JUSTICE : Death Penalty Argument Shifts to Issue of Lawyers’ Competence

The debate over the death penalty is coming back to life again. This time the issue is whether the procedures that American courts use in meting out the ultimate punishment are fair--especially the question of whether defendants get competent defense lawyers.

Lawyers who specialize in death penalty appeals, backed by some judges and an American Bar Assn. report, say reforms are needed to ensure competent counsel in capital cases, particularly for poor people who must rely on court-appointed lawyers.

BACKGROUND: Examples of the problem abound. The ABA report cites the case of John Eldon Smith and Rebecca Machetti, who were convicted--and sentenced to death--for killing Machetti’s ex-husband. One is alive and the other is dead because they had different lawyers.

Machetti’s attorneys claimed at her trial that the jury composition was unconstitutional. An appeals court later agreed and ordered a new trial. The second time around, she was sentenced to life in prison.

Smith’s jury was chosen from the same tainted pool, but his attorneys failed to raise the issue. The federal courts said that the matter could not be appealed since it was not brought up at trial. On Dec. 15, 1983, Smith was executed in the Georgia electric chair.

The competency--and, occasionally, the sobriety--of defense lawyers also has become an issue.

In a 1988 case, the murder trial of a woman was delayed for a day when her attorney appeared to be drunk in court. The lawyer was jailed for the night and returned to court the next morning to resume the defense. The woman was convicted and is now on Alabama’s Death Row.

In another case, a mentally retarded defendant was executed after his lawyers failed to notice the error when the judge instructed the jury that the burden of proof rested with the defense, not the prosecution. A co-defendant was spared because his lawyers raised the issue.

Another trial started with jury selection at 9 a.m. and ended at 2 a.m. with a death sentence. One defense lawyer proffered a final argument of just 29 words. At least four blacks now on Georgia’s Death Row were referred to with racial epithets in court by their own attorneys.

A recent ABA report brands the nation’s death penalty process “more a game of roulette than . . . a rational system of review”--particularly in the seven Southern states known as “the Death Belt,” where about 70% of the nation’s legal executions occur.

Atlanta lawyer Stephen O. Kinnard agrees. “The reality is that the average person on trial for his life is lucky to be represented by an attorney with any knowledge of criminal law and the most important Supreme Court cases,” Kinnard says.

The debate is heating up as the nation’s courts and the Bush Administration try to deal with a logjam of appeals that is choking the judicial process. The U.S. Supreme Court has warned that the problem is reaching crisis proportions.

Democrats want to set nationwide training and experience standards for defense lawyers who represent clients in life-or-death trials. But the Bush Administration opposes that, arguing instead for restricting the right of appeal in capital cases.

Rep. Don Edwards (D-San Jose), chairman of the House Judiciary subcommittee on civil and constitutional rights, says such lapses often are critical in capital cases.

“We just think that if you are going to be tried for a capital offense, you should get a fair deal--and that includes a competent lawyer,” Edwards says.

But many prosecutors and some judges are siding with the Administration on the issue, contending that the proposed changes will create more delays and impinge on the rights of states to set their own legal standards.

“The ineffectiveness ‘horror stories’ often spread by post-conviction counsel are in large part exaggerations of isolated instances of ineffectiveness,” Susan V. Boleyn, Georgia’s senior assistant attorney general, told Edwards’ subcommittee recently.

Still others view the proposals as a means of eviscerating the death penalty itself.

Marvin L. White, an assistant attorney general in Mississippi, calls the reform proposals “nothing more than another backdoor attempt to do what will not be done through the front door--and that is to abolish the death penalty in this country.”

OUTLOOK: Both sides expect the argument to grow louder later this month as Republicans begin to criticize Democrats for failing to meet President Bush’s challenge to pass crime legislation in the 100 days he had set.

The Democratic proposal is likely to be part of the party’s crime bill this summer.