Lawyers in key DP states often fall short

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Indefensible? Lawyers in key death penalty states often fall short
By Stephen Henderson
McClatchy Newspapers
Stephen Berend/MCT

The jurors heard all about the convenience store holdup, the gunshots and the dead clerk. Their unanimous verdict came swiftly: Warren King was guilty of a senseless murder that shocked rural Appling County, Ga.

A death sentence almost certainly would be next, unless King's lawyer could convince the jury to spare his life.

But G. Terry Jackson, King's state-appointed lawyer, didn't do much.

With little money to unearth details about his client's past, Jackson did not chronicle the mitigating circumstances that could have helped his client's cause. The jury learned almost nothing about the import of King's low IQ, his childhood in a log cabin with no plumbing or electricity, the savage beatings he took from his alcoholic parents or the succession of foster homes he shuttled through.

In desperation, Jackson turned to Jesus.

"WWJD," he said, invoking the popular bumper-sticker phrase "What Would Jesus Do?" Jackson told jurors to keep those four letters in mind as they weighed King's future.


A stunned prosecutor objected. The judge told the jury to ignore the comment.

The jurors deliberated for 90 minutes and returned with their sentence:

Now Warren King sits on death row in Georgia, one of many inmates whose lawyers, at the crucial point when jurors decide between life and death conviction, made only feeble, incomplete or tragically laughable efforts to defend them.

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 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.

Starr thinks that the trial lawyers for his client, Robin Lovitt, didn't do it right. Lovitt was found guilty of killing an Arlington, Va., pool-hall manager during a robbery.

Lovitt's lawyers did almost nothing to look into his background. They never interviewed family members, collected records or even planned how they might defend his life.

Had they looked, they would have discovered a nightmare.

Lovitt's parents were drug dealers who beat their kids, forced them to help package and distribute narcotics, and had wild parties during which guests took turns molesting the children.

"There's no dispute that very able counsel simply failed to do the job in this case," Starr said.

Most of the other cases McClatchy reviewed reflect similar failures.

Warren King's lawyer, G. Terry Jackson of Savannah, Ga., knew he needed plenty of compelling evidence to save his client's life.

During the trial, jurors saw a videotape of the store holdup, and they could hear the muffled shots from the handgun that was used to kill 23-year-old Karen Crosby. They also saw her brother arrive at the store to find her body, and they heard his cries as he knelt by her side, waiting for help.

To spare King's life, Jackson knew he'd have to make the jurors understand that his client's upbringing had helped make him a killer. But he couldn't convince the judge to give him money to hire investigators to prove that point.

Jackson was paid only a few thousand dollars to handle King's case.

"You're supposed to do everything you can for your client, but we ended up with far, far less than we should have had to defend this guy's life," Jackson said recently.

Jackson put King's sister on the stand to beg for his life. He found a foster parent who said King had always been a "well-mannered young man." One of King's former parole officers hinted at the swirl of abuse and neglect that surrounded his childhood but offered very little detail.

By closing arguments, Jackson was desperate and reaching for anything to sway the jury. He said the appeal to Jesus was the best he could do.

"I just wanted them to look in their hearts. I knew we hadn't given them much else to work with," Jackson said. "The whole thing was just a nightmare."

In one Mississippi case, the defendant's wife, who'd met and married him while he was on death row, was put on the stand to testify that he'd never been violent toward her. The lawyer had done no other research into his client's background.

Another lawyer from Mississippi had his client testify about "voices ... in my head" that "tell me to do things that are evil and wrong." But no psychologist explained what was wrong with him or related his illness to his crime. No experts at all testified during his sentencing.

In a third Mississippi case, a lawyer representing Lawrence Branch had been given a report that showed his client was diagnosed as mentally retarded at age 5, with an IQ of 68. The report also showed that Branch had flunked three grades in school.

His lawyer threw away the report, thinking it wasn't relevant, and put Branch's parents on the stand to say he'd been a "nice kid" who "respected older peoples." His father said he "wasn't an A-B student, you know," but wasn't asked more about his son's academic record.

Branch was sentenced to death for killing 57-year-old Dorothy Jorden during a burglary in her home in Coila, just east of the Mississippi Delta.

In an Alabama case, lawyer Floyd Likins made several requests for money to investigate his client's upbringing. Melvin Gene Hodges had brutally killed a shop clerk by beating and pistol-whipping her, then running over her repeatedly with a car. Likins knew that Hodges had grown up in a two-room shack with no electricity or running water; and he knew he'd exhibited signs
of mental deficiency.

Likins needed money to hire someone to comb through social service and school records and to search for other supporting evidence.

The judge said no.

"He told me he needed to be careful about wasting money in the court," Likins said. "That's how the judges are here. They don't think this stuff is necessary."

So Likins put Hodges' mother on the stand to talk briefly about his
childhood. She begged the jury for leniency.

Likins closed his presentation with an ill-suited comparison: His client, he reasoned, was not as bad as serial killer Ted Bundy or mass murderer Timothy McVeigh.

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A MATTER OF LAW

It's all about the other side.

At death penalty trials, jurors are bombarded with grisly details of horrifying murders. They look through bloody pictures of the crime scene. They hear graphic accounts of penetrating wounds, shredded organs and gurgling last breaths.

It's the prosecution' s job to focus on the murder's awful nature, and to insist to jurors that the person responsible must pay with his or her life.

But the idea that guilt and punishment must be determined through an adversarial process is a bedrock principle in the American criminal-justice system. Jurors, to make an informed judgment, must hear both sides of the story.

That's where defense attorneys come in, and in capital cases their roles take on a special significance. They're faced not only with the task of defending their clients' presumed innocence; after conviction, death-penalty cases require a second proceeding, to determine whether death is the appropriate sentence.

This second trial, called the penalty phase, requires as much focus and preparation as the first. In some cases, in which the defendant's guilt isn't seriously in doubt, the penalty phase is everything.

The idea is to get jurors to see beyond the crime and the victim into the life of the accused.

"The prosecution is asking jurors to judge the defendant based on one act on one day, arguably the worst day of this person's life," said Thomas Dunn, the executive director of the Georgia Resource Center, which handles appeals for many of the state's death-row inmates.

"But no one is born a capital murderer, and clearly something happened between the defendant's birth and the worst act of their lives. There's always a story to be told, and it's the defense lawyer's job to tell it."

Experienced death-penalty defense lawyers say they aim to construct entire social histories of their clients, chronologies of every significant event in their lives.

From that, they develop theories about why their clients shouldn't be executed and they structure their performances around that theory throughout both phases of the trial. If the client suffered horrible abuse as a child, has a low IQ or comes from deep poverty, these things can be the basis of the lawyer's case. A case also can be more positive, focusing on a client's lack of prior criminal history, how well he or she might behave during a
life sentence in prison or even exceptionally good deeds the client did before the crime.

Preparation for the penalty phase of a capital case is the essence of fulfilling a defendant's right to counsel, which is embedded in the Constitution' s Sixth Amendment and which the Supreme Court has addressed several times.

After the high court revived the death penalty in the early 1970s, it began to take an interest in the quality of capital counsel, especially the way that cases are handled at the crucial penalty phase.

Faced with a growing perception that the quality of capital defense frequently is lacking, the justices have become more and more specific about what the Constitution requires of those who try capital cases.

In a 1984 ruling, Strickland v. Washington, the justices first established the framework for deciding when lawyers hadn't met their constitutional obligations. The case set standards for judging all lawyers' performances, but because Strickland was a death penalty case, it specifically addressed obligations in the penalty phase.

The ruling said defendants could have their sentences overturned if they could prove their lawyers' performances were deficient and that with better counsel there was a "reasonable probability" that they might have received different sentences.

Importantly, the justices took note of the American Bar Association' s standards for capital lawyers, which focus heavily on background investigations and other preparation for the penalty phase.

The justices agreed that lawyers had a duty to conduct "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. "

But the Strickland ruling also cautioned lower courts to be "highly deferential" in their scrutiny of lawyers' performance. The justices worried about "second-guessing" what lawyers had done and inviting a "proliferation" of meritless challenges to death sentences.

They made it clear that they didn't want judges to punish lawyers for making "strategic decisions" or to apply "hindsight" that undermined the attorneys' independence. They simply wanted courts to intervene in cases in which attorneys were clearly and grossly negligent in ways that harmed their clients' cases.

Strickland wasn't the last word, however.

In 2000, in Williams v. Taylor, the justices said a Virginia man's attorneys had failed him because they didn't investigate his background, which included a "nightmarish childhood" of abuse and an IQ that qualified him as borderline mentally retarded.

The ruling chided lower courts in Virginia for not applying the Strickland standard properly, and signaled that the justices were becoming frustrated that Strickland wasn't being taken seriously.

In 2003, in Wiggins v. Smith, the court again said that a murderer's lawyers had failed by not fully investigating his past, this time by ignoring leads they should have pursued.

The decision was remarkable because the defense attorneys in the case had done a fair amount of investigating; the justices found them ineffective for not investigating fully.

"Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment," Justice Sandra Day O'Connor wrote for the court. She said the lawyers' performance wasn't consistent with professional standards at the time. She cited the lawyers as out of step with the ABA's standards, and she appeared to give those standards more weight than the court had in Strickland.

In 2005, the court returned again to the subject of capital lawyers, this time imposing even more stringent requirements. In Rompilla v. Beard, the justices said a Pennsylvania killer's lawyers had failed him by deciding not to review records from his past. The lawyers argued that they'd made a sound strategic choice; the court called it unreasonable.

Kent Scheidegger, the legal director of a prominent victims-advocacy group,
the Criminal Justice Legal Foundation, said many in his camp had a
fundamental problem with the idea that a jury should consider an exhaustive
review of a defendant's background in its decision about imposing the death penalty. He said he tended to find the evidence unpersuasive and that he
thought most juries would as well.


"But I don't dispute that defense attorneys are required to do it," he said. "That's very clear. Defense attorneys are required to exploit the rules that
are available to them, and this is one of them."

"The expectation is that you'll do your job, and everyone should know that," said Stephen Bright, the president of the Southern Center for Human Rights and an anti-death penalty activist who's tried dozens of capital cases. His center is one of the nation's leading advocates for better capital representation. "Of course, we've always maintained that that standard, that everyone who has one of these cases should be doing the work,
but the court in the past few years has really reinforced that."

LOW PAY, LOW STANDARDS

Washington and the Supreme Court are a long way, though, from rural Georgia
and dirt-road Alabama, from the Mississippi Delta and the Virginia hills.

The enthusiasm for the death penalty in those states brings lofty legal principles up against paltry means and makeshift standards for applying it.

Money is one of the biggest problems.

Mounting a proper defense in a capital case requires methodical research; deep, probing interviews; and intricate planning and strategizing. The hours can stretch into the thousands; the bills easily can reach six figures.

Proper funding, according to the ABA, would help pay attorneys sufficient hourly rates and also would provide for investigators and experts to help gather evidence.

In all of the states in McClatchy's review, proper funding has been an
issue.

In Alabama, pay for defense work in capital cases was capped at $1,000 until
2000, then was raised only to $2,000. Even now, after legislation to
overhaul that pay structure, defense attorneys who handle death cases in the
state are paid $60 an hour for in-court work and $30 for out-of-court work.
That's less than many people pay for plumbers and less than half the rate
that the federal government pays defense attorneys.

Judges can grant extra money for investigative work. But in counties that
are desperately poor, pressure generally is on judges to keep costs down.

"So you don't get hardly anything, unless you bill for what you don't do,"
said Erskine Funderburg, who represented Marcus Bernard Williams, an
Ashville, Ala., man who was convicted of raping and killing a neighbor.

Funderburg was paid less than $5,000 for trying Williams' case, from start
to finish. He didn't hire a mitigation specialist or an investigator to look
into Williams' history. The court had a psychiatrist examine Williams, but
Funderburg got no money to hire his own. He called no experts to the stand.
Williams' mother and aunt testified simply that he'd been a "good kid." One
hinted at an "unstable home environment, " but that point was never explored.

The jury deliberated for less than 25 minutes before sentencing Williams to
death.

"You've got to understand, out here in rural areas like this, you just have
no help," Funderburg said. "You've got to do it all yourself, on your own
dime. You're just overwhelmed. "

In the other three states, pay varies more than it does in Alabama but it
still can be woefully inadequate.

Virginia has instituted some state support for defense work in capital
cases, but great disparities in compensation remain. Some judges order as
much as $120 per hour for attorneys, others as little as $60.

Mississippi has a small, state-funded office that helps with some death
penalty trials, but its work is focused more on appeals. Most cases in the
state are funded locally, where judges decide how to pay capital defenders.
Many get as little as $50 an hour.

Georgia may be emerging as a bright spot on funding, after years of only
spottily meeting its obligations. For years, a small office of experienced
death-penalty lawyers assisted in a handful of cases. Now a centralized
statewide office of defense lawyers and investigators is handling about half
the load.

Still, money played a big role in many of the Georgia cases McClatchy
reviewed.

Tamara Jacobs handled two of the cases in northeast Georgia.

In one, John Thomas Yates stabbed an ex-girlfriend to death. In another,
Leeland Mark Braley slashed an insurance agent's throat when she refused to
give him money.

In both, Jacobs' experience is typical of many that McClatchy reviewed. She
got some money to probe her clients' backgrounds and order psychological
work-ups. But she knew it wasn't enough, and it forced her to leave crucial
aspects of their lives unexplored.

"In Yates, I really needed a full neurological work-up to show how damaged
he was," she said. A psychologist had testified that Yates had a "major
depressive illness" but she didn't offer a more specific diagnosis or
connect it to Yates' upbringing or his crime.

In Braley's case, Jacobs said, she knew the jury would consider his crime
sociopathic, and that meant she'd need to connect that characteristic to his
childhood. Braley, who was born in Korea, was dumped at a Georgia police
so distant, so detached from the cruelty of this murder," Jacobs said. "I needed to show he had some sort of attachment disorder."

But Jacobs didn't get money for a psychologist. She got nothing for investigators in the case.

So she paraded a string of friends and church members to the stand to talk about how "nice" Braley was. It was all she could afford.

In her first capital case, assigned in the 1980s, Jacobs took it upon herself to do all the investigation, on her own dime. She wound up with $30,000 in credit card debt and her law practice nearly bankrupt.

She said she wanted to give the Yates and Braley cases that kind of dedication; she just couldn't.

"You do the best you can with what you're getting," Jacobs said.

"I think the judges have a lot to juggle," she continued. "They try to be fair and reasonable, and they balance the limited funds against the defendants' rights, but a lot of the time it just doesn't work out for the defense."

Beyond money, all four states fail to ensure that lawyers have the training and experience to try capital cases competently. In all four, bar associations hold training sessions to teach lawyers how to conduct mitigation investigations and to prepare proper cases for the penalty phase of a death penalty trial.

But none of the states requires that lawyers attend those sessions before
they try cases. Most require some previous experience assisting or leading a
capital defense, but that standard's not calibrated for quality; a lawyer
who represented someone poorly a few years ago is considered experienced
enough in Alabama or Virginia to represent someone else today.

The results frequently are disastrous.

Lee Harrison and James Baber, two Appomattox, Va., lawyers with almost no
experience trying capital cases, were appointed to represent Brandon Wayne
Hedrick in 1999. His case is among the 80 that McClatchy reviewed.

Hedrick had raped and killed Lisa Crider, an acquaintance, and the evidence
against him was formidable.

Baber said later that he thought there was nearly "a hundred percent chance"
before it began.

Even then, they merely interviewed a state-appointed psychologist over dinner and told a gaggle of family members to get on the stand and "say something good" about Hedrick. They never interviewed any witnesses about Hedrick's background or looked over school or social services records.

Baber said later that he didn't know who'd be coming to testify on Hedrick's behalf, and didn't think it would matter. He considered the witnesses "interchangeable, " he said.

What they missed about their client was telling.

Hedrick's parents were alcoholics and drug abusers whose troubles frequently inspired violent confrontations and other problems. Hedrick's father had tried several times to commit suicide, including once when Hedrick was 8.

The family encouraged drug and alcohol use among the children, and Hedrick was forced at times to handle drugs and drug paraphernalia.

By the time Hedrick killed Crider, he was a drug abuser himself and was severely depressed, none of which Harrison or Baber investigated. Indeed, neither attorney knew at the time of the trial that Hedrick had attempted to hang himself while he was in jail awaiting trial.

"That's just the kind of representation that's tolerated here," said Robert Lee, who heads the Virginia Capital Representation Resource Center in Richmond and has handled dozens of appeals from death row, including Hedrick's.

"These guys didn't subpoena anyone. They didn't talk with hardly anyone," he said. "They just didn't know their client, at all, and that's just so common in what we see here. They didn't know what they were doing, and the system just doesn't have a check against that."

Hedrick was executed last July, after state and federal courts refused to order a new sentencing hearing for him with better lawyers.

Andre De Gruy, the director of the Mississippi Office of Capital Defense Counsel, said Mississippi didn't guard against untrained attorneys handling death cases, either. His office fields a handful of death penalty cases at trial, but mostly handles appeals.

"Our office really has the only people who are truly trained to do this kind of work," De Gruy said. "And we know how to get the investigators and the other mitigation specialists. That's not to say you couldn't take a lot of the better lawyers around the state and easily train them, but nobody's talking about doing that."

In one Mississippi case, Stephen Elliott Powers' attorney failed to call any witnesses at the penalty phase of his trial and didn't mention Powers' longtime drinking problem, lack of education or social history. He just
begged for mercy.

His client had been convicted of raping an acquaintance, Elizabeth Lafferty, then shooting her five times in the head, including once through the temple.

The attorney said he was overwhelmed.

"My client confessed to the crime, and once that was admitted into court, he was done," Dan A. Macintosh III said. "I didn't feel there was a lot of
mitigation I could argue."

The quality of representation is frequently at its worst in Alabama, experts agree. The state requires no training for lawyers who handle these cases, and says only that attorneys who serve as lead counsel should have handled
at least two capital trials before.

Under those standards, John Floyd, a Gadsden, Ala., lawyer, was qualified to represent Geoffrey Todd West and was appointed to his case. West and his girlfriend were convicted in 1999 of shooting a convenience store clerk to
death during a robbery.

Floyd didn't ask for investigative help or a psychologist, or look far into West's past, and he put on no case at all after his client was convicted.

"The defense rests," was all he said when it came time to argue that the
jury should spare West's life.

"There were a lot of things we could have done," Floyd said, "I know that now, but I really didn't then." He said he felt guilty now about his performance but that he knew it wasn't unusual.

"We didn't do what we should have, but nobody did back then," he said. "Now I think people know you have to, so maybe it's getting better. I just don't know."