Questions of Death Row Justice For Poor People in Alabama

The desk in Mike Williams's office is a map of his busy small-town practice. It is stacked with cases. The under-age Auburn University student charged with possession of alcohol. The collection of rent for a local real estate agent. The bitter divorce in which the wife, who is Mr. Williams's client, is charging the husband with adultery.

The case that does not fit is the one partly contained in the cardboard box on the floor: State of Alabama v. James Wyman Smith. Mr. Smith, 58, convicted of murdering a convenience-store clerk, had not had the money to hire a lawyer, and the court had appointed Mr. Williams to represent him at his two trials, even though Mr. Williams had scant experience in the practice of criminal law, not to mention the complex, ever-changing, high-stakes subspecialty of capital defense.

Mr. Williams had not even read the entire death penalty statute before his client's first trial in 1987. He had no money to hire an investigator. The state paid him so little that in a brief to the court he said he ended up making ''$4.98 per hour to prepare for the defense of a human's life.''

Sitting in his office, Mr. Williams declared, ''I will go to jail before I handle another capital case.''

Mr. Smith died on death row two weeks ago, of liver failure.

A majority of the public across the country supports capital punishment. But in states, there is an intensifying national debate over the issue of justice, focusing on the quality of the legal representation provided to poor people accused of capital crimes. At its sharpest, it is a question of whether some innocent people are on death row only because their state does not provide the resources for an adequate or competent public defender system.

Last month, the pro-death-penalty Republican governor of Illinois, George Ryan, called for a moratorium on the death penalty after concluding that 13 innocent people had almost been executed, in some cases because of dismal defenses mounted by incompetent, poorly paid lawyers.

Senator Patrick J. Leahy, Democrat of Vermont, recently introduced legislation that set national standards to ensure that competent lawyers are appointed for capital defendants. The Justice Department has initiated its own review to determine whether the federal death penalty system unfairly discriminates against racial minorities.

Some states, including New York, New Jersey and Colorado, have multimillion-dollar capital defender offices that provide teams of lawyers and investigators for people in death penalty trials.

At the other end of the spectrum is Alabama, which, with a death row growing at the fastest rate in the country, has no statewide public defender system. Court-appointed capital defense lawyers here are paid so little that many lawyers refuse the work.

In cities like Montgomery and Birmingham, where the pool of lawyers is greater, lawyers can remove themselves from the list of those willing to be appointed to capital cases. But in smaller jurisdictions, like Opelika, a judge can compel a lawyer to take a case, or find the lawyer in contempt for refusing.

So the job often falls to young, inexperienced lawyers, or older ones who earn a living through court appointments, leaving many of those charged with capital offenses with inadequate representation at trial, and some without representation in the appeals process.

''Basically these folks are sent into battle underequipped, undertrained and undercompensated,'' said Kevin Doyle, the New York capital defender, who spent five years working on capital cases in Alabama with the federally financed capital defense resource center, which Congress has since eliminated.

Two people on Alabama's death row have been found innocent since executions were reinstated in the late 1970's. Nationwide, there were 85 such cases.

''Alabama is our top priority,'' said Elisabeth Semel, who as head of the American Bar Association's death penalty representation project in Washington recruits law firms across the country to handle cases pro bono. ''The need for competent lawyers there is desperate.''

Numerous studies by legal experts of Alabama's capital defense system have documented severe shortcomings, including lawyers who fail to do the most fundamental tasks, like investigating the crime and their clients' backgrounds and presenting closing arguments.

The Alabama attorney general, Bill Pryor, a Republican, said he had no concerns about the quality of court-appointed defense counsel for people in death penalty cases at any stage in the process, from arrest to death row. ''My judgment is that at both the trial and appellate level we face very experienced and competent opponents,'' he said.

''We have not had the problems they have in Illinois,'' he added. ''No one can design a perfect system of justice. I would like to have more resources for the young lawyers who come to work for me.''

Mr. Pryor said he is concerned that the appeals process takes too long, a criticism made by many prosecutors of their state justice systems. For example, he said, execution is set for Friday for Freddie Lee Wright, who has spent 22 years on death row while lawyers appealed his case.

The 1963 United States Supreme Court decision Gideon v. Wainwright guaranteed all defendants the right to counsel.

In Alabama, the state appoints two lawyers to defend each capital case. Each must have at least five years experience in criminal law, but this can include cases like shoplifting and driving while intoxicated.

The lawyers are appointed to cases, and paid, by elected judges who, in this staunchly pro-death-penalty state, campaign on their records of sending defendants to the electric chair. The lawyers must also apply to the judges for state money to hire experts and investigators.

The state pays court-appointed lawyers. The rate was $20 an hour for time spent outside court, $40 for court time, plus overhead, until last year, when it was raised to $30 and $50, plus overhead. Next fall it goes up to $40 and $60. The payments are also approved by the judges. Court-appointed lawyers in federal cases are paid $75 to $125 an hour.

Mississippi, Texas, Virginia and Georgia also have relatively low rates of compensation, and none have statewide public defenders. Mississippi, which has a death row about a third the size of Alabama's, pays a flat fee of $1,000 plus overhead for each capital case.

In interviews, defense lawyers here said the money was so little that they could not afford to prepare a proper defense. They often spend 50 hours or less on capital cases; adequate preparation, experts say, should take 500 to 1,000 hours.

One death row inmate, Donald Dallas, had eight court-appointed lawyers before his trial in 1995 even began, one after another bailing out because of money and time constraints.

His first lawyer failed to contact him after his arrest and, without benefit of counsel, Mr. Dallas gave the police a signed confession. He was convicted of murdering an elderly woman who died of a heart attack after he robbed her and locked her in the trunk of a car.

Mike Williams did a far better job than many court-appointed lawyers, said Bryan Stevenson, a Harvard-educated lawyer in Montgomery whose nonprofit Equal Justice Initiative office, with a $575,000 annual budget raised through donations, is representing more than 100 inmates already on death row.

But appointing lawyers like Mr. Williams to handle capital cases, he said, ''is like asking an overextended general practitioner to do brain surgery.''

Mr. Stevenson said his office had won 60 reversals of death row cases in the last 10 years; many of them, he said, could be traced to errors made by lawyers on both sides, including allowing racially discriminatory juries and prosecutorial misconduct.

At his desk in his office the other day, Mr. Stevenson took a call from Larry George, who is mentally ill and on death row for killing two people. ''Do I have a lawyer yet?'' the inmate wanted to know.

Mr. Stevenson, who says he and the four other lawyers in his office are overwhelmed by the cases they have, told Mr. George he was still trying to find him one.

There are 187 people on death row here, twice the number 10 years ago, making Alabama's the third-largest death row per capita in the country. The death row is expanding so rapidly that Holman State Prison has run out of room, and 30 inmates are being held at Donaldson Correctional Center while the space is expanded at Holman.

Last year Alabama sentenced 27 people to death, more people per capita than any state in the country. California, with eight times the population of Alabama, sentenced 31. There are 300 people awaiting capital murder trials in Alabama.

The United States Supreme Court has said that everything about the defendant's life must be taken into account in sentencing. The defense lawyer has the responsibility to present all evidence about his client's background -- mental impairment, difficult childhood, work history, family life, school records -- in an effort to persuade the jury to spare the client's life.

But a 1996 study by a group opposed to the death penalty found that in Alabama, court-appointed lawyers spent an average of three hours trying the penalty phase.

''The closing arguments alone are going to last an hour and a half, so that means they're not often presenting any evidence,'' said Stephen B. Bright, a lawyer who heads the Southern Center for Human Rights, in Atlanta.

Mr. Bright handled the appeal of Judy Haney, an Alabama woman who hired her brother-in-law to kill her husband after he had abused her and her children for years. Ms. Haney's court-appointed lawyer was so drunk that the trial had to be delayed a day after he was held in contempt and sent to jail to dry out. The next morning he returned to the courtroom, and the death penalty was imposed a few days later.

After several years on death row, Mrs. Haney was resentenced, to life imprisonment without parole.

Horace Dunkins's court-appointed lawyer failed to inform the jury, or even to discover that his client was mentally retarded. After local newspapers reported that Mr. Dunkins was retarded, at least one juror came forward and said she would not have voted for the death sentence had she known. Mr. Dunkins was electrocuted in 1989 for the rape and murder of a 28-year-old mother of four.

Mr. Stevenson recently sought clemency for Robert Lee Tarver Jr., 44, who was convicted in the 1984 murder of a Russell County store owner. Mr. Stevenson contended that Mr. Tarver's original lawyer had failed his client, including in the sentencing phase of the trial, when he offered no evidence that might have elicited sympathy for him, like the fact that he was a good father, had strong family ties and had a drinking problem.

This is not an unusual contention. What is unusual is that the judge who sentenced Mr. Tarver to die later said he would not have done so had he known these facts.

Mr. Stevenson's clemency request for Mr. Tarver was rejected by Gov. Donald Siegelman, and the state asked last week that an execution date be set.

At his one-man office in Birmingham the other day, Wilson Meyers, a criminal defense lawyer, pulled out a voucher he had filed recently for representing a 32-year-old man who had been charged with capital murder and had ultimately received life without parole.

His itemized bill came to $13,399, including pre-approved investigator fees of $2,385.

The judge in the case reduced his payment to $4,128, saying that while Mr. Meyers had put in the time, his fees were ''too excessive.''

After paying his investigator and paralegal, Mr. Meyers said, the case would earn him $1,212, which worked out to $5.05 an hour.

''I do not have the financial resources to absorb a cut of that amount,'' he said.

Back in Opelika, Mike Williams has saved the letters Mr. Smith wrote him regularly during his 14 years on death row, inquiring about his three children. Mr. Williams went to his wake two weeks ago.

''I just don't think he got a fair trial,'' Mr. Williams said.

It was not until after the first trial, Mr. Williams said, that he himself fully grasped the legal issues involved. ''It takes two or three of them to know how to do the fourth one right.''

''I've been involved with five,'' he added. ''I've done my duty. I'm not going to do another.''