Death penalty

I'm a little delinquent on linking to this story from The News & Observer about how amazingly incompetent counsel often fails on grounds for appeal on death penalty cases, but it not any less relevant because I waited a week. You may not like that a murderer's own history of maltreatment and abuse is supposed to count as mitigating factors in whether he receives the death penalty, yet courts have held that these factors do need to be considered in deciding whether a capital sentence is warranted.  Given that these are important mitigating factors, you would think that an attorney's utter failure in addressing such factors thereby allowing his client to receive the death penalty might be successful grounds for an appeal.  You'd be wrong.  Here's the damning summary from the story:

A McClatchy Newspapers review of 80 recent death penalty cases in
Virginia, Georgia, Alabama and Mississippi found that the safeguards
that were missing in Vinson's case are failing regularly:

* Of
the 73 cases in which defense attorneys never investigated their
clients' backgrounds, only two death sentences have been overturned.

Eleven of the 73 inmates have been executed after exhausting their
appeals. No court ever noted their attorneys' failures or ordered a

* The remaining 60 cases are on appeal, and the outlook
for them isn't promising in three of the states. In Mississippi, no
death sentence has been reversed for poor lawyer performance since
1993, according to state records. Only three death sentences each in
Virginia and Alabama have been overturned for bad lawyering during the
past decade. In Georgia, 11 death sentences have been overturned for
poor lawyer performance in the past decade, but courts in the state
still sometimes overlook the worst efforts.

* The U.S. Supreme
Court, although inundated with requests to intervene in cases in which
lower courts ignored lawyers' failures, hasn't moved to enforce its

Courts are supposed to determine two things about
lawyer performance when reviewing death penalty cases: whether the work
was deficient and whether a better performance might reasonably have
resulted in a different outcome. There should be a particular emphasis,
the Supreme Court has said, on reviewing what kinds of background
investigations the attorneys conducted into their clients' lives.

the McClatchy review found that courts in these four states rarely hold
attorneys to exacting standards. They excuse glaring oversights or
omissions, explaining them as “strategic” decisions that aren't
negligent. They have given credit to lawyers for describing their
clients as “good guys” while failing to note the clients' history of
mental retardation.

In the rare instance when they have found an
attorney's performance lacking, the courts have concluded that a better
lawyer wouldn't have mattered.

I find this story especially compelling because I recently read two excellent books that catalog the failings of our justice system in very different ways.  John Grisham's successful foray into non-fiction, The Innocent Man traces the incredibly heinous injustices against one man falsely sentenced to death.  Courtroom 302 traces a year in the life of a single Chicago courtroom and shows the futility of the war on drugs and the injustice meted out to those who cannot afford better, even in a system of people who are trying to do right.  Both are very much worth reading.  You can see my other recent reviews as well.

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