Death Penalty Appeal Without a Lawyer

A dozen Alabama death row inmates are without lawyers, advocates say.

February 10, 2009, 4:28 PM

June 11, 2007 — -- It took an Alabama jury less than 30 minutes to convict Larry Smith of murder and recommend that a judge send him to his death.

With his life at stake and his last appeal deadline fast-approaching, Smith found a white-shoe Washington, D.C., law firm to take his case for free. His Washington attorneys discovered that Smith's trial lawyer had never shown the jury evidence that suggested Smith might be innocent. They persuaded a judge earlier this year to grant Smith a new trial.

In almost any other state in the nation, the government would have provided Smith a free attorney to challenge the fairness of his trial. Alabama is one of only two states in the country that does not provide poor death row inmates with lawyers for post-conviction review of their cases.

A dozen of the nearly 200 Alabama death row inmates are without lawyers, according to Bryan Stevenson, director of the Equal Justice Initiative of Alabama.

"It's shameful and it's a disgrace," said Bill Bowen, a former judge on Alabama's Court of Criminal Appeals. "This is the last stage. If you have any chance at all, it has to be asserted by an attorney now before you're strapped to the gurney."

Today, the U.S. Supreme Court could announce whether it will hear an appeal by a group of Alabama inmates, represented by Stevenson, asking the court to establish a constitutional right to a lawyer for death row inmates in post-conviction reviews.

The Constitution guarantees a lawyer for poor criminal defendants during their trials and their first round of appeals. So-called post-conviction reviews, on the other hand, are civil cases brought to challenge the fairness of a conviction or sentence — defendants have no established constitutional right to a lawyer in such cases.

But, post-conviction reviews are often the only way to challenge a death sentence based on newly discovered evidence, such as DNA evidence, a biased jury, or — as in Smith's case — an incompetent trial lawyer. They have resulted in hundreds of exonerations or reduced sentences nationwide, and every state other than Alabama has opted to provide death row inmates with free lawyers for those appeals.

A 'Woefully Inadequate' Defense

As the police led Larry Smith to a patrol car, one of the arresting officers turned to Smith and said, "We're going to fry your a--," Smith testified at trial.

Indeed, the evidence seemed compelling. In his trial in Albertville, Ala., the jury heard a witness testify that Smith had hatched a plan to rob friend Dennis Harris and Smith had signed a confession, admitting that he shot Harris in the head for $200.

But when it came time for Smith's defense, court records show, the jury didn't hear the whole story.

As his pro bono attorneys at Covington and Burling later discovered, Smith's trial lawyer never contacted several key witnesses who could have provided Smith with an alibi — including one who later admitted that she had lied to the police to implicate Smith in the killing. The lawyer never investigated or challenged Smith's confession, which he believed was coerced by the police. The investigator his lawyer hired never even spoke to Smith.

Half an hour after the defense rested its case, the jury came back with a verdict -- guilty. Smith's conviction was upheld by the Alabama appellate courts, and the U.S. Supreme Court declined to hear his case.

Earlier this year, a state court judge ordered a new trial for Smith, saying that his trial lawyer was so "woefully inadequate" and that Smith's constitutional right to a fair trial had been violated. The state has appealed.

Appeal 'Near Impossible' Without Lawyer

Critics of Alabama's nearly singular position on post-conviction death penalty counsel include former Alabama Supreme Court justices, law professors and several former presidents of the state bar association. They say it's virtually impossible to challenge a death penalty conviction without an experienced and dedicated counsel.

"We shouldn't be relying on the good fortune that a lawyer will volunteer in every one of these cases," said Douglas Inge Johnstone, a former justice on the Alabama Supreme Court. "We need a system that will ensure that there is a just result for each person on death row."

It is an omission, critics say, that undermines the basic right to a fair trial.


"The right to counsel for post-conviction review is part and parcel of the very right to a lawyer at trial," said Johnstone. "That right is illusory if it can't be enforced."

Post-conviction appeals can require intensive investigations into the facts of a case, interviews with witnesses and dozens of hours of legal research — all difficult for death row inmates to accomplish from prison.

Alabama has also erected complicated procedural rules for filing such appeals, which must be filed within a year.

"The law of post-conviction appeals is one of the most complex areas of legal practice, period," said Daniel Filler, an associate dean at Drexel University College of Law, who studied Alabama's death penalty system last year for the American Bar Association. "In states where there's no lawyer, it's pretty near impossible."

If Alabama inmates file a successful petition on their own, a judge has the option to appoint a lawyer, but the state will pay the lawyer a maximum of $1,000 for the appeal.

"They would be working for less than minimum wage," said Stevenson.

Most Inmates Do Have Lawyers

The state of Alabama is quick to point out that most death row inmates, like Smith, have lawyers and highly qualified ones at that.

With no state system in place, nonprofit groups like the Equal Justice Initiative and a number of top corporate law firms have stepped in to take on post-conviction appeals for free.

"The representation they are getting is second to none," said Kevin Newsom, Alabama's solicitor general. "In a lot of cases, the state is outmanned, outresourced and outgunned by behemoth law firms."

"The idea that inmates are en masse unrepresented, and wandering through the system alone, is just not true," Newsom said, adding that all the plaintiffs in the Alabama inmate lawsuit were represented by lawyers.

Newsom added that inmates who filed their own appeal could amend their petitions once they had a lawyer.

But advocates say it's unfair and irresponsible for a U.S. state to leave the burden of death penalty defense work to nonprofits.

"To say the state doesn't have to do anything because a volunteer will show up is an abdication of the state's responsibility," Stevenson said.

For one thing, Stevenson said, there are not enough volunteer lawyers to meet the demand. He also pointed out that often the lawyers came into the case too late to do much good.

Robin Maher, who heads the ABA Death Penalty Representation Project, said most firms she approached refused to accept death penalty cases.

"I've worked with firms for years trying to convince them to take a case," she said.

The Alabama death row inmates' case, Stevenson said, is rooted in the reality of underfunded, often unqualified defense lawyers.

An effective death penalty defense, as recommended by American Bar Association guidelines, can involve extensive investigation into the case and into the defendant's life history. A history of mental retardation, childhood abuse or poverty can all be used to try and persuade a jury to spare someone's life. A necessarily thorough investigation can eat up hundreds, even thousands, of hours and cost tens of thousands of dollars.

Until 1999, Alabama capped public defender spending on death penalty cases at $1,000. Today, there is no cap, though lawyers are paid $60 an hour for in-court work and $40 an hour for out-of-court work, a fraction of what the lawyers would normally earn. Public defenders are limited to spending $2,000 on direct appeals.

State law in Alabama only requires that court-appointed death penalty lawyers have five years of criminal law experience. Larry Smith's trial lawyer, Jack Daniel, had never tried a murder case in front of a jury, according to court documents. Daniel hired an investigator who had never investigated a criminal case before and who never interviewed Smith.  Daniel also complained that he did not have enough money to investigate the case, court records.

If the Supreme Court agrees to hear the Alabama inmates' case, it will have to revisit its 1989 ruling in Murray vs. Giarratano, which denied Virginia prisoners a constitutional right to an attorney for their post-conviction appeal.

The court was split on its reasoning in that case, and in a concurring opinion Justice Anthony Kennedy acknowledged that Virginia's death row inmates were probably not equipped to handle post-conviction proceedings on their own. But, he wrote, Virginia's system passed constitutional muster because no inmates had been unable to find a lawyer and because Virginia prisons were staffed with institutional attorneys.

The complexity of death penalty law, Kennedy wrote, "makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law."  

But, he added, states should be given "wide discretion" in deciding how to give prisoners adequate access the courts.

While the Alabama inmates lost in trial court and in the 11th Circuit Court of Appeals, in Atlanta, they have been met with some sympathy.

"If we lived in a perfect world, which we do not, we would like to see the inmates obtain the relief they seek," Circuit Court Judge Joel Dubina wrote in rejecting the inmates' suit.

Newsom, Alabama's top lawyer, says his staff is not living in a perfect world either. 

"No one is opposed to death row inmates having lawyers in post-conviction proceeding," he said, "but the state is doing the best it can with limited resources. And Alabama has decided to put its resources into trials and direct appeals." 

While it does, there will be some death row inmates, like James Walker — a recent addition to Alabama's death row — who do not have lawyers. Recently, the state Supreme Court narrowly upheld Walker's murder conviction.

Stevenson, of the Equal Justice Initiative, said Walker did not have an attorney and Equal Justice Initiative would not be able to take his case. Stevenson said he would search for a firm to take it for free.  

"I have no idea what will happen to him," he said.

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