Representation in Capital Cases

Defense Representation in Capital Cases
Assessing the Importance of Quality Representation in Capital Cases
Standards for Counsel in Capital Cases
Representation Issues in the Gary Graham Case
Representation Issues in the Anthony Porter Case
Representation Issues in the Aileen Wuornos Case
Related Links

Defense Representation in Capital Cases

The Constitution guarantees a criminal defendant a right to an attorney and to due process of law. The Supreme Court has held that legal counsel must provide effective representation. Almost all defendants in capital cases cannot afford their own attorneys. In many cases the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. Because the American system of criminal justice is adversarial, depending upon contesting presentations by capable lawyers for the prosecution and the defense to arrive at fair and accurate results, it is essential that defense counsel be sufficiently skilled and experienced and be given adequate resources to fulfill his or her obligations to the client and the court.

Assessing the Importance of Quality Representation in Capital Cases

The Supreme Court, the Department of Justice and the American Bar Association are just some of the organizations involved in defining what constitutes adequate representation in capital cases. The following supplementary materials can help you further investigate this issue.

Key Supreme Court Cases on Capital Representation

Supreme Court decisions addressing representation fall into two major categories: those that define the parameters of the right to counsel and those that discuss standards for counsel’s performance. Each of these categories is important in the discussion of capital defense practices.

Right to Counsel for Indigent Criminal Defendants

Even though the right to counsel in criminal proceedings is guaranteed by the Sixth Amendment, this right only protected criminal defendants in federal prosecutions until two cases extended the protection to individuals prosecuted by state governments. Powell v. Alabama (1932) secured the right to an attorney for indigent capital defendants, and Gideon v. Wainwright (1963) extended that right to all indigent criminal defendants at the trial level. In Douglas v. California (1963), the Court held that when a state affords a defendant a right to appeal, it must provide an attorney to indigent defendants for the first statutory appeal. This appeal, which concerns matters that arose during the trial, is called the "direct appeal." Subsequent review is referred to as "post-conviction proceedings." In Murray v. Giarratano (1989) the Court refused to find, at least where capital defendants were receiving some legal assistance for post-conviction proceedings, that there was a constitutional right to representation in such matters.

Evaluating the Effectiveness of Counsel

After the right to counsel was established, the Supreme Court issued a series of decisions that evaluated the effectiveness of trial counsel. Strickland v. Washington (1984) established a framework for evaluating attorney performance in capital cases. Strickland requires that the defendant prove that counsel’s representation was deficient and that there is a reasonable probability that, but for counsel's deficiency, the outcome of the trial would have been different. Ineffective assistance of counsel is established only when the defendant has satisfied BOTH prongs of the Strickland test. In making determinations about what constitutes deficient representation, the Court has recently focused on the extent to which capital defense counsel investigate potential mitigating evidence on behalf of their clients. In Williams v. Taylor (2000) and Wiggins v. Smith (2003), the Court ruled that failure to conduct a thorough investigation of the client’s background may constitute ineffective assistance of counsel. The court further defined defense counsel’s obligation to investigate in Rompilla v. Beard (2005), which held that even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial’s sentencing phase.

Standards for Counsel in Capital Cases

Strickland provided the framework under which courts evaluate claims of ineffective assistance of counsel, but the Court has not specifically defined a set of performance standards for capital defense attorneys. Both the Department of Justice and the American Bar Association have published criteria to be used in evaluating trial counsel.

Representation Issues in the Gary Graham Case

The case of Gary Graham highlights some of the legal hurdles that capital defendants face. For example, because Texas had no state public defender system when Graham was tried (and still does not have one), each county was responsible for guaranteeing that the constitutional right to counsel was honored when poor people faced criminal charges. Most counties, including Harris County, where Graham was tried, appointed private attorneys to provide indigent defense. Counsel were paid very little: at the time of Graham’s trial, attorneys representing capital clients were paid on average less than $50 an hour for in-court time and nothing for out-of-court time.

Graham’s legal challenge to this process was filed with the U.S. Department of Justice by the NAACP Legal Defense Fund just days before his first scheduled execution date. The complaint asserted that this practice created a system where attorneys’ economic interests were in fundamental conflict with their clients’ interests. (See Race and the Criminal Justice System for more information on this complaint). Graham claimed that the inadequacies of Texas’ indigent defense system made it extremely unlikely that any lawyer appointed to a capital case would be able to provide effective assistance.

According to Graham, the Texas compensation scheme created an incentive for attorneys to forgo the out-of-court preparation necessary to develop a good in-court case and encouraged lawyers to "wing it" in court. For example, attorneys wanting to increase their in-court compensation might conduct long in-court examinations of witnesses whom they had never previously interviewed, thereby failing to bring out useful information, and instead, bring out information damaging to their clients. Graham requested that the Department of Justice conduct a full investigation into the systematic deprivations of constitutional rights outlined in the complaint, and that it initiate appropriate legal actions to enforce compliance with the Constitution.

Beyond systemic issues concerning capital representation in Texas, Graham claimed that his trial counsel, Ron Mock, had failed to adequately defend him and that Mock’s representation was so ineffective as to call the outcome of the trial into question. Graham asserted that defense counsel was ineffective for failing to conduct a thorough investigation and to present all of the relevant evidence. Ultimately, Graham argued, “defense counsel, through a combination of mistakes, misunderstandings, confusions, and omissions, failed to provide Mr. Graham the ‘zealous defense’ upon which the integrity of the criminal justice system relies.”

According to Graham, his trial counsel’s performance was deficient in several areas:

• He failed to investigate Graham’s account of his whereabouts on the night of the murder;
• He failed to investigate adequately the reliability of witnesses identifying Graham as the perpetrator; and
• He failed to call defense witnesses at trial.

To rebut Graham’s claims of ineffective assistance of counsel, the State presented evidence, including affidavits by Ron Mock, that Mock did as good a job of defending Graham as could have been done under the circumstances of Graham’s case. Specifically, the state argued that on numerous occasions prior to trial, Mock met with Graham and attempted to discuss the facts of the case with him. Graham only stated that he did not commit the robbery-murder and that he spent the evening with a girlfriend whose name, appearance, and address he could not remember. The state further contended that despite defense counsel’s effort, Graham did not provide the names of any potential alibi witnesses nor did he reveal where he had been or what he had been doing on the night of the homicide. Furthermore, the defense hired an investigator, Merv West, who interviewed at least ten potential mitigation witnesses. Only two, his stepfather and grandmother, would agree to testify favorably at trial. The state also asserted that Mock informed Graham that he had a right to testify on his own behalf but Graham never told trial counsel that he wanted to testify at either the guilt/innocence or punishment phases of the trial.

All of Graham’s claims of ineffective representation were rejected by the appellate courts.

Questions for Further Analysis

• How could poor-quality of representation increase the likelihood of wrongful convictions in capital cases? How could it increase the likelihood that a convicted defendant would be sentenced to death when, with a more capable attorney, he or she might have received a less severe punishment?
• Should death sentenced inmates be guaranteed the right to an attorney in post-conviction proceedings?
• Should there be national standards for attorneys in capital cases? Who should set these standards? Should these requirements apply to both the defense and the prosecution?
• Do the Supreme Court’s decisions in the Williams, Wiggins and Rompilla cases seem to demand more in the way of investigation by a capital defendant’s lawyer than was demanded by the Supreme Court’s earlier decisions such as Strickland v. Washington? If so, would this higher standard of duty apply to the defendant’s lawyer at the guilt/innocence stage of a capital trial, as well as to the sentencing stage with which the Williams, Wiggins and Rompilla cases were specifically concerned? If the standard for counsel’s performance established by the Supreme Court’s cases since 2000 had been in effect at the time when Gary Graham’s claim of ineffective assistance of counsel was presented to the courts, would the courts’ rulings on that claim have been different?

Representation Issues in the Anthony Porter Case

The Anthony Porter case highlights the significant impact ineffective assistance of counsel can have on the outcome of capital cases.  Even before the trial started, the odds were against Porter.  Akim Gursel, who became Porter's primary lawyer, had had earlier unfavorable encounters with the judge who was presiding over Porter's trial. After calling only three witnesses during the guilt phase, Gursel opted for judge sentencing because Porter's family had been unable to pay his attorney fees and a judge sentencing would be less work than a jury sentencing.

During his post-conviction appeals, Porter's appellate attorneys twice raised the issue of ineffective assistance of counsel.  As with any such claim, Porter needed to prove that his counsel's performance was below an objective standard of reasonableness and that a "reasonable probability" existed that, but for counsel's deficienies, the result of the proceeding would have been different. (Strickland v. Washington – will link to case)

In his 1995 petition for post-conviction relief, Porter contended that he was entitled to a new trial because his attorney did not present evidence showing that Alstory Simon, rather than Porter, killed Hillard and Green.  Porter pointed to the testimony of two witnesses who would have revealed that the victims walked to the park with Simon and his girlfriend, Inez Jackson, and that Simon had been in a dispute with Hillard regarding drug money.  Porter argued that his attorney did not call these witnesses during his trial because he (Porter) was unable to pay the remainder of the fees owed to the attorney.  Gursel admitted that he stopped investigating the case because Porter was able to pay him only $3,000 of the $10,000 fee previously agreed upon.

In denying post-conviction relief, the Illinois Supreme Court held that even if Porter's trial attorney performed ineffectively by not presenting these witnesses, there was no reasonable likelihood of a different outcome.  The court said there was considerable evidence against Porter that was unaffected by the trial attorney's error, namely testimony by Henry Williams, William Taylor and Officer Anthony Liance.

The issue of ineffective assistance of counsel was addressed again in Porter's 1997 petition to the federal courts for a writ of habeas corpus. His federal habeas lawyers argued to the United States Court of Appeals for the Seventh Circuit that:

• Counsel failed to pursue evidence suggesting that someone other than Porter was the murderer;
• Counsel failed to fully investigate Porter's alibi defense;
• Counsel failed to prepare two alibi witnesses that were called at trial; and
• Counsel failed to meet with Porter except immediately before and after court proceedings.

The Court of Appeals denied Porter's petition, despite taking all of his allegations to be true. It reasoned that Porter could not demonstrate that better representation would probably have resulted in an acquittal.  According to the court, "the affidavits and statements that Porter has submitted are far from convincing, especially when weighed against the direct, eyewitness testimony implicating Porter."

Porter’s case highlights a potential problem in postconviction proceedings based on claims of ineffective assistance of counsel that will be discussed at greater length in a separate essay, but is worth a brief mention here.  According to Strickland, judges in post-conviction proceedings must be convinced both that the trial lawyer’s performance was ineffective and that there is a reasonable likelihood that the outcome of the trial would have been different if the lawyer had been competent.  According to these standards, the defendant is not entitled to a new trial even if his lawyer failed to present evidence of innocence during the trial unless the postconviction judges also find that this evidence would have led the jury to acquit the defendant.  Most claims of ineffective assistance of counsel are turned down by the courts on this account, and not because the lawyers are found to have performed competently.

In Porter’s case, both the state courts and federal courts concluded that there was no reasonable likelihood that Porter could be found innocent, yet a thorough investigation later conducted by journalism students ultimately revealed that Porter actually was innocent, and the real killer confessed to the crime for which Porter had been wrongly convicted.

Questions for Further Analysis

• Can the risk of executing the innocent be completely eliminated? If so, how can this be done?
• If not, can the risk be substantially reduced?  How can this be done?  What costs would be involved in changing the system of trials and appeals and postconviction proceedings so as to substantially reduce the risks?  Would the reduction of the risk be worth these costs?
• Should convictions or sentences be overturned if the attorney was ineffective, even though the court doesn't believe the outcome would likely have been different?
• Porter’s case also raises questions about the special problems that individuals with intellectual disabilities may face when they are charged with a crime and required to defend themselves in court.  [See Intellectual Disabilities and the Death Penalty] Is there any connection between these problems and the problem of assuring that these defendants receive effective legal representation?

Representation Issues in the Aileen Wuornos Case

Aileen Wuornos’ appeals raised the issue of inadequate representation in her trial for the murder of Richard Mallory, as well as in her other five cases (the murders of David Spears, Charles Carskaddon, Tony Burress, Charles Humphreys, and Walter Antonio), for which she pled guilty or no contest. In her appeal to the Florida Supreme Court, Wuornos contended that her penalty phase lawyer in the Mallory case failed to call as mitigation witnesses people who had known her as a child and who would have humanized her by describing the abuse she experienced. The court held that her counsel was not ineffective because much of the information offered by those witnesses was presented to the jury by three defense experts who testified during the penalty phase.

In addition, Wuornos claimed inadequate representation because her defense counsel had not uncovered evidence of Mallory’s past criminal conviction, which could have corroborated her argument that she committed the murder in self-defense. The court rejected this claim because such evidence is admissible only under two conditions: the first is “to present the general reputation for violence the victim has in the community” and the second is to allow “evidence of the specific violent acts of the victim if known to the defendant.” In responding to Wuornos’ appeal, the Florida Supreme Court stated that “The defendant does not claim that she was aware of Mr. Mallory’s criminal past at the time of his murder. Consequently, the fact that Mr. Mallory was charged with a sex offense well over thirty years prior to his fatal encounter with Wuornos is not relevant.”

Wuornos hired a new lawyer, Steven Glazer. Glazer entered a “no contest” plea for the murders of Dick Humphreys, Troy Burress, and David Spears on the same day as he filed notice that he was taking her case. Wuornos’ appeal in the Walter Antonio case, in which she originally pled guilty, argues that Glazer “professed a lack of experience needed to represent her during a guilt-phase trial and, as a result, had an inherent conflict of interest when permitting her to enter a guilty plea.” (insert title of case as citation, scan in for sidebar) She also argued that her plea was not voluntary because Glazer did not advise her of its consequences.

Tricia Jenkins, Wuornos’ original attorney, later testified that Glazer had not picked up discovery files from her regarding Wuornos’ case, and that “he told me he was taking the case because he needed the media exposure.” In her appeal of the Charles Carskaddon case, in which Glazer filed Wuornos' guilty plea, Wuornos claimed a conflict of interest between herself and Glazer, based on movie and book deals Glazer had sought. Additional problems with Glazer’s representation were raised in the documentary “Aileen: Life and Death of a Serial Killer” by Nick Bloomfield, in which Glazer requests payment of $25,000 for an interview, stating that Wuornos was unable to pay him and he needed the interview payment to work on her case.

In 2001, Wuornos dropped her appeals. Numerous attorneys, advocacy groups, and mental health experts appealed to have the courts allow them to act on her behalf, arguing that her deteriorating mental state made her incompetent to waive her appeals or to be executed. Following a 30-minute psychiatric assessment of Wuornos by three of Governor Jeb Bush’s handpicked experts, the courts concluded that she was competent and allowed her death warrant to stand.

Although Wuornos’ case raises a number of other issues, problems with her representation were the main focus of her appeals. Similar problems have arisen in other capital cases in which overworked public defenders cannot give cases the attention they need. Additionally, Glazer’s quest for publicity highlights the particular dangers in highly publicized cases and illustrates the influence of the media in such cases. 

Questions for Further Analysis

• What specific disadvantages would an inexperienced lawyer face in arguing a complex capital case?
• How might the influence of the media in a high-profile case affect a lawyer’s ability to represent a client adequately? What corrective actions can be taken?
• If an attorney stands to profit from a case, such as through book or movie deals, does that create a conflict of interest between the attorney and the client?
• If you were designing a legal criterion for deciding whether and attorney's performance was incompetent, what would it be?

Related Links

Legal Remedies Available to Death Sentenced Individuals
Prosecutorial Discretion
Jury Instructions: Jurors‘ Understandings and Misunderstanding
Mitigation in Capital Cases
Post-Conviction in Capital Cases
The Case of Gary Graham
The Case of Anthony Porter
The Case of Aileen Wuornos