- The Washington Times - Tuesday, June 20, 2000

Capital prosecutions are no time for the defense counsel amateurism that now bedevils virtually every state. To borrow from Lady Macbeth, what might be done "cannot be undone."

And nothing would do more to create a political juggernaut against the death penalty than conclusive proof an innocent man had been executed, whether after belated DNA testing or otherwise. At least 87 individuals sentenced to death in recent years have been exonerated by post-conviction judgments, and eight of those by DNA analyses.

The best safeguard against such a travesty is the provision of reasonably qualified defense counsel for the indigent during the initial capital prosecution trial. That modest standard to promote accurate verdicts does not demand the gold standard of Clarence Darrow, but only lead standard of competence.

In addition, as Supreme Court Justice George Sutherland underscored in Powell vs. Alabama (1932), an alarming risk of convicting the innocent arises from unprepared, unschooled or indolent defense lawyers. Moreover, as the high court explained in Ward vs. Village of Monroeville (1972), a defendant is constitutionally entitled to a criminal trial untainted by constitutional shortcomings in the first instance. A belated correction of flaws on appeal or otherwise is not satisfactory.

Both the interests of the state and the indigent accused in criminal trials converge in favor of reasonably trained defense counsel because their presence strengthens the reliability of the verdict. The government's duty in prosecutions is to see justice is done, which is not necessarily to win a case, according to the Supreme Court in Berger vs. United States (1935). And justice may shipwreck if defense counsel is inept.

What further militates in favor of upgrading the dismal quality of defense counsel for the indigent is our nation's cherished constitutional commitment voiced in the Supreme Court's In re Winship (1970) ruling namely, that it is better a guilty man go free than that an innocent accused be convicted.

Nowhere does that axiom carry more force than in capital punishment prosecutions because the innocent cannot be brought back to life by a later discovered error.

Both direct and circumstantial evidence demonstrate a systemic defense counsel breakdown in death penalty cases, even if an innocent person has yet to be executed because of post-conviction remedies.

According to the so-called "Liebman Study" released earlier this month, capital punishment trials are plagued with non-harmless error in approximately 68 percent of the cases that is, error that shakes confidence in the reliability of the verdict. The most common shortcoming discovered in state post-conviction reversals is incompetent defense counsel, comprising an arresting 37 percent of the total.

That recurring ineptitude does not reflect judicial quibbling over defense tactics, but pronounced deficiencies that even a layman would instantly recognize, like slumber during the trial, neglecting to inquire of possible exculpatory witnesses, or overlooking facially factual weaknesses in the prosecution's proof.

Take the capital trial and execution in 1997 of David Wayne Stoker by the State of Texas, a case meticulously examined by the Chicago Tribune (June 1, 2000). Stoker was charged with murdering a convenience store clerk. Five months after the homicide, he was implicated by a drug dealer, Cary Todd, who received a $1,000 reward plus the dismissal of drug and weapons charges. Todd lied about the money on the witness stand, as did Riley Rogers, an investigator for the district attorney's office.

Stoker was represented by Ronald Felty and Gary A. Taylor, who were appointed by the trial judge. The pair seemed unsuited for the task. Felty, the lead lawyer, later yielded his law license in the face of disciplinary action; forged the signatures of two clients on a settlement check and pocketed the money; and pleaded guilty to felony charges for forging a judge's signature and falsifying a government record.

Co-counsel Taylor, a second violin for the defense, had been admitted to the bar for only 11 months and was no legal Stradivarius when Stoker stood trial in 1987. The defense assembled by the two neither uncovered nor challenged the lying about or concealment of Todd's bias, which might have altered the verdict.

One juror interviewed by the Chicago Tribune, Myron Grisham, commented: "Knowing [Todd] was paid or he got a deal, I would have had a harder time believing his testimony." And co-juror Wanda Carter chimed in: "If we had known some of these things, I'm sure it would have weighed on us."

Stoker may have been guilty. Evidence other than that traceable to Todd was incriminating, and no post-execution evidence decisively demonstrates his innocence. But the Stoker trial does illustrate the persistent problem of defense counsel in capital cases. The Chicago Tribune survey revealed that of the 131 men and women executed during the governorship of George Bush, 43 were represented at trial or on initial appeal by attorneys who have been publicly sanctioned by the State Bar of Texas. And since 1977 in Illinois, at least 27 death row inmates have received new trials or sentencing hearings because of attorney incompetence.

In one prosecution, defense counsel insisted the duty to investigate possible exculpatory evidence rested with his client, declaring: "It was his case. It was not my case."

When life or death is at stake, the government should turn square corners. Thus, no lawyer should be appointed defense counsel in a capital prosecution who has not been both credentialed as competently schooled and practiced in capital punishment by a national death penalty board and blessed with prior criminal defense experience. The burden would be light because capital prosecutions constitute but a tiny fraction of the criminal justice docket.

It is the least that can be asked when the documented risk of executing an innocent under the prevailing system is non-trivial and remedial action would require so little.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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