The U.S. Supreme Court, in a long-overdue move, heard a case Tuesday involving interpretation of the Sixth Amendment’s right-to-counsel clause. For too long, the constitutional right to counsel has meant little more than a defense lawyer’s presence in court, no matter how inept that lawyer might be.
The case – Bell vs. Cone – involves Tennessee death row inmate Gary Cone’s claim that he did not get effective legal representation during the sentencing phase of his trial. Cone, a Vietnam veteran, was convicted in 1982 for a two-day crime spree ending in the beating death of an elderly couple. Cone says mental trauma stemming from his experiences in the Vietnam War, as well as his drug use, contributed to him committing the crime. During the trial’s sentencing phase, however, his lawyer – a mentally ill man who committed suicide six months after the trial – made no attempt to bring up any of these mitigating circumstances. In fact, Cone’s lawyer cross-examined only one of the prosecution’s five witnesses, called no mitigation witnesses, offered no mitigating evidence and didn’t give a closing argument.
Unfortunately, cases like Cone’s are all too common. Columbia University law professor James Liebman’s study, “A Broken System: Error Rates in Capital Cases, 1973-1995,” attributed most errors in death penalty cases to “egregiously incompetent defense lawyers who didn’t even look for – and demonstrably missed – important evidence that the defendant was innocent or did not deserve to die.”
Embarrassingly, the judicial system’s current standards for meaningful representation sink even lower than lawyers who simply don’t know what they’re doing. The attorney for Texas death row inmate Calvin Burdine actually slept through most of the murder trial, according to Marcia Coyle’s article in Thursday’s National Law Journal.
Such conduct can by no stretch of the imagination be considered legal defense. In our litigious society, the lawyer should serve as the most important line of defense against wrongful prosecution, not as a punch line. This is especially true in cases involving the death penalty. There is literally no margin for error, and any attorney not up to the task should be dismissed immediately or, better yet, not given the case in the first place.
Justice Sandra Day O’Connor finally seems willing to consider imposing minimum standards, and Justice Ruth Bader Ginsberg recently revealed she has never seen a last-minute reprieve request from an inmate who received proficient legal help during his or her trial.
Despite White House pressure to do otherwise – President George W. Bush unsurprisingly came out against Cone – the court must take a serious look at redefining what constitutes effective counsel in the United States. And it needs to do it soon, because with death penalty cases, justice delayed is truly justice denied.
