INEFFECTIVE COUNSEL

870181One of the most important factors in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. It is essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to fulfill his or her obligations to the client and the court.

Studying 461 capital cases, The Dallas Morning News found that approximately one in four condemned inmates has been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers. (“Quality Of Justice” Dallas Morning News, September 10, 2000).

In Washington state, it was found that one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).

The National Law Journal, after a study of death penalty representation in the South, concluded that capital trials are “more like a random flip of the coin than a delicate balancing of scales,” because the defense attorney is “too often . . . ill-trained, unprepared [and] grossly underpaid.” (M. Coyle, et al., Fatal Defense: Trial and Error in the Nation’s Death Belt, Nat’l. L.J., June 11, 1990). States vary enormously in the quality of representation they provide to indigent defendants.

Information on Missouri Representation:

  • Missouri does not guarantee every defendant the appointment of two capital attorneys, a mitigation specialist, and an investigator at every stage of the proceedings. Furthermore, defendants charged with first-degree murder do not receive the benefit of Capital Division representation until after the prosecutor files notice of aggravating circumstances, which can be as late as twenty-five days before trial.
  • While Missouri imposes some qualification requirements for counsel undertaking capital post-conviction representation, there are no laws or policies governing the qualifications, training, and experience requirements for attorneys representing capital defendants at trial or on direct appeal. Capital-qualified counsel are especially important at trial and on direct appeal, the only two stages of capital litigation during which a defendant has a constitutional right to representation. Moreover, well-trained counsel at these stages reduce the need to remedy trial errors during state post-conviction and federal habeas proceedings, thereby preserving judicial resources and reducing the number of wrongful convictions and sentences.
  • According to a 2009 report, due to budget constraints MSPD (Missouri State Public Defender) has not offered a training program specific to death penalty cases since 2006 and has limited the number of capital attorneys permitted to attend national training seminars. In addition, MSPD no longer provides funding for the training of contract attorneys who handle capital cases.
  • Missouri does not fully compensate indigent capital counsel at a rate commensurate with the provision of high-quality legal representation or comparable to the salary scales in Missouri prosecutor offices. Furthermore, contrary to the ABA Guidelines, which call for appointed counsel to be fully compensated for actual time worked, it is MSPD policy to negotiate with contract counsel to determine a modified flat-fee rate, which is typically $15,000. However, given MSPD’s current financial constraints, it is possible that it will compensate contract attorneys at a lower flat-fee rate in the future.

For further information see: