ABA Adopts Guidelines for Capital Cases

Bar group proposes ‘minimum standards’ for lawyers whose clients face the death penalty.

By Henry Weinstein
Times Staff Writer

February 18, 2003

The American Bar Assn. has proposed new standards for defense lawyers in death penalty cases, following criticism by Supreme Court justices and legal scholars about the poor quality of representation afforded many accused murderers.

“Establishing minimum standards … is essential to ensure effective assistance of counsel for all those charged with or convicted of capital crimes,” said Robin Maher, director of the ABA’s death penalty representation project.

The guidelines, intended to set a national standard of practice in state and federal courts, were adopted with little dissent at the ABA’s midyear meeting in Seattle last week.

They cover the appointment and performance of lawyers. Defendants in capital cases should be represented by two or more qualified lawyers, augmented by an investigator, a mitigation specialist and, in some instances, an expert to help with jury selection, the guidelines state. At least one member of the team should be qualified to screen defendants for mental or psychological disorders or impairments.

Further, an ABA report issued along with the guidelines recommended that an independent agency — not courts or elected officials — appoint counsel in capital cases to ensure the integrity of the process. In the past, critics say, judges have appointed lawyers whose primary skill seemed to be processing cases rapidly rather than providing vigorous representation.

The agency certifying lawyers should not make its decisions based solely on the fact that an attorney has worked on capital cases, the report states. After all, an experienced Texas attorney slept through parts of two cases in which his clients received death sentences. Instead, the standards should more clearly describe skills and qualifications an attorney needs to be effective.

And providing proper pay is critical to ensuring quality representation, the report says. Flat fees and caps on compensation “are improper in capital cases” because they create incentives for the attorney to do less work for his client.

In 1989, the ABA first adopted guidelines for lawyers handling capital cases, which were then implemented by many states. The new recommendations, Maher said, reflect attorneys’ experience on which approaches work best in capital cases. Moreover, she said, the guidelines need modification because of sweeping changes in federal law in 1996 that dramatically limited the scope of death penalty appeals and for the first time imposed a one-year statute of limitations for filing constitutional challenges in U.S. court.

A year later, the ABA called for a moratorium on executions until the federal government and the 38 states that impose the death penalty changed the system to ensure greater fairness. Proponents cited growing evidence that defendants in capital cases were poorly represented.

The new guidelines represent “evolving standards that are totally consistent with the call for a moratorium,” said Lawrence J. Fox, a Philadelphia attorney who chairs the ABA’s special committee on death penalty representation.

The bar made its recommendations as the U.S. Supreme Court prepares to hear a case involving a Maryland death row inmate. His lawyers contend he should not be executed because his trial attorneys failed to conduct a sufficient investigation into his troubled background to present to the jury during the trial’s penalty phase.

Two years ago, Justice Ruth Bader Ginsburg said: “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial.”

Nonetheless, the high court has overturned only one death sentence on the basis that a defendant had been denied a fair trial because of constitutionally deficient representation. A number of death sentences have been reversed on that basis by federal appellate courts in recent years, including several in California.

Last year, a panel in Illinois recommended that the state adopt strengthened procedures to ensure that competent attorneys are appointed. That action came in the aftermath of revelations that 33 death row inmates had been represented at trial by attorneys who previously had been disbarred or suspended. That finding was cited by then-Gov. George Ryan when he declared a moratorium on executions in the state.

And just last week, the issue of lackluster lawyering came into bold relief in Texas, which leads the nation in executions. Three dissenting judges on the Texas Court of Criminal Appeals blasted some of their colleagues for permitting the execution of Leonard Rojas to go forward, even though the attorney appointed by that court to represent him on appeal already had been suspended twice from practice. The attorney later admitted he had been suffering from mental illness when he represented Rojas.

“The representation of a criminal defendant under a sentence of death should not be left to those who have demonstrated an inability to effectively represent clients,” Judge Tom Price wrote.

Sharon Keller, the court’s presiding judge, defended the majority’s action by saying that Rojas was entitled only to a lawyer who was on a court-approved list of attorneys possessing the “initial qualifications” to represent a defendant facing the death penalty.

“This decision illustrates the importance of states implementing the revised ABA guidelines,” said Ronald J. Tabak, a New York attorney who played a key role in formulating them.

“Under these guidelines, a court would not be involved in selecting counsel for any phase of the proceedings. Moreover, courts — when seeing inadequate performance — are urged by the guidelines to take remedial action rather than sitting and defaulting the ignorant defendant’s claims” because an inept lawyer has not raised issues in a timely fashion, he added.

The report accompanying the guidelines places emphasis on the importance of a mitigation specialist, who researches the client’s background so the defense team is prepared to effectively argue for a life sentence in the event of conviction. Too often, defense lawyers “think they’ll win and don’t prepare mitigation testimony,” said Eric M. Freedman, a Hofstra University law professor who edited the final draft of the guidelines.

The report notes that “mitigation specialists possess clinical and information-gathering skills that most lawyers simply do not have.”

Consequently, they can recognize how mental or neurological problems may have affected the defendant’s actions.