(3 of 4)
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.