THE DEATH PENALTY AND INCOMPETENT DEFENSE

by Jody Cramer

During the past year and a half, I have journeyed to the darkest places in our criminal justice system to trace the conviction of Kevin Cooper, a poor, black man who was wrongfully convicted and has spent more than 14 years on San Quentin's death row. One of the factors that led to his conviction was lack of a competent defense.

Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources and commitment to handle such serious matters. Stephen Bright of the Southern Center for Human Rights points out that the average person looking at ten murder cases could not pick out the five that resulted in the death penalty for the defendant. It isn't the details of the crime that determine who gets the death penalty; it's the quality of representation. To quote Bright, "In consequence, a large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they receive." Virtually all murders involve gruesome and tragic facts, yet out of approximately 20,000 homicides committed annually in the United States, on average, only 200 people are sentenced to death. Whether death is imposed depends primarily on the quality of counsel available to the accused.

A fundamental problem is the wholly inadequate funding for the defense of indigents. On one side is the office of the prosecutor operating with a paralegal staff, unlimited financial resources in a capital case, expert witnesses and investigators. On the other side is an appointed public defender who may have little or no knowledge of criminal or capital punishment law, no investigator or expert witnesses, no co-counsel, and a paltry sum as a fee for services. Fees paid to public defenders who represent the poor are so low that usually lawyers can make more money doing almost anything else. Funding for investigation and experts is not available because courts often refuse to authorize funds unless there is extensive showing of need that frequently cannot be made without the very expert assistance that is sought. Even with court-authorized funds, often no competent expert would get involved for little compensation.

Unbelievably, the Supreme Court has failed to require effective counsel for indigent people in capital cases. Judge Alvin Rubin of the Fifth Circuit wrote, "The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel." Another premise put forth by the court is that "the government is not responsible for, and hence not able to prevent, attorney errors" (Strickland vs. Washington).

Cooper came within five days of execution because his disinterested, overworked public defender, Mark Culter, took no action in Cooper's case during the almost ten years that he was the attorney of record. Culter had taken a position as the head of an office of the California Appellant Project and repeatedly asked Judge Marilyn Huff to be relieved as Cooper's defender. Huff refused to remove Cutler and told him to take some action or she would refuse any more "stays" of execution. Cutler "missed" the instructions, and San Quentin Prison went forward with plans to execute Cooper, moving him into a pending execution holding cell. The intervention of another attorney, Jeannie Sternberg, prevented the execution from going forward.

No poor person accused of any crime should receive the sort of representation found acceptable in U.S. criminal courts today, but it is particularly indefensible in cases where life is at stake. We must not allow this error-prone, unjust system to decide who lives and dies. We must demand that the death penalty be eliminated

--Jody Cramer is an activist working to end the death penalty, to free an innocent man on death row, to provide residential group homes for indigent, disabled adults as an option to nursing homes, and for animal rights. <jody@activist-etc.org> <www.activist-etc.org>.