Finding the Fair Interval Between Sentencing, Death : Law: Rehnquist lends his prestige to a proposal that would permit states to employ novices to defend indigents on trial for their lives.

SANTA CLARA —  This month, the state of Louisiana executed Dalton Prejean, a young, mentally retarded black defendant whose all-white jury never learned about many mitigating factors in his case, simply because his lawyers never placed them in evidence. Last year, Alabama executed a mentally retarded black defendant whose lawyer failed to produce any evidence of mental retardation. One of the jurors who sentenced him to death said she would never have done so had she known of the evidence.

Reduced to its essentials, the debate over limiting federal review of such death-penalty cases is one over the competency of the Southern lawyers appointed to defend indigents like Prejean. If they want to carry out executions expeditiously, how much should states be required to spend on competent defense lawyers?

Listening to the federal judges debating this issue, it’s hard to believe that they are reviewing the same cases. For Chief Justice William H. Rehnquist, the problem seems to be that lawyers are doing too good a job. They deliberately hold off filing petitions until death warrants are issued and then, “in fits of frantic action followed by periods of inaction,” succeed in delaying executions for years.

He appointed retired Justice Lewis F. Powell Jr. and four other federal judges (all Southeners) to look into the matter. The special committee recommended barring successive federal petitions unless the defendant can demonstrate that he should not have been convicted in the first place. It also recommended giving states the option of adopting a plan that requires the appointment of “competent” lawyers for state post-conviction hearings; it did not define the standard of competence.

For the eight federal judges (including the chief judges of a majority of the federal circuits) who led a successful revolt to amend the Powell committee recommendations in the U.S. Judicial Conference, the incompetency of lawyers appointed by states to handle death-penalty cases is so appalling that it’s a national disgrace. Federal courts, on average, set aside the death penalty in more than half the capital cases they review, frequently because the trial lawyer was incompetent. The conference recommended that successive federal petitions be allowed if the defendant can show either innocence or the inappropriateness of a death sentence. And it would mandate that all states meet specific minimum standards of competence approved by the American Bar Assn. at all stages of death-penalty litigation, including trial, appeal and post-conviction hearings.

These opposing views are embodied in bills pending in the U.S. Senate. The Powell committee recommendations are contained in a bill sponsored by Sen. Strom Thurmond (R-S.C.); Sen. Joseph Biden (D-Del.) is carrying the conference’s proposals.

Both sides offer examples to support their views. One of the Powell committee judges cites the case of serial killer Theodore Bundy, executed by Florida in 1989. He questions why it took 10 years to decide that Bundy’s trial was free of constitutional error. Rehnquist, now a active lobbyist for the Thurmond bill, cites statistics showing an average lapse of eight years between imposition of a death sentence and execution.

Advocates of stricter competency standards point to the Mississippi case in which a capital defendant was represented by a third-year law student, the Georgia death case in which the lawyer representing the accused was handling his first trial, or the Alabama case in which a woman was sentenced to death after a trial during which her lawyer was jailed for being drunk in court. Many southern states limit compensation of lawyers in capital trials to less than $2,500. It is no coincidence that the states carrying out the most executions are the most parsimonious. They are also the states that see the highest proportion of convictions set aside by the federal courts.

During Senate hearings on the two pieces of legislation, Biden posed a hypothetical: What if a lawyer for a Death Row inmate first learned, just before a scheduled execution, that the prosecution had presented perjured evidence during the sentencing hearing that resulted in the death sentence?

Under the Powell proposal, the federal courts couldn’t even consider the issue, since it was not raised in the first trip through the federal courts. The Judicial Conference’s recommendation would permit review of the appropriateness of the death-penalty sentence.

The Powell committee was quite candid in explaining its rejection of stricter standards of lawyer competence: It might jeopardize support for its legislation among states necessary to secure passage. “Imposing these burdens will probably nullify any hope of enactment,” the committee said. Standards of competence should reflect “community standards and judicial development.”

Opponents suggest that a national consensus on minimal standards of competence is needed. States should not be allowed to railroad executions if they are unwilling to pay for competent lawyers for the accused. Accepting “community standards” is, they argue, a euphemism for accepting the outrages perpetrated by such states as Alabama and Louisiana.

The emergence of Chief Justice William Rehnquist as such a strong advocate of speedier executions without the safeguards so many circuit judges demand poses grave risks. A chief justice who injects himself into the midst of such a divisive issue can only compromise his role as impartial spokesman for the judicial branch. And when the legislation that eventually emerges comes before the Supreme Court, lots of eyebrows will be raised if Rehnquist does not disqualify himself.

But Rehnquist has raised eyebrows before. Indeed, his strident support of expedited executions is hardly surprising. He has railed against delays in executions throughout his judicial tenure. In one opinion, Rehnquist even resurrected the ghost of his personal hero, Judge Isaac C. Parker, to support his position.

Judge Parker presided over the federal court in Fort Smith, Ark., from 1875 to 1896. He sentenced 144 men to hang from the gallows on the front lawn of his courthouse. Ninety-two were executed before Congress enacted a law permitting appeals from Judge Parker’s court directly to the U.S. Supreme Court, which was hardly a haven for criminals seeking to escape punishment. Yet the justices reversed 71% of Judge Parker’s death judgments.

Parker blamed “a criminal wave sweeping over the country” on the laxity of the courts. In calling for speedier executions, Rehnquist quoted the words Judge Parker spoke on his death bed:

“I never hanged a man. It is the law. The good ladies who carry flowers and jellies to criminals mean well. There is no doubt of that, but what mistaken goodness! Back of the sentimentality are the motives of sincere pity and charity, sadly misdirected. They see the convict alone, perhaps chained in a cell; they forget the crime he perpetrated, and the family he made husbandless and fatherless by his assassin work.”

Eight years is a long time to ensure ourselves of the fairness of a death sentence. But the real issue is the price we’re willing to pay to reduce that period. A majority of the Judicial Conference suggests we demand that every state meet a minimum, national standard of competence for the appointed lawyers who represent indigents accused or convicted of capital crimes. The chief justice of the United States, in an unprecedented rejection of the policy-making body he leads, insists that’s too high a price to pay.

Ironically, Rehnquist’s predecessor, Warren E. Burger, led a crusade to improve the competency of lawyers trying federal cases, decrying the specter of “Piper Cub lawyers” trying “Boeing 707 cases.” Rehnquist now lends his prestige to a proposal that would permit the states to employ drunks and novices to defend indigents on trial for their lives.

Today, Judge Parker’s courtroom in Arkansas has been restored as a historical monument by the National Park Service. Even the gallows has been reconstructed on the front lawn. As one looks up the 13 steps leading to the nooses and trapdoors, one can only wonder how many of the men who died there might have been spared if a higher court had taken the time to review the fairness of their trials. Once the trapdoor is sprung, no errors can ever be corrected again. But the legacy of Judge Parker lives on, not just in the South, but at the pinnacle of the federal judiciary.