What a Poor Defense! Exploring the Ineffectiveness of Counsel for the Poor and Searching for a Solution

By Parker, Jo Anna Chancellor | Jones Law Review, Annual 2003 | Go to article overview

What a Poor Defense! Exploring the Ineffectiveness of Counsel for the Poor and Searching for a Solution


Parker, Jo Anna Chancellor, Jones Law Review


"Laws are like spiders' webs: they catch the weak and the small, but the strong and the powerful break through them." (1)

INTRODUCTION

Close your eyes and imagine you are a poor person accused of a crime and cannot afford to retain counsel to represent you at trial. Fortunately, you are appointed an attorney who has been schooled in the intricacies of the law and has your best interests at heart. He will defend you wholeheartedly and will exhaust all avenues to prove you are not guilty. He will research the law ad nauseam and will ferociously defend you until he either prevails or has proven that no other alternative exists but to accept the verdict as it is delivered. He will be your knight-in-shining armor; your savior; your hero.

Now wake up! Indigents in Alabama are represented by court-appointed counsels who are compensated at some of the lowest rates in the nation. (2) Poor people accused of crimes, even in death penalty cases, are appointed lawyers from the local bar who are often unprepared and always underpaid. (3) Without a state public defender system or resources to obtain adequate legal representation, poor people in Alabama are being sentenced to death at record levels. (4) Lawyers who lack the skills, resources, and commitment to handle such serious matters often defend poor people accused of capital crimes. (5) Many lawyers call no witnesses or fail to present any defense and most are reluctant and unwilling participants in a trial process that is adversarial in name only. (6)

A Harvard study of randomly selected capital cases showed that in more than one-half of Alabama's capital cases, the entire proceedings of the penalty phase--opening arguments, the presentation of evidence, and closing arguments--by both sides were completed in less than one hour. (7) The same study revealed that in only two of forty-two cases did the penalty phase of an Alabama capital trial last longer than half a day. (8) In nearly forty percent of cases, defense counsel called fewer than two witnesses during the penalty phase. (9) In the majority of those cases, the defendant's life history was not presented. (10)

Only recently have we even recognized that the lack of effective counsel inevitably deprives the poor of the right to a fair trial. For a number of years, the shameful truth was that only the rich could obtain counsel because only the rich could afford to pay counsel. (11)

Many attorneys who represent indigents, do so proficiently. It is not suggested that those attorneys who have been accused of ineffective counsel were at the bottom of the grading curve in law school. The gross acts of inadequate representation are generally at the hand of attorneys who lack the time and re sources to properly defend a capital case. Although a properly defended capital case should require a month or more to try, a study conducted in Alabama revealed that over three-quarters of the capital trials last less than a week. (12)

Alabama is not the worst state when it comes to trying capital cases in a speedy fashion. In Louisiana, the average length of a capital trial is three days, according to a random sample taken between 1978 to 1987. (13) A Tennessee survey showed that defense lawyers in that state frequently invest less than one hundred hours before trial preparing for a capital case. (14) It is a desperate state of affairs to know that a person's life is worth less than one hundred hours of preparation. When all is said and done, it does not come down to an indifference for human life. At the end of the day it's the same song and dance, it's all about the money.

In an effort to combat the inadequate representation of indigent defendants, the state of Alabama should consider funding a public defender's office. A person's right to assistance of counsel should include effective assistance of counsel. Perhaps the installation of a public office would ensure that the representation would be at minimum, fair and compensated. …

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