Death Row Inmates’ Lack of Lawyers Told

SAN FRANCISCO —  As more and more convicted murderers in the United States are sentenced to die, there is a growing shortage of lawyers to represent Death Row inmates throughout the long and complex capital appeals process, a panel of legal experts said Friday.

A report based on a special study by the American Bar Assn. said that more than 150 of about 1,900 people on Death Row do not have an attorney and that it was “entirely likely” some will be executed this year without having had legal representation in the final stages of their appeals.

“We can’t allow this situation to continue,” said Esther F. Lardent, a consultant to the American Bar Assn.’s Postconviction Death Penalty Representation Project. “No one should be put to death without having had a lawyer representing him throughout the process.”

ABA Annual Meeting

The report was presented at a panel discussion sponsored by the National Conference of Bar Presidents and National Assn. of Bar Executives and held in conjunction with the annual meeting of the ABA, whose 330,000 members represent about half of the lawyers in the nation.

Panelists representing several states, including California, focused on the special problem of finding counsel to represent condemned killers in postconviction proceedings--the secondary phase of the appellate process that takes place after a sentence has been upheld on direct appeal.

Many states do not provide lawyers during these secondary appeals, and indigents often must rely on volunteer legal assistance.

The ABA report, attempting to refute the contention that such appeals are frivolous or dilatory, said significant procedural errors at trial have often been discovered during these later proceedings. For example, it said, state courts to date have reversed 45 death sentences in the postconviction process.

Marna S. Tucker, a past president of the District of Columbia Bar Assn. who chaired the panel, described the shortage of legal representation as a “crisis,” saying there “are simply not enough lawyers to handle a growing problem.”

Joseph H. Nagy, president of the State Bar of Texas, said that in his state an effort had only recently begun to recruit more attorneys to help in the appellate process. A recent study showed that of 242 inmates on Death Row in Texas, only 20% are likely to have lawyers to represent them in postconviction appeals.

But Nagy added that he is “not optimistic” about enticing enough lawyers to give up the time they otherwise would spend on more lucrative activities.

David M. Heilbron of San Francisco, representing the State Bar of California, reported that a landmark program called the California Appellate Project, started in 1984, has been able to recruit and assist enough lawyers to represent this state’s Death Row inmates throughout the appellate process.

Under the Bar-sponsored program, private attorneys are paid $60 an hour with state funds to handle capital cases that often last as long as five years.

Heilbron noted, however, that there are 187 capital cases pending before the state Supreme Court and that the number of death verdicts--about 25 a year--could increase under a new and more conservative high court, following the departure of Chief Justice Rose Elizabeth Bird and two other justices defeated in the fall election.

“Some people fear that this court may be less hospitable--or whatever you want to call it--to death penalty appeals than the court it replaced,” the attorney said. “If that happens, there could be more death penalty cases coming out of the trial courts.”

Since capital punishment was restored in California in 1977, the state Supreme Court has reversed 65 of 69 death sentences that came to the court on direct appeal. The four convicted killers whose sentences were affirmed are represented by lawyers and are pressing collateral appeals in state and federal courts.

Stephen O. Kinnard, an Atlanta attorney active in a campaign to recruit attorneys to assist in capital cases in Georgia where 109 inmates are on Death Row, said he expected the appellate process to be “speeded up” in the wake of a series of decisions by the U.S. Supreme Court upholding capital punishment.

“We are entering a whole new era,” Kinnard said. “It’s going to be on fast-foward from here on out.”

Among other rulings, the high court last spring rejected perhaps the last broad constitutional challenge to the death penalty. It held that statistical evidence showing that the killers of whites were more likely to be sentenced to death than killers of blacks does not prove that capital punishment is being imposed in a racially discriminatory way.