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Text File | 1992-09-10 | 9.9 KB | 199 lines

                                                                                LAW, Page 38

You Don't Always Get Perry Mason


As Coleman goes to the chair, questions remain about his case
-- and the quality of court-appointed legal defenders

By RICHARD LACAYO -- Reported by Sally B. Donnelly/Los Angeles
and Julie Johnson/Washington


    With two powerful jolts of electricity, Roger Keith
Coleman was executed last week in Virginia. But the questions
about his guilt could not so easily be disposed of -- in part
because his court-appointed lawyers failed to put them to rest
at his trial. On the night that Wanda Fay McCoy was murdered,
Coleman claimed to have been at several points around the
coal-mining town of Grundy. Shouldn't his lawyers have tried to
retrace his steps on that night and search out witnesses?
Shouldn't they have ventured into McCoy's or Coleman's home? At
the very least, shouldn't they have presented to the jury the
bag of bloody sheets and two cowboy shirts McCoy's neighbor
found a few days after the murder?

    Over six years ago, Jesus Romero was sentenced to death
for taking part in the 1984 gang rape and murder of a
15-year-old in San Benito, Texas. He might have been sent to a
mental hospital instead if his court-appointed attorney had
presented available evidence to the jury that supported an
insanity defense. "His lawyer had no idea there was information
available that Romero was completely insane at the time of the
crime," contends Nick Trenticosta, who handled Romero's appeals.
During the course of his appeals, a lower federal court ruled
that Romero had received ineffective counsel at his trial, but
a higher appeals court reversed that ruling. Last week Romero
died by injection in Huntsville, Texas.

    Accused killers don't tend to be attractive people. Quite
a few of them, perhaps the overwhelming majority, are guilty.
But even the most dubious characters are supposed to get a fair
trial, in which their attorneys are equipped to make the best
possible case on their behalf. Because the majority of murder
defendants are also broke, however, many of them get
court-appointed lawyers who lack the resources, experience or
inclination to do their utmost. When the Supreme Court restored
capital punishment in 1976, it did so in the expectation that
death sentences would be imposed in a fair and equitable manner.
It hasn't always worked that way. Some people go to traffic
court with better prepared lawyers than many murder defendants
get. And yet no case carries higher stakes than a murder trial
in the 36 states where the death penalty is legal.

    The question of who defends accused killers has become
more urgent lately. In a series of recent cases, the Supreme
Court has been closing off the paths through which death-row
inmates get federal appeals courts to review -- and review again
-- their convictions. That creates more pressure to ensure fair
trials in the first place. Perhaps the most serious restriction
yet may be handed down in a Virginia case, Wright v. West. That
case could permit the justices to rule, in effect, that federal
appeals judges should work mostly from the assumption that the
courtroom rulings of state-level trial judges are correct. The
result would be to limit sharply the kind of questions the
federal courts can reopen on appeal.

    "What the Supreme Court is saying now is states have got
remarkably better at guaranteeing certain liberties," says Ira
Robbins, a habeas corpus specialist at Washington's American
University law school. In the state courthouses, where the
trials are held, however, the guarantee of competent counsel
looks rather threadbare. Some cities maintain public-defender
offices to provide attorneys to indigent defendants. Well-funded
offices can often afford attorneys who specialize in criminal
law and even capital crimes. But a number of states -- including
several Southern states with the nation's highest execution
rates -- use a shakier system of court-appointed lawyers
selected from a list of local attorneys. Many are either young
attorneys fresh out of school or older ones who ordinarily
specialize in the bread-and-butter work of title searches or
divorce litigation.

    Though appeals courts have been lenient in ruling that
defense attorneys have done an adequate job -- judges deemed
meritless all of Coleman's claims of ineffective assistance by
counsel -- it's the rare court-appointed lawyer who is skilled
in the complexities of capital cases. "This is a highly
specialized area of law," says Harold G. Clarke, chief justice
of the Georgia Supreme Court, who has reviewed many death
sentences. "Even a good criminal lawyer may not have had much,
if any, experience in capital cases." Court-appointed attorneys
must also be willing to settle for modest fees that rarely cover
the cost of a thorough defense. While a private attorney in
Atlanta may make upwards of $75 an hour, court-appointed lawyers
in Georgia are paid about $30 an hour. In Alabama they cannot
be paid more than $1,000 for pretrial preparations. Even if they
spend just 500 hours at the task -- the U.S. average in 1987 was
2,000 -- that amounts to $2 an hour. "The lawyer would be better
off going to work at McDonald's," says Stephen Bright, director
of the Southern Center for Human Rights.

    Many of them are also unhappy to find themselves defending
accused killers whose victims may be familiar to their
neighbors. Nor does it help to know that, if convicted, their
clients will have an incentive to turn against them later.
Claims of ineffective counsel are a staple of appeals filings
-- not only because mediocre lawyering is so common but also
because the accusation is a reliable way to gain the attention
of appeals courts. That's one reason prosecutors and some
defense attorneys scoff at claims that capital-case lawyering
is all that bad. "The competency-of-counsel issue has been
totally blown out of proportion," says Marvin White Jr., a
Mississippi assistant attorney general. "Counsel in the majority
of cases has been competent and effective."

    That claim is sharply contested by defendants'-rights
advocates. "It's not just once in a while that you see a lawyer
make a mistake," insists Charles Hoffman, an Illinois public
defender who pursues appeals for death-row inmates. "It's over
and over and over again." It's easy for inexperienced lawyers
to make a mistake. Under the rules established by a 1977 Supreme
Court decision, lawyers in a criminal case must recognize
potential violations of fair procedure as soon as they take
place and raise the objection in court. If they fail to do so
during the trial, they may forfeit the chance for their client
to raise the issue on appeal. "People talk about criminals often
getting off on technicalities," says Hoffman. "Actually, a lot
of people are dying because of technicalities."

    Some of the worst errors are made during what is called
the penalty phase. This is a separate hearing, following a
guilty verdict, in which the jury in a capital case must choose
between a prison sentence and the death penalty. Prosecutors
offer evidence of "aggravating factors" such as excessive
cruelty to convince the jury that the convicted killer should
be executed. Defense lawyers are supposed to point out
"mitigating factors" -- evidence of mental disability, for
example, or a history of childhood abuse -- that might lead a
jury to choose life in prison. But tracking down the evidence
of a client's past is time-consuming and expensive, often
requiring the services of social workers, psychologists and
investigators whom poorly funded defenders cannot afford to
hire.

    Seeking to remedy this problem, the Federal Government
recently established 15 death-penalty resource centers around
the country. Supported by $11.5 million a year in federal funds,
as well as state matching funds, the centers recruit, train and
assist lawyers who handle appeals for convicts on death row. But
attorneys from those centers enter only after conviction, not
at the trial, where the Supreme Court now requires that most
crucial issues be recognized and raised.

    Proposals for similar centers to improve lawyering at the
trial phase have gone nowhere. Nor do death-penalty opponents
see much hope in the idea of "mandatory pro bono," a system
that would require all lawyers and firms to donate some time to
representing poor defendants. An attorney who ordinarily
specializes in corporate cases or real estate, no matter how
competent or well trained, would still be at sea amid the
complexities of a murder trial. Says Shelly O'Neill, a Reno
public defender: "It's like calling a dentist to do a brain
surgeon's work."

    Some experts say a better reform would be for more states
to establish public-defender offices, in rural as well as urban
areas, and provide them with sufficient funds. Though the $2.2
million annual budget of the Reno office, financed by Washoe
County, is far from lavish, it is still enough to afford a
permanent staff of 19 attorneys, six of whom are qualified by
training and substantial trial experience to handle capital
cases.

    The Reno operation also has access to some of the same
resources that local district attorneys rely on. "If we need an
expert from Washington to come testify," O'Neill explains, "we
can get the funds from the county to bring him or her in." With
those advantages, the Reno office has saved three capital
defendants from lethal injection in the past two years.

    Reno's approach could be duplicated elsewhere. But are
budget-strapped states really likely to pour money into better
court defense for accused killers? It's hardly a vote getter.
And it's not cheap. But neither is capital punishment. If the
U.S wants the death penalty, it will have to pay what it costs
to guarantee each defendant the highest level of fairness and
equality -- or sacrifice its own standards of justice.