Defense Representation in Capital Cases
The Constitution guarantees a criminal defendant a right to an attorney and to due process of law. The Supreme Court has held that legal counsel must provide effective representation. Almost all defendants in capital cases cannot afford their own attorneys. In many cases the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. Because the American system of criminal justice is adversarial, depending upon contesting presentations by capable lawyers for the prosecution and the defense to arrive at fair and accurate results, it is essential that defense counsel be sufficiently skilled and experienced and be given adequate resources to fulfill his or her obligations to the client and the court.
Representation Issues in the Gary Graham Case
The case of Gary Graham highlights some of the legal hurdles that capital defendants face. For example, because Texas had no state public defender system when Graham was tried (and still does not have one), each county was responsible for guaranteeing that the constitutional right to counsel was honored when poor people faced criminal charges. Most counties, including Harris County, where Graham was tried, appointed private attorneys to provide indigent defense. Counsel were paid very little: at the time of Graham’s trial, attorneys representing capital clients were paid on average less than $50 an hour for in-court time and nothing for out-of-court time.
Graham’s legal challenge to this process was filed with the U.S. Department of Justice by the NAACP Legal Defense Fund just days before his first scheduled execution date. The complaint asserted that this practice created a system where attorneys’ economic interests were in fundamental conflict with their clients’ interests. (See Race and the Criminal Justice System for more information on this complaint). Graham claimed that the inadequacies of Texas’ indigent defense system made it extremely unlikely that any lawyer appointed to a capital case would be able to provide effective assistance.
According to Graham, the Texas compensation scheme created an incentive for attorneys to forgo the out-of-court preparation necessary to develop a good in-court case and encouraged lawyers to "wing it" in court. For example, attorneys wanting to increase their in-court compensation might conduct long in-court examinations of witnesses whom they had never previously interviewed, thereby failing to bring out useful information, and instead, bring out information damaging to their clients. Graham requested that the Department of Justice conduct a full investigation into the systematic deprivations of constitutional rights outlined in the complaint, and that it initiate appropriate legal actions to enforce compliance with the Constitution.
Beyond systemic issues concerning capital representation in Texas, Graham claimed that his trial counsel, Ron Mock, had failed to adequately defend him and that Mock’s representation was so ineffective as to call the outcome of the trial into question. Graham asserted that defense counsel was ineffective for failing to conduct a thorough investigation and to present all of the relevant evidence. Ultimately, Graham argued, “defense counsel, through a combination of mistakes, misunderstandings, confusions, and omissions, failed to provide Mr. Graham the ‘zealous defense’ upon which the integrity of the criminal justice system relies.”
According to Graham, his trial counsel’s performance was deficient in several areas:
- He failed to investigate Graham’s account of his whereabouts on the night of the murder;
- He failed to investigate adequately the reliability of witnesses identifying Graham as the perpetrator; and
- He failed to call defense witnesses at trial.
To rebut Graham’s claims of ineffective assistance of counsel, the State presented evidence, including affidavits by Ron Mock, that Mock did as good a job of defending Graham as could have been done under the circumstances of Graham’s case. Specifically, the state argued that on numerous occasions prior to trial, Mock met with Graham and attempted to discuss the facts of the case with him. Graham only stated that he did not commit the robbery-murder and that he spent the evening with a girlfriend whose name, appearance, and address he could not remember. The state further contended that despite defense counsel’s effort, Graham did not provide the names of any potential alibi witnesses nor did he reveal where he had been or what he had been doing on the night of the homicide. Furthermore, the defense hired an investigator, Merv West, who interviewed at least ten potential mitigation witnesses. Only two, his stepfather and grandmother, would agree to testify favorably at trial. The state also asserted that Mock informed Graham that he had a right to testify on his own behalf but Graham never told trial counsel that he wanted to testify at either the guilt/innocence or punishment phases of the trial.
All of Graham’s claims of ineffective representation were rejected by the appellate courts.
Assessing the Importance of Quality Representation in Capital Cases
The Supreme Court, the Department of Justice and the American Bar Association are just some of the organizations involved in defining what constitutes adequate representation in capital cases. The following supplementary materials can help you further investigate this issue.
Key Supreme Court Cases on Capital Representation
Supreme Court decisions addressing representation fall into two major categories: those that define the parameters of the right to counsel and those that discuss standards for counsel’s performance. Each of these categories is important in the discussion of capital defense practices.
Right to Counsel for Indigent Criminal Defendants
Even though the right to counsel in criminal proceedings is guaranteed by the Sixth Amendment, this right only protected criminal defendants in federal prosecutions until two cases extended the protection to individuals prosecuted by state governments. Powell v. Alabama (1932) secured the right to an attorney for indigent capital defendants, and Gideon v. Wainwright (1963) extended that right to all indigent criminal defendants at the trial level. In Douglas v. California (1963), the Court held that when a state affords a defendant a right to appeal, it must provide an attorney to indigent defendants for the first statutory appeal. This appeal, which concerns matters that arose during the trial, is called the "direct appeal." Subsequent review is referred to as "post-conviction proceedings." In Murray v. Giarratano (1989) the Court refused to find, at least where capital defendants were receiving some legal assistance for post-conviction proceedings, that there was a constitutional right to representation in such matters.
Evaluating the Effectiveness of Counsel
After the right to counsel was established, the Supreme Court issued a series of decisions that evaluated the effectiveness of trial counsel. Strickland v. Washington (1984) established a framework for evaluating attorney performance in capital cases. Strickland requires that the defendant prove that counsel’s representation was deficient and that there is a reasonable probability that, but for counsel's deficiency, the outcome of the trial would have been different. Ineffective assistance of counsel is established only when the defendant has satisfied BOTH prongs of the Strickland test. In making determinations about what constitutes deficient representation, the Court has recently focused on the extent to which capital defense counsel investigate potential mitigating evidence on behalf of their clients. In Williams v. Taylor (2000) and Wiggins v. Smith (2003), the Court ruled that failure to conduct a thorough investigation of the client’s background may constitute ineffective assistance of counsel. The court further defined defense counsel’s obligation to investigate in Rompilla v. Beard (2005), which held that even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial’s sentencing phase.
Standards for Counsel in Capital Cases
Strickland provided the framework under which courts evaluate claims of ineffective assistance of counsel, but the Court has not specifically defined a set of performance standards for capital defense attorneys. Both the Department of Justice and the American Bar Association have published criteria to be used in evaluating trial counsel.
Questions for Further Analysis
- How could poor-quality of representation increase the likelihood of wrongful convictions in capital cases? How could it increase the likelihood that a convicted defendant would be sentenced to death when, with a more capable attorney, he or she might have received a less severe punishment?
- Should death sentenced inmates be guaranteed the right to an attorney in post-conviction proceedings?
- Should there be national standards for attorneys in capital cases? Who should set these standards? Should these requirements apply to both the defense and the prosecution?
- Do the Supreme Court’s decisions in the Williams, Wiggins and Rompilla cases seem to demand more in the way of investigation by a capital defendant’s lawyer than was demanded by the Supreme Court’s earlier decisions such as Strickland v. Washington? If so, would this higher standard of duty apply to the defendant’s lawyer at the guilt/innocence stage of a capital trial, as well as to the sentencing stage with which the Williams, Wiggins and Rompilla cases were specifically concerned? If the standard for counsel’s performance established by the Supreme Court’s cases since 2000 had been in effect at the time when Gary Graham’s claim of ineffective assistance of counsel was presented to the courts, would the courts’ rulings on that claim have been different?