DP - Inad Rep "A person may be condemned to die in Texas in a process that has the integrity of a professional wrestling match" (Stephen Bright, Director of the Southern Center for Human Rights in Atlanta)

DP - Inad Rep Background Constitutional right to legal representation - 6th Amendment to US Constitution (Rooted in English common law) But a “right” only if defendant can afford one!!!

DP - Inad Rep Scottsboro case was first intervention by US Supreme Court (Powell v. Alabama 1932) - mandated “adequate” rep in capital cases - didn’t define “adequate” - mostly ignored by states

DP - Inad Rep 1963 Gideon v. Wainwright US Sup Court -- all criminal defendants must be represented by an attorney. Many states started Public Defenders offices following Gideon -- “minimal compliance” (Miranda warning was added in another case)

DP - Inad Rep Most Southern states did even less than this sham compliance -- appointed attorneys Driven by racism, contempt for poor, and cost (cheaper than PD)

DP - Inad Rep Result of Gideon was a “dual system” -- full rights and legal process for those who can afford to pay for an attorney -- and very inferior “pretender” and sham trials for those who can’t afford better. (this is still the way it works!!)

DP - Inad Rep Contemporary:

DP - Inad Rep Highly publicized homicides (celebrities, gruesome cases, etc.) (tiny proportion of cases) Low culpability homicides (routine homicides - argument, acquaintance, alcohol, etc.) (rarely DP cases)

DP - Inad Rep High culpability homicides (multiple, torture, child victim, etc.) Medium culpability homicides (felony-related, gang/drug related, etc.) These “qualify” for the DP under statutes

DP - Inad Rep Large proportion of high culpability cases are selected for DP trial - “worst of the worst” (but there are few of them!) Little discrimination, mostly indigent defendants (some richer defs plea barg for prison terms).

DP - Inad Rep Smaller proportion of medium culpability cases are selected for DP trial Discretion of prosecutors!! (big problem!) (but there are many more of them!)

DP - Inad Rep Most mistakes, discrimination, and other problems come from medium culpability cases. Discretion and Bias “belief” as a key problem

DP - Inad Rep Result of selection process -- mix of few high & many med culp cases, + almost all indigent defendants. Non-DP DP

DP - Inad Rep Good lawyers won't take indigent DP cases (they want paying or publicized cases) Why? Low pay, few resources for investigation & trial preparation. Bad for business - "heinous murderers” (most cases are “local”)

DP - Inad Rep Intense cases, costly in many other ways (frustrating - can't do a good job with low pay and no resources). Most defendants are guilty and will be convicted, and many will be sentenced to death and some will be executed.

DP - Inad Rep Atty will be accused of incompetence in appeal (usually correctly - no resources) Many trial lawyers actually cooperate in appeals claiming that they were incompetent at trial!!!

DP - Inad Rep Note: ABA Recommendations -- 2 attorneys, one experienced in capital trials, the other experienced in felony trials, adequate resources for trial preparation, expert witnesses, separate investigation, etc. (rarely happens - very expensive!)

DP - Inad Rep End result: Most appointed attorneys are systemically imcompetent - underexperienced and underfunded, in trouble with the courts and/or law, unskilled, etc., - often lawyers unable to get other cases.

DP - Inad Rep Then it gets worse: Judges who appoint these attorneys (often same attorneys again and again) prefer cooperative attorneys who will move cases quickly, make no troublesome motions, etc. Trial judges are often former prosecutors who have been promoted for winning cases (against incompetent defense attorneys!)

DP - Inad Rep IN ESSENCE, DEFENSE ATTORNEYS ARE SYSTEMICALLY APPOINTED TO LOSE CASES -- QUICKLY AND AT LOW COST

DP - Inad Rep Sham trials result -- Ineffective attorneys with few resources for independent investigation, trial preparation, expert witnesses, discovery, etc., results in incompetent defense and sham trials.

DP - Inad Rep Prosecutors know local unskilled defense attorneys, so they know that the trial will be a sham, little evidence will be required to convict, and this is where mistakes and discrimination originate -- prosecutor discretion. (easy cases lead to high conviction rates, public approval, and promotion to judge)

DP - Inad Rep Almost all of these indigent defendant cases result in convictions, and about half result in death sentences. Overall, most death sentences are a result of sham trials and this creates problems later (appeals, etc.).

DP - Inad Rep Note: Because of sham trials, patterns of discrimination and mistakes also characterize defendants who were convicted but not sentenced to death, and most of these cases are never appealed!

DP - Inad Rep Since the key to understanding problems with sham trial DP cases lies in what defense attorney did not do, problems tend to be "invisible" to appeals courts (problems are not in the trial record) and to the media/public. This is why they look "scandalous" when the media occasionally do exposes.

DP - Inad Rep Why the appeals process doesn't correct the problems -- Appeals are designed to adjudicate the legal process, not substantive issues regarding cases. rules not outcomes

DP - Inad Rep On appeal, many cases (but not all) get more skilled attorneys with some resources (there are many fewer cases, appeals are not as expensive or time consuming as trials, some anti-DP lawyers, pro-bono, non-crim lawyers, etc.)

DP - Inad Rep The most obvious grounds for appeal involve issues not raised at trial -- (because of sham trials)

DP - Inad Rep But now there is a legal "catch 22" -- If an issue was not raised at trial, it usually can't be raised later on appeal -- the procedural right to raise it has been "waived" by the incompetent trial lawyer!!! “the waiver”

DP - Inad Rep This leads to appeals "circus" - skilled appeals lawyers search for legal technicalities to get around the waiver problem which prevents them from raising the real issues in a case - thus the "endless appeals" process.

DP - Inad Rep If they can get a new trial, the waiver doesn't apply and real issues can be raised at new trial. Prosecutors vigorously oppose new trials partly because it is hard to win weak evidence cases in a real trial. And remember “belief” -- once they “believe” evidence doesn’t change their minds!

DP - Inad Rep Summary Most defendants are indigent (non-indigent get plea bargains) and the system provides only sham trials.

DP - Inad Rep Systemic sham trials give prosecutors the discretion to pursue weak-evidence cases, and this leads to mistakes (both high and medium culp cases) and discrimination (mostly medium culp cases).

DP - Inad Rep Appeals don’t correct the problems because the whole sham trial system has been adjudged by conservative US Supreme Court to meet Constitutional standards (Strickland v. Washington 1984).

DP - Inad Rep It would be enormously expensive to provide real trials for indigent defendants, and many of these defendants, including guilty ones, would be acquitted, enraging the public (imagine the public reaction if O.J. Simpson's attorneys had been paid with tax money).

DP - Inad Rep Plus, system works well for everybody except defendants (poor people) and appeals attorneys: Politicians appear tough on crime; cheaper and less complicated system than real trials. Judges appear tough on crime; record leads to reelection, promotions to appeals courts.

DP - Inad Rep Prosecutors appear tough on crime; conviction record gets them promoted to judges. Defense attys paid for doing little work, can't get other cases anyway. The public thinks that it all works well (because they only know about the publicized cases!) ”abstract DP”!!!

DP - Inad Rep Politicians, judges, and prosecutors with the integrity to object to or oppose any of this are punished -- “targeted” by conservatives -- voted out of office, denied promotions, publicly criticized as "soft on crime" etc. (numerous examples of this).

DP - Inad Rep Whether you are for the abstract DP or against it, the real DP is a thoroughly "broken system" and anybody who looks honestly at the way it works can't miss that fact (e.g., Governor George Ryan of Illinois)

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