The State : The Case for the Defense--If You’re Poor and Charged With Murder

O.J. Simpson has purchased a Rolls-Royce defense team. Were he poor, Los Angeles County judges would grudgingly try to provide him with the legal equivalent of a broken- down Yugo from which they had siphoned the gas.

The public has had an opportunity to glimpse how capital cases are prepared by watching Simpson’s lead attorney Robert L. Shapiro work. Experts are brought in. Police reports and transcripts memorized. Law books and scientific texts digested. Lines of attack--as well as lines of retreat--planned. Before the trial begins, Simpson’s team will have devoted thousands of hours to preparing his defense in the murders of his former wife, Nicole Brown Simpson, and her friend, Ronald Lyle Goldman.

Until recently, a poor person arrested on murder charges in Los Angeles could expect similar dedication from his or her public defender, or court-appointed attorney, even if the lawyer did not command the fee of an F. Lee Bailey. But within the last few years, a majority of Superior Court judges decided that the objective in capital cases should be the appearance, not the substance, of fairness--a victory of Hollywood illusion over constitutional reality.

A capital defense attorney now tries his cases as much against the judge as against the prosecution, because judges keep dropping their thumbs onto the scales of justice. It is the defense that invariably gets short-weighted.

Two years ago, Supervising Judge Cecil J. Mills, along with some of his brethren, dramatically changed the way members of the death-penalty defense bar in Los Angeles are compensated. What the judges apparently desire is to transform what was once the most energized and talented group of criminal-defense lawyers in America into a fractured bunch of beaten-down public defenders and court-appointed lawyers. In the first year of the new policy, there were as many death verdicts handed down in the Criminal Courts Building as had been in the previous six years combined.

What Mills, Judge Michael Tynan and other judges did was to institute a flat-fee contract. Attorneys who had received an hourly fee of $100 (a fee unchanged since 1977) would instead receive, in the vast majority of cases, a flat fee of $60,000 for handling the entire death-penalty defense, no matter how long it took. Most capital cases take from between six months and a year to prepare and try. Mills proposed, and unilaterally implemented, a huge fee reduction for undertaking the most difficult task a lawyer can perform--defending a man’s life.

Even the reduction of fees was not without some wrinkles, however. Each time a defense lawyer won a motion, his or her pay would be cut. It does not require a rocket scientist to figure out that reducing lawyer’s pay for winning creates a direct conflict of interest between the lawyer and his client. Put simply, it is unethical.

After a number of prominent defenders objected to the contract approach, a committee of judges was assembled and 15 objectors were suddenly removed from the capital-case panel. In their place, Mills appointed his friends and sympathizers. The standards that had been set by the Los Angeles County Bar Assn. were lowered. The result is Discount Death Days at the nation’s busiest courthouse. Consider:

* The defense is legally authorized to have two attorneys in a case, such as Simpson’s, with factual or legal complexities. But judges routinely refuse to appoint a second chair. In cases where the absence of a second would guarantee a reversal at the appellate level, the second lawyer’s pay is put at 15% of the amount paid to lead counsel, roughly $1,500 a month for spending six months in trial.

* Dr. Michael M. Baden, the pathologist hired by Shapiro, usually testifies for the prosecution. Dr. Charles Lee, the chemist who will do the forensic examination for the Simpson team, also usually testifies for the prosecution. The Los Angeles Police Department has committed well over 10,000 man-hours to collecting evidence against the former football star.

By contrast, under the death-penalty defense contract, a defense attorney representing a poor person must file a long motion for each $500 he seeks to spend in defense investigation.

* The prosecution has ready access to the pathologists at the coroner’s office. In defending a poor person, the lawyer must not only petition the court for a pathologist to review the autopsy materials, but also is likely to have the amount paid to the pathologist radically reduced. As a result, only two pathologists are willing to testify under court appointment.

* If a defense lawyer needs laboratory analysis, he may get it or not, largely based on the whim of the judge hearing the motion. The same is true for psychiatrists and psychologists, jury experts, criminalists, penalty-phase expert witnesses and numerous other professionals who go into creating a serious death- penalty case defense.

The epitome of the adversary system is a highly trained prosecutor and a highly trained defense attorney fighting it out in front of a jury. Los Angeles’ capital defense lawyers, a number of whom are now household names, consistently have persuaded juries that either a) the defendant was not guilty, or b) the “special circumstances” allowing for the death penalty were not true, or c) that a jury should choose life imprisonment without possibility of parole instead of death, even if death was an option.

If you are rich, you stand to benefit from this system. But if you are poor, you will face a judiciary in relentless pursuit of creating defense mediocrity. It is this dumbing-down of the criminal defense that is reprehensible. In the Deep South, more than half of all state death judgments are reversed by the federal courts.

One does not need a psychic to see the future in Los Angeles.*