Terrific coverage of capital (mis)representation

As noted at How Appealing, and as nicely summarized at CDW and ODPI, Stephen Henderson today has a fantastic series of related articles about the poor quality of capital defense assembled here under the heading "No Defense: Shortcut to Death Row.  The lead piece is available here and is entitled "Indefensible? Lawyers in key death penalty states often fall short."   

The series has far too many highlights to conveniently summarize; anyone who follows the death penalty closely should read the whole set of piece. Among other virtures, these articles are great because they focus on the operation of the death penalty in four key states other that Texas, California and Florida, which are the three states that tend to make the most capital headlines (for various different reasons).  Here are some of the findings:

A broad review by McClatchy Newspapers of recent death-penalty cases in Georgia, Mississippi, Alabama and Virginia provides, for the first time, an assessment of how commonplace these failures have become. McClatchy reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states.  The review found that:

• In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.

• By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.

• Appeals courts for the most part have ducked those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned for bad lawyering.

• In 11 of the cases, the defendants already have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.

In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy.  The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.  Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence.  So far, none of that office's 46 clients has been sentenced to death.  Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.

"For government, this is the ultimate policy decision outside of going to war," said Kenneth Starr, a former federal judge and independent counsel. Starr, who's now the dean of the Pepperdine University School of Law, has represented several death-row inmates on appeal, including one whose case was part of McClatchy's review. "We are going to sit in judgment of one of our own and take their life.  Not doing it right is unspeakably shameful," said Starr, who supports capital punishment.