New death penalty rule falls short

BROCK

By JOHN A. BROCK

The Judicial Council recently addressed the subject of necessary qualifications for lawyers assigned to represent defendants in capital cases. There is wide agreement among informed people that quality of performance of defense counsel is a very significant factor in predicting results in capital litigation. It is commendable that the Judicial Council has acted in this area. In my view, Rule 4.117, which took effect Jan. 1, should be seen as an initial step in the right direction.

Rule 4.117 defines "minimum qualifications" for lawyers "appointed to represent" capital case defendants. Included, for example, are requirements that lead counsel have 10 years of criminal litigation experience, have tried specified numbers of cases and meet specific MCLE training requirements.

A good argument can be made that the qualifications set out are minimal and will do little to improve the practice in this area. On the other hand, a good argument can probably be made that whatever rules are devised, some very inadequate lawyers will still qualify because factors that easily lend themselves to measurement, such as a number of cases tried, simply fail to address the quality or skill of the lawyer's effort.

We all have seen the articles about individual lawyers who have multiple former clients on death row. No one suggests those lawyers lack trial experience. Other sections of the rule do try to assess areas that are more subjective and therefore more difficult to measure, but they seem so general as to be of little use. And, of course, paragraph (f) of the rule sets out "alternate qualifications" so that a lawyer who failed to possess the "minimum qualifications" may still be appointed. A cynic might argue that paragraph (f) has the potential to undermine the entire rule.

The existence of rule 4.117 is an acknowledgment that capital cases are different from ordinary criminal cases and from other kinds of trials. In capital cases, lawyers are required to contend with issues and perform tasks they are not familiar with from their work in other cases. The factual analysis involved in determining whether guilt has been proven is different from the moral and normative considerations involved in deciding whether a defendant's life should be taken.

Investigating and developing mitigation by means of a thorough social history in an effort to present the client as a human being in the context of his developmental background is a daunting task foreign to ordinary criminal practice. The necessity of establishing an effective working relationship with the client in capital cases is far more critical than in other cases, yet is sometimes far more difficult to accomplish because these individuals have been badly damaged by the events in their lives. Experience with ordinary trials is certainly important preparation, but simply trying a fixed number of cases and meeting other modest demands of the rule cannot guarantee that a lawyer will be prepared for what is involved in trying the penalty phase of a capital case.

It is not my purpose to criticize the considerable work done in drafting the current rule. I am writing to urge that it be considered a beginning and to express hope that a published report was correct in saying that the Judicial Council is exploring a suggestion that a screening panel or panels of judges and lawyers experienced with these cases be assigned the role of determining which lawyers are qualified to represent capital defendants. I recognize that creating such a panel or panels will require considerable effort, so it is perhaps worth considering the nature of the problem.

Most capital defendants cannot afford counsel and instead must rely on an appointed lawyer to represent them. The state charges an individual defendant with a capital crime. When that defendant cannot afford to hire counsel, the state selects and appoints the lawyer for the defendant. When this lawyer performs incompetently or inadequately and a death verdict is returned, should we not feel uncomfortable about our system in which the defendant has had so little say about who was charged with looking out for his interests? Is it not troubling that the state both accused this defendant and provided him with a lawyer who proved inadequate?

It is simply an unavoidable fact that in some of these cases death verdicts are returned where better lawyering could have prevented that outcome and where the wrong done will not be righted on appeal or writ. In some of those cases, juries could have been persuaded to a different verdict by a more talented lawyer or one more committed to the defendant's interests.

In some of those cases, a life-saving disposition could have been achieved without trial had the lawyer recognized the wisdom of that course and/or had a more effective relationship with the client enabling him to convince the client to agree to that course.

As long as we pursue capital punishment, we need to recognize that the power of the state will often be directed at individuals who have little ability to protect themselves. Se-lecting that man or woman's defender matters a great deal to that defendant as well as to us as a society that believes in individual justice.

Rule 4.117 is a good start and we should continue to move ahead in this area. The qualifications set out in the rule should be specifically understood to be evolving. We should continue to refine and define qualifications. The goal should always be to consistently achieve high quality representation. And, as mentioned above, I suggest a panel or panels of experienced judges would do a better job of evaluating the qualifications of lawyers for appointment on these cases.

Under the present rule, it appears that the trial court appoints counsel and somehow must first itself make an assessment of whether counsel qualifies under the rule. Presumab-ly, some process or protocol will be devised to assist the courts in this task. Still, will application of this rule produce consistent results in the courts of numerous different judges whose experience in these matters will vary widely from jurisdiction to jurisdiction?

A panel approach seems better suited than individual trial judges for making these determinations. The advantages are several. A panel or panels of experienced judges and lawyers regularly reviewing qualifications would quickly acquire experience and some expertise in making these determinations. The panel would develop a sense of the quality of the lawyers in the available pool and of the variety of the talents and skills among those lawyers. As they review and compare applications, they would likely find additional or better ways to define or measure the qualities relevant to effectively trying these cases.

In other words, they would accumulate knowledge from their work which the Judicial Council could readily access and utilize should it seek to improve upon what it has set out in rule 4.117. Members of a permanent or ongoing panel would have the time, motivation and flexibility when appropriate to seek out additional information about lawyers seeking to be found qualified. The applicant could be contacted with particular questions or other lawyers from his or her community could be contacted as references. As practicing lawyers, we tend to know who in our community is competent and to what degree.

I recognize that these few suggestions will involve considerable ongoing effort. It is also clear that the best we can hope to achieve is im-provement, not perfection. Given what is at stake, the argument for making this effort is compelling.

John A. Brock supervises capital cases in the Los Angeles Public Defender's office.