Death Trip: The American Way of Execution (Page 8)

The Rot Is Everywhere

§ A few years ago, one-third of the twenty-six men on Kentucky's death row had lawyers who were eventually disbarred or had their licenses suspended.

§ In a Georgia capital case, an indigent black defendant was assigned as his attorney none other than James Venable, 83, a former Imperial Wizard of the Ku Klux Klan who was notorious for sleeping through trials.

§ In another Georgia capital case, this was the court-appointed lawyer's wrap-up argument for mercy: "You have got a little ole niggerman over there that doesn't weigh over 135 pounds. He is poor and he is broke. He's got an appointed lawyer.... He is ignorant. I will venture to say he has an IQ of not over 80." The defendant was sentenced to death. (Stephen Bright observed: "Had that lawyer done any investigation into the life and background of his client, he would have found that his client was not simply 'ignorant.' Instead, he was mentally retarded. For that reason, he had been rejected from military service. And he had been unable to function in school or at any job except the most repetitive and menial ones. His actual IQ was far from 80; it was 68. He could not do such basic things as make change or drive an automobile.... That could have influenced the jury for mercy.")

The Short Life of Reform

Not all indigent defendants have incompetent lawyers. There are some dedicated defense lawyers who accept long hours, bad pay and very long odds as part of their calling. There just aren't enough of them. But for a time, not long ago, they got federal support from the Post-Conviction Defender Organizations (originally known as the Death Penalty Resource Centers). These came into being in 1988 because the federal appellate courts were drowning in emergency habeas corpus filings from death-row prisoners seeking stays of execution. Scads of the petitions were poorly drawn, because there weren't enough seasoned lawyers out there to help the petitioners. Inmates were being executed because they had nobody to help them file appeals on time. The states had no workable program for matching good lawyers with indigent prisoners. Civil rights groups like the NAACP and other nonprofit legal services tried to help but were falling far behind. Congress did nothing about it until these groups and the American Bar Association raised so much hell that Congress was forced to fund the Death Penalty Resource Centers.

There was already a nucleus of those eighteen-hour-day defense zealots, but they needed money to survive and expand. Now they had it. They recruited lawyers from major law firms, and if the recruits needed the special training that capital lawyering calls for, they got it. Sometimes Resource Center lawyers were directly involved in both the trials and the appeals. Their successes became the stuff of legend.

With their help, George Daniel, who had been on the execution list for six years, won a new trial and got off Alabama's death row. Attorneys from one of Atlanta's best law firms were recruited for Gary Nelson, and they freed him from death row after eleven years by proving that the prosecution's case was corrupt, top to bottom. One of their most dramatic victories was in saving Frederico Martinez-Macias. A nine-year veteran of death row, he was just two days from his scheduled execution when the Texas Resource Center recruited a Washington, DC, law firm and helped it prepare his appeal, which ended with Martinez-Macias walking free.

The Resource Centers were so successful that, of course, conservatives in Congress couldn't stand it. Neither could prosecutors, who hated getting whipped by these intruders. Republican Congressmen from South Carolina and Texas launched a crusade to withdraw funds and kill the centers. In 1995 they succeeded.

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