May, 1994 Essay *1835 COUNSEL FOR THE POOR: THE DEATH SENTENCE NOT FOR THE WORST CRIME BUT FOR THE WORST LAWYER Stephen B. Bright [FNd] Copyright © 1994 by the Yale Law Journal Company, Inc.; Stephen B. Bright
The resulting imprisonment is no more or no less than imprisonment for being poor, a doctrine which I trust this nation has long since outgrown. Concern has even been expressed that the most serious penalty of all—death—is imposed with disproportionate frequency on the poor.
And most members of the legal profession-particularly those at the high income law firms which have the litigation skills and resources equal to the task-are not being asked to share the burden of defending the poor.
No poor person accused of any crime should receive the sort of representation that is found acceptable in the criminal courts of this nation today, but it is particularly indefensible in cases where life is at stake.
Gary Nelson’s lawyer had never tried a capital case but was denied his request for co-counsel. He was paid less than $20 per hour and did not request any funds for an investigator, assuming that the request would be turned down. His closing argument was 255 words long – less than half the length of this fact sheet.
Yet public defense offices are plagued by unmanageable caseloads, high turnover, and some of the lowest pay in the profession. Courts often allow the most egregious mistakes to stand. In the famous “sleeping lawyer” case of George McFarland, a Texas court ruled, “the Constitution guarantees the right to an attorney.
Mose Young was executed in Missouri in 2001. His lawyer, Jack Walsh, inherited the case at the last minute. He saw Young just one time prior to the trial, never visited the crime scene, conducted no investigation or preparation, and failed to interview a witness who said Young was not the shooter.
Even the best public defenders often rely on court approval for funds to pay for investigators, forensic scientists, and other experts needed for an effective defense. Such funds can be limited or unavailable.
In a recent California case, for example, the state supreme court held that if “the attorney is not given a reasonable opportunity to ascertain facts surrounding the charged crime so he can prepare a proper defense, the accused's basic right to effective representation would be denied.”.
The real question, as put by the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, is: “Has government done all that can be reasonably required of it … to render the poverty of the litigant an irrelevancy.”.
In preparing for trial the lawyer appointed to represent an accused who is without funds generally has few, if any, of the investigatory resources available to the prosecution or to an accused with means. He may also be limited in his ability to subpoena necessary witnesses to appear at trial.
If the accused is acquitted no effort is made to collect the cost of defense regardless of the defendant's means. If he is convicted some of the countries inquire into his means and if found financially able he is charged with some or all of the costs of his defense.
Far more than the provision of counsel is encompassed within these systems. For example, in preparing the defense, the appointed lawyer may make use of government laboratories and consult with its experts. If the accused is acquitted no effort is made to collect the cost of defense regardless of the defendant's means.
In some parts of the world —indeed, in many parts of this country when men of means are involved—arrests are made whenever possible in a dignified manner. The accused is notified that he is being investigated, and he is called to police headquarters by a summons rather than bodily arrest.
The victim of a robbery or an assault has been denied the “protection” of the laws in a very real sense, and society should assume some responsibility for making him whole. THESE are but a few—indeed a very few—of the areas in which equal justice is lacking. There are many others.