innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, October 25, 2006

One Lawyer or Two in Capital Cases?

This article appeared in the ABA Journal Report on October 20, 2006:

One Lawyer or Two in Captial Cases?
Louisiana Court Eyes ABA’s Call for Two Attorneys for Defendants Facing Death Penalty


For more than two decades, the ABA has held that two heads are better than one when it comes to defending someone charged in a death penalty case. Now the standard of appointing two qualified defense attorneys in capital cases has come under fire by a leading prosecutors group that asserts this is just one more step toward abolishing the death penalty by making the process too onerous.

"I testified before Congress on this subject," says Joshua Marquis, district attorney for Astoria, Ore., and a vice president of the National District Attorneys Association. "They want to have capital representation standards that are so high that basically the argument is that if you can’t provide at least this level of representation, then you can’t seek the death penalty. So you make the requirements so onerous that essentially nobody can meet them. It ends up being the functional abolition of capital punishment."

Not so, says Irwin H. Schwartz, a Seattle attorney and chair of the Criminal Justice Standards Committee of the ABA’s Criminal Justice Section. Co-counsel in capital cases allows for research assistance and emotional support, as well as a fresh perspective, Schwartz says. More important, with two attorneys, one can concentrate on the trial and the other can deal with the sentencing phase, he says. Schwartz points out that the ABA set this aspirational standard in 1985 in Criminal Justice Section Standard 5-6.1. "This is not a recent obstacle thrown in anybody’s path," Schwartz says. "It made sense 20 years ago, and it certainly makes good sense today."

At the federal level, statute requires two attorneys to be appointed in capital cases. But that doesn’t apply in a state case now being reviewed by the U.S. District Court for the Middle District of Louisiana.

The issue of whether two attorneys are needed to provide adequate representation came up during the habeas corpus hearing for Walter J. Koon, sentenced to death for killing his wife and her parents.

Koon’s attorney maintains one of the flaws in the trial stemmed from solo representation. Last August, Baton Rouge defense attorney James E. Boren asked the court to expand the record to include an affidavit from Robert M.A. Johnson, an Anoka, Minn.-based county attorney, former NDAA president and current chair of the ABA’s Criminal Justice Section. Walter J. Koon v. Burl Cain, No. 3:01-cv-00327-JJB-SCR. (The full text of Johnson’s affidavit appears below the motion to expand.)

Boren sought inclusion of Johnson’s comments after the court heard testimony last March from Hugo Holland, a Louisiana prosecutor. As an NDAA member, Holland testified that the organization actively discourages its membership from joining the ABA because the ABA "is predominantly comprised of criminal defense lawyers" and that leads to policies that favor the defense in court.

"So that’s why we encourage prosecutors not to be members," Holland testified, "so that anytime somebody brings up the ABA standards, which, by the way, in my mind, do constitute the pie-in-the-sky perfect scenario for criminal defense, we don’t want anybody to be able to point to them and say, ‘Well, prosecutors were members of that group, and they agreed with these standards.’ "

Johnson’s affidavit disputes Holland’s claims regarding the makeup of the ABA Criminal Justice Section and how the ABA drafted its standards.

"I believe that it is the care, thoroughness and balance that goes into developing the standards that has led the U.S. Supreme Court to refer to the standards as ‘guides to determining what is reasonable,’ " Johnson said in his affidavit, providing references: Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984).

Johnson went on to point out that former ABA President (and later Supreme Court Justice) Lewis Powell began the project to develop criminal justice standards back in 1964. Twenty-two years later, in August 1986, the ABA House of Delegates put a newly created committee of the Section of Criminal Justice in charge of the standards, Johnson stated. He pointed out that the nine-member committee sought balanced representation from prosecutors, defense attorneys, academicians and judges. When Defense Function Standards were developed, prosecutors filled two of the nine committee slots, he added.

On Sept. 22, the prosecution responded by asking the court to deny the motion because, in part, the defense twice deposed Holland last year and failed to elicit testimony about either the ABA or the NDAA.

The court has yet to rule on that motion.


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