New York Times
July 5, 2001
Lack of Lawyers Blocking Appeals in Capital Cases
By CRYSTAL NIX HINES
Dozens of inmates on death row lack lawyers for their appeals, in part because private law firms are increasingly unwilling to take on burdensome, expensive and emotionally wrenching capital cases, death penalty lawyers say.
The shortage of counsel to help death row inmates file state appeals and federal habeas corpus petitions challenging their convictions and sentences places them at risk of missing crucial filing deadlines, possibly preventing them from raising appeal issues.
The situation has potentially dire consequences, experts say, because two out of three appealed death sentences are set aside because of errors by defense lawyers at trial or prosecutorial misconduct, according to the most comprehensive death penalty study to date, by lawyers and criminologists at Columbia Univer- sity.
Untimely petitions generally are not reviewed by courts without a compelling claim of innocence.
In a speech before Minnesota Women Lawyers on Monday, Justice Sandra Day O'Connor of the Supreme Court said the problem was one troubling feature of a capital punishment system that she said "may well be allowing some innocent defendants to be executed."
Justice O'Connor said defendants with more money got better legal defense.
"Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used," she said.
Justice O'Connor is often viewed as a crucial vote on the court between its more liberal and more conservative justices.
"We have a crisis," said Elisabeth Semel, director of the American Bar Association's Death Penalty Representation Project, which seeks to find law firms to represent death row defendants.
"Firms can save lives and make a difference and they're not doing enough," Ms. Semel said.
There are other reasons for the shortage of counsel, including swelling death row populations and declining government resources to finance public defender organizations.
Nonetheless, Ms. Semel and Lawrence J. Fox, the chairman of the bar association's project and a partner at Drinker, Biddle and Reath in Philadelphia, said many lawyers had told them that increased profit pressures and large raises for associates deterred them from taking the cases.
"They're saying they're paying associates $125,000 a year and can't afford to have someone off spending 1,000 hours on a death penalty case," Mr. Fox said.
To pay for 40 percent salary increases two years ago, many firms also raised billable hour requirements, with some firms either ceasing to count pro bono hours as satisfying such requirements or reducing the weight given to nonbillable hours.
"There's no question about it. Law firms are in competition with each other and are expecting, because they are paying increasingly high salaries to associates, for them to work harder," said Michael A. Cardozo, a partner at Proskauer & Rose in New York and past president of the Association of the Bar of the City of New York. "There are only so many hours in a day."
Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta, said that although he often appealed to lawyers to accept capital cases, firms had been more reluctant since the salary increases.
The situation is most troublesome in Alabama and Georgia, the only two states that do not guarantee counsel to death row inmates after a direct appeal to the highest state court. These inmates largely rely on volunteer lawyers to raise additional claims in subsequent state reviews and federal habeas corpus petitions, in which federal courts examine proceedings in state courts for error.
In Alabama, about 40 of the approximately 185 death row inmates — some within five months of filing deadlines for state appeals — do not have counsel, said Bryan Stevenson, executive director of the nonprofit Equal Justice Initiative of Alabama. Mr. Stevenson said his five-lawyer staff had taken on more than 100 death penalty cases, "which is way more than we should be involved in."
The seven-lawyer staff of the Georgia Resource Center is juggling 135 capital cases and must decide whether to add 12 more unrepresented inmates, said Thomas H. Dunn, the center's executive director. "It's embarrassing to have to go out and beg people to take these cases," Mr. Dunn said.
The shortage of competent lawyers has taken its toll even in states that guarantee the right to counsel after the initial direct appeal. In Louisiana, at least 10 of about 52 inmates in the appeals process are without lawyers, said Denise LeBoeuf, director of the Capital Post-Conviction Project in New Orleans.
And of the about 600 inmates on California's death row, at least 161 have no lawyers to handle their direct appeals, and 72 others have no counsel for federal habeas corpus petitions, said Robert D. Reichman, automatic appeals monitor for the California Supreme Court. As a result, Mr. Reichman said, some inmates with death sentences dating from 1996 and 1997 have not begun appeals.
Not everyone blames private law firms. Mr. Stevenson said states were primarily to blame for the lack of competent counsel.
"I don't feel the need to beat up on the private bar as much as I feel the need to challenge this notion that states can or should execute people without investing the resources to make sure those executions are fair and just," Mr. Stevenson said. "There are close to 4,000 people on death row, and it's not reasonable to expect that they are all going to be able to get pro bono assistance from private law firms."
Mr. Stevenson said "states have gotten off cheap for two decades by being insensitive to the needs of death row prisoners," and added that they should adequately finance public defender organizations to compete with well-equipped prosecutors' offices.
Law firm leaders disagree about whether their willingness to take capital cases has declined.
Kenneth W. Irvin, a partner at Morrison & Foerster, said that although there were no capital cases in the firm's Washington office, there was "absolutely no restriction about doing death penalty cases or any type of case because it's bad for revenue." Mr. Irvin said the firm prided itself "on the pro bono commitment historically we've always made."
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