Litigating in the Shadow of Death: Defense Attorneys in Capital Cases

by Welsh S. White

Overview

"Anyone who cares about capital punishment should read this compelling, lucid account of the obstacles defense attorneys face and the strategies they adopt."
—John Parry, University of Pittsburgh School of Law

"With its compelling narratives of cases, strategies, and ethical dilemmas, Litigating in the Shadow of Death is difficult to put down. . . . This pathbreaking book encapsulates the experience of the most respected capital defenders in America and shows how they save even the worst of the worst from execution. It also shows how sleeping and otherwise incompetent lawyers bring death sentences to their clients. Litigating in the Shadow of Death explores the lawyers' tasks at every stage of the criminal process—investigation, client interviewing, conferring with victims' families, plea bargaining, trial, appeal, and post-conviction proceedings."
—Albert W. Alschuler, Julius Kreeger Professor of Law and Criminology, University of Chicago

"A unique and profoundly important contribution to the literature on the death penalty. White allows the leading capital defense attorneys to speak in their own voices. His work reveals a new source of arbitrariness in the death system—whether the penalty is imposed turns more on who is your lawyer than on how evil was your deed or your character. Litigating in the Shadow of Death offers concrete guidelines for better lawyering, protection of the innocent, and understanding the artistry of the best capital attorneys. This is vivid, gripping stuff."
—Andrew Taslitz, Professor of Law, Howard University

"A most illuminating book by a splendid writer and an eminent critic of the capital punishment system."
—Yale Kamisar, Professor of Law, University of San Diego

"Welsh White has written another excellent book on the death penalty—this one on how defense attorneys in capital cases successfully prevent the state from executing their clients. Based on original research, Litigating in the Shadow of Death is informative and insightful. This is a book that all serious students of American capital punishment must read."
—Richard Leo, University of California, Irvine


Welsh S. White was Bessie McKee Walthour Endowed Chair and Professor of Law at the University of Pittsburgh.

Product Details

ISBN-13:	9780472069118
Publisher:	University of Michigan Press
Publication date:	12/21/2005
Pages:	232
Product dimensions:	6.00(w) x 9.00(h) x 0.70(d)

About the Author

The late Welsh S. White was Bessie McKee Walthour Endowed Chair and Professor of Law at the University of Pittsburgh.

Read an Excerpt

Litigating in the Shadow of Death
Defense Attorneys in Capital Cases

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By WELSH S. WHITE
THE UNIVERSITY OF MICHIGAN PRESS
Copyright © 2006
University of Michigan
All right reserved.

ISBN: 978-0-472-09911-5

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Chapter One The Role of Defense Lawyers in Capital Cases

The story of the modern era of capital punishment is inextricably entwined with the story of the lawyers who represent capital defendants. In a series of cases culminating in Furman v. Georgia, decided in 1972, a small band of lawyers led by Anthony Amsterdam, a brilliant law professor, convinced the Supreme Court that the then-existing system of capital punishment was unconstitutional. As a result, every state's pre-1972 capital sentencing statute was invalidated and 631 death sentences were vacated.

In the four years following Furman, thirty-five states enacted new capital punishment legislation, allowing death sentences to be imposed pursuant to new capital sentencing procedures. In five cases decided in 1976, the Court upheld three of these statutes and invalidated the other two. These rulings provided the foundation for the modern or post-Furman era of capital punishment.

Capital trials conducted during the post-Furman era differ from those conducted in the pre-Furman era primarily in two respects: first, capital trials are now bifurcated so that, if the defendant is convicted of the capital offense, there is a separate penalty trial at which both the government and the defense are permitted to introduce additional evidence relating to the defendant's background and the circumstances of his offense; second, the jury is given guidelines for determining whether the defendant should be sentenced to death or a lesser punishment. In later decisions, the Court explained that these procedural reforms reduced the likelihood that the death penalty would be arbitrarily applied, thereby rendering death penalties imposed under the post-Furman system constitutionally acceptable.

During the early years of the post-Furman era, few defendants were executed. From 1976 to 1983, only 11 executions took place. During the 1980s and 1990s, however, the pace of executions accelerated. In the five-year period from 1984 to 1989, nearly 20 defendants per year were executed. And during the years 1996 through 2000, the number of executions reached its highest level since the mid-1950s. During that five-year period, executions averaged 74 per year, with the peak occurring in 1999 when 98 defendants were executed.

During the early part of the twenty-first century, concerns about the administration of capital punishment slowed the pace of executions. Exonerations of death row defendants have been particularly significant. Evidence showing that at least 119 defendants sentenced to death were in fact innocent led two states to impose moratoriums on capital punishment until the system can provide safeguards that will minimize the possibility of innocent people being executed. Nevertheless, the number of defendants executed has still been significant: during the years 2001 to 2005, about 65 defendants per year have been executed.

Throughout the modern era of capital punishment, attorneys representing capital defendants have continued to play an integral part in the story of capital punishment. Although Anthony Amsterdam no longer argues cases before the Supreme Court, he continues to teach and assist lawyers who represent capital defendants. Over the past thirty years, as the Rehnquist Court replaced the remnants of the Warren Court, the Supreme Court has become much more conservative; as a result, the legal arguments likely to resonate with courts in capital cases are different today than they were in the pre-Furman era. Nevertheless, as Amsterdam proved during the pre-Furman era, telling a powerful and coherent tale of injustice has always been a critical component for a defense attorney seeking to win a capital case. Inspired in part by Amsterdam's teaching and example, a new band of dedicated lawyers has vigorously represented capital defendants, seeking to prevent their executions. In subsequent chapters, I will explain some of the work of these lawyers and the impact it has had not only in specific capital cases but also on the protections afforded capital defendants.

Unfortunately, less dedicated lawyers have also had a part in the story. As the pace of executions increased, it became increasingly clear that defense attorneys' representation of capital defendants was sometimes shockingly inadequate. In 1990, a Task Force Report by the American Bar Association (ABA) documented the deficient quality of representation frequently afforded indigent capital defendants: "One attorney, for example, was out of the courthouse parking his car while the key prosecution witness was testifying. Another attorney, in front of the jury, referred to his client as a 'nigger.' ... Yet another attorney stipulated all of the elements of first degree murder plus two aggravating circumstances." The report went on to state that "[e]xamples like these are legion" and to quote witnesses who "described the current state of affairs for indigent criminal [capital] defendants as 'scandalous,' 'shameful,' 'abysmal,' 'pathetic,' 'deplorable,' and 'at best, exceedingly uneven.'"

Over the past fifteen years, the ABA has made a concerted effort to improve the quality of representation afforded capital defendants. Among other things, it has promulgated detailed guidelines for attorneys representing capital defendants, and it has persuaded state legislatures to adopt provisions designed to improve the quality of capital defense lawyers' representation. Nevertheless, in some parts of the country, the quality of representation afforded capital defendants has not only failed to improve but has probably deteriorated.

Stephen Bright, the director of the Southern Center for Human Rights, who has both represented capital defendants himself and extensively studied other lawyers' representation of capital defendants, concludes that in at least four states-Alabama, Mississippi, Louisiana, and Texas-defense attorneys' trial representation of capital defendants is "as bad or worse" than it was in 1990 when the ABA Report was written. Bright observes, moreover, that in parts of other states-Georgia and Pennsylvania, for example-defense attorneys' performance in capital cases is at best "hit or miss," with some capital defendants receiving shockingly inadequate trial representation.

The states with the most executions have done the least to ensure that capital defendants are provided with effective representation at trial. Texas, which, during the post-Furman era, has executed more than three times as many defendants as any other state, provides the most shocking examples of capital defense attorneys' inadequate representation. As in many other states, the roots of Texas's problems are an inadequate structure for appointing attorneys for indigent capital defendants and inadequate pay for the attorneys who are appointed. Because there are few public defender offices in Texas, most indigent defendants rely on court-appointed lawyers who receive low pay. Until the mid-1990s, moreover, lawyers in most of Texas's 254 counties needed no special qualifications to be appointed to death penalty cases.

Barring unusual circumstances, low-paid appointed attorneys will not have the skill or resources necessary to mount a vigorous defense on behalf of a capital defendant. In Texas, public officials' indifference exacerbates the problem. "Advocates for indigent defendants contend that in courthouses across the state, judges frequently dispense court-paid cases-including capital cases-as a form of patronage to lawyers who help them politically." To some judges, these lawyers' ability to represent a capital defendant was apparently irrelevant. During the 1980s and 1990s, judges in some Texas counties appointed the same attorneys to represent capital defendants in case after case, even after it appeared that these lawyers' representations of their clients were invariably inept.

A study conducted by the Washington Post provides some striking examples. The study "revealed instances in which lawyers in capital trials slept through key testimony, failed to file crucial legal papers correctly or on time, or had been cited for professional misconduct repeatedly in their careers."

Perhaps the most egregious example was Houston judges' repeated appointment of Joe Cannon, the sleeping attorney. During the 1980s, judges frequently appointed Cannon to represent capital defendants, at least a dozen of whom were sentenced to death and several of whom were executed. In some of these cases, Cannon was observed by jurors and others to have been sleeping during the defendant's trial, generally "nodding off" in the afternoon. When Carl Johnson was tried in 1989 for fatally shooting a Houston security guard during a food store holdup, for example, Cannon was observed to be asleep during portions of the trial. In fact, David R. Dow, a University of Houston law professor who later represented Johnson, "recalled being aghast" when he reviewed the transcript of Johnson's capital trial: "It was like there was nobody in the room for Johnson," Dow remembered. He observed that the transcript "goes on for pages and pages, and there's not a whisper from anyone representing him." Dow's efforts to obtain relief, however, were unsuccessful. The Texas Court of Criminal Appeals, the highest Texas court to review criminal cases, had previously ruled that Cannon's assistance to Johnson was not ineffective. Petitions for state and federal postconviction relief failed to reverse this ruling. Although the Texas courts did not address the issue of Cannon's sleeping during the trial in this case, Texas judges indicated in other cases that the defendant's right to the assistance of counsel does not include the right to an attorney who is awake throughout the trial. Johnson was executed on September 19, 1995.

Ronald Mock, who was also frequently appointed to represent Houston capital defendants, has been described as "an attorney who has become an emblem of the troubles with capital defense in Texas." According to state records, "Mock has been disciplined by the bar at least five times." Nevertheless, during the 1980s and early 1990s, Houston judges repeatedly appointed Mock to represent capital defendants, even though his record on behalf of his clients seemed unimpressive. During that period, Mock represented Gary Graham and three other defendants who were later executed and "many more" who were sentenced to death. In his analysis of Mock's defense of Graham, a defendant who many believe was innocent, Professor Dow concluded that Mock "didn't interview any witnesses who could have testified Graham wasn't the shooter. He literally put on no defense." Gary Graham was executed on June 22, 2000.

Cannon and Mock are not the only blatantly incompetent attorneys who have been appointed to represent Texas capital defendants. The attorney who represented death row inmate Joe Lee Guy acknowledged in an interview that he was "an active alcoholic" and cocaine user at the time of Guy's trial, although he said he was sober while representing Guy in court. And the lawyer appointed for Anthony Ray Westley was arrested in the courtroom during the jury selection of Westley's trial and charged with contempt of court for failing to file legal papers on behalf of an earlier client who had been sentenced to death. According to a judicial report, the lawyer's subsequent representation of Westley was so poor that it resulted in a "breakdown of the adversarial process." Nevertheless, Texas's highest criminal court rejected the report's recommendation that Westley be granted a new trial. Westley was executed on May 13, 1997.

As these cases illustrate, the Texas criminal justice system, including the highest Texas court to review criminal cases, created a climate under which inadequate representation of capital defendants seemed to be tolerated, if not encouraged. Not surprisingly, Elisabeth Semel, the head of the American Bar Association's Washington-based Death Penalty Representation Project, concluded that "[a]t every stage of the death penalty process, Texas is far below any measure of adequacy in terms of the legal representation it provides."

Although Texas's record with respect to providing legal representation to capital defendants is probably the worst in the nation, examples of egregious representation in capital cases have been documented in many other parts of the country. In 1999, the Chicago Tribune published an extensive review of capital punishment in Illinois. The Tribune investigators found that at least thirty-three individuals sentenced to death during the post-Furman era were represented by attorneys who had been, or would be, suspended or disbarred. One attorney named Herbert Hill was disbarred and reinstated, then represented four capital defendants who were sentenced to death. Other capital defenders, while not subject to disciplinary action, were nevertheless plainly unqualified, such as a "tax lawyer who had never before tried a case, civil or criminal."

Examples of blatantly inadequate representation may be found in nearly every state. "An Alabama defense lawyer asked for time between the guilt and penalty phases so that he could read the state's death penalty statute." A Pennsylvania lawyer "inexplicably read to the jury from, and tailored his [penalty phase] presentation to, a Pennsylvania death penalty statute that had been declared unconstitutional three years earlier." In a Georgia case, the court appointed a younger lawyer to assist a retained attorney who was elderly and frail. The two presented conflicting theories of the case. In the closing argument, the retained attorney asserted that there was a reasonable doubt whether his client had committed the crime, while the appointed attorney argued that the defendant was insane.

Even California, which is considered to have a relatively high-quality public defender system, is not immune from poor capital defense. In the city of Long Beach, California, an attorney named Ron Slick was frequently tapped as a court-appointed defender. Eight of his clients were sentenced to death. The supervisor of the public defender's office later explained that "judges liked Slick because he was always ready to go to trial." Whereas most attorneys would want a continuance to prepare the case, Slick "would try the case.... The courts loved it."

In contrast to lawyers who provide inept representation for capital defendants, there are dedicated attorneys who have not only achieved remarkable results on behalf of individual capital defendants but also, in important respects, altered the public's perception of capital punishment. Craig Cooley and Michael Arif's representation of seventeen-year-old Lee Malvo, who, along with forty-two-year-old John Muhammad, was shown to have perpetrated the sniper killings in and around Washington, D.C., during the fall of 2002, is perhaps the most publicized recent capital case in which lawyers' extraordinary trial performance transformed the jury's perception of an individual defendant. Before Malvo's trial, the public perceived Malvo as one of the most cold-blooded killers imaginable. Along with Muhammad, Malvo had ruthlessly and systematically wiped out ten innocent lives. Based on the evidence presented by Cooley and Arif at Malvo's trial, however, a different picture emerged: Malvo was shown to be a gentle, vulnerable youth who was desperate for a father and therefore unable to resist the influence exerted by the charismatic Muhammad. Most informed observers originally predicted Malvo's jury would sentence him to death. Upon considering Cooley and Arif's defense evidence and Cooley's eloquent closing argument, however, the jury quickly decided to spare Malvo's life, sentencing him to life imprisonment.

In other less famous cases, defense attorneys have been able to achieve similar results even when the prosecutors' case was in some ways more aggravated than the government's case against Malvo. In the Malvo case, the seventeen-year-old defendant obviously had some redeeming qualities: he was young, there were people who cared about him, and he did not have a history of violent conduct. In other capital cases, the prosecutor has been able to show not only that the defendant committed one or more horrendous killings but also that he had been perpetrating violent criminal acts for decades. Even in these cases, talented defense attorneys have been able to transform the jury's view of the defendant, leading it to understand and empathize with him, or at least to conclude that he should not be sentenced to death.

(Continues...)

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Excerpted from Litigating in the Shadow of Death by WELSH S. WHITE
Copyright © 2006 by University of Michigan . Excerpted by permission.
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Table of Contents

Contents ONE The Role of Defense Lawyers in Capital Cases....................1
TWO Effective Assistance of Counsel in Capital Cases....................13
THREE Defending Capital Defendants Who Are Innocent....................37
FOUR Defending Capital Defendants Who Have Strong Claims of Innocence....................77
FIVE Defending a Capital Defendant in an Aggravated Case....................105
SIX Plea Bargaining in Capital Cases....................145
SEVEN Seeking Postconviction Relief in Capital Cases....................173
EIGHT Concluding Observations....................197
Methodology Appendix....................209
Table of Cases....................213
Index....................217