Improve defense in death penalty cases

 January 22

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

If it wasn't a matter of life and death, the Office of Public Defense's request of the Washington Supreme Court would be funny -- in the sense that gallows humor is funny.

The OPD request demonstrates that the legal representation system for indigent defendants facing the ultimate penalty is woefully deficient.

Because the office is asking that both of the defense attorneys in capital cases have at least three years' experience in criminal law and be experienced in the use of evidence and expert witnesses, it's obvious that poor defendants have been getting short shrift in the courtroom.

 Because the office is asking that trial judges be forced to appoint at least one of the defense attorneys from a list of lawyers previously qualified to handle such cases, it's clear that even this minimal prerequisite has yet to be institutionalized. Currently, judges are appointing Capital Counsel Panel list-qualified attorneys in only a third of aggravated murder cases.

 In Washington state, death penalties have been overturned on five occasions since 1992 because defense attorneys didn't or couldn't competently perform their jobs. In the last instance, in January 2001, the state high court reversed the conviction and death sentence of a Longview man whose lawyer had been disbarred for stealing clients' money.

 It is heartening that Chief Justice Gerry Alexander embraces the OPD proposals and expects his colleagues to agree to them. But it is disconcerting, and unbecoming of a state as progressive as Washington professes to be that these basic improvements haven't been made in the 21 years since capital punishment was reinstated here.

 Perhaps it's because, compared with such states as Texas, Washington prosecutes only a nominal number of death penalty cases annually. Perhaps it's because Washington attorneys haven't been found after the fact to be as egregiously incompetent as some in Southern states who fall asleep in the courtroom or drink heavily during the drawn-out cases.

 Washington is fortunate it isn't in Illinois' league. There, poorly financed and subpar defense lawyers have botched death penalty cases so badly that a slew of convictions were overturned and a moratorium on the death penalty was imposed by the governor.

As it is, as documented by a P-I series last year, one in five capital defendants was represented by an attorney who had been or was later disbarred, suspended or arrested.

 If that's the quality of representation indigent defendants receive when the stakes are as high as death, what is the case in mere felony or misdemeanor trials? The answer -- that it varies widely from county to county -- isn't reassuring.

 Standards for representation in death penalty cases should be upgraded or, more aptly, created.