Indigent Defense

  • January 12, 2018
    Guest Post

    by Lawrence J. Fox, George W. and Sadella D. Crawford Visiting Lecturer in Law, Yale Law School

    “I’ve just told you he’s guilty.”

    Still ringing through the courtroom as the last day of Robert McCoy’s trial for murder came to a close, were the stinging words, “I’ve just told you he’s guilty.” If those words had been uttered by the prosecutor, the world would have taken little note. But they were the words of Mr. McCoy’s lawyer made over his client’s express objection and protestation of innocence. They represented the ultimate act of client betrayal made by the constitutionally guaranteed defender of Mr. McCoy’s rights, his one true champion, the only participant in the criminal justice system who was constitutionally required to fulfill Mr. McCoy’s wishes so long as the client was competent and they involved no illegal conduct. On January 17, these words will be at the center of discussion at the U.S. Supreme Court, when it hears this extraordinary case, McCoy v. Louisiana.

  • October 24, 2017
    Guest Post

    by Emily Olson-Gault, director, American Bar Association Death Penalty Representation Project and Misty C. Thomas, director, American Bar Association Death Penalty Due Process Review Project

    *Affiliations are listed for identification purposes only, as the opinions expressed in this post are the authors’ personal views.

    In one week, the U.S. Supreme Court will hear oral arguments in the case of Texas death row prisoner Carlos Ayestas to decide whether his federal appeals attorneys should be afforded basic resources to investigate their client’s background and mental health. This should seem obvious, as we know that these investigations are often the only way to uncover new evidence of wrongful convictions or other constitutional violations. However, the courts below have denied Mr. Ayestas investigative resources critical to developing his defense because he could not prove in advance the very claims he sought to investigate. If the lower court’s decision sounds confusing and circular, that’s because it is. It is also an outlier practice that effectively denies poor people access to justice in the most serious and complex cases.

  • September 18, 2017
    Guest Post

    by Christina Beeler, ACS Student Board member

    President Donald Trump seemingly endorses police brutality of suspects. He said, “like when you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they’ve just killed somebody – don’t hit their head. I said, you can take the hand away, okay?” Although defenders insisted his remarks were made in jest, police departments all over the country rushed to condemn Trump’s remarks.

    Trump’s words brought up an old debate: should the protections of the Constitution extend only to those we deem worthy of empathy or is the Constitution there to protect even those who we may find abhorrent?

  • April 19, 2017
    Guest Post

    by Robert M. A. Johnson,  Former President of the National District Attorneys Association; Member, American Bar Association and Former Chair of the Criminal Justice Section.

    Under our adversarial system of justice, it is only fair that poor people accused of crimes have access to their own independent experts, just like people charged with crimes who can afford experts.

    But lawyers for James McWilliams had no access to an independent expert at the Alabama trial in which he was sentenced to death. An expert was indispensable because the lawyers received a complex psychological report and volumes of records within the two days before his sentencing hearing – some even arriving on the day of the hearing. Without consulting with a mental health expert, the lawyers could not possibly review and understand the report and records and present evidence regarding Mr. McWilliams’s mental impairments.

    This should not have happened because the Supreme Court decided – more than 30 years ago in Ake v. Oklahoma – that a poor capital defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of his defense.”

    On April 24, the Supreme Court will hold oral argument in Mr. McWilliams’s case, McWilliams v. Dunn, to determine whether an indigent capital defendant’s right to a mental health expert, upon a reasonable showing of need, encompasses the right to an independent expert who assists the defense, as opposed to an expert who is shared with the prosecution.

  • December 1, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. His first book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press in 2009, and his most recent book, Too Big to Jail: How Prosecutors Compromise with Corporations, was published in 2014.

    Can lawyers stop their own client from challenging his death sentence? Apparently, in Texas, they can. A lawyer’s most fundamental professional obligation is to “zealously” advocate for the client and uphold “justice.” Lawyers cannot give up working on a case, or put their own interests above their client’s. And yet that is what two Texas lawyers appear to have done to death row clients they were appointed to represent.

    Raphael Holiday was just executed in Texas. His two court-appointed lawyers told him that they would no longer contest his execution. “This marks the end of work for your appeals,” they said. They then told Holiday they would not seek clemency from the governor, despite a federal law requiring them to honor the client’s desire to do just that. Facing imminent execution, Holiday told the court, “They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”

    Holiday, who lacked money to hire his own lawyer, asked for the court to appoint a new one. The lawyers who said they were “not going to file further appeals” for him opposed his request, essentially telling the court that their client had nothing but frivolous claims left. The court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached. Based on the appointed lawyers’ representations, the court refused to assign a new lawyer to the case. Stephen Bright, president of the Southern Center for Human Rights, commented that it was “unconscionable” to prevent Holiday from getting new lawyers and that death penalty lawyers representing clients facing imminent executions “have a duty to make every legal argument they can.”