World Day Against the Death Penalty: a key legal issue in the USA

Tuesday is World Day Against the Death Penalty. The blog here serves up a mix of those involved in the struggle against state sanctioned killing. As one of the lawyers of our little blogger group, I'd thought I would serve a brief introduction to death penalty litigation and at least one of the issues involved in it that makes it seems so mystifying, ineffective assistance of counsel.

The Louisville Courier-Journal recently took a look at the quality of counsel in an article entitled Death Row Inmates Appeal, Cite Bad Counsel. Kentucky up to the mid-to-late nineties, as well as in many other states (and in Texas, Pennsylvania, and a few other states still), suffered under the a problem counsel who were either too inexperienced or too under-resourced to handle capital cases. The Courier Journal points out what can all too often unfold when that happens:

There was a great deal that the Harlan County jury didn't know about 20-year-old Hugh Marlowe when it sentenced him to death in 1982 for robbing and murdering an elderly man out for a morning walk.

The jury was unaware that Marlowe attempted to hang himself at 6 or 7, and that his parents cursed him as they cut him down.

The jury also had no idea that Marlowe's father repeatedly beat him and his siblings, that Marlowe sometimes slept in a crawl space under the house and that as an adult he exhibited evidence of brain damage.

None of that was introduced at trial because Marlowe's inexperienced attorney made no effort to obtain or to use information about his client's background to save his life. . . .

Goodwyn, Marlowe's trial attorney, said in a recent interview that at the time of trial, he had been practicing law for less than two years, had never before handled a death-penalty case and had tried only a few felony cases of any kind.

"I don't think I had any business doing a case like that, with my level of experience," Goodwyn said. "I don't think I was prepared at all."

Goodwyn doesn't recall talking to anyone in Frankfort about the case -- in part because he said he didn't know enough to seek help, or what to ask for. Nor did it occur to him to request funds to hire expert witnesses, such as a psychologist to assess Marlowe's mental state, or to probe his background.

"I don't think I knew what I was doing," Goodwyn said. "I didn't know what was going on. I didn't investigate anything. I concentrated on guilt or innocence."

In the years since Marlowe went to death row a new Public Advocate in Kentucky, the remarkably gifted Ernie Lewis, has done a good job "draining the swamp" of inexperienced counsel handling capital cases. As that article notes:

Ernie Lewis, the state's public advocate, agreed that public defenders are far less likely to provide ineffective representation in death-penalty cases now than in the past. That is so, Lewis said, in part because the department has adopted American Bar Association standards for legal representation in such cases.

Those standards recommend an experienced defense team consisting of at least two attorneys, an investigator and a "mitigation specialist" who assembles the defendant's social history.

In addition, Lewis said the department also now provides more training for, and oversight of, its attorneys defending capital cases.

It will take several more yeas before the cases in Kentucky where there was a systemic problem of grossly inexperienced attorneys work their way through the system. In Texas, Pennsylvania, and elsewhere, such needed improvements are not necessarily being made and it may be decades before the problem of inexperienced counsel no longer plague those states. Lawyers or law students interested in learning more might do well by considering pro bono work in capital litigation or learning more about the law governing capital punishment.