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Ineffective Assistance of Counsel

In Powell v. Alabama (1932), the Supreme Court agreed that counsel should be provided for indigent defendants and noted that counsel should have reasonable time to prepare a defense as elements of the Fourteenth Amendment’s due process clause dictate. While many thought that Gideon v. Wainwright (1963); Douglas v. California (1963) guaranteed the right to effective assistance of counsel, it was not until Cuyler v. Sullivan (1980) that the Supreme Court ruled on this issue. In Cuyler v. Sullivan (1980), the Supreme Court ruled that without counsel’s ability “to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself ” (p. 343). The right to effective assistance of counsel was extended beyond the trial to the defendant’s fi rst appeal in Evitts v. Lucey (1985).

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Because of economic costs associated with death penalty cases, the best lawyers are systematically barred from them, since states are not going to adequately provide resources to investigate, prepare, and try these cases. Only a few capital offenders can afford the type of lawyer really needed because of the complexities of these cases. Yet most capital offenders are indigent and must be represented by a court appointed lawyer. Oftentimes these lawyers are of two types (1) pretty good—has experience trying death penalty cases but is not well-versed in death penalty law and (2) lawyer in name only—may be one who has passed the state bar but can barely pass muster. In some states in the “death belt,” there are established standards for counsel in death penalty cases. For example, in Alabama a lawyer must have fi ve years criminal law experience. Yet, even with standards such as these, some death row inmates receive ineffective assistance of counsel. For example, the attorney in Alabama v. Thomas (1981) had more than ten years criminal experience and had even tried death penalty cases, but under the old law. He made numerous mistakes that helped sentence his client to death, such as failing to establish a defi nite division of responsibilities for trial preparation, knowing that capital cases were bifurcated trials. During the defense attorney’s disposition, the following exchange occurred regarding trial preparation:

Q. What, if you can recall, factors led you to believe this wasn’t a death case? A. From years of practice and being a shothouse killing and both people having knives and

what used to be referred to around here as a n—cutting or a n—killing. And, unfortu- nately, that was an attitude that was changing, in the change, I suppose, maybe about that time. But it happened to be a black on black. But it still surprised me, because the black on black weren’t dispensed equal and just either at that time.

(Burroughs, 1985, pp. 14 –15)



30 Age, Class, and Sex Disparities


In other death penalty cases an attorney was held in contempt of court and jailed for intoxication during the trial ( Alabama v. Haney , 1988), and the court in Young v. Zant (1980) noted that the lead attorney in this case had no understanding of Georgia’s bifurcated trial proceedings: even when they were explained to him, he still could not comprehend.

Jury Selection Process

The use of peremptory challenges to remove prospective jurors because of their race and views regarding the criminal justice system has been a practice for years. The belief was that black jurors were more sympathetic than white jurors. Perhaps the most notable case regarding the removal of potential jurors based due to race is Batson v. Kentucky (1986); although the issue had been raised in Swain v. Alabama (1965), the court ruled that there was no inference of discrimination. In Batson , how- ever, the court ruled that the exclusion of potential jurors based on their race was a violation of the Equal Protection Clause of the Fourteenth Amendment. Arizona and Texas Courts also ruled against race-based peremptory challenges ( State v. Gardner , 1988; Seubert v. State , 1988). The removal of poten- tial jurors has also been the subject of several death penalty cases that have come under review by state and federal courts. The Supreme Court also addressed the issue of excluding women from jury service in Glasser v. United States (1942); Ballard v. United States (1946); Hoyt v. Florida (1961); and Taylor v. Loui- siana (1975). In all these cases, except Hoyt , the court held that the exclusion of women from the jury panels was not acceptable. It also stated that women bring a distinct voice to the proceedings and that voice must be heard. In essence, without women on the jury, it is not truly representative of the com- munity, as required by the Sixth Amendment. In J.E.B. v. Alabama (1994), the Supreme Court held that “gender, like race, is an unconstitutional proxy for juror competence and impartiality” (p. 158).

The use of race-based peremptory challenges appears often in the death belt but is not unique to the area. According to Hudson (1988), the idea was “shared with prosecutors, while I was a prosecutor, almost everywhere, at state conventions, at national conventions . . . I look to it as more of a social application” (p. 67). For example, in Alabama v. Thomas (1981), prosecutors would hold private meetings on Sundays to discuss prospective jurors. In this case, it was determined through depositions of former prosecutors that records of past jurors had been kept over a 20-year period with various information (i.e., race, previous cases, the type of verdicts rendered, where they worked, etc.) to help provide some insight about how this person might vote, whether for or against the state. The continued use of peremptory challenges to exclude black prospective jurors was argued November 2, 2015, before the Supreme Court in Foster v. Chatman , No. 14-8349, a case from the death belt (Georgia). The court found enough evidence to reverse and remand this case, although the Georgia Supreme Court ruled against the defendant in previous review. It appears that this is a practice that will continue and be challenged throughout our state and federal courts. There are other issues with the jury that are sometimes raised as a part of prosecutorial misconduct.

Prosecutorial Misconduct

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