disparities because these cases were rarely pursued as death penalty cases. Baldus and his colleagues found that it was medium culpability cases involving difficult decisions by prosecutors that accounted for the racial disparities in Georgia death sentencing. Although prosecutors are much more likely to take high culpability cases to trial and seek a death sentence, typically there are many fewer of these cases than medium culpability cases which are less likely to be taken to trial. Thus overall the universe of cases selected for capital trials from among the death-eligible cases is usually a mix of high and medium culpability cases and usually a majority of these cases are medium culpability cases. Strength of evidence The strength of evidence for potential capital cases varies widely, from cases based on the slightest of circumstantial evidence (defense attorneys refer to these cases as �weak evidence� cases) to those based on solid physical evidence (�slam dunk� cases). While the "slam dunk" cases were much more likely to be pursued as capital cases, prosecutors indicated that the key consideration for pursuit of cases involving weaker evidence was the perceived likelihood of winning a conviction at trial. These prosecutors also pointed to another feature that interacts with the perceived likelihood of winning � the prosecutor�s �belief in the case� - his/her belief in the actual guilt of the accused. Quality of legal representation The vast majority of death penalty cases involve indigent defendants who are unable to afford a private attorney. Under the United States Constitution, indigent defendants are entitled to legal representation at trial and this is typically provided in one of two ways, either through a public defenders office or through court appointed or "contract" attorneys. The American Bar Association has developed a set of minimum standards recommended for capital trial representation. According to the ABA, two attorneys should be appointed, one experienced in capital trials, the other experienced in felony trials. Extensive training in capital litigation (which is quite complex) should be provided. Appropriate compensation should be provided (the ABA estimates that at least 500 hours of attorney time is needed for the whole trial process), plus resources for full independent investigation, the discovery process, capital trial preparation, evidence analysis, and expert witnesses. Even these minimum standards are rarely met in indigent capital cases (most capital cases) mainly because local jurisdictions are unwilling to pay for this level of representation. Thus indigent defendants are typically represented by underpaid, untrained, and often unskilled attorneys with few resources for investigation, trial preparation, evidence, or witnesses (high publicity cases are a rare exception). The making of sham trials Good private attorneys usually won't take indigent capital cases, for several reasons. First, the compensation is poor and includes very few resources for investigation and trial preparation. Capital cases, because the defendant�s life is at stake, tend to be intense and frustrating cases at best. Given the lack of resources provided for indigent defense, good conscientious attorneys are doubly frustrated because they cannot possibly do a good job with low pay and no resources. Second, most defendants will be convicted, and many will be sentenced to death and eventually executed. Getting to know a person intimately while participating in the process that results in his/her death is a strong disincentive for many good attorneys. Third, the appointed attorney will usually be accused of incompetence in the defendant�s appeal - usually correctly (at least in common sense terms) because the attorney lacked the resources to do the best job possible. Since good attorneys avoid these cases, most defendants end up with attorneys who are �systemically incompetent� - inexperienced, in trouble with the courts and/or the law, unskilled, etc. � they are often lawyers who are unable to get other cases. Further, the judges who appoint these attorneys (often the same attorneys again and again) often prefer �cooperative� attorneys who will move cases along quickly, make few troublesome and complicated motions, etc. Trial judges are often former prosecutors who have been promoted for winning capital cases (against incompetent defense attorneys!). In essence then, defense attorneys are systemically appointed to lose the cases - inexperienced, ineffective attorneys with few or no resources for independent investigation, discovery, trial preparation, expert witnesses, etc., results in incompetent defense at trial. Further, when a skilled prosecutor with a strong belief in the guilt of the accused and some evidence to present to a jury (evidence that will largely go unanswered by the defense), is combined with an unprepared and unskilled opponent in court, the result is a �sham trial� - a trial which has the formal characteristics of a fair trial without the substance. Further, since prosecutors and defense attorneys typically work together in local courts, prosecutors are very likely to know the local unskilled defense attorneys, so when one of these attorneys is appointed to a capital case, the prosecutor knows in advance that the trial will be a sham and that little evidence will be required to convict. This is where most mistakes in capital cases originate � with a prosecutor who �believes in� the guilt of the accused, some evidence that links the accused to the crime, and the knowledge that a sham trial and thus easy conviction are likely. These cases also lead to high conviction rates for the prosecutor, public approval, and ultimately promotion to criminal court judge. In the end, 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 is what creates most of the complex problems that turn up later in the appeals process. Further, because of sham trials, mistakes also happen with those defendants who were erroneously convicted but not sentenced to death, and most of these cases are never appealed, nor do they get much attention from death penalty critics. Since the key to understanding problems with sham trial capital cases lies in what defense attorneys did not do, problems tend to be "invisible" to appeals courts (problems are not in the trial record) and to the media and public. This is why they look "scandalous" when the media occasionally investigate and expose how these cases really work. The appeals process and sham trials The appeals process is designed to adjudicate the legal process, not substantive issues - substantive issues are supposed to be handled at trial, and appeals courts are usually reluctant to �second guess� the trial judge and jury. 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 anti-death penalty lawyers take these cases, as do some pro-bono and civil lawyers). The most obvious grounds for appeal in sham trial cases involve issues that should have been raised at trial but were not - because of the incompetent defense attorney. 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 who should have raised it at trial. This is what leads to the �appeals circus" with many capital cases - skilled appeals lawyers search for legal technicalities to get around the waiver problem preventing them from raising the real issues in a case - thus the "endless appeals" process. If they can get a new trial, the waiver rule does not apply and the real issues can be raised at the new trial. Prosecutors, of course, vigorously oppose new trials, partly because it is hard to win weak evidence cases in a real trial (and they typically believe that the defendant is guilty). Can the system be fixed? It would be enormously expensive for local jurisdictions to provide fair trials for indigent defendants, and some defendants (including guilty ones!) would be acquitted, thus enraging the public (imagine the public reaction if O.J. Simpson's attorneys had been paid with millions of dollars of tax money). Plus, the present system works well for everybody except the defendants, who are poor and powerless anyway. Politicians can appear tough on crime without worrying about the bad publicity that comes with acquittals. Judges can also appear tough on crime, and their record of presiding over death sentences, even when they turn out later to be mistakes, leads to reelection and promotion to appeals courts. Prosecutors appear tough on crime, and a strong conviction record gets them promoted to judges. Defense attorneys who cannot get other cases anyway are paid for doing little work. Finally, the public thinks that the system works pretty well because they usually only know about the highly-publicized show trial cases. The United States Supreme Court has also found no fault with the sham trial system. In a landmark case (Strickland v. Washington 1984) the Court established a �two-pronged test� for evaluating the formal Constitutional competence of defense counsel. First, the Court held that performance of defense counsel must be evaluated in light of �reasonableness under prevailing professional norms� with a �strong presumption of competence.� Second, even if the defendant were able to prove that the trial attorney was so incompetent that the first burden of proof was met, the defendant would have to prove that the outcome of the trial would have been different with a competent trial attorney, a burden that is virtually impossible to meet. Occasionally, politicians, judges, or prosecutors come along with the integrity to object to or oppose the sham trial system. They are usually punished in one way or another - voted out of office, denied promotions, publicly criticized as "soft on criminals," and so on. Note: Not just Texas In April 2001, Donald Paradis was released from prison in Idaho after spending twenty-one years in prison, including a stretch on death row, for a murder he did not commit. His court-appointed trial attorney, William Brown, had never studied criminal law, never tried a felony case, never tried a case before a jury, and was working as a local police officer at the same time he was representing Paradis in a case where fellow police officers provided the key testimony against Paradis. The whole defense presentation lasted 3 hours. Donald Paradis was convicted and sentenced to death. Similar cases can be found in most death penalty jurisdictions. |