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decided: June 30, 1994.



The petition for a writ of certiorari is denied.


Today in McFarland v. Scott, ante, at ___, this Court addressed the right to qualified legal counsel guaranteed to all capital defendants in federal habeas corpus proceedings. See 21 U.S.C. § 848(q)(4)(B). More often than not, however, it is in the proceedings antecedent to federal habeas corpus--the capital trial, and to a lesser extent state post-conviction proceedings--that a capital defendant's case is won or lost. Frequently the legal counsel available to capital defendants at these critical stages is woefully inadequate. I therefore write to address the crisis in trial and state post-conviction legal representation for capital defendants that forms the backdrop to the federal right to counsel afforded by § 848(q)(4)(B).

Without question, "the principal failings of the capital punishment review process today are the inadequacy and inadequate compensation of counsel at trial and the unavailability of counsel in state post-conviction proceedings." Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, Report of the American Bar Association's Recommendations Concerning Death Penalty Habeas Corpus, 40 Am. U. L. Rev. 1, 16 (1990) (ABA Report). The unique, bifurcated nature of capital trials and the special investigation into a defendant's personal history and background that may be required, the complexity and fluidity of the law, and the high, emotional stakes involved all make capital cases more costly and difficult to litigate than ordinary criminal trials. Yet, the attorneys assigned to represent indigent capital defendants at times are less qualified than those appointed in ordinary criminal cases. See Green, Lethal Fiction: The Meaning of 'Counsel' in the Sixth Amendment, 78 Iowa L. Rev. 433, 434 (1993); Coyle, et al., Fatal Defense, 12 Nat'l L. J. 30, 44 (June 11, 1990) (Capital-defense attorneys in eight States were disbarred, suspended, or disciplined at rates 3 to 46 times higher than the general attorney-discipline rates).

Two factors contribute to the general unavailability of qualified attorneys to represent capital defendants. The absence of standards governing court-appointed capital- defense counsel means that unqualified lawyers often are appointed, and the absence of funds to compensate lawyers prevents even qualified lawyers from being able to present an adequate defense. Many States that regularly impose the death penalty have few, if any, standards governing the qualifications required of court-appointed capital-defense counsel. In 21 U.S.C. §§ 848(q)(5) and (6), Congress has required that attorneys appointed to represent capital defendants in federal habeas corpus proceedings must have five years of experience litigating before the relevant court and three years of felony experience. See McFarland, ___ U.S., at ___, n. 2. According to a 1990 survey by the National Law Journal, however, Florida, Georgia, Mississippi, Texas, and California have no binding statewide qualification criteria for capital-defense counsel. See Coyle, 12 Nat'l L. J., at 32. Capital-defense attorneys in Louisiana must have five years' experience practicing in some area of law, but are not required to have experience in capital defense or any form of criminal practice. Ibid. In addition to the lack of standards, compensation for attorneys representing indigent capital defendants often is perversely low. Although a properly conducted capital trial can involve hundreds of hours of investigation, preparation, and lengthy trial proceedings, many States severely limit the compensation paid for capital defense. Louisiana limits the compensation for court-appointed capital-defense counsel to $1,000 for all pretrial preparation and trial proceedings. Kentucky pays a maximum of $2,500 for the same services. Alabama limits reimbursement for out-of-court preparation in capital cases to a maximum of $1,000 each for the trial and penalty phases. Ala. Code § 15-12-21 (a) (Supp. 1992); Op. Ala. Att'y Gen. No. 91-00206 (Mar. 21, 1991). See generally Klein, The Eleventh Commandment: Thou Shalt Not be Compelled to Render the Ineffective Assistance of Counsel, 68 Ind. L. J. 363, 364-375 (1993).

Court-awarded funds for the appointment of investigators and experts often are either unavailable, severely limited, or not provided by state courts. As a result, attorneys appointed to represent capital defendants at the trial level frequently are unable to recoup even their overhead costs and out-of-pocket expenses, and effectively may be required to work at minimum wage or below while funding from their own pockets their client's defense. A recent survey by the Mississippi Trial Lawyers' Association estimated that capital-defense attorneys in that State are compensated at an average rate of $11.75 per hour. See Coyle, 12 Nat'l L. J., at 32. Compensation rates of $5 per hour or less are not uncommon. Strasser, $1,000 Fee Cap Makes Death Row's 'Justice' A Bargain for the State, 12 Nat'l L. J. 33 (June 11, 1990).*fn1 The prospect that hours spent in trial preparation or funds expended hiring psychiatrists or ballistics experts will be uncompensated unquestionably chills even a qualified attorney's zealous representation of his client.

The practical costs of such ad hoc systems of attorney selection and compensation are well documented. Capital defendants have been sentenced to death when represented by counsel who never bothered to read the state death penalty statute, e.g., State v. Smith, 581 So. 2d 497 (Ala. Crim. App. 1990), slept through or otherwise were not present during trial, or failed to investigate or present any mitigating evidence at the penalty phase, Mitchell v. Kemp, 483 U.S. 1026 (1987) (Marshall, J., dissenting from denial of certiorari). Other indigent defendants have been represented by attorneys who had been admitted to the bar only six months before and never had conducted a criminal trial. E.g., Paradis v. Arave, 954 F.2d 1483, 1490-1491 (CA9 1992), vacated and remanded, ___ U.S. ___ (1993), relief denied, 20 F.3d 950, 959 (1994). One Louisiana defendant was convicted of capital murder following a one-day trial and 20-minute penalty phase proceeding, in which his counsel stipulated to the defendant's age at the time of the crime and rested. State v. Messiah, 538 So. 2d 175, 187 (La. 1988), cert. denied, 493 U.S. 1063 (1990). When asked to cite the criminal cases he knew, one defense attorney who failed to challenge his client's racially unrepresentative jury pool, could name only two cases: Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 19 How. 393 (1857). See Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835, 1839, and n. 32, citing Tr. of April 25-27, 1988 Hearing, at 231, State v. Birt, No. 2360 (Super. Ct. Jefferson Cty., Ga. 1988).

The consequences of such poor trial representation for the capital defendant, of course, can be lethal. Evidence not presented at trial cannot later be discovered and introduced; arguments and objections not advanced are forever waived. Nor is a capital defendant likely to be able to demonstrate that his legal counsel was ineffective, given the low standard for acceptable attorney conduct and the high showing of prejudice required under Strickland v. Washington, 466 U.S. 668 (1984). Ten years after the articulation of that standard, practical experience establishes that the Strickland test, in application, has failed to protect a defendant's right to be represented by something more than "a person who happens to be a lawyer." Id., at 685.

The impotence of the Strickland standard is perhaps best evidenced in the cases in which ineffective assistance claims have been denied. John Young, for example, was represented in his capital trial by an attorney who was addicted to drugs and who a few weeks later was incarcerated on federal drug charges. The Court of Appeals for the Eleventh Circuit rejected Young's ineffective assistance of counsel claim on federal habeas, Young v. Kemp, 727 F.2d 1489 (1984), and this Court denied review, 470 U.S. 1009 (1985). Young was executed in 1985. John Smith and his co-defendant Rebecca Machetti were sentenced to death by juries selected under the same Georgia statute. Machetti's attorneys successfully challenged the statute under a recent Supreme Court decision, Taylor v. Louisiana, 419 U.S. 522 (1975), winning Machetti a new trial and ultimately a life sentence. Machetti v. Linahan, 679 F.2d 236 (CA11 1982). Smith's counsel was unaware of the Supreme Court decision, however, and failed similarly to object at trial. Smith v. Kemp, 715 F.2d 1459 (CA11 1983). Smith was executed in 1983.

Jesus Romero's attorney failed to present any evidence at the penalty phase and delivered a closing argument totaling 29 words. Although the attorney later was suspended on unrelated grounds, Romero's ineffective assistance claim was rejected by the Court of Appeals for the Fifth Circuit, Romero v. Lynaugh, 884 F.2d 871, 875 (1989), and this Court denied certiorari, 494 U.S. 1012 (1990). Romero was executed in 1992. Larry Heath was represented on direct appeal by counsel who filed a 6-page brief before the Alabama Court of Criminal Appeals. The attorney failed to appear for oral argument before the Alabama Supreme Court and filed a brief in that court containing a 1-page argument and citing a single case. The Eleventh Circuit found no prejudice, Heath v. Jones, 941 F.2d 1126, 1131 (1991), and this Court denied review, 502 U.S. ___ (1992). Heath was executed in Alabama in 1992.

James Messer, a mentally impaired capital defendant, was represented by an attorney who at the trial's guilt phase presented no defense, made no objections, and emphasized the horror of the capital crime in his closing statement. At the penalty phase, the attorney presented no evidence of mental impairment, failed to introduce other substantial mitigating evidence, and again repeatedly suggested in closing that death was the appropriate punishment. The Eleventh Circuit refused to grant relief, Messer v. Kemp, 760 F.2d 1080 (1985) (Johnson, J., dissenting), and this Court denied certiorari, 474 U.S. 1088 (1986). Messer was executed in 1988. Even the attorney who could name only Miranda and Dred Scott twice has survived ineffective assistance challenges. See Birt v. Montgomery, 725 F.2d 587, 596-601 (CA11) (en banc), cert. denied, 469 U.S. 874 (1984); Williams v. State, 258 Ga. 281, 368 S. E. 2d 742 (1988), cert. denied, 492 U.S. 925 (1989).*fn2 None of these cases inspires confidence that the adversarial system functioned properly or "that the trial can[] be relied on as having produced a just result." Strickland, 466 U.S., at 686. Yet, in none of these cases was counsel's assistance found to be ineffective.

Regardless of the quality of counsel, capital defendants constitutionally are entitled to have some "person who happens to be a lawyer . . . present at trial alongside the accused." Id., at 685. The same cannot be said for state post-conviction review. State habeas corpus proceedings are a vital link in the capital review process, not the least because all federal habeas claims first must be adequately raised in state court. This Court thus far has declined to hold that indigent capital defendants have a right to counsel at this level, based on the assumption that capital defendants generally can obtain volunteer or other counsel to represent them in these state proceedings. Murray v. Giarratano, 492 U.S. 1, 14 (1989) (KENNEDY, J., joined by O'CONNOR, J., concurring in judgment) (In "the case before us . . . no prisoner on death row in Virginia has been unable to obtain counsel to represent him in post-conviction proceedings").

Though perhaps true for some jurisdictions, this assumption bears little resemblance to the realities confronting McFarland and other condemned inmates in Texas. A recent study of state post-conviction capital representation in Texas sponsored by the American Bar Association (ABA) concluded that the capital-defense situation in that State is "desperate." The Spangenberg Group, A Study of Representation in Capital Cases in Texas, ii (March 1993). According to the Spangenberg Group, "Texas has already reached the crisis stage in capital representation and . . . the problem is substantially worse than that faced by any other state with the death penalty." Id., at i.

Texas has the second largest death row in the country, with approximately 375 inmates currently facing execution. Since 1976, Texas has executed approximately one third of all the defendants put to death in the United States, NAACP Legal Defense and Educational Fund, Inc., Death Row, U.S.A., 10 (Spring 1994), and the pace of executions in Texas is increasing. In June 1993, this Court denied certiorari in an unprecedented 29 capital cases from Texas, including McFarland's. During the ensuing period between June 1 and October 21, 1993, Texas scheduled 39 executions and actually executed 10 capital ...

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