For Free, You Get a Drunk Lawyer

Virtually everyone accused of murder is penniless or close to it. Thanks to the Sixth Amendment to the Constitution, they must be given an attorney. But the constitutional guarantee says nothing about the quality of representation, which, except for the all-too-rare pro bono help from an established law firm, is generally dismal. The reason for the rarity of pro bono help is that even the most charitable firms don't relish spending many thousands of hours and dollars to handle the appeal of some scruffy nobody. A lawyer from Vinson & Elkins, one of Houston's most powerful law firms, spent five years and $2.5 million in billable time proving that Ricardo Aldape Guerra had been framed as a result of police intimidation of witnesses and did not belong on death row, where he had spent fourteen years. Lawyers from the mighty New York firm of Paul, Weiss, Rifkind, Wharton & Garrison have spent more than $1 million in pro bono hours trying to save mentally retarded Johnny Paul Penry, who has been on Texas's death row for twenty years. Help like that is the stuff of death-row dreams. Reality is that the legal help most prisoners get is taxpayer-financed on the cheap; compensation in some states hovers around $20 an hour. Considering the complexity of death law, the appointment of lawyers willing to work for those wages is (as someone has said) "like asking a chiropractor to do brain surgery."

There is considerable variety among the states in the quality of help penniless murder defendants are given, but since outgoing Texas Attorney General John Cornyn has said his state offers "super due process," let us focus on Texas justice. Of the state's 254 counties, only three have public defender programs. In the others, county judges pick the defense attorneys. They often reach into the bottom of the barrel and appoint hacks who are personal friends, political supporters and contributors, and, most of all, attorneys with a reputation for "moving" cases fast with little regard for the quality of defense they give. Texas's county judges have appointed lawyers known to be drunks or drug addicts or both. Some of these court-appointed hacks know absolutely nothing about capital jurisprudence. Several have become famous for sleeping through parts of trials. The most notorious sleeper was Joe Frank Cannon, who was popular with some Houston judges because, as he boasted, he could move a trial "like greased lightning." Ten of Cannon's twelve capital clients went to death row.

But even the best-qualified court-appointed defense attorneys face heavy odds. They go up against veteran prosecutors who are backed by a team of colleagues, aided by police, medical examiners and crime and ballistics labs. A court-appointed defender can't hope to defeat that army without at least the help of a second attorney and an investigator with a budget of several thousand bucks. Many Texas counties, being poor, do not appoint a second attorney, and they usually give the defense no more than $500 to hire an investigator.

For postconviction appeals, Texas indigents get lawyers appointed from a list approved by the Court of Criminal Appeals. Once it chose two of its former law clerks who had no experience in such matters to handle fourteen postconviction cases--a load that not even two really experienced lawyers could properly handle. The court has selected lawyers who don't know how to prepare postconviction petitions or when to file them--and don't try to find out. One defendant got a lawyer who previously prosecuted him in two cases, was known to have a cocaine problem and failed to file for a postconviction review on time. The Court of Criminal Appeals has never, in any case, removed an appointed counsel because of incompetence. When inmates realize they have been given a dunce or a druggie and ask for a new attorney, the court always turns them down without comment.

Stephen Bright, director of the Southern Center for Human Rights in Atlanta, says, "A person may be condemned to die in Texas in a process that has the integrity of a professional wrestling match."

And when these defendants are convicted, which they usually are, and they base their appeals on the conduct of their attorneys, the Texas Court of Criminal Appeals as often as not will rule against them, saying that the failure of the appointed attorneys to give anything remotely like a defense was "harmless error."

Consider the trial of Jesus Romero in San Antonio. After Romero was found guilty of murder, this was all that attorney Jon Wood offered the jury as a plea for mercy: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say." You won't be surprised to learn that Romero was found guilty. You may be surprised to learn that he was executed because the Court of Appeals for the Fifth Circuit said it also thought his attorney had given a perfectly fine defense. Well, that's capital punishment these days.

The Fifth Circuit was equally forgiving in the Texas trial of Ramon Mata. The defense attorney had teamed up with the prosecutor to make sure they had an all-white jury. Again, it was just "harmless error."

After Illinois's governor declared a moratorium on executions because DNA tests had found that some inmates on death row were innocent, George W. Bush was asked if it was possible Texas had executed any innocent people. Nah, he said, Texas always did things right. So the Chicago Tribune sent a team of reporters down there to look over the records of the 131 inmates who had been executed in Bush's reign up to that time. They found that nearly one-third of the losers had been given attorneys who had at one time or another been publicly sanctioned for misconduct.

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