Right to Counsel and the Death Penalty in Michigan

Death Penalty in Michigan

There are, at present, 38 states with the death penalty and 12 without (deathpenaltyinfo.org 2004). Michigan is one of the 12. From 1976, there have been 906 executions in the U.S.: 517 were white, 310 blacks; 57 hispanic; and 22, other races. More than 80% of these cases involved white victims, although only 50% of murder victims were white. Case studies on race showed that 96% had racial undertones, whereby 98% of the chief district attorneys were white and only 1% were black. Another study conducted in Philadelphia revealed that more blacks were given the death penalty than white and other races at 38%. Still another study conducted in North Carolina said that the death sentence went up by 3.5 times when the victims were white (deathpenaltyinfo.org). Records show that 37 states with the death penalty used lethal injection method in 739 executions, 151 by electrocution, 11 by gas chamber, 3 by hanging and 2 by firing squad.

Surveys of top academic criminological societies said that 84% of these experts did not consider the death penalty a deterrent to murder. Police chiefs also revealed in a 1995 Hart Research that they did not believe it was an effective law enforcement tool. Yet Gallup polls favored it at 64% over 32% against it. The public also preferred it at 53% against life without parole at 44%.There are currently 11 states with more than 100 death row inmates, led by California at 843, Texas with 458 and Florida with 381. There are, at present, 3,503 death convicts, some of whom are sentenced in more than one state.

The death penalty costs a lot. The state of Kansas discovered that it spent 70% more on death penalty cases than on comparable non-capital cases, which include incarceration. The Indiana Criminal Law Study Commission calculated its total death penalty costs as exceeding those of life without parole by approximately 38%, and on assumption that the death sentences were overturned and reduced to life imprisonment.

North Carolina spent over $2.18 million per execution against the costs of a non-death penalty murder case with a sentence of life imprisonment. Most of these costs were incurred during trial. Florida spent $51 million a year over and beyond what it cost to punish all first-degree murderers with life imprisonment without parole. It cost Florida $24 million for each of the 44 executions it had since 1978. Texas shelled out $2.3 million on the average, or thrice the cost of life imprisonment in a single maximum cell for 40 years. And California spent $90 million every year beyond ordinary costs of operations of the justice system. Of this total, $78 million went out at the trial level.

Last year, a Michigan House Committee voted in a way that marked the first step in lifting the state's 18-year ban on capital punishment (prodeathpenalty.com 2003). The House Regulatory Reform Committee voted 6-4 in favor of a death penalty resolution for a statewide vote that August. The case was the February 16 shooting of two Detroit police officers and was sponsored by Larry Julian of Lennon limited the death penalty to first-degree murder cases with demonstrated moral certainty of the defendant's guilt. First-degree murders in Michigan are punished with life imprisonment without parole. A statewide survey showed that only 45% of the majority now supports the death penalty. The Michigan Catholic Conference, a pressure group that lobbied against the measure, insisted that the death penalty was a "simplistic solution" to crime problems (prodeathpenalty.com).The House Resolution needs a 2/3 majority vote in the Senate and the House, which appeared difficult to obtain. Dissenting Rep Paul Gieleghem of Clinton Township wanted mental retardates and juvenile offenders exempted from it, if a judge or a jury would determine the capital punishment and what "moral certainty" meant.

Senator Russell Feingold filed the National Death Penalty Moratorium Act of 2000 to effect an immediate pause on executions in the country while a national blue ribbon commission reviewed the administration of the death penalty. It was to obligate that jurisdictions imposing it would do so with justice, fairness and due process (Feingold 2000). The bill noted that, since the reinstatement of the modern death penalty, 87 were freed from the death row and who were later proved innocent. That meant 1 innocent person out of every 7 executed. With more than 3,000 convicts in the death row, the bill emphasized that there would be many innocent persons among them. The Senator complimented the work of Illinois Governor George Ryan in freeing innocent persons from the death row through modern DNA testing of forensic evidence. Unfortunately, only Illinois and New York could access DNA testing for death row inmates.

Senator Feingold's bill noted other flaws in the justice system, such as racial prejudice, discrimination against the poor and the minorities and inefficiency or inadequacy of defense counsel that plagued it. He added that at least 17 city and county governments have passed similar moratorium resolutions, including Alabama, Maryland, New Jersey, Oklahoma, Pennsylvania and Washington.

In its 1963 decision in Gideon v Wainwright, the Supreme Court stressed that the Constitution guarantees every person charged with a felony the "right to an attorney" even if he or she cannot afford one. Later rulings specified and require "competent" representation. But it is noted that this promise had remained quite unfulfilled because the legal representation received by poor defendants was still inadequate (Tierney 2003). Many of the states with the death penalty had no indigent defense system and relied on court-appointed lawyers and without observing a standard for competency, as guaranteed by the Supreme Court. A solid example of the inadequacy occurred in the case of Delma Banks, Jr., a poor man from Texas, who would have been executed if it were not for the last-minute stay obtained for him by former FBI director and U.S. District Judge William Sessions from the Supreme Court themselves. Judge Sessions said: "When a criminal defendant is forced to pay with his life for his lawyer's errors, the effectiveness of the criminal justice system as a whole is undermined." Banks' lawyer did not effectively cross-examine the informant or investigate the case, or he would have known that Blacks was elsewhere at the time of the crime. The lawyer did not challenge the one-day trial systematically held by the prosecutors, so that one day later, Banks was sentenced to death as a "future danger to society." Banks' lawyer did not refute the state's claim despite the fact that his client had no criminal history of violence on record.

In a Tennessee case, the lawyer of the defendant did not offer a closing argument in behalf of his client. In other cases, the lawyer was either unaware of the governing law, was drunk or even asleep. The American Bar Association observed that no state meets its own standards for competent counsel in a dearth case (Tierney). Judges simply appointed a counsel who first got the case through the system, rather than one who would most zealously defend the rights of the accused.

In Georgia, a judge appointed a newly admitted bar member to handle a death case on her fifth day of practice. Another lawyer, who handled real estate cases from home, asked to be relieved of his duties of representing juveniles because he did not have the experience, but the judge denied his petition. Still another court-appointed lawyer had 94 cases scheduled for trial in a single day and most were resolved through hastily negotiated pleas, none of which went to trial.

An innocent 19-year-old stayed behind bars in Pittsburgh, Pennsylvania because his public attorney did not have the time and other resources to visit or investigate his case. A 23-year-old retardate in Connecticut similarly stayed behind bars for 18 months after his public defender advised him plead guilty to an attempted robbery charge. The lawyer was not aware that his client was mentally disabled and incompetent to stand trial. A Kentucky judge, on the other hand, had difficulty locating or assigning a lawyer to represent Gregory Wilson on his death case after a state law fixed attorneys' fees at $2,500. A local indigent defense program offered to raise the money for the defendant by sponsoring a cruise to the Ohio River, but the judge instead posted a courthouse sign, saying, "Please help. Desperate." A lawyer later came forward but he was later discovered to have been indicted for receiving stolen property (Tierney).

The high cost of providing legal representation in federal death cases depended on the heavy demands on the time and skill of the counsel as well as the increase in federal criminal cases with the potential sentence of death (U.S. Court 1998). That high cost was determined by the number of hours needed by the attorney to discharge his or her ethical obligation to the client, his hourly compensation rate, and the nature, type and cost of investigative and expert services required by the case. In order to control these costs and make them consistent with constitutional and statutory guarantees, there must first be an understanding of the characteristics of death penalty cases and the nature of the responsibilities of a lawyer appointed to handle them.

Nature and Volume of Federal Death Cases

Among other factors that affect the cost of representation, the prosecution's decision to seek the death penalty and whether or not to accept a plea agreement to a sentence less than death are the most particularly significant. First of all, the volume of federal death penalty cases depends on the decision to prosecute on a federal rather than in a state court. The federal volume has vastly increased, especially since the enactment of the Federal Death Penalty Act as part of the 1994 bill. The average total cost per federal death penalty representation in the last decade was $142,000 (U.S. Courts). However, it is the prosecution's decision as to seek the death penalty that spells that difference in the cost of representation.

The Attorney General of the United States normally authorizes the decision. The average cost of representation was approximately $218,000 as compared with only $55,000 when the decision was not authorized. It could be reduced to only $145,000 if the decision was withdrawn before trial. Costs could further be reduced with a plea of guilty for a lesser crime (U.S. Courts).

Three factors affect the scope and cost of defense representation: the two-part trial in a death case, the complexity of the guilt phase, and the scope of the penalty phase. The first part is the guilt phase, where the jury decides whether the prosecution has proven the commission of the crime, punishable with death, beyond reasonable doubt. In the second part, the jury considers additional facts or aggravating circumstances that will warrant the imposition of the death sentence, along with the defense's evidence of mitigating circumstances. The defense counsel must prepare for both parts of a death case trial. His preparation for the guilt phase must already take the penalty phase into account. Unlike in non-capital cases, what the jury may find insignificant in the guilt phase may be significant in the penalty phase (U.S. Courts). An example is in the securing of expert opinion by both the prosecution and the defense.

The penalty phase of the trial includes a wide range of inputs on the defendant, the victim and the nature of the offense not admissible in the guilt phase. The defense lawyer must investigate these, obtain as much information as possible and be very familiar with all the details. At this phase, the jury accepts other information offered by the prosecution, which requires the defense lawyer to be extra-prepared for additional "non-statutory aggravating circumstances" in the case, specifically that the defendant will be dangerous in the future. The jury may also conduct a further "trial" to determine if the same defendant some other crimes. These mini-trials entail additional cost, time and other resources to prosecute and defend.

In addition to these, the defense lawyer must plan out and present a case for a lesser sentence. He must invoke the defendant's constitutional right to present any mitigating circumstance to reduce the sentence. This requires a broad investigation into the defendant's life history and a revelation, for the jury's consideration, of those "compassionate circumstances of human frailty." It is the defense counsel's failure to investigate and present mitigating circumstances that is the most frequent reason why the death penalty is set aside.

There are also special obligations incurred by the defense counsel in a death penalty case. The average number of hours spent on non-capital homicide cases is 117 as against 962 in (1,464 in authorized) death cases. Consultation with the defendant requires immensely more time for death cases than in non-capital cases. The accused must reveal more details of his life - mental illness, substance abuse, social and academic failures, other family secrets - that can help explain his misconduct. He must also be convinced to enter a plea of guilty for a lesser crime, and for this to happen, a great deal of trust must develop between him and his counsel. Another time-consuming factor is the stress that both of them go through in confronting the risk of a death sentence. Each must handle their situation with care so that the counsel will not withdraw from the relationship, as this will delay the trial.

One more issue to contend with is that circuit courts of appeals have decided only on a handful of federal death penalty cases, as these are time-consuming to litigate (U.S. Courts). Many judges said that they and their law clerks devote months to prepare federal death penalty cases. A defense lawyer has that ethical duty to challenge the conduct of the guilt and penalty phases. Furthermore, many issues may arise in a single case. In one multi-defendant case on record, almost 3,000 legal pleadings were filed by the parties.

Defense also incurs the huge cost of expert witnesses in death cases. A study revealed that 19% of defense expenses went to services other than counsel, primarily mitigation specialists and jury consultants, who are typically highly educated and paid by the hour.

The competence of a defense counsel, needless to say, is of paramount significance in death penalty cases. The First Judiciary Act of 1789 already provided for the appointment of a "learned" counsel especially in capital cases (U.S. Courts). The Supreme Court today expressly requires the appointment of two lawyers, at least one of whom should be knowledgeable about capital punishment. The American Bar Association summarized the requirements on a defense counsel in a death case as dealing not only with the most serious crime in the most difficult circumstances, but also knowing and understanding the complex constitutional issues and unusual procedures applying to non-criminal cases. A "learned" counsel "does it right the first time" and thus minimizes draining and time-consuming post-conviction proceedings. This demands high-quality representation at trial level and this consists both of knowledge of the extensive and complex body of law governing capital punishment and the complexities of federal criminal practice and procedure (U.S. Courts). There are differences between state and federal practice too. The lawyer must have both prior capital experience and prior federal criminal trial experience so that he will be familiar with federal sentencing guidelines, the speedy trial act, rules of evidence and procedure and the specifics of the federal death penalty law. It is also an advantage if he has specialized area of practice, such as drug crimes.

Judges boast of state counsels they appoint especially to death cases as more competent than those in the federal level according to norms. Many learned counsels accept appointments after their first federal death penalty cases and they are generally regarded as more efficient because of the experience. The Department of Justice centrally supports the work of federal prosecutors nationwide and avails them of training, advice, legal research and brief writing assistance, sample pleadings and supplemental staffing. In contrast, private lawyers are mostly sole practitioners or partners in small law firms, consisting in turn of less than a dozen lawyers. And although federal defender organizations are centrally funded (U.S. Courts), their representation work is completely decentralized. In addressing the problem of improving the quality of representation and the cost effectiveness of defense services, the judiciary established the Federal Death Penalty Resource Counsel Project (RCP) in 1992. RCP consists of three experienced capital litigators who support the counsel and provide inputs to the Administrative Office on part-time basis. Resource counsels divide their work regionally and so are able to provide assistance to defense counsel in federal death cases. Their legal advice and pleadings have been quite useful in preventing lawyers from needing to "reinvent the wheel" and earned the praise of judges, defense counsels, administrative office staff and the Department of Justice. Their work has helped develop and implement case budgeting procedures and in the discharge of the Administrative Office's and federal public defenders' duties in recommending competent counsel for appointment. Moreover, they provide training opportunities for counsel and help monitor prosecution decisions and crucial statistical information and policy advice to the Administrative Office (U.S. Courts).

A defendant (to a death case) is entitled to two lawyers according to law. The judge may appoint two private or panel lawyers to be paid on an hourly basis, or in a district with a federal defense organization or FDO, a lawyer employed by this FDO may be appointed in most cases.

An FDO is currently unable to provide representation to many federal death penalty cases but it has in its employ a few lawyers with prior death penalty experience gained in state court. Most of its lawyers are also deficient in experience in homicide cases because few of these are raised to federal courts. Even the few who have the experience feel not at par with learned counsels with capital experience. Trial experience in non-capital cases cannot substitute for it. In almost all death cases wherein the judge appoints an FDO as counsel, a panel attorney with death penalty experience is also appointed.

Another problem encountered in relying on FDOs is the impact of the appointment on the office as a whole. A death penalty case drains it of resources, i.e., the time of experienced lawyers and supervisors, investigators and its staff, as well as budgetary constraints. A death case is disruptive in that it reduces the number of non-capital cases assigned to it. The counsels assigned usually transfer their existing cases to other counsels or reject new ones. In small law offices where the work load is divided among few lawyers, a death case interrupts and disrupts its services to other clients.

In general, courts today are able to acquire a sufficient number of qualified panel attorneys to meet the need for representation. Some lawyers in states with the death penalty also acquire experience in the field, but they remain unqualified to provide representation because of unfamiliarity with the importance aspects of the highly specific practice. The courts resort to recruiting qualified ones in other states as appointed counsels from one of the few but increasing number of litigators who have previously provided representation in two or more federal death penalty cases. Both the appointing judge and the local counsel usually express satisfaction over the work of these panel lawyers from other states.

Federal law currently authorizes a counsel in a federal death case to be compensated with up to $125 per hour as maximum. Many years ago, critical funding situations prevented many courts to recruit and retain experienced attorneys. Panel lawyers who qualified were generally the most experienced and respected practitioners and asked for high fees for their retainer work at much higher hourly rates (even double) from private clients the maximum rate in a federal capital case. Interviewed panel lawyers said they would not want to accept federal rates that applied to non-capital cases.

One reason why it was difficult to recruit a qualified counsel is that he needs to decline work that he can accept while the capital case is pending, largely because of the time demand made by a death case (U.S. Courts). If it is a small law office or if the lawyer has only a small practice, a death case will damage the network of referrals and name recognition needed by his limited practice or small office to remain operational. Some such lawyers feel that they lose lucrative white-collar opportunities when they become categorized as death-penalty lawyers or else, lose future clients due to loss of exposure.

Another reason is that panel lawyers do not want to become dependent on the timed payment of vouchers, even if these are prompt.

The federal law has since provided for the appointment of at least two lawyers for the defense in a death case. The judge usually appoints two only when the prosecution expresses the intent of seeking the death sentence or when the judge is not satisfied with one or more of the originally appointed lawyers and believes that adding a new one with the required skills will meet the statutory time limits better. The defense team also includes paralegals, investigators and less experienced lawyers, all of whom bill at hourly rates lower than that of the lead counsel (U.S. Courts). Additional lawyers are authorized only to work on specific and limited tasks, primarily to reduce attorney compensation. An example was the hiring of a less experienced lawyer at only $45 per hour, compared with the statutory rate of $125 to do the task of listening to thousands of hours of wiretap tapes and identify the important parts.