by Sheila Martin Berry 2
“To ‘know thyself’ must mean to know the malignancy of one's own instincts and to know, as well, one's power to deflect it.” Karl A. Menninger, M.D. (1893-1990)
Justice:Denied magazine, Issue 26, page 12
At least one-fourth of the innocent people convicted of crimes they did not commit - including crimes that never occurred in the first place - know what “bad lawyering” is, because it put them where they are today - in prison, even on death row. Yet those of us who advocate for the wrongfully accused and convicted often fail to recognize our own roles in “bad lawyering,” perpetuating the problem and its tragic consequences.
“Bad lawyering” is generally understood to mean “ineffective assistance of counsel,” a relatively new concept arising from the Sixth Amendment right of a criminal defendant to “have the Assistance of Counsel for his defense.” Guaranteeing persons charged with crime the right to representation was, in its time, a bold leap forward over English common law, even if counsel proved to be little more than a warm body with “Esquire” behind its name.
The quality of this assistance was not examined until 1932, when the U.S. Supreme Court reversed the convictions of the “Scottsboro Boys.” The reversal was based on Fourteenth Amendment due process violations, but the Court noted the right to be represented “is not discharged by an assignment (of counsel) at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Twenty-three years later, the U.S. Supreme Court held the right to effective assistance is a constitutional due process right that must be recognized by all the states.
Finally, in 1970, the right to effective counsel was explicitly recognized as a part of the Sixth Amendment’s guarantee of the right to counsel in McMann v. Richardson, when the Court noted “[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel.”
The Duty of the Defense
In theory, the prosecution’s duty is to seek the truth, and the duty of the defense is to do nothing. The defendant is not required to testify, call any witnesses or present any evidence. He can rely on the fact he is presumed innocent and on the prosecution’s burden of proving the charges beyond a reasonable doubt.
The realities stand in stark contrast to theory. While jurors give lip service to the presumption of innocence, most believe the defendant “must have done something” or the state would not have brought its substantial resources to bear on him. Witnesses in uniforms and lab coats whose job it is to protect the public are much easier to believe than someone who has already been stigmatized simply by being charged. Instructions reminding the jury that the defendant is not required to testify do little to overcome the impression that his or her silence is an indicator of guilt.
Reasonable doubt is the most demanding standard, and the least understood. Jurors are told it is such doubt as would cause a reasonable person to hesitate before acting in a matter of importance. What does that mean? Is it the hesitation experienced when you buy a used car “as is”? Or is it the doubt you feel when your child says he’ll walk and feed the dog every day if you’ll let him keep it? How does a juror decide when there is no clear understanding of the standard by which evidence is to be measured?
With all these strikes against a defendant, doing nothing leads directly to doing time. In practice, that is exactly what happens in too many instances. “Bad lawyering” accounted for 23% of wrongful convictions among the first 70 DNA exonerations. Examples of the “bad lawyering” in these cases include but certainly are not limited to:
· Failure to communicate with the client or communicating in a dismissive, callous or hurried manner;
· Perfunctory or no attempt at discovery;
· Narrow, shallow or no investigation;
· Failure to retain needed experts and/or test physical evidence;
· Minimal preparation, weak trial advocacy and superficial or tentative cross-examination.
These failures don’t exist in isolation from each other. The criminal defense attorney who puts a block on his phone to keep prisoner-clients from calling is the same attorney who doesn’t bother to review the discovery evidence turned over by the state (if a discovery order is even sought), and waits until the deadline for identifying witnesses to begin looking for experts.
Small wonder, then, that with trial approaching, these inadequate advocates urge their clients to plead to the charge in exchange for whatever deal the prosecutor is willing to offer. Professionals estimate that in somewhere between 90% and 99% of these cases, the client is guilty and almost any deal is a good deal. But, if true, in 1% to as many as 10% of criminal convictions, the defendant then is factually innocent. In 1998, the most recent year for which figures are available, almost 928,000 adults were convicted of felonies in state courts. That means at least 9,280 and as many as 92,800 innocent people were convicted of crimes they did not commit. Those are the figures for just one year, for felonies only, and does not include similar convictions in federal courts. And 90% of those innocent people pled guilty.
The Georgia Court of Appeals recently vacated the conviction of Richard Anthony Heath and issued a ruling condemning what it called “assembly-line” justice. Heath had pled guilty to charges of driving drunk and causing a crash that injured three people. In over 400 criminal representations, Heath’s lawyer had never taken a case to trial. His representation “was so deficient that it effectively equaled no assistance at all,” Judge G. Alan Blackburn wrote in a decision in which the full court joined.
The Georgia decision is unusual. In most states, a knowing and voluntary guilty plea waives all non-jurisdictional errors. Ineffective assistance claims - usually the only appellate route available in cases where the defendant says he was misled or tricked into changing his plea - are met with the judicial equivalent of rolled eyes and barely stifled yawns. The procedural bar is raised, and any innocence claims are stifled.
Factually innocent defendants who reject plea agreement offers but are convicted thanks, at least in part, to incompetent trial counsel seldom fare better when raising the issue on appeal. As F. Lee Bailey observed,
“Appellate courts have only one function, and that is to correct legal mistakes of a serious nature made by a judge at a lower level. Should a jury have erred by believing a lying witness, or by drawing an attractive but misleading inference, there is nothing to appeal.”
Eyes roll and yawns are stifled as appellate judges consider the ineffective assistance claims of appellants convicted by juries. The decisions generally begin with a recitation of what the appellant must prove - that counsel’s performance was deficient, and that such deficient performance prejudiced the defendant. This is followed by a warning that the trial court’s findings of what trial counsel did or did not do will be upheld unless clearly in error, and that the appellate court proceeds on an assumption that while trial counsel’s performance may not have been ideal, it was nonetheless satisfactory. The appellant must prove trial counsel’s performance was so lacking that it deprived him of a fair trial and calls the verdict into question. A few paragraphs later, the court concludes that the appellant was not denied effective assistance of trial counsel. Judgment and order affirmed.
In Texas, Calvin Burdine’s lawyer slept through substantial portions of his client’s 1984 capital murder trial, including the questioning of witnesses. He repeatedly referred to homosexuals - including his client - as “queers” and “fairies.” In 1999, the U.S. District Court for the Southern District of Texas granted Burdine’s writ of habeas, finding that a sleeping lawyer is the equivalent of no lawyer. But the next year, a three-judge panel of the 5th U.S. Circuit Court of Appeals disagreed, reversing the lower court and reinstating Burdine’s conviction and death sentence. None of the evidence, the appellate panel decided, supported a presumption of prejudice against Burdine. They warned that “[t]here are real dangers in presuming prejudice merely from a lack of alertness.”
In 2001, the same facts were viewed differently by the same court sitting en banc. The District Court’s grant of habeas was affirmed. Judge Benavides wrote for the majority:
“When a state court finds on the basis of credible evidence that defense counsel repeatedly slept as evidence was being introduced against a defendant, that defendant has been denied counsel at a critical stage of his trial. In such circumstances, the Supreme Court’s Sixth Amendment jurisprudence compels the presumption that counsel’s unconsciousness prejudiced the defendant.”
States of Denial
In one respect, Calvin Burdine was fortunate. By the time his habeas was heard, his trial attorney was dead. Had Burdine’s lawyer been living, it is likely he would have vehemently denied any deficiency in his performance. The en banc decision could well have mirrored that of the 3-judge panel had Burdine’s counsel been there to insist he was just resting his eyes when observers thought he was sleeping, and that he used pejorative terms to describe his client as a strategy, to ensure jurors understood his references.
Despite the jokes about defense attorneys who appeal convictions based on their own ineffective assistance, intractable denial is the norm. Examples abound. In North Carolina, a state commission established a regional Office of Capital Defender to help reduce the number of murder defendants being sentenced to death in the Forsyth County area, which accounts for 14 of the state’s current death row inmates. Robert Hurley, the state’s capital defender, assured the public that establishment of the office was not a comment on the Forsyth County Bar, but local lawyers didn’t see it that way.
John Barrow, the president of the Forsyth County Criminal Defense Trial Lawyers Association, said he was outraged by Hurley’s comments. “He has demeaned the criminal-defense bar in Forsyth County who handle capital cases,” Barrow said. “He’s wrong.”
Michael Grace, a local criminal-defense lawyer, said that several factors cause Forsyth to lead the state in death-penalty convictions. Jurors in Forsyth tend to be conservative and favor death sentences for some convicted killers, he said, an opinion that Hurley and Mike Klinkosum, a newly hired assistant capital defender, agree with. Forsyth prosecutors have much experience in capital-murder cases, and have won many death-penalty convictions, all three men said. “People have not been put on death row because of incompetent counsel,” Grace said.
The Texas Defender Service examined the state habeas appeals of nearly all death row inmates since 1995. The study, “Lethal Indifference,” found those inmates had a 1-in-3 chance of being executed without their cases being adequately investigated or argued by a competent appeals attorney.
The study cited as an example the case of Leonard Rojas, executed on December 4, 2002 for the murder of his wife and brother. Rojas’ state habeas lawyer was assigned by the Texas Court of Criminal Appeals, despite the fact he had been disciplined three times by the state bar and given two probated suspensions. He caught another suspension a few weeks after undertaking Rojas’ case. It isn’t surprising that the attorney’s writ was woefully inadequate - he ignored issues of competency of defense and prosecutorial misconduct - and he failed to preserve Rojas’ right to file a federal habeas.
But the habeas attorney doesn’t see it that way. He says his representation was not as bad as the Texas Defender Service makes it out to be. His only concession is his failure to preserve Rojas’ right to federal habeas. “I didn’t make sure it got into federal court,” he said. “That’s the thing I did not do.”
Exonerations of shocking numbers of innocent death row inmates - 25 innocent people have been exonerated from Florida’s death row since 1976 and the national number of wrongfully convicted death row inmates is more than 100 - have focused the re-examination of the quality of defense counsel on capital cases. The stakes are highest in these cases, literally a matter of life and death. There is no reason to believe bad lawyering plays any lesser role in non-capital cases, from mandatory life felonies to 30-day misdemeanors.
Free vs. Fee
Truth in Justice, the educational non-profit I direct, receives a steady stream of correspondence from relatives and friends of prison inmates with innocence claims who cite bad lawyering for the conviction. More often than not they begin, “He couldn’t afford a real lawyer, so he had a public defender.”
Public defenders are often blamed for bad lawyering in criminal cases because they are commonly underpaid and overworked. It is widely acknowledged that the resources available to public defenders’ offices (money and staff) are dwarfed by the resources of prosecutors. It is equally well understood that many private practice attorneys who are appointed to represent indigent defendants seek such appointments because their skills are so poor, it’s the only way they can make a living.
But there is as much bad lawyering in the private sector
as in indigent defense. In many parts of the country, the challenge has changed from finding a highly competent criminal defense attorney to finding a criminal defense attorney at all. The criminal defendant who can afford to pay has far fewer choices and less information on which to base those choices than he would if he needed a real estate lawyer to handle a closing.
People who don’t expect to need the services of a criminal defense lawyer know next to nothing about how to find one. Shame and disgrace keep many of them from asking friends and neighbors for referrals. They may simply dial the number of someone they’ve heard of, whether the press was good or bad. Increasingly, people turn to the Internet to find lawyers, either directly or indirectly. It’s no less a crap shoot than the yellow pages.
I was surprised recently to see a particular Milwaukee, Wisconsin lawyer listed as a referral attorney at the website of a multidisciplinary practice specializing in defending false allegations of child abuse, domestic abuse and sexual harassment. His bio compared him to “Clarence Darrow and other legendary barristers.” But when Milwaukee Magazine rated 189 Wisconsin lawyers in 13 disciplines, the same lawyer topped two categories, “Vastly Overrated” and “Least Integrity.” Comments included, “Clients erroneously believe that obnoxious lawyers are effective lawyers,” and “A disgrace to the legal profession in particular and the human race in general.” The comments are supported by his disciplinary history:
· 1970: Suspended for one year for harassing and threatening a local judge until the judge committed suicide.
· 1988: Suspended for two years for, among other breaches, cutting a media rights deal based on his client’s case prior to trial.
· 1991: Reinstatement denied.
· 1993: Reinstatement denied.
· 1994: Reinstated
· 1996: Public reprimand
· 2002: Complaint pending; case will be heard by Wisconsin Supreme Court in 2003
Once the unwary have put all their assets into a high-priced but unethical and ineffective defense lawyer, they are as stuck as any indigent forced to take whatever the court gives him. The warning signs may be clear - calls unanswered, evidence untested, witnesses never interviewed, experts not consulted, and the most glaring warning sign, questions met with temperamental outbursts and threats of abandonment.
By the time they figure out they’ve got a lemon, there’s no money left to retain another lawyer. When the lemon lawyer offers them a plea deal on the eve of trial, they’re likely to take it - even though they are innocent. Those who go to trial find themselves represented by counsel who is unprepared, unmotivated and whose incompetence has the effect of adding another prosecutor to the state’s team.
A Georgia woman wrote me about the attorneys she had retained for her sons, Cecil and James Simmons, convicted in Florida on the uncorroborated testimony of a retarded man of abducting, raping and murdering a Kentucky woman who was traveling through the area:
“Since the arrest and conviction of my sons - two different trials, two different lawyers - we are left with the lingering question: Is there really honesty within the system? Post-conviction, I began my own investigations of the [attorneys] who represented them [at trial]. [The] lawyer of first son - his foster son was incarcerated for bludgeoning a local man to death. His foster son was convicted and given 7 years for his confessed crime. [There] also [were] sexual [assault] charges against the lawyer that represented our other son. Two weeks prior to [younger] son’s trial, sexual [assault] charges were dropped against him due to ‘unavailability’ of claimant who was his prior secretary. [This] information was sent to me by the Bar Association [after sons were convicted]”
But her story only gets worse.
“. . . we retained two more lawyers. (We have had to retain two separate lawyers all during Appeals). Our youngest son’s lawyer we paid $11,000.00 plus $1,000.00 up front to review the transcript, which we paid for ($2.50 per page, over 1,800 pages of trial alone). Two weeks later this lawyer wrote us a letter and had me to do the research work, which involved driving over 400 miles one way, and go to the venue of trials and gather information for him. This I did. After this we heard no more from him [Over a year later], I called his office to see if the Appeals were nearing completion and to see if he had filed for habeas corpus; this had to be done by the middle of Nov. that year [because] Florida has a two year time frame from the date of direct appeal denial. To make this short, my calls were not answered. After days of trying to locate this man - now bear in mind his office was 11 hours from our home - on the fourth day I was told he no longer practiced in that county, and his whereabouts were in question. This lawyer took our money and left town, along with all the documents I had sent to him - documents I would never be able to acquire as another lawyer had secretly supplied them to me. After I filed a complaint with the Bar Association and 3 years later, they found our case worthy of $2,500 refundable. They disbarred him, but only by my investigations were they able to locate him for papers to be served. He had moved to another state and become a real estate broker.”
These parents have been through a total of eleven lawyers. Substantive Brady issues raised in the state habeas, including undisclosed evidence that points toward state employees as the perpetrators, were deemed insufficient to undermine the certainty of the jury’s verdict. The second son expects similar findings in his state habeas.
Some instances of incompetent assistance are so conspicuous that a reasonable person must question whether they are deliberate. The same Georgia mother quoted above wrote me about the conduct of her elder son’s trial attorney:
“Pretrial, Cecil’s lawyer called me at home. He asked me to go over the [key witness’] deposition and present to him questions I feel should be clarified by [the key witness], on the stand. I did. I spent long hours, days, doing just this. In the course of [the key witness’] testimony for the prosecution, the prosecutor made a point to be silent while he returned to his table, knowing all eyes were on him, even mine. [The prosecutor] picked up a piece of yellow legal paper and returned to the podium which was within 3 ft. of me. [The prosecutor] began to ask [the key witness] questions. [They were] the questions I had sent to the Defense Attorney, my legal paper, my handwriting. The Defense attorney was in front of me. I tapped him on the shoulders [and] asked him what is going on. He jerked his shoulder from me [and] gave me a nasty look. At the next recess, I confronted him with this. He asked me did I think I was the only one able to obtain yellow paper, and did I really think they would be stupid enough to carry out such an act?”
“He also sat right there and let the prosecutor, during his closing, signal for the cameras to roll (all local television station were allowed in court), turn around to the jurors, and state loudly in dramatization: “Even James Simmons admitted how they handcuffed Kristi and repeatedly raped and killed her.” Before I could tap him again, Cecil had leaned over to him and asked him wasn’t he going to OBJECT - this was untrue. He told Cecil, the jurors knew this was an inadvertent statement, the jurors are not as emotionally involved as you and the family. Well, you know and I know those jurors went into deliberations thinking they had a confession from the brother. You know as well as I know, these actions also tainted all possibility of James receiving an unbiased trial, in that small little county. Defense did not preserve this, so it could not be used for [appeal] purposes. When I brought this to the attention of other lawyers, they said the same - it was just an inadvertent statement, the jurors did not comprehend this as the defendant and family would.”
The Deal Makers
One of the most insidious forms of bad lawyering leading to the conviction of innocent people falls outside Sixth Amendment review. Cutting leniency deals with the prosecution in exchange for testimony against another criminal defendant occurs outside the courtroom and off the record, and it is passed off - rationalized - as effective advocacy on behalf of a client. But when the client is a “snitch” willing to sell an innocent person down the river to save his own skin, the defense attorney who brokers the deal becomes party to the very miscarriage of justice against which his profession is intended to guard.
What role do informant/snitch testimony and false witness testimony play in wrongful convictions? These were a significant factor in one-fourth of the convictions of the first 70 DNA exonerations - interestingly, the same proportion as bad lawyering. Examples of the devastating effects of this business-as-usual collusion between defender and prosecutor can be found across the country. In the Chicago, Illinois case of the Ford Heights Four - Dennis Williams, Kenny Adams, Willie Rainge and Verneal Jimerson - Dave Protess and Rob Warden investigated a snitch who had been put up to his incriminating lie by the brother of a man who turned out to be one of the real murderers.
In Crewe, Virginia in 1996, Sheila Barbour Stokes provided the key - and only - evidence linking Larry Fowlkes to the robbery and murder of a Nottoway County woman. In exchange for her testimony, Stokes avoided prosecution for her fourth felony offense. Fowlkes was convicted with no physical evidence linking him to the crime, and despite a solid alibi. Stokes has since recanted, reaffirmed, and again recanted her testimony, while Fowlkes serves a 45-year prison sentence.
Behind each leniency-for-testimony deal, there is a defense attorney bartering the most favorable terms he can get for his client. Just as the overwhelming majority of prosecutors who obtain convictions of innocent people know or should know the defendant is probably not guilty, so too do defense attorneys know or should know when the deals they cut will result in convicting the innocent.
Often there is no pretense that anything less than framing an innocent person lies at the heart of the agreement. A Wisconsin inmate serving a life sentence for murder - for which he has compelling innocence claims of his own - received a phone call from his defense attorney with a “get out of prison” offer from the same District Attorney who had prosecuted him. All he had to do was help frame an innocent man by falsely testifying the target had solicited him for a “hit contract” on the District Attorney.
The DA had obtained a conviction against a police officer for murder, arson and mutilating a corpse in the death of the cop’s estranged wife. But it was a precarious conviction, dependent on the continued concealment of evidence that no crimes had been committed in the first place, and the DA was worried his hard work would fall apart on appeal. Fresh charges against the police officer would give the DA a bargaining chip - if the cop would drop his appeal, the DA would drop the new charges.
The inmate’s initial, vehement rejection of the offer was followed by a written reiteration of his refusal. His attorney wrote him, urging him to reconsider.
“I have not struck any deal with [the District Attorney] concerning a re-sentencing and/or amendment of charges to a 30-year prison sentence. However, I thought that I should pass that information on to you so that you could consider the same and what the State wants of you in the event we reach a point where your motions are denied and/or later appeal is denied and you find yourself once again in the same position you are currently in, life in prison without parole. Hence, please think about the potential offer and agreement which the State might be willing to enter into and what would be required of you.”
The inmate had no problem grasping the inherently unlawful and unethical nature of the offer. When the District Attorney who proffered the deal was unanimously endorsed by Wisconsin’s Federal Nominating Committee for presidential appointment as U.S. Attorney, the inmate forwarded documentation of the offer to Senators Herb Kohl and Russ Feingold. They “got it.” Ten days later, the Senators removed the District Attorney from the list of nominees forwarded to President Bush.
The only one, apparently, who didn’t “get it” was the defense attorney who urged his client to “think about the potential offer . . . and what would be required of you.” When Jeanne Anthony of WHBY Radio reported the deal in a documentary that re-examined the conviction of the District Attorney’s target, she opted not to name the inmate or his lawyer. Ms. Anthony was stunned, following the first broadcast of the program, to receive an irate call from the inmate’s lawyer complaining because he wasn’t identified!
We have come a long way in acknowledging that, in the words of retired Florida Supreme Court Justice Gerald Kogen, “innocent people are convicted every day.” And we have responded. At this writing, there are 40 innocence projects in the United States. Increasing numbers of lawyers and law firms are undertaking pro bono and reduced fee representations of the wrongfully convicted.
But we still have a long way to go. Innocent people continue to be convicted every day, and bad lawyering in every form facilitates many of these convictions. How can we be part of the solution rather than part of the problem? More regulations and laws are not the answer. Bad lawyering is already unethical and often unlawful.
The resolution is close at hand. It lies within each of us. Examine your own conduct honestly rather than defensively. Assess yourself from the viewpoint of the innocent person charged with a crime someone else committed, or a crime that never happened in the first place. From that perspective, are slap-dash explanations of law and procedure good enough? When the rest of your life is on the line, is it okay that your lawyer doesn’t have time to subpoena or even interview alibi witnesses? After you’ve sold all your possessions to pay legal fees, do you mind that your lawyer fails to retain experts who could clear you in order to maximize his profits? How about the lawyer who represents the guy you never even met, the state’s star witness against you? Do you feel satisfaction that he’s gotten his client a sweetheart deal in exchange for testifying against you?
Start with yourself. If you don’t want to be the client in these scenarios, don’t be the lawyer in them. Don’t turn a blind eye to the bad lawyering going on around you, either. Challenge yourself and your colleagues to be what you claim to be, advocates for the innocent. Take the advice offered nearly 2,500 years ago by the Greek philosopher, Socrates: “The greatest way to live with honor in this world is to be who we pretend to be.”
1. This reprint excludes the more than 100 footnotes in the article’s published version that originally appeared in the Northern Kentucky Law Reviw, Vol. 30, No. 4, Symposium Issue. That volume also includes The Complicity of Judges in the Generation of Wrongful Convictions, that is serialized in this issue of JusticeDenied on page 25. Both of these articles can be obtained by sending $10 (check or m/o) with a request for - Vol. 30, No. 4, Symposium Issue to: Northern Kentucky Law Review; Salmon P. Chase College of Law; Nunn Hall - Room 402; Highland Heights, KY 41099.
2. Sheila Martin Berry is director of Truth in Justice, an educational non-profit organization whose website is at: http://truthinjustice.org.