Terrible Crime or Terrible Lawyer?

‘There can be no equal justice where the kind of trial a man [or woman] gets depends on the amount of money he [or she] has,’ stated Justice Hugo Black in Griffin v. Illinois [1]. This is reflective of America today, especially in capital punishment cases. Death row defendants often suffer from poor and inadequate legal representation due to lack of funds. Many defendants have had their death sentences imposed by poorly paid lawyers in court sleeping, intoxicated, or lacking experience [2].

Since 1973, 172 former death-row prisoners have been exonerated of charges relating to wrongful convictions [3]. Professor James Liebman of Columbia University examined every capital sentence from 1973 to 1995 and found that 68 percent of the cases had been reversed [4]. Sadly, one of the primary reasons for the high reversal rate was inadequate representation [5]. Fair trials remain an issue in America, and the need for adequate legal representation is a recurring problem.

A recent example is the death sentence of Robert Wayne Holsey [6]. Holsey was convicted of armed robbery and murder in 1997 for robbing a convenience store and killing a pursuing officer [7]. Though his trial lawyer had admitted to drinking up to a quart of vodka daily and was facing theft charges, Holsey was given a death sentence [8]. The Superior Court judge called for a new sentencing trial on grounds of omitted history and Holsey’s intellectual disability [9]. However, the Georgia Supreme Court decided that the evidence found in the original trial was enough and reversed the new sentence decision [10]. Holsey was sentenced to death in 2014.

It is true that not all lawyers will be intoxicated during the time of a trial, but lack of experience, failure to thoroughly investigate their client’s case, and ‘mediocre’ representation can all lead to an avoidable death sentence [11]. In 2005, Georgia executed Robert Conklin, whose case had been given to a public defender, only 37 days before the trial [12]. Additionally, this lawyer was supplied with no money for an investigator or an expert witness [13].

Astonishingly, some American judges are attracted to this ‘bare-bones system’ of law [14]. Judge Alvin Rubin believed the constitution ‘does not require that the accused even in a capital case be represented by able or effective counsel’ [15].

In America, justice has become dependent on how much money individuals have. Criminals should pay for their sins, but not for the sins of their lawyers.

1. Griffin v. Illinois 351 U.S. 12 (1956)

2. Jeffrey L. Kirchmeier, ‘Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement’ (1996) 75 Neb L Rev 425, 455–60 (citing cases in which convictions were upheld even though defence lawyers were intoxicated, abusing drugs, or mentally ill).

3. <https://deathpenaltyinfo.org/policy-issues/death-penalty-representation> accessed 21 November 2020

4. <http://www.columbia.edu/cu/pr/00/06/lawStudy.html> accessed 21 November 2020

5. (n 3)

6. <https://deathpenaltynews.blogspot.com/2014/12/georgia-executes-robert-wayne-holsey.html> accessed 21 November 2020

7. Ibid.

8. Ibid.

9. Ibid.

10. Ibid.

11. Stephen Bright, ‘The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies’ (2008) 11 Univ Pa J Const Law 23

12. Ibid.

13. Ibid.

14. Richard A. Posner, The Problematics of Moral and Legal Theory (HUP 1999) 163-164

15. Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin J., concurring).