Death Row Inmates Point to Poor Quality of Lawyers Who Defend Them

During Michael McDougall’s first-degree murder trial, his lawyer was strung out on drugs, suffered from migraines and occasionally dozed in the courtroom, court papers say. In closing arguments to the jury, the attorney delivered a rambling rant in which he called the death penalty a “tool of the fascists.”

McDougall was sentenced to die.

Now, six years after his conviction by a North Carolina jury, McDougall is appealing his sentence on grounds he was denied his right to a competent lawyer. He is one of a growing number of Death Row inmates complaining about the underpaid, overworked and sometimes incompetent lawyers who represent them at their trials.

“No one who has any money faces the death penalty,” says South Carolina trial lawyer David Bruck. “While there are hundreds of thousands of lawyers in the United States, there is very little competent defense available for the people who need it most, people on trial for their lives.”

Few Have Enough Funds

While some capital defendants can scrape together the funds for a lawyer, more than 90% rely on a free attorney provided by the state.

Supreme Court Justice Thurgood Marshall believes a free attorney is not enough to protect a defendant’s rights and has urged his colleagues to require appointment of experienced criminal lawyers in capital cases.

“Capital defendants do not have a fair opportunity to defend their lives in the courtroom,” Marshall said recently. “Death penalty litigation has become a specialized field of practice and even the most well-intentioned attorneys often are unable to recognize, preserve and defend their client’s rights.”

A survey by UPI of death penalty appeals filed at the Supreme Court underscores the problem. One in five claims a violation of the Sixth Amendment right to “assistance of counsel.” University of North Carolina law professor Norman Lefstein says “the overwhelming majority” of Death Row inmates challenge the competence of their trial lawyers at some point in the appeals process.

Attorneys Not Prepared

Further investigation reveals that in many of those cases attorneys failed to adequately prepare for trial, did not interview witnesses in advance of questioning them on the stand and presented no evidence during the sentencing phase that might convince a jury to spare a defendant’s life.

One such case is that of South Carolina’s Sterling Spann, who was convicted in 1982 of raping and murdering an 82-year-old woman.

During the sentencing phase of Spann’s trial, attorney W. Newton Pough called him by the name Stanley instead of Sterling 20 times. Pough never spoke with Spann’s family members and never considered calling them as character witnesses, even though four of them attended Spann’s trial and would have been happy to testify. Pough, who was hired by a friend of Spann, said he did not think the testimony was necessary.

Spann’s new attorney, Jon Popowski, believes his client would have received a life sentence instead of the death penalty if his legal help had been better.

‘Walks in Cold’

“It’s clear the outcome would have been different,” Popowski said. “This guy (Pough) walks in cold, no preparation, he doesn’t talk to any witnesses. He doesn’t review anything. . . . He admits not knowing the facts of the case.”

In an appeal filed in federal District Court in Columbia, S.C., an affidavit from one of the jurors says she would have felt differently about Spann if a friend or relative had testified on his behalf.

The absence of family members, the juror said, left an impression with the jury that relatives had “washed their hands” of him and were embarrassed by his crime.

Mary Broderick, who heads the defender division of the National Legal Aid and Defender Assn., says Spann’s case is typical. She calls the quality of legal representation given capital defendants “a national disgrace.”

Cites Malpractice

“I think many people who are represented by assigned counsel receive good representation, but there are a shocking number who are malpracticed by their lawyers either because their lawyers are incompetent or negligent,” she says.

Under Supreme Court rulings, capital defendants have a right to present mitigating evidence at the sentencing phase of the trial in an effort to get a life sentence instead of the death penalty. The testimony can range from character witnesses to evidence of a troubled family background.

Yet in many cases, lawyers offer no mitigating evidence at all, according to Ronald Tabak, a New York City lawyer who has become involved in death penalty appeals.

Tabak says many lawyers have never been involved in capital cases before and do not know what mitigating evidence is or how to find it.

Specialized Law

Robert Spangenberg, a consultant for the American Bar Assn., says death penalty law has become “almost a separate law unto itself. In order to practice as a defense counselor in the capital area, you need extra training, extra skill.”

Despite the Sixth Amendment, it was not until 1932 that the Supreme Court decided states had a duty to provide lawyers to capital defendants who could not afford them. Since then, the right has been extended to cover all felony defendants and all misdemeanor defendants facing prison sentences.

But the court has left to the states the question of implementing the right to counsel and many states give defense of the indigent a low priority on their budgets.

“The states and local governments have never fully acknowledged the fact they have an obligation to provide a free lawyer for somebody who can’t afford one,” Broderick says. “They take it for granted that they have to adequately fund the prosecutor’s office and the court system, but they throw scraps at the defense system.”

Small Share of Pie

Nationally at the state level, 1.5% of total expenditures for criminal justice go to the defense of the poor, compared to 5.9% to prosecution and 13.1% to the judiciary.

The method of providing lawyers to the poor varies from state to state and county to county, but the most common system is assigned counsel. Appointments are generally made by the trial judge or court clerk from a list of private attorneys who volunteer for the task.

Rates paid to assigned counsel average from $24 to $30 an hour, compared to more than $100 commanded by top criminal attorneys.

The lowest hourly fee is in South Carolina, where attorneys are limited to a total of $2,500 to defend capital cases.

“You have to choose between financial loss or doing a very slapdash job,” says Bruck, a private attorney who works with the local public defender’s office to represent Death Row inmates. “The result is that in case after case, you see trials in which little or no investigation was done about the background of the defendant. You have cases in which mentally retarded defendants are convicted and sentenced to death and their jury never found out what their IQ is.”

Public Defense Programs

About 34% of all counties in the United States have public defense programs for the poor. While defenders generally are paid better than appointed lawyers, they suffer from excessive caseloads and lack of funds to hire investigators and experts.

“If you give a lawyer 65 major felony cases to defend, it does not matter how good an attorney he or she is or how well he or she is trained,” said Lefstein of the University of North Carolina. “You simply cannot do an effective job.”

In one appeal before the Supreme Court, Florida Death Row inmate Levis Aldrich argues he was denied effective legal assistance by a public defender who was so overworked he did not prepare for the 1974 trial or interview more than three of more than 50 witnesses.

Four days before the trial began, the attorney, Elton Schwarz, asked for a delay and told the judge: “This case is not prepared. We are not in a position to provide competent legal representation.” The trial court denied the motion and the trial went forward. Schwarz now says he would “stand mute” rather than go to trial so unprepared.