Bad attorneys vs. death penalty

CASE OF THE SLEEPING LAWYER IS EVIDENCE OF A LARGER PROBLEM; VERDICTS ACROSS THE NATION REMAIN CAPRICIOUS AND ARBITRARY

 Jun. 06, 2002  

The lawyer for a man facing the death penalty for murder nods off repeatedly during the guy's trial. It's hard to think of an action that does more to mock the gravity of capital murder cases.

 This week, the Supreme Court appeared to agree. Without comment, it upheld a lower court's decision and sent back to Texas, for either a retrial or dismissal, the case of the death row defendant with the dozing attorney.

 Incompetent representation is just one of the problems that continue to mar death-penalty prosecutions, raising the risk that states one day will put an innocent man or woman to death -- if they haven't done so already.

 Some governors and legislatures are becoming increasingly uneasy. Ten states have commissions examining the fairness of their death-penalty systems. Last month, Maryland joined Illinois as the second state to declare a one-year moratorium on executions. Gov. Parris Glendening said he was disturbed that the death penalty had become a ``lottery of jurisdiction.'' One county, with a gung-ho prosecutor, accounts for two thirds of the inmates facing the death penalty in Maryland.

 Nearly everyone on Maryland's death row was convicted of killing a white person, even though 80 percent of the state's homicide victims are African-American.

 After two decades of reflexively rejecting death-penalty appeals and paring back federal courts' oversight of death-penalty cases, even the U.S. Supreme Court -- at least a thin majority of judges -- may be having some second thoughts. By the end of the month, the court will rule on whether executing the mentally retarded constitutes cruel and unusual punishment, a violation of the Eighth Amendment. Thirty states already have passed such a ban, California regrettably not among them. In the fall, the court will take up the issue of racial discrimination in the makeup of juries in capital murder cases.

 In the Texas case, the Supreme Court tacitly acknowledged that a sleeping lawyer is troubling. However, it declined to reconsider the bigger issue: what constitutes inadequate representation in death-penalty cases.

 The yardstick the court set years ago is that a defendant must prove that the trial's verdict would have been different, were it not solely for bad lawyering. That's a nearly insurmountable barrier for most defendants. As a result, the high court has refused to stop executions in cases in which a lawyer was clearly incompetent.

 The issue is relevant in California, where there are no uniform statewide qualifications for lawyers in death-penalty cases. Some counties have cut back on what they'll pay a defense attonrey, creating hit-or-miss justice. A Mercury News analysis found that appeals courts had set aside death sentences in 26 cases in the past 15 years because of an inadequate defense.

 Death penalty verdicts across America remain capricious and arbitrary. The case of the sleeping lawyer is an egregious but not isolated example of a larger problem.