Frederico Martinez-Macias was represented at his capital trial in Texas by a court-appointed attorney paid $11.84 per hour. His counsel failed to present an available alibi witness, failed to interview and present witnesses who could have rebutted the prosecutor’s case and failed to thoroughly examine key evidence.

Not surprisingly, Martinez-Macias was sentenced to death. He spent nine years on death row before a Washington law firm stepped in, took his case and got an exoneration.

In Georgia, a court-appointed lawyer received $15 to $20 an hour for representing Gary Nelson, a man facing execution. Nelson’s attorney worked without co-counsel and without a private investigator. At the trial, the closing argument for the defense was 255 words long. Nelson spent 11 years on death row before attorneys specializing in capital trials volunteered to obtain his release.

Since 1973, 96 people on death row were found to be wrongfully convicted and released. Last June, a Columbia Law School study found that seven of 10 of the thousands of cases examined had serious, reversible error, many due to “egregiously incompetent defense counsel” and prosecutorial misconduct.

For some, these case histories, described by capital trial expert Stephen Bright, and related statistics are fodder for the ongoing debate about death penalty reform. Proponents of reform say the death penalty is administered unfairly. Whether or not you live or die is more contingent on income, skin color and where you are tried than on the crime itself.

Opponents of reform say the judiciary process has enough internal checks to prevent convicting the innocent. At the heart of the debate are questions about the integrity of the criminal justice system in the United States and its ability to assure every American the right to a fair capital trial.

Last June, lawmakers heard from both sides of the issue during a Senate Judiciary committee hearing on the Innocence Protection Act. The bi-partisan bill, co-sponsored by Patrick Leahy, D-Vt., and Gordon Smith, R-Ore., would afford convicted offenders greater access to DNA testing and would help states improve the quality of legal representation in capital cases by establishing national standards.

Title II of the Innocence Protection Act, considered the bill’s most controversial feature, would establish a National Commission on Capital Representation. The commission, comprised of prosecutors, defense attorneys and judges, would develop standards for providing defense counsel to indigents facing a death sentence. The bill includes a grant program to help states implement these standards and “otherwise improve the quality of representation in capital cases.” States failing to do so would be denied federal funds for their prisons.

Endorsers of the Innocence Protection Act include supporters of the death penalty. Among those testifying on behalf of the bill was Beth Wilkinson, lead prosecutor in the Oklahoma City bombing case. Co-sponsor Sen. Gordon Smith said he “believes that the death penalty is a useful tool for deterring crime.” However, he said, the penalty must have the confidence of the people if it is to work. “Providing competent counsel to poor defendants will help maintain the integrity of our justice system and make the administration of capital punishment more effective,” he said.

The bill, endorsed by the United States Catholic Conference, has 25 supporters in the Senate and more than 214 in the House, most of whom are Democrats.

Capital representation at the federal level is typically considered quite good, according to law professor Larry Marshall of Northwestern University. For the attorney faced with the daunting task of defending a capital client, funds and training are available. Millions were spent on the defense of Timothy McVeigh, for example, and Robert Nigh, McVeigh’s attorney, received ample legal assistance from the Federal Death Penalty Resource Counsel, an organization comprised of topnotch capital defenders.

Capital representation at the state level, however, is far more haphazard. Some states provide training for their capital trial attorneys; in others, resources are absurdly scant. “Many,” says Bright, “lack the key elements of an effective indigent defense system: a structure, independence from the judiciary and the prosecution and adequate resources.”

Bright believes that it is “not unreasonable for Congress to require the states as a condition of receiving millions of federal dollars to implement an adequate indigent defense system to protect the innocent at least in capital cases.”

-- Claire Schaeffer-Duffy

National Catholic Reporter, October 5, 2001

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