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I. Introduction ............................................................................................ 2 II. Right to Counsel: The Road to Strickland.............................................. 4 III. Fundamental Right to Counsel: Quality?.............................................. 6 A. The Use of Objective Guidelines Prior to Strickland.............................. 6 B. Strickland v. Washington ....................................................................... 7 C. Strickland in Action: Case Law .............................................................. 9 IV. Why Death is Different ...................................................................... 11 V. Return to Objective Standards: ABA guidelines & Fair Defense Act.. 12 A. ABA GUIDELINES: ........................................................................... 12 Summary of ABA Guidelines ................................................................ 13 B. Texas Fair Defense Act (FDA) / Senate Bill 7...................................... 17 C. Texas Integration of the ABA under the Fair Defense Act ................... 19 Comparison: ABA Guidelines (Rev. 2003) to Texas FDA (2002) ......... 21 VI. Dallas County Court Appointments / Public Defender....................... 22 VII. Unconstitutional: Revival of the 8th Amendment Challenge ............. 25 VIII. Recommendation for Change: Strickland 2.0 .................................. 28 IX. Conclusion: ........................................................................................ 29
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When faced with a potentially fatal disease do you go to a specialist or a general practitioner? Almost all individuals would choose the specialist. However, the Supreme Court would find no problem in having you see the general practitioner. This is the reality created under the Supreme Court’s decision in Strickland v. Washington1. The Strickland test for ineffective assistance of counsel creates an environment in which highly inexperienced and non-specialized attorneys (general practitioner) could be appointed to a capital trial (potentially fatal disease). The issue is the life and death of the accused. He is indigent and counsel has been appointed to protect him from unfairness at the hands of the state. But what happens when counsel renders ineffective assistance? The attorney returns home and the accused is placed on death row. This is a harsh reality in a system that maintains a single standard for ineffective assistance of counsel in both capital and non-capital criminal cases2. The American legal system, both civil and criminal, relies on its adversarial nature to protect the rights of the parties involved in the dispute. However, when the adversarial system breaks down the outcome of a capital prosecution illustrates the problems with the Strickland standard3. Strickland created a single standard for representation in all
criminal cases, but as Justice Marshall suggests by the use of the phrase “death is
Strickland v. Washington 466 U.S. 668 (1984). See Id. 3 See Id.
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different” in Woodson v. North Carolina4, capital cases require a higher standard. The Dallas County Criminal Justice System’s appointment of counsel in capital cases provides substantial support for the creation of a higher standard. The fundamental right to counsel and its historical development will be the initial focus of this paper. Once the fundamental right is recognized the development of an evaluation standard for performance in applicable criminal cases will be reviewed. The Strickland standard, which is predominately subjective, fails when applied to capital cases. This failure will be presented through a sampling of cases involving ineffective assistance. A return to objective standards of review will be highlighted by the ABA guidelines and the Texas Fair Defense Act (FDA). The paper will compare the ABA Standards for appointment of counsel in Capital Cases to the FDA as well as the statutory requirements of §26.052 which sets the minimum requirements for appointment of counsel in capital cases. The paper presents Dallas County as a representation of the need for a higher standard when the punishment is death. Dallas County is a beneficial case study
because in a report released by the Equal Justice Center and the Texas Defender Service concerning the implementation of the Texas Fair Defense Act (FDA)5, Dallas County received all F’s because the county’s report did not address at all the standards for capital
See Woodson v. North Carolina 428 U.S. 280 (1976). Equal Justice Center & Texas Defender Service, Texas Fair Defense Act Implementation: Texas Death Penalty Practices: Quality of Regional Standards and County Plans Governing Indigent Defense in Capital Cases: Report No. 2; November 2003 available at http://www.equaljusticecenter.org/Report%20on%20Texas%20Capital%20Defense%20Procedures%20%202d%20ed.pdf
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cases. This paper examines the standards of Dallas County and the Dallas County Public Defender’s Office and proposes improvements to those standards. The paper concludes that Strickland presents a nearly impossible burden to a capital defendant seeking to challenge his conviction based on ineffective assistance of counsel and that the standard should be higher in capital cases than non-capital cases. Finally the paper suggests that a challenge to the constitutionality of the death penalty may be viable in light of the disproportionate imposition of the penalty on minorities due in no small part to ineffective assistance of counsel.
II. Right to Counsel: The Road to Strickland
The United States Supreme Court in Powell v. Alabama first addressed the effectiveness of counsel6. In Powell the court faced the imposition of the death penalty on five of eight black males charged with rape of a white woman. The presiding judge appointed the entire criminal bar to defend these young men but on the day of trial no one stepped forward to take the lead in the defense. Therefore the presiding judge appointed two attorneys from the criminal bar; (1) a drunk; and (2) a man out of his prime. The quality of representation in these cases was called into question and the Supreme Court reversed the imposition of death on the “Scottsboro Boys”. The outcome of Powell was the recognition of a minimal standard of representation for appointed attorneys; however this standard was not well defined. The United States Supreme Court in Gideon v.
See Powell v. Alabama 287 U.S. 45 (1932) Infamously known as the Scottsboro trials.
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Wainwright established the requirement that the right to counsel is a fundamental right7. Gideon concerned the request for counsel by a man charged with a felony, who could not afford an attorney, and the judge’s subsequent denial of counsel. The judge’s denial was based on the determination that counsel would only be appointed to individuals facing capital punishment and that the state could not afford to appoint counsel in criminal cases that did not involve the possibility of a death sentence. Upon review the Supreme Court of the United States held that the right to counsel in felony cases was a fundamental right. The caveat to this right is that the indigent defendant must be facing possible incarceration, to qualify for counsel. The court however did not address the adequacy of representation provided by appointed counsel in Gideon and it soon became a growing concern. Gideon only extended the right to counsel to felony offenses and it was not until Argersinger v. Hamlin that the Supreme Court recognized that the fundamental right of counsel extends to all non-petty offenses8. This allows the right to counsel to extend from a misdemeanor B (180 days in jail and/or $2,000 fine) to a Capital murder (Death)9. The extension of the right and subsequently the growing concern surrounding the quality of counsel led the Supreme Court in 1984, some 52 years after Powell, to create a test for ineffective assistance of counsel in Strickland v. Washington.
See Gideon v. Wainright 372 US 335 (1963). See Argersinger v. Hamlin 407 U.S. 25 (1972). 9 The categories used are from the State of Texas.
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III. Fundamental Right to Counsel: Quality?
A. The Use of Objective Guidelines Prior to Strickland
The Court in Powell, recognized a need for standards concerning appointed counsel but did not address the issue on a national level. However, this does not mean that lower courts did not have a means by which to review the competency of counsel10. Prior to Strickland, several lower courts relied on generally accepted guidelines concerning the performance of counsel11. Such guidelines included the ABA standards for judging competency. The reliance on objective guidelines created a system in which substantial deviance from the guidelines resulted in a determination of incompetence12. These objective standards to determine competence would not survive the reasonableness test created by the Strickland majority. The Strickland majority would describe its
standard of reasonableness as requiring an analysis of the totality of the representation and that adherence to set guidelines was inappropriate when the possible variance from case to case was significant13. The majority went so far as to state that guidelines might keep counsel for zealously advocating for the defendant14. Objective guidelines once used by the lower courts would be set aside by the Supreme Court and replaced with a two prong analysis in Strickland v. Washington.
See Jerold H. Israel & Wayne R. LaFave, Criminal Procedure: Constitutional Limitations in a Nutshell, (6th ed. 2001). 11 See Israel & La Fave, Criminal Procedure, at 389-390 12 See Id. 13 See Id. 14 See Id.
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B. Strickland v. Washington
The United States Supreme Court in Strickland was confronted with an appointed defense attorney that did not provide mitigating evidence to the jury in the sentencing phase of the capital trial. The defense attorney explained that he had been overcome with a sense of futility after his client confessed to the three murders, against the advice of counsel, and threw himself on the mercy of the court. In response to these events the Court established a two prong test to determine ineffective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must establish prejudice. Even if counsel’s performance was deficient, a defendant must show that counsel’s failures were so serious that the sentence of death was not reliable15. The standard formulated in Strickland has come under fire in recent years since as grossly inappropriate in a capital case where life is at stake. An objective view of Strickland yields the conclusion that this standard is unitary; it is to be applied to all criminal cases from the low level misdemeanors to high level felonies. The requirements and
responsibilities of an attorney in a capital case are substantially different from that of other criminal cases16. Time and preparation required for both the guilt and sentencing phase in capital cases require a high level of expertise and training17. The Supreme Court
Carter, Linda E. & Kreitzberg, Ellen Understanding Capital Punishment Law Matthew Bender & Co. 2004 pg 221; See Also Strickland v. Washington 466 U.S. 668 (1984). 16 See Stephen B. Bright, Counsel for the Poor: The Death Sentence not for the Worst Crime but for the Worst Lawyer,103 Yale L.J. 1835 (1994); See Also Jeffery Levinson, Don’t Let Sleeping Lawyers Lie: Raising the Standard for Effective Assistance of Counsel, 38 Am. Crim. L. Rev. 147 (2001); See Also Donald J. Hall, Effectiveness of Counsel in Death Penalty Cases, 42 Brandeis L.J. 225 (2003/2004); See Also Israel & La Fave, Criminal Procedure, at 386. 17 See Carter & Krietzberg Understanding Capital Punishment Law pg 215.
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has gone as far as to refer to the ABA standards for appointment of counsel in capital case as a basis to evaluate what is reasonable18. The first prong of Strickland requires that the defendant prove that the behavior of counsel was deficient. The prime example of deficient behavior is improper preparation for either phase of a capital trial. However, this is still a significant barrier to the reversal of a death sentence because there is “great deference” given to the attorney in the realm of trial strategy. Even in Strickland counsel implied that his lack of presentation of mitigating evidence was trial strategy in hopes of getting life for his client. However, this issue of possible trial strategy calls into questions the efficacy of a standard that does not have set objective benchmark for review. The response to this challenge to Strickland is that the court will review a challenge on ineffective assistance with great deference to possible trial strategy on the part of counsel because without such deference the hands of counsel would be tied with rigid procedure. The second prong of Strickland requires that even if counsel was deficient that the ineffective assistance affected the outcome of the trial. This has been called the
“prejudice prong” and it remains a significant hurdle to the defendant. This hurdle is so significant that the Court has gone so far as to establish certain behavior which automatically allows for the conclusion that the defendant has been prejudiced by the behavior of counsel. The most typical example of this is where counsel fails to
participate actively in the adversarial process; thereby not challenging the evidence of the state. This behavior was once an automatic trigger of ineffective assistance through
See Equal Justice Center; Report Executive Summary pg ii
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automatic satisfaction of the prejudice prong. However the Court has now held that such behavior is not an automatic trigger of prejudice unless counsel totally refrains from participation in the adversarial system19.
C. Strickland in Action: Case Law
The most appropriate way to review the Strickland test is to look at some examples within the case law of what has constituted ineffective assistance of counsel. The cases that will be reviewed are: (1) T. Williams v. Taylor20 (failure to present mitigating evidence); (2) Wiggins v. Smith21 (failure to present mitigating evidence is not a strategic decision); and (3) Burdine v. Johnson22 (a sleeping lawyer is the same as no lawyer at all). The most significant product of these cases is the recognition that hiding behind a subjective standard that provides great deference for trial strategy is no longer viable. In T. Williams the Supreme Court was faced with an attorney that failed to present mitigating evidence in the penalty phase of the trial and proceeded to try and state that his behavior was a tactical decision. The Court held that presenting only three witnesses that conveyed that Williams was a nice boy and not violent combined with a failure to present the fact that Williams was mentally retarded and had faced a nightmarish childhood was not a tactical decision. In continuing on a path to limit the use of tactical decisions in capital cases the Supreme Court in Wiggins further challenged the lack of presenting mitigating evidence by defense counsel. In Wiggins a failure to
Check back to Supreme Court case concerning this prejudice – believe it is Williams v. Taylor or Wiggins See T. Williams v. Taylor 529 U.S. 362 (2000). 21 See Wiggins v. Smith 539 U.S. 510 (2003). 22 See Burdine v. Johnson 262 F.3d 336 (5th Cir. 2001).
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extend the investigation of Wiggins’s past beyond the pre-sentence report prepared for the court was found to be substantially deficient behavior and could not be substantiated under prevailing professional norms. The Wiggins decision has seen application at the state level in the Pennsylvania v. Malloy where failure to investigate was deemed ineffective assistance23. Finally in Burdine the Fifth Circuit determined after an en banc review that a sleeping lawyer is equivalent to no lawyer at all. What is disconcerting about Burdine is that the decision to find ineffective assistance took and en banc review after the media hype surrounding the case caused the Fifth Circuit to review their prior determination that Burdine’s attorney was not ineffective even though he slept through most of the trial. However, it now appears that unlike the alcoholic, mentally impaired, or drug addicted lawyer the sleeping lawyer will not be found effective since there has been a breakdown in the adversarial system24,25. The Strickland standard created by the Supreme Court fails in many respects in both capital and non-capital cases. Of these failings, the most significant to this inquiry is Strickland’s failure to recognize that “Death is different” unless the in reality the imposition of a death sentence is no different from a fine coupled with county jail time (Class B misdemeanor) to a period of incarceration in the state department of corrections (3rd degree felony).
See Pennsylvania v. Malloy 2004 WL 1946291, 2004 Pa. Lexis 2047 (Pa. 2004); See Also Colin Garrett, Death Watch: More Wiggins Ammunition, The Champion: NACDL, Dec. 2004 at 47. 24 See Gardner v. Dixon 966 F.2d 1442 (4th Cir. 1992) (alcoholic lawyer – no prejudice); Young v. Zant 727 F.2d 1489, 1493 (11th Cir. 1984) ( no evidence that drug usage effected performance); & Dow v. Wood 211 F.3d 480 (9 th Cir 2000) ( Alzheimer’s disease is distinguishable from a sleeping lawyer). 25 See Also Ira Mickenberg, Drunk, Sleeping, and Incompetent Lawyers: is it possible to keep innocent people off death row?, 29 U. Dayton L. Rev. 319 (2004).
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IV. Why Death is Different
The rationale behind the death penalty comes in multiple forms. The belief is that the severity of the punishment will deter future crime or that the death will replace the moral balance that is inherent in society. These beliefs however do not address the practical reality that death is final. There is no reprieve from the executioners noose, electric chair, or needle. Man may have gained control of many things; however one thing which still eludes mankind is the reversal of death. It is evident that the imposition of death is a unique punishment levied by the State that requires special treatment. The second consideration concerning the “Death is different” proposition is that the penalty itself is awesome in its nature and severity26. The death penalty itself has been challenges as being unconstitutional under the Eighth Amendment. The challenge is that the penalty itself is a form of cruel and unusual punishment and as such its imposition violates the constitution of the United States. This challenge is applied to the state through the Fourteenth Amendment and requires that if found unconstitutional that the practice must cease. The Supreme Court in Furman v. Georgia, determined that the manner in which the death penalty is imposed violates the Eighth Amendment and as such must cease. The court in Furman however determined that the death penalty was unconstitutional because the arbitrary manner in which it was imposed made the process cruel and unusual. The result of Furman was that the States created the guilt and
sentencing phase of a death penalty trial which allowed the death penalty to be reinstated. The Supreme Court in Gregg v. Georgia restored the death penalty when it believed the
See Furman v. Georgia 408 US 238 Justice Brennan’s opinion
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problems identified in Furman were corrected. Additionally, the Supreme Court has maintained the validity of the death penalty on the basis that the prevailing majority of Americans believe that the sentence of death has a useful purpose in our society and that history and tradition provide the foundation for this belief27. One thing that is agreed upon between the death penalty opponent and proponent is that the accused must receive adequate representation when faced with the ultimate punishment. Therefore, the quality and skill of counsel being a main concern of groups on both sides of the death penalty debate is it not proper for the Supreme Court to reevaluate the Strickland test? The answer is yes. The Court since Strickland has been faced with challenges to the standard and it has been said that the common characteristic between all habeas petitions submitted for review is that the standard of counsel is definitely at issue 28. The requirements and abilities of competent appointed counsel is of such a great concern that the American Bar Association (ABA) completely revised its guidelines in February of 2003.
V. Return to Objective Standards: ABA guidelines & Fair Defense Act
A. ABA GUIDELINES:
The American Bar Association (ABA) with the desire to promote and standardize the quality of legal representation afforded to indigent defendants in capital cases has promulgated and revised guidelines and requirements for counsel and there
Gregg v. Georgia 428 U.S. 153 (1976). See Ann Geran, Supreme Court Justice Backs Proposed Death Penalty Freeze, The Record, April 10, 2001 at A18.
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These guidelines were revised in February 2003 and presented in a
conference presented by Hofstra University29. The guidelines formulate the appropriate standards for qualifications and composition of the defense team necessary in a capital case. The most significant proposition in the ABA guidelines is that the language has been changed to call for “high quality legal representation” this is a change from the first edition of the ABA guidelines where the terminology used was “quality legal representation” and captures the need for a higher standard where the penalty is death30. Summary of ABA Guidelines Guideline No. 4.1 Subject / Objective of Guideline The defense team and supporting services 5.1 6.1 7.1 8.1 9.1 10.1 Qualifications of defense counsel Workload Monitoring; Removal Training Funding and Compensation Establishment Standards 10.2 Applicability of Performance Standards of Performance
Hofstra Law Review on the Guiding hand of counsel in capital cases – correct citation Hofstra Law Review ABA guidelines History of Guideline for Guideline 1: Objective and Scope of Guidelines
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10.4 10.5 10.7 10.8 10.10.1 10.10.2 10.11 10.13
Defense Team Relationship with the Client Investigation Duty to assert Legal claims Trial Preparation Overall Trial preparation overall The Defense Case Concerning Penalty Duty to facilitate the work of successor counsel
Duty of Trial Counsel after Conviction
NOTE: The guidelines are not fully recreated in this table. This was done to display the guidelines most applicable to the trial stage of a capital case. Guidelines 1.1, 2.1, 3.1, 10.6, 10.12,10.15.1, & 10.15.2 have been omitted31. The guidelines not only address the qualifications of defense counsel but as well the composition of a defense team and appropriate funding resources that are to be provided by the State. The funding however must be devoid of controls that may inhibit counsel’s ability to provide adequate representation. The defense team structure provided by the guidelines requires the presence of a social worker, mitigation specialist, mental health professional, investigator, in addition to the selection of first and second chair counsel. The roles of these individuals are described with detail given to the essential
See Friedman, Guiding Hand of Counsel, 31 Hofstra L. Rev. at 917
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need of each in BOTH phases of a capital trial. This is overlooked by many individuals, especially county budget offices, which would assume that a mitigation specialist may not be needed until the completion of the guilt phase of a capital trial. The ABA guidelines also call for the defense team to consist of a social worker and an individual qualified to diagnose mental health issues. These positions are essential but overlooked in many jurisdictions. An example is the Dallas Country Public Defender’s office which is able to provide an investigator but not staffed with a mitigation specialist, a social worker, or a mental health professional. These resources are necessary to present a competent defense and to structure the overall strategy to avoid the imposition of the death penalty. The ABA guidelines as well address funding of the defense with respect to an indigent defendant. They propose that all allocation of resources and funding should be at parity between the State and the defense. The guidelines clearly recognize that both appointed counsel and defender services (Public Defender Offices, Private Non-profit organizations, etc) are not funded at parity or adequately when compared to the State when it comes to a capital trial. Some fear that the state might exercise control over the defense team and that this should be avoided at all costs. The ABA provides that
funding should be at parity to the State and that such funds should be devoid of control which may interfere with the independence of counsel. The guidelines also seek to establish a procedure for review of the counsel in a capital case that runs during the preparation for trial, the trial, and appeal. The ABA recommends the formation of a regulatory body which would oversee the actions of
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counsel and be able to discipline the attorney as well as remove an attorney if necessary to provide the most appropriate representation for the indigent client. Case load is often an issue for any appointed counsel; however this is more of a problem when a defender service is involved in the representation of an indigent defendant. Therefore, the ABA seeks to make certain that case load is not an excuse for poor representation. The ABA proposes that the appointed counsel be able to reduce the number of appointments or shift the case load currently with the defender to other members of the office and if this is not possible then the attorney must decline the appointment to a capital case as soon as possible. There is to be NO excuse for poor representation because case load was too heavy. The ABA guidelines are ambitious in the quality of representation that they seek to put into place in the States which still utilize the death penalty. The guidelines themselves have been challenged as being to idealistic and not based in the reality in the criminal justice system. This reality is that the State is unlikely to fund the defense in the same manner as the State. The financial cost of parity is high and subsequently would pose problems of money management within counties and states. With these national guidelines for the appointment and funding of counsel in a capital case we need to look to the state of Texas and its implementation of the Fair Defense Act.
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B. Texas Fair Defense Act (FDA) / Senate Bill 7
The State of Texas adopted the Fair Defense Act in order to better facilitate appointment of counsel for indigent clients. The FDA was enacted to generally improve the process by which indigent defendants are appointed counsel in all criminal cases where appointment is appropriate. Some basic guidelines provided by the FDA is that the individual must be appointed counsel in a county with over 250,000 people within 24 hours of determination of probable cause by a magistrate32. The FDA does address capital representation of indigent defendants exclusively in Section 9. Section 9 amends Article 26.052 to provide the following: (d) (1) The committee shall adopt standards for the qualification of attorneys to be appointed to represent indigent defendants in capital cases in which the death penalty is sought. (2) The standards must require that an attorney appointed to a death penalty case: (A) be a member of the State Bar of Texas; (B) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases; (C) have at least five years of experience in criminal litigation ; (D) have tried to a verdict as lead defense counsel a significant number of felony cases, including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies; (E) have trial experience in: (i) the use of and challenge to mental health or forensic expert witnesses; and (ii) investigating and presenting mitigating evidence at the penalty phase of a death penalty trial; and (F) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases.
See SB7 Enrolled Version Bill Text available at http://tlo2.tlc.state.tx.us/cgibin/tlo/textframe.cmd?LEG=77&SESS=R&CHAMBER=S&.....
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(3) the committee shall prominently post the standards in each district clerk’s office in the region with a list of attorneys qualified for appointment. (4) Not later than the second anniversary of the date an attorney is placed on the list of attorneys qualified for appointment in death penalty cases and each year following the second anniversary, the attorney must present proof to the committee that the attorney has successfully completed the minimum continuing legal education requirements of the State Bar of Texas, including a course or other form of training related to the defense of death penalty cases. The committee shall remove the attorney’s name from the list of qualified attorneys if the attorney fails to provide the committee with proof of completion of the continuing legal education requirements. (e) The presiding judge of the district court in which a capital felony case is filed shall appoint, two attorneys, at least one of whom must be qualified under this chapter, to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives notice in writing that the state will not seek the death penalty.33 The language of the FDA is an attempt to create specific standards for appointed counsel in capital defense cases and if the standards are enforced counsel should be able to provide “quality representation” however this is in direct contrast to the ABA’s usage of the language “high quality representation”. These standards are appropriate to the
constitutional requirement of appointed counsel to indigent defendants. However, these standards do not address the composition of the defense team beyond the first and second chair counsel and do not address the funding that will be provided to counsel when representing an indigent defendant in a capital case. The FDA appears to address a few of the issues surrounding the appointment of counsel in a capital case when compared to the ABA guidelines. The FDA seems to relieve its obligation to appoint counsel by creating objective standards however these
See S.B. 7, 2001, 77 Sess. (Tex. 2002) Texas Fair Defense Act / SB7 Enrolled Version Section 9 Text
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standards are merely a bench mark and do not provide for a real time evaluation of performance of counsel during a capital trial. This failure to review the assistance
rendered by counsel is a significant failing of the FDA. The clearest example of this is that setting objective requirements is the first step in acquiring competent counsel to represent indigent defendants but actual performance is just as significant. Meeting requirements can provide a baseline for admission but the actual abilities of counsel are not unknown until the performance itself is reviewed. This is a major failing of the FDA because the submission of continuing legal education certificates does not mean that an attorney is properly skilled for a capital case or that an attorney once skilled is not now rusty or inadequate. The Texas legislature has a significant task ahead of itself if the quality of counsel can not be maintained and provided to indigent defendants. The death penalty could be found to violate the Eight Amendment when it is realized that effective counsel can not be guaranteed.
C. Texas Integration of the ABA under the Fair Defense Act
The report on the implementation of the Fair Defense Act (FDA) under Texas law shows the problems with Capital Punishment in the State of Texas especially when the FDA guidelines themselves fall far below the standards set in the ABA guidelines. The FDA itself proposes to meet the requirements of speedy appointment of counsel and adequate representation through the codification of Death Penalty appointment
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requirements in § 26.052 of the Texas Code of Criminal procedure. The requirements under §26.052 require significant trial experience handling felony cases as well as certain CLE courses specializing in capital defense. These however are minimal requirements
and the FDA requires that counties provide either the same minimal standard or require a higher standard. The issue is then what has been done to insure that the four main goals that overlap between the FDA and the ABA guidelines are enacted and enforced. The
Equal Justice Center has issued a report on the FDA and has found that Texas is sufficiently behind in enforcing the parameters of the FDA. However, the more alarming statement is that the FDA is only a minute part of the ABA guidelines and the Supreme Court has stated that it views the guidelines as a means to determine what is reasonable. The ABA guidelines envision a defense team in which the first chair counsel is both the lead in the courtroom and the lead in the team. The ABA guidelines further discuss parity between financial resources of the State and the defense. These are not realities in the FDA, furthermore the FDA uses the language of the prior version of the ABA guidelines that “quality” representation is what should be required of defense counsel. The FDA itself does not look at the creation of a defense team as necessary to the meet the constitutional requirements of the Sixth Amendment. Is a defense team necessary to meet the constitutional requirements of the Sixth Amendment? The most likely answer from a tax payer would be No. This answer however fails to recognize the level of preparation and investigation that must be involved to allow an individual to receive life instead of death.
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The FDA does not meet more than four of the ABA guidelines and the four that it does meet have not been implemented with consistency across the State of Texas. The lack of full implementation of the FDA causes concern with the overall constitutionality of the use of capital punishment where adequate representation is unavailable. The implementation of the FDA is an ongoing process but it must be implemented in a timely manner. The harsh reality is that Dallas County since its report does not address Capital Cases received all F’s on the review. This is significant and lends itself to study to discern if Dallas County has guidelines for capital appointments or if these guidelines are in practice but just not on paper. Comparison: ABA Guidelines (Rev. 2003) to Texas FDA (2002) ABA GUIDELINES TEXAS FDA 1. Objective appointment Standards 2. Establish responsible agency 1.Objective Appointment Standards 2. Establish of responsible agency – Texas Task Force on Indigent Defense 3. High Quality Representation 4. Funding Parity 5. Case Load & 12 more standards not in FDA 3. Quality Representation 4. Funding Increase
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VI. Dallas County Court Appointments / Public Defender
The System of appointment in all cases in Dallas County is a wheel system. This type of system uses a list of court appointed attorneys and public defenders to represent indigent defendants. The wheel system is a result of the FDA in the hope of removing any impropriety that may have existed in the previous court appointment system. The determination of indigence is made by the court coordinator and the individual is appointed either a public defender or court appointed private attorney. This however is not currently the case with the Dallas County Public Defender’s Office because the office is not currently listed on the Capital Counsel Approved list. This list contains all the names of attorneys that meet the standards of §26.052 and have as well completed another 2 hrs of additional CLE credit in capital defense work34. This requirement appears to meet the requirements of the FDA however improvement is necessary especially when it comes to the compensation and investigative resources of the attorneys involved. The main point of divergence in the Dallas County system is the difference between the Dallas County Public Defender’s office and the Court appointed attorney system. The main difference is that the Court Appointment system funds an attorney on a Capital case approximately 50,000 dollars. The comparable salary of an Attorney IV at
See Spangenberg, Robert, Spangenberg Group report on Dallas County Public Defender; 2004 available at
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the Public Defenders office is 65,000 dollars per year35. The stark contrast between these two dollar amounts is obvious evidence of a highly understaffed and under funded Public Defender Office. The court appointed system as well allows attorneys to continue with other cases while being appointed to a capital trial. The concern however in the public defender’s office is that the caseloads are not reduced for an attorney that would be involved in a capital case and as such would be carrying 30 or more serious felonies during the duration of the capital case. This is a major issue when it comes to the ability to provide effective assistance to the accused. To solve this discrepancy the chief public defender, Jeanette Drescher Green, has proposed a hybrid system in which the Public Defender’s Office would sit second chair in a capital case allowing the court appointed attorney the benefit of the investigators employed by the Public Defender’s Office. Another benefit is that it allows Public Defenders to maintain the caseload that they have been assigned under the Dallas County Commissioners to keep the courts cost effective. This proposal is a novel approach to capital defense however I believe that it does not address the issue that the Public Defender’s Office needs to be involved in capital trials and that the experience is necessary to such an office. This hybrid system however seems to have potential but the major concern of the Public Defenders polled is that the system would work but the major problem is still the pre-existing caseloads and the resources of the Public Defender’s office. However, I believe this proposal would meet with heated debate if it involved the reduction of payment awards to court appointed attorneys. Nevertheless, the
Death Penalty Questionnaire: Michael Byck Attorney IV Dallas County Public Defenders Office
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system needs to be addressed because receiving a score of all F’s on the review of the implementation of the FDA in Texas would appear to require the immediate address of the representation of indigent defendants in the Dallas County System and surrounding counties. The financial costs associated with the full implementation as well are a
concern which has been seen in both Harris and Dallas counties. The Houston Chronicle just ran a story in which it addressed the rising cost of indigent defense in light of the FDA. This has led Harris County to consider the possibility of creating a public defender to assist its current system of court appointed attorneys in indigent representation36. The Strickland test has come under fire for its requirements of both deficiency and prejudice. However, interestingly enough members of the Dallas County Public
Defender’s Office feel the standard is sufficient and proper. The feeling amongst the five Dallas County Assistant Public Defenders surveyed is that Strickland is sufficient to determine ineffective assistance of counsel. The most common response is that
Strickland is sufficient and that a change would cause too many problems within the lower courts. The sentiment that was conveyed to me was that the current test is easily applied and provides great deference to trial strategy and attorney creativity in representation. The harsh reality is that attorney’s do not like their work to be reviewed by objective benchmarks. This however is what is needed to allow for adequate
representation to be provided by the state. The clients of these attorney’s would more likely than not prefer a higher standard of review than Strickland. The problem with this
See Rad Sallee, Cost of Legal Aid for Poor Mounts / Harris County sees and 80% rise since defense act was OK’d in 2001, Houston Chronicle, Sat. 11/127/2004 Sec A Pg 1.
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sentiment though is that it does not take into consideration the severity of the Death penalty as the ultimate sentence and that without “high quality” representation as exemplified in the ABA guidelines. Furthermore the challenge to an individual’s ability to practice law is disfavored and this sentiment is carried through other professions such as medicine. However, without a review in the most serious penalty that can be imposed Strickland appears to be blind to such a final pronouncement of guilt. Is the Dallas County system on the road to satisfy the two prongs of Strickland? This is a concern, in the eyes of death penalty opponents and proponents, because if the system in unable to provide adequate representation to those facing the implementation of the ultimate punishment then the harsh reality is that such punishment will more than likely be declared unconstitutional. The major barrier to this change however is that the Supreme Court has desired to maintain the finality of judicial decisions since the time and cost behind a capital trial tips the balance between deficient representation and deficient representation that prejudices the defendant.
VII. Unconstitutional: Revival of the 8th Amendment Challenge
The initial challenge to the constitutionality of the death penalty, Furman v. Georgia, on Eighth Amendment grounds succeeded in declaring the penalty unconstitutional as applied37. The “wanton and freakish” application of the death penalty provided a basis to conclude that its imposition was arbitrary and therefore
See Furman v. Georgia 408 U.S. 238 (1972).
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unconstitutional38. However, the death penalty was re-instated by the Supreme Court in 1976 when Georgia created a system in which the arbitrary imposition of the death penalty appeared to have been greatly reduced or removed. Justices Stewart, Powell and Stevens concluded: The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information39. The fears of Furman were thereby removed from the system of capital punishment and the states that wished to continue to impose the death penalty were once again allowed to seek blood for crimes committed. However, the decision to re-instate the death penalty focused on the manner in which the determination between life and death was made combined with the prevailing social acceptance of the death penalty (for murder) within American culture40. Today, the death penalty faces many challenges. The most significant development has been the moratorium movement which has gained significant backing since the ABA moved for the end of the imposition of the death penalty until the fears of
See H. Patrick Furman, Wrongful convictions and the accuracy of the criminal justice system, 32 Colo. Law. 11 (2003); See Also Nicole J. De Sario, The Quality of Indigent Defense on the 40th anniversary of Gideon: The Hamilton County Experience, 32 Cap. U. L. Rev. 319 (2004); Jo Anna Chancellor Parker, What a Poor Defense! Exploring ineffectiveness of Counsel for the poor and searching for a solution, 7 T.G. Jones L. Rev. 62 (2003); Megan H. Morgan, Standby me: Self-representation and Standby Counsel in a Capital Case, 16 Cap. Def. J. 367 (2004). 39 See Gregg v. Georgia 428 U.S. 153, 155 (1976) 40 See Id. At 154
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Furman can be addressed in 199741. The ABA, subsequent to a call for a moratorium on the imposition of the death penalty, has drafted and revised guidelines for counsel in capital cases in order to try and prevent the arbitrary imposition of the death penalty due to ineffective counsel42. This call has received significant support from both opponents and proponents of the death penalty because the argument is not whether death is an acceptable punishment for taking a life but that death is not an acceptable punishment when the process by which it is determined is significantly flawed43. The logical
challenge is then to assert that the standard, by which counsel is judged, Strickland, is inappropriate in capital cases and as a result the death penalty is being imposed in an arbitrary nature similar to that of the Furman era44. States that wish to maintain the death penalty either needs to (1) increase the allocation of funds to equalize the abilities between the State and the Defense or (2) increase the standards for counsel significantly to try and guarantee that the accused receives “high quality” legal representation. This is not asking too much of a system that desires to take the life of an individual for a capital crime. The plan of attack is then to address the issue of ineffective assistance of counsel at the trial level, at its root and not wait for appellate review to try and combat the arbitrary imposition of the death penalty45. This strategy has not been addressed directly
See Carter, Understanding Capital Punishment, at 353 Refer to Section V (a) of this paper for the ABA guidelines for appointment in capital cases (rev. 2003) 43 See Carter, Understanding Capital Punishment, at 352 ( the movement has been supported by death penalty advocates such as former governors George Ryan of Illinois and Parris Glenling of Maryland – who supported the death penalty until their respective states implemented a moratorium). 44 See Strickland 466 U.S. 668 (1984); See Also Furman 408 U.S. 238 (1972). 45 The challenge of ineffective assistance is reviewed at the appellate level, however if the recommendations of the ABA guidelines are implemented the ability to address ineffective counsel would be increased to allow for removal
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in the literature surrounding Strickland and ineffective assistance but one commentator would call for the end of the death penalty based on the minimal number of reversals for ineffective assistance at the appellate level46. The low number of reversals for ineffective assistance and the recognition that the Strickland test is a very subjective form of review creates an environment that more likely than not would allow for the “arbitrary and capricious” imposition of the death penalty. This observation is factually based since the predominate group of individuals that is usually sentenced to the death penalty remains minorities47. Therefore the Supreme Court has a factually sufficient basis to hold that the death penalty though once thought to have been reformed from a system of arbitrariness by Furman & Gregg is once again nothing more than arbitrary48.
VIII. Recommendation for Change: Strickland 2.0
The future of the imposition of the death penalty will greatly depend on the ability of the State to provide for effective assistance of counsel. The fundamental right to counsel encompasses this guarantee and until this promise is fulfilled the death penalty itself will remain under attack49. The possible solutions to this deficiency in Strickland would encompass: (1) a return to objective standards that must be met to not be found
and replacement of counsel during the trial. The most effective means for this would be an interlocutory appeal which would utilize the factual determinations of the supervisory body created under the ABA guidelines as well as in court observation to address the inappropriate behavior of counsel. 46 See Amy R. Murphy, The Constitutional Failure of the Strickland Standard in Capital Cases under the Eight Amendment, 63 Law & Contemp. Probs. 179 (2000). 47 See Carter, Understanding Capital Punishment: Ch 20, pp 285-304 (2004); See Also Cathleen Burnett, Justice Denied: Clemency Appeals in Death Penalty Cases, pp 63-99 (2002). 48 See Furman, 408 U.S. 238 (1972) & Gregg, 428 U.S. 153 (1976); See Also Michael D. Hintze, Attacking the Death Penalty: Toward a Renewed Strategy Twenty years after Furman, (1992) available at http://mhintze.tripod.com/pubs/Note.htm (10/21/2004). 49 See Gideon, 372 U.S. 335 (1963); See Also Argersinger v. Hamlin, 407 U.S. 25 (1972).
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ineffective (ABA guideline / Texas FDA); (2) Creating a two tier Strickland standard in which all criminal cases that do not allow for the imposition of the death penalty remain with the current Strickland test and capital cases, in recognition of the reality that “death is different” rise to a significantly higher level of review; and (3) a hybrid model in which Strickland remains in all criminal cases, capital or otherwise, but the categories which trigger an automatic finding of prejudice would be enlarged in capital cases. These proposals all address the Strickland test and do not look at the Supreme Court and its composition as well as the change in social acceptance of the death penalty that has occurred since 1976. The final question remains: Will the Strickland test change or will the Court? The answer may be both or it may be that the Court has recognized that the quality of legal representation afforded capital defendants is grossly inadequate. Justice O’Connor has called for an assessment of standards for counsel in capital cases and Justice Ginsberg has observed “I have yet to see a death case among the dozens coming to the Supreme Court on the eve of execution in which the defendant was well represented at trial.”50
The origins of the right to counsel are as fascinating today as when they were developed by the United States Supreme Court. The development was a piecemeal expansion from the right to counsel in capital cases observed in Powell to felony cases in Gideon culminating with the final extension to non-petty offenses in Argersinger. This
See Carter, Understanding Capital Punishment, at 235; See Also Ann Geran, Supreme Court Justice Backs Proposed Death Penalty Freeze, The Record, April 10, 2001 at A18.
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expansion entailed the creation of a standard for evaluation of performance of counsel. Initially, lower courts utilized such standards as promulgated by the ABA to determine competency but the Strickland majority held that such an objective framework was inappropriate when applied to representation by counsel. Such objective review did not adequately address the totality of the circumstances and variables that an attorney may face in a criminal case. The Supreme Court thereby created the Strickland test which required a showing of both deficiency and prejudice to trigger reversal of a criminal conviction. This is a highly subjective test which historically has held great deference to trial strategy and counsel’s judgment. Today this reliance on strategy has been called into question. T. Williams and Wiggins have called into question the extent to which an attorney can claim that failure to present mitigating evidence in the penalty phase of a trial can be classified as appropriate trial strategy. This is a significant step forward from the facts of Strickland. The goal of this paper is to illustrate the ineffectiveness of
Strickland when applied to capital case. More importantly the current system of review in its failings is calling into question the constitutionality of the death penalty. This
challenge is rooted in the foundations of Furman, where the arbitrary and capricious application of the death penalty was seen as unconstitutional. Today the penalty may be invoked in a bifurcated procedure that has been approved by Gregg but this procedure is not sufficient to remove the lingering arbitrary imposition of the death penalty on minorities. The most appropriate solution would be to implement the ABA guidelines as speedily as possible and to establish a requirement of parity in funding between the state
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and the defense in capital cases. A State should have to be willing to pay for “high quality” representation in order to take the life of a citizen. The Strickland test in itself is not an inappropriate standard when applied to criminal cases below capital punishment. However, when it is applied to capital
punishment it fails miserably to take into consideration the reality that “death is different” both in the finality and awesome nature of the sentence. The most appropriate remedy at this date and time would be to allow Strickland to remain the standard in non-capital offenses and to create a Strickland “plus” for capital offenses. The Strickland “plus” standard would entail a return to the objective standards embraced by lower courts prior to Strickland combined with the two prong analysis. This is already feasible because of the work of the ABA in drafting and revising guidelines for counsel in capital cases and can be seen in the Texas Fair Defense Act. The most important addition to be made is real time evaluation of performance at the trial level. With reference to the State of Texas and the Dallas County Criminal Justice system it is suggested that the State which executes the most defendants must meet the standards set by its own legislature and then undertake the challenge of meeting the ABA guidelines for effective assistance of counsel. The concern is that the almost direct movement to the executioners chamber has thus far avoided Strickland ineffectiveness but it soon may be the day that the review of capital punishment and capital sentencing in Texas is full of problems which when dealing in a person’s life are unacceptable. With hope the potential outcome, if not the abolishment of the death penalty, will be the guarantee of justice to the accused through effective assistance of counsel.
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