Gov. Mike Easley faces two clemency decisions early next month for inmates scheduled to be executed, yet virtually no steps have been taken to insure that they were represented by attorneys who, at the very least, were sober, in good standing with the Bar, free of criminal convictions, and possessed a modicum of experience. Those are far from being standards that most lawyers in death penalty cases in North Carolina would ordinarily meet. The fact is that most of the cases that end up at the Governor's doorstep involve defense attorneys a reasonable North Carolinian wouldn't call for help on a traffic ticket.
Fully half of all cases that have come to a governor seeking clemency in North Carolina since the death penalty was reinstated had trial lawyers who would never be accepted under current standards. Not one, not two, but half of these defendants were represented by drunk lawyers, disbarred lawyers, criminally convicted or drug-addicted lawyers. They were represented by terminally ill lawyers who--through no fault of their own--didn't have the physical strength to work on the case. They were represented by lawyers fresh out of law school or by lawyers with virtually no experience in death penalty cases. They were represented by attorneys who were forced to continue even when they asked to withdraw. In some cases, the defendants had no lawyers at all.
The system is broken and it's getting worse. Nine of the 11 cases that have come to Gov. Easley for clemency had trial lawyers who would not be accepted under current standards. Those attorneys were drunk, disbarred, terminally ill, inexperienced, found ineffective or reprimanded. The cases Gov. Easley will consider in December continue the trend of trial counsel who would not be accepted under current standards. One of Desmond Carter's lawyers was reprimanded by the State Bar for making demeaning statements about his client. Ernest Basden was given one lawyer with no death penalty experience and one terminally ill lawyer who had to step down. The new lawyer was given only six weeks to prepare Basden's defense.
Republican legislators Bob Shaw and John Blust attempted to address the problem of unacceptable lawyering by successfully sponsoring a bill that asked the N.C. Supreme Court to set minimum standards in death penalty cases. At the same time, the newly established Office of Indigent Defense Services set standards for all cases now being tried. These are important steps in the right direction. According to Joe Cheshire, a member of the Indigent Defense Commission, the standards for new counsel have been significantly tightened and improved.
Unfortunately, these improvements have had no effect at all on cases tried prior to 2002.
Some will say that, while a drunk or disbarred lawyer is not desirable, it makes no difference because these cases have been reviewed by the higher courts. Unfortunately, a higher court is often not allowed to provide a meaningful review of problems as fundamental as a defendant's innocence if the trial attorney failed to point them out. These are the same attorneys--the ones who were high on a fifth of Jack Daniels, disbarred, or criminally convicted--that the system is relying on to object when problems come up at trial.
Incompetence of trial counsel sabotages the effectiveness of court review. Clearly, what is needed is a thoughtful, systematic review of the death penalty cases in which attorneys did not even meet the minimum current standards of practice. We can't continue with the present system when we know that at least 50 percent--and recently closer to 80 percent--of the prisoners facing execution were represented at trial by lawyers who would not even be appointed to a death penalty case today.
The system is broken. It has not been fixed and two more lives are in line for the executioner. It's time for the political leaders of this state to make sure that every case that comes to the governor for clemency was handled by trial attorneys who met the most basic standards. The governor should impose a stay in every case in which trial attorneys did not meet current standards until legislators can find a way to address this problem, just as they've attempted to do for all cases tried after 2002. We must be sure that legitimate problems have not been denied a meaningful review on appeal simply because an unacceptable trial lawyer never pointed them out. The system is broken. It's time to fix it.
Lao Rubert is director of the Carolina Justice Policy Center, a nonprofit organization working since 1975 to improve the criminal justice system.