A plan to ensure that every defendant facing a possible death sentence has a competent attorney ran into opposition Wednesday in Congress from death-penalty advocates who said it is unnecessary and would introduce an anti-capital punishment bias in the legal system.
The bill, subject of a hearing before the Senate Judiciary Committee, would create a national commission to develop competency standards for defense lawyers in capital cases and would punish states that fail to adhere to the standards by withholding money for federal prisons and other projects.
The bill would also ensure access to DNA testing for convicted capital offenders and restrict the destruction of biological evidence, measures that appeared to have bipartisan support.
The drive to establish competency criteria comes in the wake of publicity about death penalty trials during which defense attorneys fell asleep or were intoxicated. There has also been a recent flurry of cases in which prisoners were released after serving years on death row resulting from wrongful convictions.
"The problem is real, it is urgent and it is well-documented," said Sen. Patrick J. Leahy (D-Vt.), the Judiciary Committee chairman whose proposed Innocence Protection Act contains the competent-counsel provision.
But opponents of the measure cited a number of existing legal mechanisms that provide for the able defense of those charged with capital crimes. They also pointed to options already available to defendants who feel they were inadequately represented during trial.
"It is unreasonable . . . to expect that an independent authority would be more objective, balanced, and diligent than the judges of the state courts who now appoint counsel in capital cases," Alabama Atty. Gen. Bill Pryor told the committee in prepared testimony. "Judges are independent. For that matter, so are prosecutors whose ethical duty, in contrast with defense attorneys, is to pursue truth and justice."
Several death penalty advocates also said that the horror stories about sleeping or grossly incompetent defense attorneys have been sensationalized and overstated.
"Some opponents of the death penalty seek to portray these stories as par for the course," said Utah Sen. Orrin G. Hatch, the committee's ranking Republican. "This view ignores the hundreds of capital cases in which no flaw was found in the quality of the legal representation. . . . Far more often than not, a capital defendant is represented by multiple outstanding lawyers."
A mechanism to screen and train capital defense lawyers was among the 18 recommendations released Wednesday by Death Penalty Initiative, a bipartisan group that studied methods to improve the capital punishment process.
The group, including Beth A. Wilkinson, one of the prosecutors who won the death penalty for Oklahoma City bomber Timothy J. McVeigh, recommended three steps toward improving the defense of capital crimes: the creation of an independent authority to screen, train and appoint capital defense attorneys; adequate pay for capital defenders, as well as for the experts and investigators they employ to support their case; and the imposition of a more stringent judicial test for ineffective defenses.
Several panelists maintained that any ostensibly impartial authority charged with appointing defense attorneys in capital cases would be inherently biased against capital punishment.