NEITHER EQUAL NOR JUST:
THE RATIONING AND DENIAL OF LEGAL SERVICES TO
THE POOR WHEN LIFE AND LIBERTY ARE AT STAKE
By Stephen B. Bright*
New York University School of Law Annual Survey of American Law
Volume 1997, page 783 (published in 1999)
Copyright © 1999 Annual Survey of American Law; Stephen B. Bright

[Footnotes appear at the end of the document]
The ration of legal services for the poor person accused of a crime has been remarkably thin in
most of the United States. Despite the constitutional right to counsel established over thirty-five
years ago in Gideon v. Wainwright,1 many states have yet to provide capable lawyers to represent the
accused, and the resources necessary to conduct investigations and present a defense. A poor person
may be without counsel when bail is set or denied, and during critical times for pretrial investigation.
He or she may receive only perfunctory representation--sometimes nothing more than hurried
conversations with a court-appointed lawyer outside the courtroom or even in open court-- before
entering a guilty plea or going to trial. The poor person who is wrongfully convicted may face years
in prison, or even execution, without any legal assistance to pursue avenues of post-conviction
review. While in prison, he or she may endure practices and conditions which violate the
Constitution, but have no access to a lawyer to seek remedies for those violations.
In contrast, the person with adequate resources may secure a lawyer who will make a case for
and perhaps obtain release on bail, work closely with the client in conducting an immediate and
thorough investigation, present a vigorous defense at trial, pursue all available avenues of
post-conviction relief, and challenge any constitutional violations that occur in prison. Attorney
General Janet Reno recently observed that if justice is available only to those who can pay for a
lawyer, "that's not justice, and that does not give people confidence in the justice system."2 Yet little
is being done to remedy this denial of equal justice. Indeed, the situation is deteriorating in many
parts of the country.
This article examines the availability and quality of legal services for poor persons accused of
crimes at each stage of the criminal justice process--from arrest through trial, appeal, and
post-conviction proceedings--and for those convicted of crimes, who languish in prisons and jails in
need of access to the courts for protection of their constitutional rights. It will discuss the
indifference to injustice on the part of judges, lawyers, legislators, and a public that allows a country
with over a million lawyers to leave many of those most in need of legal assistance without counsel at
all, and too often with grossly inadequate counsel when any is provided. Finally, it discusses the need
for law schools and the legal profession to respond to these grave deficiencies in the system of justice
and see that we do not give up on the unfulfilled quest for equal justice.

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I
THE LACK OF LEGAL SERVICES FOR
THOSE IN THE CRIMINAL JUSTICE SYSTEM
A small minority of jurisdictions in the United States have created and funded good public
defender offices and assigned counsel programs which secure capable lawyers and provide training
and supervision, adequate compensation, and investigative and expert assistance.3 As a result, some
poor people accused of crimes are fortunate to be represented by capable lawyers, whose
extraordinary dedication, selflessness, and persistence have provided a glimpse at the realization of
the dream of Gideon v. Wainwright. In addition, lawyers with public-interest programs and lawyers
providing their services pro bono have represented inmates by challenging their convictions or
conditions of confinement.
But there are not nearly enough good, adequately funded programs and dedicated lawyers to
represent the thousands of people caught up in a criminal justice system which sends more and more
people to prison even as crime rates decline.4 An American Bar Association report found "long-term
neglect and underfunding of indigent defense ha[ve] created a crisis of extraordinary proportions in
many states throughout the country."5 As a result, many states provide poor defendants only
perfunctory representation at trial and on appeal, and make no provision for legal assistance to the
poor to challenge their convictions in post-conviction proceedings or to seek remedies for violations
of constitutional rights while in prison.

A. Disregard of the Constitutional Right to Counsel at Trial and on Appeal
The Supreme Court held in Gideon that a poor person facing felony charges "cannot be
assured a fair trial unless counsel is provided for him."6 But in the years since, the courts have held
that the lawyer need not be aware of the governing law,7 sober,8 or even awake.9 Even though a
lawyer's immediate assignment and representation at the initial bail proceeding increase the likelihood
that the accused will be judged fairly,10 most jurisdictions do not provide counsel for bail hearings,11
thereby denying the accused an immediate consultation with counsel, possible release pending trial,
and a prompt investigation of the facts.12 And, although the Supreme Court has held that the state
must provide the indigent with transcripts13 and counsel for one appeal,14 a one-page brief may be
sufficient, even in a capital case,15 and counsel need not show up for oral argument.16
The systems of "indigent defense" that have emerged in many jurisdictions make no pretense
of complying with Gideon's mandate of supplying counsel to improve the defendant's chances of
receiving a fair trial. In these jurisdictions, the poor person facing loss of life or liberty may be
assigned a lawyer who lacks the knowledge, skills, and often even the inclination to defend a case
properly.17 Further, state and local governments are unwilling to allocate adequate resources for the
representatives of indigent criminal defendants. A lawyer assigned to represent an indigent defendant
is paid far less than he or she could make doing any other type of legal work, and is denied the
resources necessary for a full investigation and the retention of necessary expert witnesses.18 Yet it is
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the defendant who pays with his or her life or liberty for the lawyer's ignorance of the law or failure to
present critical evidence.19

1. Resistance to Gideon
There has long been and continues to be resistance and indifference to fulfilling the
constitutional mandate of Gideon. Over ten years after the Supreme Court decided Gideon, the
Georgia District Attorney's Association responded to a bill introduced in 1976 for statewide funding
of indigent defense by telling legislators that the bill constituted "the greatest threat to the proper
enforcement of the criminal laws of this state ever presented."20 The vehement opposition by
Georgia's judges and prosecutors delayed any state funding for years and has prevented to this day the
establishment of a comprehensive indigent defense system there.21
Even in the absence of such resistance, most state and local governments have been more
concerned with keeping costs low than with providing quality defense services or with ensuring fair
trials. When they have examined factors other than costs, many evaluate indigent defense programs
not from the standpoint of ensuring fair trials, but with an eye to increasing administrative
convenience in moving dockets and securing convictions. In the pursuit of saving money,
governments increasingly award contracts for representing indigent defendants to the lawyer who
submits the lowest bid.22 Many states pay lawyers appointed to defend the poor such low rates that in
some cases the attorneys make less than the minimum wage.23 Many jurisdictions have either refused
outright to establish public defender programs, or have established programs but underfunded them,
leaving the lawyers in those programs with staggering caseloads.24
Despite the Supreme Court's 1972 decision in Argensinger v. Hamlin,25 requiring counsel for
poor people jailed for minor offenses, some jurisdictions still do not provide a lawyer for such cases.26
A county in Georgia, which for years did not provide legal representation for indigents facing
misdemeanor charges, but instead gave them a form containing a waiver of rights and plea of guilty to
sign,27 only recently agreed to advise persons of their right to counsel.28
Many jurisdictions process the maximum number of cases at the lowest possible cost without
regard to justice. For example, the county commission in McDuffie County, Georgia, decided in
1993 that the $46,000 a year it was spending on indigent defense was too much, even though,
according to the chairwoman of the commission, the attorneys appointed to indigent cases were being
paid "about half of what they would normally receive."29 The commission announced that it would
accept bids from any member of the local bar to take indigent cases.30 The commission specified no
qualifications and established no mechanism for judging the qualifications of those who submitted
bids.
The commission awarded the contract to Bill Wheeler, whose $25,000 bid was almost
$20,000 lower than the other two bids, $44,000 and $42,000.31 The contract allowed Wheeler to
maintain a private practice as well as defend the county's indigent defendants. The savings of $21,000
3

to McDuffie County was not as beneficial for poor people charged with crimes--or for justice--as it
was for McDuffie County's treasury. Wheeler often meets people accused of crimes for the first time
in open court and enters guilty pleas on their behalf after only a few minutes of whispered
discussions.32 Court records disclose that in the first four years that he had the contract, Wheeler
tried only three cases to a jury while entering 313 guilty pleas.33 Most remarkably, during that period,
he filed only three motions.34
In jurisdictions where judges appoint lawyers to defend cases, it is no secret that judges do not
always appoint capable lawyers to defend the poor. Clarence Darrow made an observation that is as
true today as it was when he made it in 1924: "[N]o court ever interferes with a good lawyer's
business by calling him in and compelling him to give his time" in defense of an indigent defendant.35
Many judges prefer to appoint lawyers who try cases rapidly, instead of zealously, in order to move
their dockets.
In the last forty-five years, judges in Houston, Texas have repeatedly appointed Joe Frank
Cannon, known for hurrying through trials like "greased lightening," to defend indigent defendants
despite his tendency to doze off during trial.36 Ten of Cannon's clients have been sentenced to death,
one of the largest numbers among Texas attorneys.37 While representing Calvin Burdine at a capital
trial, Cannon "dozed and actually fell asleep" during trial, "in particular during the guilt-innocence
phase when the State's solo prosecutor was questioning witnesses and presenting evidence."38 The
clerk of the court testified that "defense counsel was asleep on several occasions on several days over
the course of the proceedings."39 Cannon's file on the case contained only three pages of notes.40 A
law professor who later represented Carl Johnson, a previous Cannon client, in post-conviction
proceedings found that Cannon's "ineptitude . . . jumps off the printed page" and that Cannon slept
during the proceedings.41 Nevertheless, the death sentences in both cases were upheld. Carl Johnson
has been executed.
Judges in Long Beach, California assigned the representation of numerous indigent
defendants to a lawyer who tried cases in very little time, not even obtaining discovery in some of
them.42 According to a former supervisor at the local public defender's office, judges liked the
lawyer, Ron Slick, "because he was always ready to go to trial, even when it seemed he had
inadequate time to prepare."43 A substantial number of his clients asked judges to appoint someone
else to defend them, but their motions were denied.44 At one time, Slick had the distinction of having
more of his clients sentenced to death--eight--than any other attorney in California.45
A former president of the Arkansas Association of Criminal Defense Lawyers, who was also
involved in the defense of many capital cases in Arkansas, has described the plight of lawyers in that
state.46 Lawyers there are in effect either forced to spend their own money or to perform "a sort of
uninformed legal triage," ignoring some issues, lines of investigation, and defenses because of the lack
of adequate compensation and resources.47 But the attorneys do not bear the greatest costs of this
approach: "The lawyer pays some--in reputation, perhaps--but it is his client who may pay with his
liberty or his life."48

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Children pay as well for the failure of the system to provide competent counsel. The quality
of legal representation for children facing delinquency proceedings in juvenile courts is a disgrace in
many parts of the country.49
2. The Consequences For Poor People Accused of Crimes
The lack of representation at early stages and inadequate representation once a lawyer is
assigned increase the risk of conviction of the innocent, often result in critical evidence not being
presented to a jury or judge, and deprive the poor of the protections of the Bill of Rights.
Supreme Court Justice John Paul Stevens observed that the "recent development of reliable
scientific evidentiary methods has made it possible to establish conclusively that a disturbing number
of persons who had been sentenced to death were actually innocent."50 According to Justice Stevens,
this "most dramatically illustrated" the consequences of the failure to provide competent legal counsel
to the poor.51 The United States Department of Justice has also shown concern for the number of
people convicted by juries but later exonerated by scientific evidence.52 Other observers have
documented numerous instances of conviction of innocent people.53
Courts decide many other issues in criminal cases besides guilt or innocence. The integrity of
the process by which those decisions are made is important if just results are to be reached. One of
the most important decisions courts make in cases in which the defendant is found guilty is how the
offender is to be punished. Punishments range from community service, to fines, to days in jail, to
years in prison, to life imprisonment without the possibility of parole, to death. Competent legal
representation is essential to ensure that such decisions are as well informed as humanly possible.
Judges and juries often make important decisions without critical evidence because lawyers
fail to present it. Justice Thurgood Marshall once observed that "[t]he federal reports are filled with
stories of counsel [in capital cases] who presented no evidence in mitigation of their clients' sentences
because they did not know what to offer or how to offer it, or had not read the state's sentencing
statute."54 An American Bar Association study found that "[i]n Tennessee . . . defense lawyers
offered no evidence in mitigation in approximately one-quarter of all the death sentences affirmed by
the Tennessee Supreme Court since the Tennessee legislature promulgated its current death penalty
statute,"55 and observed that "[d]efense representation is not necessarily better in other death penalty
states."56
The consequences of not presenting such evidence is illustrated by the case of Horace
Dunkins. The Alabama jury that sentenced him to death was never told that he was mentally
retarded. Upon learning after the trial from newspaper reports that Dunkins was mentally retarded,
one juror came forward and said she would not have voted for the death sentence if she had known of
his condition.57 Nevertheless, Dunkins was executed.
The consequences of a lawyer's ignorance of the law is illustrated by the case of John Eldon
Smith, one of many people who have been executed even though they were sentenced to death in
5

violation of the Constitution. Smith's lawyers were not aware that underrepresentation of women in
the jury pools violated the Sixth Amendment's guarantee that juries be composed of a fair cross
section of the population.58 The lawyers for Smith's codefendant, tried separately in the same county,
were aware of the law, raised the issue, and won a new trial.59 At the new trial, a jury which fairly
represented the community sentenced that codefendant to life imprisonment.60 The federal courts
refused to consider the identical issue in Smith's case61 because his lawyers, unaware of the law, had
not preserved it.62 A switch of the lawyers for the two defendants would have resulted in Smith
having his conviction overturned and the codefendant being executed.
While defendants may pay with their lives or liberty for the ineptness of the lawyers assigned
to defend them, the lawyers are seldom sanctioned. To the contrary, judges, perhaps resigned to the
fact that capable lawyers will not defend cases for the small amounts paid, continue to assign the same
lawyers to represent other indigent defendants.

3. The Most Fundamental Right, Unenforceable
The right to counsel is clearly the most fundamental constitutional right for a poor person
charged with a crime. An attorney is needed to protect the client's rights and marshal the evidence
necessary for a fair and reliable determination of guilt or innocence and, if guilty, a proper sentence.
But who enforces the right to counsel?
The lawyer who submits the lowest bid for a county's indigent defense business is not
necessarily capable of defending criminal cases. However, the indigent defendant represented by an
incapable lawyer may not even know that he or she has a right to something better than the lowest
bidder, the lawyer who hurries through cases like "greased lightening," or a lawyer so
undercompensated, so overworked, or so incompetent that adequate representation is impossible.
Even those who recognize that their lawyers are inadequate may not complain, out of fear that the
quality of the representation will deteriorate even further if they offend their lawyers by voicing a
complaint, but the judge does not replace the lawyer. There is the equally valid fear that the next
lawyer appointed by the same judge may be even worse.
The difficulty of enforcing the right to counsel is illustrated by the plight of, Gregory Wilson,
an African-American man who faced the death penalty in Covington, Kentucky. Wilson had no
counsel because the state public defender program would not handle the case and the local indigent
defense program could not find a lawyer because compensation for defense counsel in capital cases at
that time was limited by statute to $2500.63
When the head of the local indigent defense program urged the judge to order compensation
beyond the statutory limit in order to secure a lawyer qualified for such a serious case, the judge
refused and suggested that the indigent defense program rent a river boat and sponsor a cruise down
the Ohio river to raise money for the defense.64 The judge eventually obtained counsel by posting a
letter in the courthouse asking any member of the bar to take the case with the plea "PLEASE HELP.
6

DESPERATE."65 The notice said nothing about qualifications to handle a capital case. The judge
appointed three lawyers who responded, but one later withdrew.66
Not surprisingly, this method of selecting counsel did not produce a "dream team." The lead
counsel, William Hagedorn, can charitably be described as well past his prime. He did not have an
office or support staff, but practiced out of his home, where a large flashing Budweiser beer sign was
prominently displayed.67 He had never previously handled a death penalty case.68 The other lawyer
who responded to the judge's plea for help had never before handled a felony case.69 That lawyer
found that Hagedorn "manifested all the signs of a burned-out alcoholic. . . . [H]e would ramble and
digress. At times he appeared disoriented. He did not make sense. . . . He seemed incapable of
having any meaningful discussion about the case."70 The attorney who administered the county's
indigent defense system strongly objected to the appointments, saying that they were "unworkable"
and the two lawyers could not provide "the quality of representation that is needed in this the most
serious of all cases."71
Wilson became concerned. Almost any consumer of legal services, even one who wanted a
lawyer only to prepare a will or an uncontested divorce, would be concerned if he or she found that
one lawyer who was to provide those services did not have a law office and had never provided the
services before.
Wilson became even more concerned upon learning that the police had recently executed a
search warrant and recovered stolen property in garbage bags from beneath Hagedorn's floor;72 that
Hagedorn had engaged in unethical conduct, including forging a client's name to a check;73 and that
Hagedorn was a "heavy drinker," who had appeared in court drunk on occasion, and was consistently
to be found at a bar known as "Kelly's Keg." Mr. Hagedorn had even given the name and telephone
number of Kelly's Keg as his business address and telephone number.74 It is hard to fault Wilson for
his concern. Most people would be reluctant to trust even a minor legal matter to such a lawyer.
But, unlike those with resources, Wilson could not afford another lawyer. Wilson repeatedly
objected to being represented by the lawyers appointed by the court.75 He asked the judge that he be
provided with a lawyer who was capable of defending a capital case.76 The judge refused and
proceeded to conduct a trial that was a travesty of justice. Hagedorn was not even present for parts
of the trial.77 He cross-examined only a few witnesses, including one witness whose direct testimony
he missed because he was out of the courtroom.78 Wilson was sentenced to death.
What more could Gregory Wilson have done to enforce his Sixth Amendment right to
counsel? He objected. He complained about the lawyers appointed by the judge, who were clearly
incapable of defending a capital case. He asked for a real lawyer. Even these efforts were insufficient
to enforce the right to counsel. On direct appeal, the Kentucky Supreme Court attributed Hagedorn's
performance to Wilson's supposed lack of cooperation.79
In theory, the right to counsel can be protected after trial by the defendant's assertion of a
claim of ineffective assistance. The Catch-22 for most poor people, however, is that they need a
7

lawyer to litigate this claim in post-conviction proceedings, but the Supreme Court has held that there
is no right to a lawyer at that stage of the process.80 Even if the state provides a lawyer to raise a
claim of ineffectiveness, there is no guarantee that the new lawyer will be any more competent than
trial counsel.
A few states provide inmates with representation in post-conviction proceedings even though
this practice is not constitutionally required. Public interest programs and volunteer lawyers provide
representation to inmates facing the death penalty in some states. But most poor people convicted of
crimes who are not faced with a death sentence, and even some who are, lack any access to lawyers
to file post-conviction petitions challenging the effectiveness of the representation they received. For
them, there is simply no remedy for the denial of their most fundamental right.

B. The Lack of Legal Assistance to Challenge Convictions in Post-Conviction Proceedings
The rations of legal services run out altogether in many states after one appeal.
Post-conviction proceedings -- habeas corpus review -- in the state and federal courts have
historically provided an important means of reviewing constitutional claims.81 The Supreme Court,
however, has held that the state is not required to provide counsel to poor people in post-conviction
proceedings,82 and many states do not. In fact, the Supreme Court concluded in Murray v.
Giarratano that the states are not required to provide counsel even in capital cases.83 It upheld
Virginia's refusal to provide a lawyer for condemned defendants, saying: "Virginia may quite sensibly
decide to concentrate the resources it devotes to providing attorneys to capital defendants at the trial
and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable
claims of ineffective assistance of counsel to be litigated in collateral attack."84
The Court was apparently unaware that Virginia had decided not to concentrate its resources
at either end of the criminal justice system, but instead on highways, parks, and other functions. It
was only in the mid-1980s that Virginia removed a limit of $600 per case for lawyers defending
capital cases, the lowest in the nation, and placed the establishment of the fee within the discretion of
the trial judge.85 Even after this change, the average payment to court-appointed lawyers in capital
cases in Virginia in 1985 was only $784.56 per case.86 The Supreme Court has trusted the states to
assure legal assistance for the poor, but many states, like Virginia, have betrayed that trust.
The Supreme Court has held that inmates may have access to law libraries instead of counsel
to prepare their own post-conviction pleadings or challenges to conditions.87 However, the Court
gave state legislators and prison administrators "wide discretion" in fulfilling this constitutional
mandate.88 As previously discussed, state legislators have repeatedly breached the trust the Court has
placed in them. Prison officials, who may be the targets of suits brought by inmates, have little
incentive to provide access to libraries or other legal assistance.
For example, Georgia's Commissioner of Corrections cut off funding in 1996 to a program at
the University of Georgia School of Law, which employed fourteen attorneys to work with law
8

students to provide legal advice to inmates.89 The Commissioner replaced the program, which had
provided legal services to prisoners for twenty-four years, by contracting with three recent law school
graduates, who were friends of the head of the department of Corrections' legal office, to give legal
advice to the state's 34,000 prisoners.90 An analysis of the legal work two and a half years later
revealed that the lawyers hired by the Department gave "flatly erroneous advice," including advising
inmates that a deadline for filing federal habeas corpus petitions adopted in 1996 did not apply to
them,91 "missed viable claims," failed to investigate cases beyond reviewing the record and talking to
trial counsel, and accepted "only the simplest and most obviously meritorious cases."92
The Supreme Court added another cruel Catch-22 in Lewis v. Casey93 by requiring that in
order to enforce the right of access to libraries or legal assistance, inmates must prove "actual injury"
from being denied access.94 Yet without access to lawyers or libraries, inmates have no way of
learning what their rights are and thus have virtually no chance of proving the very injury they must
establish to gain access.95 The Supreme Court was not unaware of this dilemma. In Lewis, it limited
an inmate's right to bring "a grievance that the inmate wished to present,"96 but expressly disclaimed
the notion that inmates have a right "to litigate effectively once in court."97 Of course, even if they
had access to law libraries, most inmates lack the knowledge necessary to research the law and
prepare pleadings under the time constraints of a one-year statute of limitations.98 Moreover, it is
virtually impossible for an inmate to interview witnesses and litigate claims such as ineffective
assistance of counsel from a prison cell.
Inmates under sentences of death have the most desperate need for post-conviction review of
their convictions and sentences; these inmates have often prevailed by showing that they were
convicted or sentenced to death in violation of the Constitution. Federal courts found constitutional
error requiring reversal of convictions or sentences in 40% of the first 361 capital judgements
reviewed in habeas corpus proceedings between the restoration of the death penalty in 1976 and
mid-1991.99 Death penalty resource centers, also known as post-conviction defender organizations,
either represented condemned inmates in post-conviction proceedings or recruited lawyers for them.
The lawyers employed by the resource centers, who specialized in capital litigation, proved
effective. Walter McMillian, who spent six years on Alabama's death row, is free today because the
Alabama Resource Center proved he was innocent of the murder for which he was condemned to
die.100 Lloyd Schlup and Curtis Lee Kyles are alive today because the resource centers in Missouri
and Louisiana established that they were sentenced to death in violation of the Constitution and were
probably innocent of the crimes for which they were convicted.101 Congress responded to these and
other achievements by resource center lawyers not by commending the programs for preventing
unlawful executions and upholding the integrity of the system, but by eliminating their funding.
The Attorney General of South Carolina, who ran on a promise to replace the state's electric
chair with an electric sofa so that more people could be executed at one time, led a successful effort
to eliminate funding for the resource centers in 1995.102
The resource centers were more cost-effective than appointing individual lawyers, and the
9

specialization of the resource center attorneys provided a higher quality of representation.103
However, those who want to speed up executions preferred a system of inadequate representation.104
Without representation, the condemned can be swiftly dispatched to the execution chamber without
anyone raising troubling questions of innocence or constitutional violations such as those often raised
by the resource center attorneys.
Not long after eliminating funding for the resource centers, Congress passed the Antiterrorism
and Effective Death Penalty Act of 1996,105 which placed new, unprecedented restrictions on habeas
corpus review, including a one-year statute of limitations.106 Thus, people who have been
unconstitutionally convicted or sentenced now face a new, complex set of barriers to vindication of
their constitutional rights; but those who are poor may not even have lawyers to help them understand
the Act or comply with its provisions.
Exzavious Gibson, a man with an I.Q. in the 80s, was condemned to die by Georgia.107 He
had no lawyer in the state post-conviction proceedings and was incapable of challenging the
effectiveness of his court-appointed lawyer on his own.108 Gibson's evidentiary hearing started as
follows:
The Court: Okay. Mr. Gibson, do you want to proceed?
Gibson: I don't have an attorney.
The Court: I understand that.
Gibson: I am not waiving my rights.
The Court: I understand that. Do you have any evidence you want to
put up?
Gibson: I don't know what to plead.
The Court: Huh?
Gibson: I don't know what to plead.
The Court: I am not asking you to plead anything. I am just asking
you if you have anything you want to put up, anything you want to
introduce to this Court.
Gibson: But I don't have an attorney.109
Nevertheless, the court went ahead with the hearing. The state was represented by an
Assistant Attorney General who specialized in capital habeas corpus cases.110 After his former
attorney had been called as a witness against him, Gibson was asked if he wanted to conduct the
10

cross-examination:
The Court: Mr. Gibson, would you like to ask Mr. Mullis any
questions?
Gibson: I don't have any counsel.
The Court: I understand that, but I am asking, can you tell me yes or
no whether you want to ask him any questions or not?
Gibson: I'm not my own counsel.
The Court: I'm sorry, sir, I didn't understand you.
Gibson: I'm not my own counsel.
The Court: I understand, but do you want, do you, individually, want
to ask him anything?
Gibson: I don't know.
The Court: Okay, sir. Okay, thank you, Mr. Mullis, you can go
down.111
Gibson tendered no evidence, examined no witnesses, and made no objections. The judge
denied Gibson relief by signing an order prepared by the Attorney General's office without making a
single change.112 The Georgia Supreme Court held that Gibson had no right to counsel and affirmed
the denial of relief.113
Some of those condemned to die in Texas could not have done any worse had they
represented themselves than they did with the lawyers assigned to them by the Texas Court of
Criminal Appeals. The court took over appointing counsel after the Texas Resource Center, which
had employed lawyers specializing in capital post-conviction litigation, was closed due to the
elimination of federal funding, previously discussed. Many of the lawyers assigned by the Court of
Criminal Appeals have lacked experience and expertise in post-conviction litigation. Several have
missed deadlines for filing their applications, thereby forfeiting any post-conviction review.114 In
refusing to consider one untimely application, the court noted that the "screamingly obvious" intent of
the Texas legislature in setting a time limit has been "to speed up the habeas corpus process."115
Judge Charles Baird took issue with the majority's conclusion that "speed should be our only concern
when interpreting the statute," and argued in dissent that the court had failed "to accept our statutory
responsibility for appointing competent counsel."116 Judge Morris Overstreet, also dissenting, said the
court's action "borders on barbarism because such action punishes the applicant for his lawyer's
tardiness."117
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Two days before the deadline expired, the lawyer assigned to represent Henry Skinner filed a
motion with the Court of Criminal Appeals to extend the time for filing his post-conviction
application, but the court ruled on the day the application was due that the motion for an extension
should be filed in trial court.118 The motion was filed the following day in the trial court, which
ultimately held it untimely.119 The Court of Criminal Appeals affirmed. Judge Mansfield, concurring,
held that the court had no authority "to clean up after counsel's errors."120 Judge Baird pointed out in
dissent that dismissal of the application meant no court would review Skinner's claim that he was
denied effective assistance of counsel at trial by the lawyer appointed to defend him by trial judge M.
Kent Sims:
Counsel [appointed to defend Skinner at trial] was the former district attorney who
had prosecuted [Skinner] on at least two prior occasions. . . .
Moreover, when trial counsel [who represented Skinner at his capital trial] served as
district attorney, it was well known he had a cocaine problem. Newspaper reports
indicated trial counsel, on his way to a fund raiser for Judge Sims, was involved in an
accident and later admitted to the hospital for a drug overdose. Because of trial
counsel's known drug addiction, there was a substantial investigation by the Attorney
General's Office regarding missing funds from the district attorney's office. After
leaving office, trial counsel was assessed a $90,000 bill from the I.R.S. A few months
later, trial counsel was appointed to the instant case and ultimately paid almost
$90,000. These facts demand a substantive evidentiary hearing before an impartial
tribunal.121
But by strictly enforcing the deadline against Skinner to prevent review of his habeas corpus
action, the court swept any questions regarding Skinner's representation at trial under the rug. The
court also denied petitions in several other cases even though the incompetence of the attorney to
handle such a case was apparent.
The petition filed by a lawyer appointed by the Court of Criminal Appeals for Johnny Joe
Martinez was described by one member of the court as follows:
The instant application is five and one half pages long and raises four challenges to
the conviction. The trial record is never quoted. Only three cases are cited in the
entire application, and no cases are cited for the remaining two claims for relief.
Those claims comprise only 17 lines with three inches of margin.122
The court's records indicated that the lawyer assigned to Martinez spent less than fifty hours
preparing the application and did not seek any reimbursement for travel or investigatory expenses or
seek funds for expert assistance.123 The court denied the petition over a dissent by Judge Baird which
urged the court to remand the case to the trial court to determine whether Martinez was adequately
represented.124 The court summarily denied what it treated as an "[a]pplication for writ of habeas
corpus" filed by the lawyer it assigned to represent Bryan Wolfe,125 even though the pleading filed
12

"appear[ed] to be a motion for discovery."126 Again, Judge Baird, in dissent, urged his colleagues to
remand the case for a determination of whether the inmate was properly represented.127
The court assigned to Ricky Eugene Kerr an attorney who had been in practice for only two
years, had never tried or appealed a capital case even as assistant counsel, and had suffered severe
health problems that kept him out of his office in the months before he was to file a habeas corpus
application on behalf of Kerr.128 The lawyer so misunderstood habeas corpus law that, as he later
admitted, he thought he was precluded from challenging Kerr's conviction and sentence--the very
purpose of a post-conviction petition.129 As a result, the lawyer filed a "perfunctory application" that
failed to raise any issue attacking the conviction.130 After he and his family were unable to contact the
lawyer, Kerr wrote a letter to the court complaining about the lawyer and asking the court to appoint
another lawyer to prepare a habeas petition.131 Even though prosecutors did not object to a stay,132
the Court of Criminal Appeals denied Kerr's motions for a stay of execution and for the appointment
of competent counsel.133 Judge Overstreet, warning that the court would have "blood on its hands" if
Kerr was executed, dissented in order to "wash [his] hands of such repugnance,"134 saying:
For this Court to approve of such and refuse to stay this scheduled execution is a
farce and travesty of applicant's legal right to apply for habeas relief. It appears that
the Court, in approving such a charade, is punishing the applicant, rewarding the
State, and perhaps even encouraging other attorneys to file perfunctory
"non-applications." Such a "non-application" certainly makes it easier on
everyone--no need for the attorney, the State, or this Court to consider any potential
challenges to anything that happened at trial.135
Even the prosecutors who sought Kerr's execution acknowledged that the lawyer assigned to
him "failed to comply with the letter and the spirit" of Texas's law allowing for post-conviction
review.136 The Texas Criminal Defense Lawyers Association noted that the court in Kerr had
demonstrated its belief "that the duty of defense counsel . . . is discharged by doing absolutely
nothing."137
Andrew Cantu finally resorted to representing himself after three different lawyers, appointed
by the Criminal Court of Appeals to represent him over a period of eighteen months, failed even to
file a petition.138 The first two lawyers withdrew,139 and the third never came to see him. At the
hearing held five months after the third lawyer was appointed, that lawyer testified that he had not
visited Cantu, claiming that he did not know where Cantu was housed in the prison system, had not
contacted any investigator or expert witnesses, was not familiar with and had not read the
Antiterrorism and Effective Death Penalty Act, which contains a one-year statute of limitations for
filing a federal habeas petition,140 and was not aware of any ramifications of the Act for Cantu.141
Cantu had no state post-conviction review of his case and was barred from federal review of his case
because the statute of limitations expired before any petition was filed.142 Cantu was executed on
February 16, 1999.143
The Texas court has created the appearance of providing some process by appointing counsel,
13

but in fact the poor quality of lawyers it assigns actually hides constitutional error instead of
uncovering it.144
The Court of Criminal Appeals has discouraged lawyers from taking cases and devoting the
time necessary to do an adequate job by limiting compensation of the lawyers appointed and denying
necessary expert and investigative assistance. Although a state bar committee found handling a
capital post-conviction case requires between 400 and 900 hours of attorney time, the Court of
Criminal Appeals adopted a limit on fees that compensated counsel for only 150 hours.145 The Texas
Association of Criminal Defense warned lawyers who might be appointed:
[T]he Court's limitations [on fees] will place you in the untenable position of having
to choose between competently representing your client and performing about
250-750 hours of uncompensated work or, if your practice precludes such a large
number of pro bono hours, not being able to competently represent your client. You
should also be aware that the Court has been routinely cutting vouchers without
explanation, and seemingly without regard to the necessity of the work performed.
Some attorneys have had vouchers reduced by more than $10,000.146
Nevertheless, even less money is furnished by Alabama, which provides only $600 to lawyers
for handling a capital case in state post-conviction proceedings,147 and by Georgia, which pays
nothing in either attorney fees or expenses,148 even in a capital case.
These pitifully inadequate efforts to provide lawyers in state post-conviction proceedings in
Texas, as in most other states, have been limited to capital cases. Poor people sentenced to less than
death in Texas, Georgia and many other states have no access to a lawyer for post-conviction
proceedings. All, however, are subject to state statutes of limitations in the states that have them, as
well as the one-year statute adopted by Congress in the Antiterrorism and Effective Death Penalty
Act.149 Many of those poor people, particularly the illiterate or the mentally retarded, are no more
prepared to file and litigate a post-conviction challenge without a lawyer than a passenger can be
expected to fly the Concorde to France without a pilot.
The person with means, such as Charles Keating, will retain counsel and may, as Keating did,
obtain relief.150 But in most states the poor have no access to a lawyer to represent them in
post-conviction proceedings. Thus, a wrongfully convicted person who cannot afford a lawyer, even
if clearly entitled to release, may languish in prison or be executed without ever obtaining legal
assistance and meaningful review.

C. Inmates Without Lawyers; Courts Stripped of Power
Once imprisoned, the poor may be subject to physical and sexual assaults,151 denied competent
medical or mental health care,152 denied an adequate diet, denied exercise, or subjected to other
conditions and practices that violate their constitutional rights.153 But most inmates have no access to
14

lawyers, which means they have no access to the courts. Congress has prohibited legal-services
programs from representing prisoners154 and limited the attorney fees recoverable in a successful
prison suit to discourage lawyers in private practice from taking those cases.155 In addition, in the
Prison Litigation Reform Act, Congress stripped the federal courts of much of their power to remedy
unconstitutional conditions or practices in prisons and jails.156 Among other things, the Act limits the
duration of any prospective relief to two years, permits only relief that is "narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and is the least intrusive means
necessary to correct the violation."157 The statute also encourages the termination of existing decrees
governing conditions and practices in prisons.158 Even before Congress acted, the Supreme Court
had made it very difficult for inmates to challenge cruel and inhumane conditions.159 As a result, all
sorts of abuses and degradation have been found not to violate the Constitution.160
In stripping the 1.7 million men, women, and children in American prisons of lawyers, access
to the courts, and the protections of the Constitution, Congress disregarded the important role that
federal courts have played in making the nation's prisons less of a disgrace than they had been
previously. For instance, federal court orders ended some of the most cruel and inhumane practices
and conditions that had long been common in the "dark and evil world" of Arkansas's prisons,161 such
as lashing prisoners for minor infractions with a wooden-handled leather strap five-feet long until their
skin was bloody,162 giving prisoners electrical shocks to sensitive parts of their body from a
hand-cranked device known as the "Tucker telephone,"163 and crowding prisoners into barracks
where "[h]omosexual rape was so common and uncontrolled that some potential victims dared not
sleep; instead they would leave their beds and spend the night clinging to the bars nearest the guards'
station."164
Officials at Parchman Farm, the Mississippi State Penitentiary, used a three- foot leather strap,
known as "Black Annie," to continue the practice from the era of slavery of whipping inmates,165 and
allowed murders, rapes, beatings, and torture of inmates.166 Prisoners filed a suit in 1971 before
federal Judge William C. Keady challenging conditions and practices at the prison. It is unfortunate
that members of Congress did not accompany Judge Keady on his visits to Parchman:
Keady visited Parchman on four occasions, once taking his minister. Wandering
through the cages, talking privately to the inmates, he discovered an institution in
shambles, marked by violence and neglect. The camps were laced with open ditches,
holding raw sewage and medical waste. Rats scurried along the floors. . . . At one
camp, Keady found "three wash basins for 80 men which consist of oil drums cut in
half." At all camps, he saw filthy bathrooms, rotting mattresses, polluted water
supplies, and kitchens overrun with insects, rodents, and the stench of decay.
The convicts told him stories that supported [the claims made in the suit].
Parchman was a dangerous, deadly place. Shootings and beatings were common;
murders went unreported; the maximum security unit was a torture chamber. Trusties
brutalized inmates, who, in turn, brutalized each other. "One part of me had always
suspected such things," the judge recalled. "The rest of me was angry and
15

ashamed."167
Judge Keady required prison officials to protect inmates from physical assaults by other
inmates, to stop housing them in barracks unfit for human habitation, to end racial discrimination
against inmates, to provide medical care, and to end other barbaric and patently unconstitutional
practices.168
Another federal judge, Frank Johnson, brought an end to the "horrendous" overcrowding in
Alabama's prisons, where mentally disturbed inmates were "dispersed throughout the prison
population without receiving treatment" and robbery, rape, extortion, theft, and assault were
"everyday occurrences" among the general inmate population.169 Yet another federal judge, Judge
William Wayne Justice, brought an end to gross overcrowding, denial of medical care, and other
unconstitutional practices in the huge Texas prison system.170
Abuses were not limited to Southern prisons. A federal judge found that inmates at the
California State Prison at San Quentin were "regarded and treated as caged animals, not human
beings."171 Inmates at prison in Pendleton, Indiana, were shackled spread-eagle to metal bed frames
for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie
in their own filth" until a federal court prohibited such treatment.172 Federal court orders ended
barbaric and shameful conditions and brutality in many other prisons as well.173
Unfortunately, federal court orders have not ended all abuses in correctional institutions. For
example, Gail R. Williams, upon becoming director of mental health services for Alabama's prisons,
greatly reduced the number of inmates who received psychotropic medications and discontinued the
policy of sending the most severely mentally ill inmates to the state's secure medical facility.174
Williams was restricted to practicing in Alabama's prisons because he had lost medical licenses in
Michigan for engaging in sexual relations with a patient and in Oklahoma for sexually battering and
harassing a nurse and other female staff members.175 Billy Roberts, a psychotic inmate, committed
suicide after his anti-psychotic medication was discontinued.176 Calvin Moore died in Alabama's Kilby
Prison at age 19 after serving seven weeks of a two-year sentence for burglary. Although he
displayed "severe psychiatric symptoms," lost "about a third of his body weight," and spent the last
several days of his life "lying in his own urine, most of the time in a catatonic state," no one took his
vital signs until a few hours before his death, and he received no medical treatment other than one
injection of haloperidol.177 A forensic pathologist with Physicians for Human Rights found Moore's
death to be a case of negligent homicide.178 The medical director responsible for Moore's case,
Walter F. Mauney, became a prison doctor after being convicted of a "crime against nature" in
Tennessee for "having oral sex with and 'sexually penetrating' a 16-year-old 'mentally defective'
boy."179
The political "war on crime" and the competition among politicians to show who can be
toughest on crime180 have encouraged a return to neglect and mistreatment of prisoners and primitive
practices, such as the chain gang181 and chaining inmates to metal posts.182 In this political climate,
prisoners desperately need access to legal services and the protection of the Constitution, enforced by
the courts.
16

Georgia is among the states taking the lead in going back to a more primitive era. After
barely winning reelection, Governor Zell Miller appointed a political crony, Wayne Garner, an
undertaker with no experience in corrections, as the commissioner of the state's Department of
Corrections.183 Garner's only apparent qualification was his willingness to make provocative and
irresponsible statements to show that he and the governor were tough on crime. His tenure
demonstrates the importance of access to legal representation and constitutional protections for
inmates.
Upon being appointed, Garner announced that "one-third of state prison inmates ain't fit to
kill." He then took a number of highly-publicized actions to make prison life in Georgia as harsh
and degrading as possible. He fired the system's academic and vocational teachers two weeks before
Christmas in 1996.185 He had previously fired seventy-nine recreation directors and seventy-four
counselors.186 He changed the name of all but one of the department's facilities from "correctional
institution" to "state prison."187 He eliminated hot lunches for prisoners and placed inmates in
ninety-day boot camp programs on a diet of sandwiches and water three times a day.188 He
announced he would require inmates to walk four miles a day.189 The Atlanta Constitution
pronounced Garner's actions a death sentence for rehabilitation and predicted that "[i]n the next few
years, Georgia will have to hire a new head of the state Corrections Department to undo the damage
caused by Wayne Garner."190
184

But Garner went considerably beyond the mean-spirited political grandstanding that has
become common today. After notifying the press, Garner, outfitted in the black uniform of the
department's tactical squad, led raids on the prisons to "shakedown" cells in purported searches for
drugs and contraband. In a number of those raids, unresisting inmates were beaten and degraded.191
A lieutenant who headed one of the squads participating in one of the raids described the brutal
assault on inmates as a "dad-gum shark frenzy."192 Another correctional officer described seeing an
unresisting inmate's face shoved into a wall: "[b]lood went up the wall. Blood went all over the
ground, all over the inmate. I heard it. I heard a sickening cracking sound."193
The injured inmates would have had no access to lawyers to bring suit about this abuse had it
not been for the existence of our office, the Southern Center for Human Rights, in Georgia. The
Center receives no government money and is under no restrictions with regard to the clients it
represents. The Center's lawyers recovered $283,500 for prisoners abused during shakedowns led by
Commissioner Garner.194 Department of Corrections employees testified in depositions that they
witnessed guards engage in assaults upon unresisting inmates.195
As a result, the abuse of these particular inmates was brought to national attention and the
inmates were compensated.196 The abuse would never have come to light, however, were it not for
attorney Robert Bensing and others at the Southern Center for Human Rights.
Such representation in the courts and such public attention are not the norm. No programs
provide representation to prisoners in most states, particularly the states with the greatest need. It is
17

impossible to know how many other unconstitutional practices and conditions in prisons and jails go
unchallenged and unremedied because the inmates have no access to lawyers to protect their
constitutional rights.
II
INDIFFERENCE TO INJUSTICE
The quality of the counsel provided at trial becomes all the more important given the lack of
access to counsel for those seeking to attack their convictions in post-conviction review, the
restrictions on habeas corpus adopted as part of the Antiterrorism and Effective Death Penalty Act of
1996, and the absence of constitutional protections for those in prison. For most poor people
accused of crimes, trial is not just the "main event;"197 it is the only event. But, as discussed
previously, many poor defendants stand virtually defenseless at trial, accompanied only by what Judge
David Bazelon called "walking violations of the Sixth Amendment."198
Harold Clarke, when he served as Chief Justice of Georgia, aptly described the approach not
only of Georgia, but of many states in responding to the call of Gideon: "[W]e set our sights on the
embarrassing target of mediocrity. I guess that means about halfway. And that raises a question. Are
we willing to put up with halfway justice? To my way of thinking, one-half justice must mean one-half
injustice, and one-half injustice is no justice at all."199
Although the need for adequate funding for indigent defense programs is obvious, immense
and undeniable, legislators refuse to appropriate sufficient funds. Inadequately funded programs
cannot obtain the services of capable lawyers and must handle so many cases that effective
representation is difficult or impossible. Moreover, many indigent defense programs are
compromised in their ability to provide zealous representation because they are not independent of the
executive or judiciary. Courts not only tolerate indefensible representation that results from
underfunded systems, but contribute to it by appointing lawyers who are not capable of handling the
cases assigned and denying the resources needed to present a defense. In addition, the Supreme
Court, instead of enforcing Gideon, has been a major culprit in this denial of equal justice. It adopted
such a low standard for counsel in Strickland v. Washington200 that it makes a mockery of the right to
counsel.

A. Inadequate Funding
The most fundamental reason for the poor quality or absence of legal services for the poor in
the criminal justice system is the refusal of governments to allocate sufficient funds for indigent
defense programs.
Legislatures in many states have failed adequately to fund public defender programs, leaving
public defenders with overwhelming caseloads and the immense pressure of being responsible for the
lives and liberty of too many fellow human beings.201 While public defender offices attract some of
18

the most dedicated and conscientious young lawyers, those lawyers find it exhausting and enormously
difficult to provide adequate representation when saddled with huge caseloads and lacking the
necessary investigative assistance.
A public defender in New Orleans represented 418 defendants during the first seven months of
1991. During this time, he entered 130 guilty pleas at arraignment and had at least one serious case
set for trial on every single trial date during the period.203 In "routine cases," he received no
investigative support because the three investigators in the public defender's office were responsible
for more than 7000 cases per year.204 Additionally, no funds were available for expert witnesses.205
202

Even though funding for indigent defense programs has long been recognized as inadequate,
some jurisdictions have reduced funding. In Pittsburgh, for example, the county commission slashed
funds and job positions at the public defender office in 1996,206 leaving the office with forty-five
lawyers, twelve less than the fifty-seven who were there previously.207 Eight full-time investigators
were also fired.208 The attorneys were paid between $24,000 and $32,000 and are permitted to have
part-time legal practice on the side.209 An independent study the year before had concluded that the
public defender's office was in crisis because of chronic under-funding and "years of neglect."210
Judge David S. Cercone, head of the court's Criminal Division, had expressed similar concern, saying
that, "[w]e do not think there is any fat to be cut from the public defender's office."211 The county
commissioners responded to the study by cutting $1 million from the $3.9 million budget.212
Nonetheless, the commissioners somehow found a way to move two of their supporters into positions
that paid $50,000 each, which is double the starting salary of a new public defender.213
In Wisconsin, Governor Tommy Thompson proposed cuts to the state public defender's
budget,214 more flat rate payments to appointed counsel,215 increases in public defender caseloads,216
and limits on how much public defenders and appointed attorneys can spend on court documents and
investigative services.217 When the 1995-97 budget ultimately was passed, $3.85 million was cut
from the allocation for indigent defense.218
Many jurisdictions have no public defender programs. Cases are assigned to individual
lawyers or lawyers who have contracted to handle the cases of indigent defendants.219 Many states
and localities compensate lawyers so poorly that it is impossible to attract capable lawyers and
impossible for the lawyers to survive in practice if they devote the time required to defend cases
properly.
In Virginia, for example, attorneys for indigent defendants are limited to $100 for defending
someone in a misdemeanor case in district court, $132 for defending a misdemeanor case in circuit
court, $305 for defending a felony case where the punishment is less than 20 years, and $845 where
the punishment is more than 20 years.220 When one attorney challenged the limit in felony cases,
arguing that once the attorney exceeds the limit and is forced to work uncompensated, it creates a
conflict between the lawyer's pecuniary interests and zealous representation of the client, the circuit
judge removed him from the case.221 One circuit judge announced at calendar call that any attorney
raising the conflict of interest issue would be removed from the list of appointed counsel.222 As each
19

case was called, the judge asked the attorney whether he or she intended to raise the issue.223
In Alabama, lawyers representing indigent defendants are paid $20 an hour for out-of-court
preparation up to a limit of $1,000 to defend a non-capital case; for a capital case, the fees are limited
to $1,000 for the out- of-court work plus an additional $20 an hour for all in-court work.224 In some
rural areas in Texas, lawyers receive no more than $800 to handle a capital case.225 Generally, the
hourly rate is $50 or less.226 In Mississippi, lawyers are paid $1,000 dollars and reimbursed for their
overhead expenses for defending a capital case.227 In Louisiana, some indigent defense counsel are
not paid at all.228
The result is that these lawyers often earn less than the minimum wage for defending someone
in a serious felony case or even a capital case. For example, an Alabama lawyer who spends 500
hours preparing for a death penalty trial will be paid $4 an hour. Imagine what kind of legal
representation a poor person accused of a capital crime gets for $4 an hour. Unfortunately, the old
adage, "you get what you pay for," applies with special force in the law. Most good lawyers do not
work for $4 an hour or even $20, $50 or $100 an hour. Lawyers paid so little cannot afford to spend
the time required to conduct interviews, investigations and negotiations, and defend cases at trials.
As one Virginia prosecutor observed:
What it boils down to is, you get what you pay for. Look who's on a courtappointed list anywhere. Very few experienced attorneys are on those lists, and the
reason is, they can't afford to be on them.
So you either have very inexperienced attorneys right out of law school for whom
any money is better than no money. Or you have people who are really bad lawyers
who can't make a living except off the court appointed list.229
The prosecutor said that such a system "doesn't give me any satisfaction as a prosecutor, and I
don't think it serves justice."230
In addition, lawyers appointed to defend indigent defendants are often not paid for months or
years after they provide the representation.231 Often, their applications for compensation are
arbitrarily reduced by judges and bureaucrats.232 This discourages lawyers from taking the cases of
indigent defendants.
Frequently, lawyers are denied the investigative and expert assistance essential to providing
adequate representation. Here, again, the courts have constructed yet another Catch-22 by requiring
the lawyer to demonstrate an extensive need for expert or investigative assistance, a showing that
frequently cannot be made without the very expert assistance that is sought.233
The burdens on already overtaxed and inadequate indigent defense systems are growing. With
the passage of each new crime bill, Congress and state legislatures create scores of new crimes,
increase penalties for existing crimes, and appropriate millions of dollars to law enforcement and
20

prosecution.234 These measures increase the number of arrests and prosecutions and the severity of
the sentences that may be imposed. Despite the fact that the legislation creates a greater need for
adequate defense counsel, such legislation usually does not include a single dollar for indigent
defense.

B. The Lack of Independence of Indigent Defense Programs
Many indigent defense programs are not independent of the people trying to imprison or
execute the clients served by those programs. In some states, governors who sign death warrants also
appoint the state defenders who are to defend the very people the governor has ordered killed.
Legislatures have reduced or eliminated funding of programs that have been effective in the past or
have restructured them. Judges control the appointment and compensation of defense counsel in
many states and often assign cases to lawyers clearly incapable of providing competent representation.
The lack of independence in many cases has a substantial adverse impact on the quality of legal
services provided. Indeed, when judges and executives control programs which continually provide
deficient representation to the accused, it can fairly be said that lawyers are being provided to the
poor only to create an appearance of legitimacy to a system that lacks fairness.
Politicians who compete with one another to show who is the toughest on crime235 often
control funding and even the appointment of personnel for indigent defense programs. For example,
Paul Patton, upon becoming the new governor of Kentucky, signed five execution warrants his
second day in office to show that he was tough on crime.236 The Public Advocate, Allison Connelly,
noted the inappropriateness of signing the warrants because the cases of all five of the condemned
were pending before courts.237 Lawyers from her office secured stays of execution.
But the same governor who signed the death warrants appoints the public defender.238 When
the time came to renew Connelly's appointment, Patton refused to reappoint her,239 even though the
Public Advocacy Commission had unanimously recommended her reappointment and judges and
lawyers had praised the job she had done.240 Regardless of why Patton refused to reappoint Connelly,
there was an appearance that it may have been related to the discharge of her duties in defending
indigent clients.
In Florida, legislators attacked the Office of the Capital Collateral Representative (CCR) for
its representation of condemned inmates in that state, saying that it needlessly delayed executions.241
Stephen Hanlon, who oversees Holland & Knight law firm's pro bono division and has worked with
CCR attorneys, responded that, "I am firmly convinced that the criticism CCR received was not
because it was frivolous but because it was effective."242
The legislature split CCR into three separate offices and provided that the governor, who
signs the death warrants setting executions, would appoint the director of each new office.243 The
legislature also provided that the Judicial Nominating Commission would now submit nominees for
the positions to the governor, instead of the state's public defenders, who had previously
recommended three nominees to the governor for the position of Capital Collateral Representative.244
21

The Judicial Nominating Commission gave the governor eight nominees: four lawyers who
had experience in representing persons facing the death penalty and four with no such experience.
Governor Lawton Chiles appointed only from the second group, choosing a lawyer in private practice
and two former prosecutors,245 one of whom had worked in the governor's office for twelve years,246
and before that, represented the state in twelve capital cases during five and a half years as an
assistant attorney general.247 It is neither unusual nor undesirable for a lawyer with prosecution
experience to become a defense lawyer. A new convert, however, is usually not made Pope on the
same day of the conversion. These circumstances put together--the governor's role in signing death
warrants, the enormous political benefits that Florida governors have reaped from signing death
warrants,248 and the appointment of two prosecutors with no defense experience over nominees with
experience in defending capital cases--would cause any objective observer to question whether the
goal of the appointments was to frustrate zealous representation instead of ensuring it.
The representation provided by the offices created raises even graver questions. The most
experienced attorney assigned to defend Judi Buenoano when the governor signed a warrant for her
execution was not qualified to work in federal court.249 Experienced attorneys were fired or left the
new agencies.250 The office in Tampa, run by a former prosecutor and unsuccessful candidate for
State Attorney, hired lawyers with no experience in capital litigation, including one lawyer who had
spent three years managing Hogtown Bar-B-Q restaurants.251 A circuit judge described the office as
a "disorganized, chaotic place where, at times, interns/trainees file motions and pleadings in cases
carrying society's most severe penalty;" the judge found the attorneys for one death row inmate
"incompetent," and replaced them with a private lawyer.252 The office in Tallahassee could not find
lead attorneys for half of its cases.253
Ohio Attorney General Betty Montgomery attacked the state public defender's office, saying
its death penalty attorneys were "gaming the system and making it a mockery" by maneuvering for
delays to stop executions.254 She introduced a proposal to prohibit public defenders from receiving
tax funds for representing condemned inmates if they win appeals alleging ineffective assistance of
counsel.255 In February 1996, following Montgomery's statement and proposal, Ohio Public Defender
David Bodiker fired two top staff members, including a twelve-year veteran. Bodiker stated "there's
always been widespread optimism that we could prevent executions. I don't share that."256
Bodiker claimed his actions were unrelated to the Attorney General's criticism. The fired
attorneys filed a complaint with the Ohio Public Defender Commission, claiming Bodiker prevents
attorneys from zealously defending death- row clients and that he "has politicized the office to reflect
the pro-death penalty views of" Governor George Voinovich and Attorney General Montgomery.257
The problem is not limited to the state courts. The appointment of public defenders in many
judicial districts by federal judges "creates a serious problem of perception and provides the
opportunity for occasional abuse," a committee of judges and lawyers appointed by Chief Justice
Rehnquist reported.258 One example is the refusal in 1992 by the United States Court of Appeals for
the Fourth Circuit to renew the appointment of highly respected federal defender Fred Bennett, after
22

eleven years in office.259 The judges apparently did not like the aggressive advocacy of Bennett and
his assistants, but it may be fairly questioned whether this action promoted the best interests of the
clients served by the federal defender or whether the judges disagreed with the zealous representation
of poor people.
Judges' participation in assigning the cases of indigent defendants to lawyers and in deciding
whether to allow funds for experts and investigators improperly involves the judiciary in the
management of the defense. Judges not only tolerate attorney incompetence, but they very often
continue to appoint the same lawyers to case after case. Judges in Houston have been appointing Joe
Frank Cannon, who tries cases like "greased lightening" and falls asleep during capital trials, to defend
cases for 45 years.260 Their motivation was clearly not the provision of zealous representation to the
accused.
Many judges may be more interested in docket control or avoiding reversal than in ensuring an
earnest defense for poor defendants. Judges also use appointments as a patronage system for lawyers
who need the business because they cannot get other legal work. A study of homicide cases in
Philadelphia revealed that judges there appointed attorneys to defend cases based on political
connections, not on legal ability.261 The study disclosed that "Philadelphia's poor defendants often
find themselves being represented by ward leaders, ward committeemen, failed politicians, the sons of
judges and party leaders, and contributors to the judges' election campaigns."262 As might be
expected, treating the assignment of criminal cases as part of a judicial patronage system does not
always result in the best legal representation. The study found that "even officials in charge of the
system say they wouldn't want to be represented in Traffic Court by some of the people appointed to
defend poor people accused of murder."263 There is the appearance--and in many cases the
reality--that many of the lawyers who depend upon appointments from judges are reluctant to provide
zealous representation for fear of alienating the judge and jeopardizing future business.264 An
experienced criminal defense lawyer in Houston described the attitude of many lawyers there who get
appointed to defend indigents:
The mindset of a lot of court-appointed lawyers is to please the judge, to curry
favor with the judge by getting a quick guilty plea from the client. Then everybody's
happy. The judge has the case off the docket. The prosecutor doesn't have to mess
with it. The defendant is off to wherever he's going. And the lawyer has made a
relatively decent fee: about $150 for basically an hour of his time. That's much more
economical for a lawyer who's earning a living off of court appointments than to reset
the case, go out and investigate, probably not get paid for his time, have to do a bunch
of work, and maybe aggravate the judge by keeping the case on the docket.265
The appointed lawyers also stay in the good graces of the judges by contributing to their campaigns
for office.266
Once the resource center employing capital litigation specialists to represent or recruit counsel
for the condemned in Texas post-conviction proceedings ceased to exist, the Court of Criminal
23

Appeals began assigning attorneys to represent death-sentenced inmates in post-conviction
proceedings. The appointment of lawyers by the Court of Criminal Appeals can only be described as a
disaster. The court's lack of concern about the quality of representation to be provided was apparent
from the outset when the court, in suddenly conscripting forty-eight attorneys to handle capital
post-conviction cases, appointed a longtime federal prosecutor to represent one of the condemned.267
The court was not even aware that the prosecutor was still employed with the U.S. Attorney's office
and was on special assignment to the Justice Department and thus could not represent a
death-sentenced inmate. The court later appointed two of its former law clerks to fourteen capital
post-conviction cases and paid them $265,000.268 The two former clerks had no experience as
attorneys in representing such defendants.269 But, it would be impossible for even the most
experienced lawyers to take on so many cases and provide adequate representation in all of them.
The court appointed lawyers who missed deadlines and filed petitions that did not raise a
single issue,270 and so limited compensation that lawyers assigned cases are required to choose
between working hundreds of hours without compensation or not providing competent
representation.271 Moreover, the court has been unwilling to allow untimely petitions to be filed or to
assign competent lawyers even when it was apparent beyond peradventure that the lawyer handling
the case was totally inept.272 The Texas Association of Criminal Defense Attorneys passed a
resolution finding that the Court of Criminal Appeals had "made it clear . . . that it will not afford a
citizen sentenced to death any meaningful review, and further that it will often refuse to pay necessary
investigative and other expenses, forcing the appointed counsel, in effect, to finance the proceedings
themselves."273 The actions of the Texas Court of Criminal Appeals can fairly be said to go beyond
indifference to injustice, to outright hostility to justice.274
Indigent defense programs' lack of independence is a serious, but seldom discussed, problem
that compromises their ability to provide zealous representation of clients. As observed by Justice
Blackmun:
The county's control over the size of and funding for the public defender's office, as
well as over the number of potential clients, effectively dictates the size of an
individual attorney's caseload and influences substantially the amount of time the
attorney is able to devote to each case. The public defender's discretion in handling
individual cases and therefore his ability to provide effective assistance to clients is
circumscribed to an extent not experienced by privately retained attorneys.275
A state's chief law enforcement officer who has responsibility for obtaining convictions should
not be appointing the person responsible for the defense. Management of the defense is not a proper
judicial function. Judges should be fair and impartial, and independent of both prosecution and
defense. Instead, independent boards should operate indigent defense programs. Those programs
should assign lawyers to cases based upon the lawyer's ability to provide effective representation, not
speed, administrative convenience, political connections or other factors unrelated to the lawyer's
ability to represent the accused.

24

C. A Standard of Effective Assistance That Denies Equal Justice
The Supreme Court correctly observed in 1942 that "[t]he right to have the assistance of
counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the
amount of prejudice resulting from its denial."276 In 1984, however, the Court decided that prejudice
to a defendant could be based on a rough calculation of whether counsel's deficient performance
affected the outcome. In Strickland v. Washington,277 the Court not only adopted this standard of
prejudice; it went one step further in putting the burden of proof on the defendant to make the
showing.278 The Court also required that, in order to prevail on a claim of ineffective assistance, a
defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance,"279 and show that the attorney's representation "fell below an
objective standard of reasonableness."280 This standard has proven to be so malleable that the mere
presence of a lawyer at counsel table is often found to be sufficient representation.281
Judge Alvin Rubin of the Fifth Circuit put it bluntly:
The Constitution, as interpreted by the courts, does not require that the accused,
even in a capital case, be represented by able or effective counsel. . . . Consequently,
accused persons who are represented by "not-legally-ineffective" lawyers may be
condemned to die when the same accused, if represented by effective counsel, would
receive at least the clemency of a life sentence.282
There is ample support for this frank admission that, under the standard established in
Strickland, the courts do not deliver on the promise of equal justice for rich and poor.283 Stark
examples of just how bad a lawyer can be and still be found effective under Strickland are provided
by three Texas capital cases in which defense lawyers slept during trial. The Houston Chronicle
described the following spectacle in one of the cases:
Seated beside his client – a convicted capital murderer – defense attorney John
Benn spent much of Thursday afternoon's trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders, and then he
awakened just long enough to catch himself and sit upright. Then it happened again.
And again. And again.
Every time he opened his eyes, a different prosecution witness was on the stand
describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the
robbery-killing of grocer Kenneth Kwan.
When state District Judge Doug Shaver finally called a recess, Benn was asked if he
truly had fallen asleep during a capital murder trial.
"It's boring," the 72-year-old longtime Houston lawyer explained. . . .
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Court observers said Benn seems to have slept his way through virtually the entire
trial.284
Attorney Benn's sleeping did not offend the Sixth Amendment, the trial judge explained,
because, "[t]he Constitution doesn't say the lawyer has to be awake."285 The Texas Court of Criminal
Appeals apparently agreed. It rejected McFarland's claim of ineffective assistance of counsel,286
applying the standard established in Strickland; the dissent, however, argued that "[a] sleeping
counsel is unprepared to present evidence, to cross-examine witnesses, and to present any
coordinated effort to evaluate evidence and present a defense."287
The Texas Court of Criminal Appeals also found that a sleeping attorney was sufficient
"counsel" under Strickland in the case of Calvin Burdine.288 And both the Texas Court of Criminal
Appeals and the United States Court of Appeals for the Fifth Circuit held Carl Johnson did not satisfy
Strickland even though his attorney slept during parts of the trial.289 Neither court published its
opinion.290 Carl Johnson was executed on September 19, 1995.
Wallace Fugate was sentenced to death after a two-day trial in Georgia, in which he was
represented by a lawyer who had never heard of Gregg v. Georgia,291 the case that upheld the current
death penalty law in Georgia, Furman v. Georgia,292 the decision that declared the death penalty
unconstitutional in 1972, or any other relevant case.293 Not surprisingly given his complete ignorance
of the law, the lawyer did not make a single objection during the entire two-day capital trial.294
Being defended by such a lawyer is much like being treated by a doctor who has never heard
of penicillin. Such a doctor likely never heard of tetracycline or of heart bypass surgery, either. If a
doctor failed to treat a patient properly due to such a gross lack of knowledge, courts would not
hesitate to find malpractice. But under Strickland, such ignorance on the part of a lawyer does not
violate the Sixth Amendment. The following question was presented to the Georgia Supreme Court
in seeking review of the representation provided to Wallace Fugate:
Whether the standard of "counsel" is now so low in capital trials in this state that it
is satisfied by the mere presence of individuals with bar cards at counsel table with the
accused, who act primarily as spectators and are completely ignorant of the law--even
to the point of being unaware of the Supreme Court's opinion in the seminal capital
case of Gregg v. Georgia, 428 U.S. 153 (1976), make no objections, give closing
arguments which contradict each other, and fail completely to make the trial an
adversarial testing process?295
The court denied a certificate of probable cause even to review the case.296
The Supreme Court has adopted strict procedural default doctrines that bar review of any
issue not properly raised and preserved by counsel.297 Strickland, however, allows defendants to be
represented by lawyers who are ignorant of the law, who do no investigation, and who are thus
26

completely incapable of complying with the strict procedural requirements the Court has adopted. As
a result, states have no incentive to provide adequate representation to poor people. By assigning the
indigent accused inadequate counsel, the state increases its chances of obtaining a conviction and
reduces the scope of appellate and post-conviction review. So long as the lawyer's performance
meets the Strickland standard, those cases in which the accused received the poorest legal
representation will receive the least scrutiny on appeal and in postconviction review because of the
lawyer's failure to preserve issues,298 assert the right legal grounds for objections,299 and put on
evidence to provide a factual basis for relief.300
The Supreme Court stated as one basis for requiring the defendant to prove prejudice, "[t]he
government is not responsible for, and hence not able to prevent, attorney errors."301 That is simply
not true in cases involving poor people who have court-appointed lawyers. A poor person accused of
a crime does not choose an attorney; a judge or some other government official assigns a lawyer to
represent the defendant. Thus, the government is responsible for deficient representation when it
provides a lawyer who lacks the experience and skill to handle the case, or when it denies the lawyer
the resources necessary to investigate the case and present a defense. Strickland allows the
government to get away with it.
III
THE CHALLENGE TO THE LEGAL PROFESSION AND THE LAW SCHOOLS
What has been the response of the legal profession, of the silk stocking lawyers with six- or
seven-figure incomes at the prosperous law firms, to the sleeping lawyers in Houston, the defiance of
Gideon, the defiance of Argensinger, and the denial of access to courts for those most in need? A
small percentage have been concerned about these shocking injustices. But most lawyers simply ask,
"Did we have a good year? What's my draw?" The plight of the poor is out of sight and out of mind.
Bar associations once provided leadership in urging the creation and funding of indigent
defense programs, but many appear to have conceded defeat after writing numerous unheeded reports
on the sad state of indigent defense. Bar associations and individual lawyers, however, must renew
their efforts to build good indigent defense programs in one community after another. Lawyers have
a monopoly on the practice of law. They are trustees of justice. They have a responsibility to see that
justice is available not only to the wealthy, but to all. We do not have equal justice in this country and
are not even near achieving it. In many parts of the country, the situation, already inadequate, is
deteriorating.
New and more aggressive efforts are needed. Rick Teissier, a public defender in New
Orleans, challenged the excessive caseloads and lack of investigative assistance in his office. The
Louisiana Supreme Court held that the clients were "not provided with the effective assistance of
counsel the constitution requires," required pretrial hearings on whether lawyers could effectively
handle cases, and prohibited prosecutions from going forward in cases where effective assistance
could not be provided due to a lawyer's workload and lack of resources.302 A lawsuit challenging
inadequacies in Connecticut's public defender system has been filed.303 Other similar suits should be
27

filed as well.
But the legal profession should do more. State and local bar associations could establish and
fund model indigent defense programs. The Georgia bar recently announced that it would assess each
of its members fifty dollars a year over several years so that the bar could buy a building.304 This is a
classic example of the misplaced priorities of bar associations. The bar association should assess its
members to fund adequate, independent indigent defense programs before it makes assessments to
buy a building.
Regardless of the success of bar associations in bringing about systemic changes and increased
funding, more lawyers must put the quest for justice before the pursuit of money and come forward to
represent those who cannot afford a lawyer. They must join those already litigating the rights to
adequate compensation, to the funds necessary to investigate, and to the experts needed to prepare
and present a proper defense.
Law schools and law students must respond to the lack of legal services for those accused of
crimes or in prison because the courts and legislatures have been indifferent for so long. Because so
many states will not establish public defender systems to recruit, train and supervise law graduates,
the law schools must send their graduates out with the skills necessary to represent criminal
defendants in places where there is the greatest need. For the most part, law schools are not currently
doing this.
Many law schools put little emphasis on criminal law. They are turning out graduates who are
only fit to be associates at law firms, not lawyers capable of defending poor people accused of crimes.
Placement offices at many schools encourage students to pursue the money and prestige of the law
firms, and do not even make students aware of the public defender programs that desperately need
young, dedicated and talented lawyers.
Some law schools prefer to hire professors who have never practiced law. While many of
these professors are brilliant scholars who make immeasurable contributions to the law, some publish
virtually incomprehensible articles that have little relation to reality. Law schools should also have a
place on their faculties for lawyers with practical experience in the trenches. A professor who has
never been in the courtroom can no more prepare a student to be a trial lawyer than a person who has
never changed a tire can teach someone to be a mechanic.
More law schools should follow the example of New York University, which has outstanding
clinical programs educating students and serving the poor in many areas. New York University
students have been involved in efforts to ensure adequate representation to those facing the death
penalty in Alabama and in New York. Another model is Harvard Law School's Criminal Justice
Institute, which provides an outstanding educational experience for students, gives quality
representation to poor people in the local courts, and sends Harvard graduates into public defender
offices. Northeastern University Law School also provides an outstanding example with a
cooperative program that places students in public interest programs all over the country, where they
28

make immense contributions while learning how to represent those most in need. More law schools
should create graduate programs like the E. Barrett Prettyman Fellowships at the criminal justice and
juvenile justice clinics at the Georgetown University Law Center.
These programs not only teach students how to defend people accused of crimes, but they
also educate students about the desperate need for legal services of those whose lives or liberty is at
stake in the legal system. They teach students that those accused of crimes are neither "animals" nor
"subhuman," but human beings who are more than the worst thing they did in their lives. Too many
law school graduates are simply unaware of the lack of legal services for those facing criminal charges
or in prison. With awareness, the many graduates who become leaders can, as Robert Kennedy did
when he was Attorney General, provide leadership in renewing the quest for equal justice for all.

CONCLUSION
Although the Supreme Court stated in Gideon v. Wainwright that lawyers are "necessities,
not luxuries,"305 the reality in the United States today is that representation by a capable attorney is a
luxury, one few of those accused of a crime or in prison can afford. There is a temptation to give up
hope that the poor person who faces the loss of life or liberty or languishes in prison will ever receive
adequate representation. Legislatures will not pay for it, most courts will not order it, and most
members of the bar are unwilling or financially unable to represent a poor person in a criminal case
without adequate compensation.
There has never been equal justice in the courts of the United States, state or federal, but
equal justice has been the most fundamental aspiration of our legal system. It represents the kind of
legal system we would like to have and the kind of society we aspire to be. It has been an important
goal that has challenged the legal system, the bar and society. Those responsible, however, appear to
have given up on the quest for equal justice for rich and poor. Many, including members of the
Supreme Court,306 appear ready to sandblast the words "Equal Justice Under Law" off the front of
the Supreme Court building and acknowledge that our courts and our system of justice, like our
country clubs, are open and available only for those who can afford them. But this simply
demonstrates that the challenge is as immense as it is important. Bar associations, law schools,
individuals, and law students must lead new efforts for adequate funding, structure and independence
for indigent defense programs. Lawyers should not be silent about the failure to provide equal justice;
they must bear witness to the deficiencies of the system in the hope of prompting legislatures and
courts to take their eyes off the embarrassing target of mediocrity and to take aim at a full measure of
justice for all citizens.
Individual lawyers can and must provide zealous representation to some poor people, even if
the government fails in its larger responsibility of providing legal services to everyone. As a result of
the efforts of some dedicated lawyers, some innocent people will avoid wrongful conviction; some
troubled youths will be diverted to drug, alcohol, mental health, job training and other programs
instead of prisons; some who were wrongfully convicted will obtain their release; some will live
29

instead of being put to death by the government, and others will receive professional advice and
zealous advocacy through what is to them the strange and foreign land of the criminal justice system.
These efforts by individual lawyers in the quest for equal justice are not insignificant. They
are, of course, fundamentally important to those individuals whose lives and liberty are at stake. They
also demonstrate a recognition of the preciousness of life, liberty, fairness and adherence to the Bill of
Rights in a time and a culture of misplaced values and indifference to injustice. They set an example
that reminds us that achieving equal justice for all is not beyond the grasp of this wealthy society. We
need only the will to reach out and deliver on constitutional promises made long ago.

Footnotes
* Director, Southern Center for Human Rights, Atlanta, Georgia; Visiting Lecturer, Yale and
Harvard Law Schools; Senior Lecturer, Emory Law School; B.A. 1971, J.D. 1974, University of
Kentucky. The author is most grateful to his research assistants at Yale Law School, Fiona Doherty
and Jean Giles, for their assistance in preparing this article.
1. 372 U.S. 335 (1963); see also ANTHONY LEWIS, GIDEON'S TRUMPET (1964).
2. Janet Reno, Address to the American Bar Association Criminal Justice Section 6 (Aug. 2,
1997)(transcript on file with Annual Survey of American Law).
3. See, e.g., Charles J. Ogletree, Jr., An Essay on the New Public Defender for the 21st
Century, 58 LAW & COMTEMP. PROBS. 81, 90-93 (1995) (describing training of lawyers and
investigation of cases by the District of Columbia Public Defender Service); DAVID C. ANDERSON,
NATIONAL INST. OF JUSTICE, PUBLIC DEFENDERS IN THE NEIGHBORHOOD: A HARLEM LAW OFFICE
STRESSES TEAMWORK, EARLY INVESTIGATION (1997) (describing how early, aggressive investigations
distinguish the Neighborhood Defender Service in Harlem from other indigent defense programs).
4. See Fox Butterfield, Defying Gravity, Inmate Population Climbs, N.Y. TIMES, Jan. 19,
1998, at A8 (reporting that despite the decline in the crime rate over the past five years, the number
of inmates has continued to rise each year; that over 1,700,000 are in prisons and jails; and that the
national incarceration rate of 645 per 100,000 people is more than double the rate in 1985).
5. RICHARD KLEIN & ROBERT SPANGENBERG, THE INDIGENT DEFENSE CRISIS 25 (1993)
(prepared for the American Bar Association Section of Criminal Justice Ad Hoc Committee on the
Indigent Defense Crisis).
6. 372 U.S. at 344.
7. See, e.g., Frey v. Fulcomer, 974 F.2d 348, 359 (3d Cir. 1992) (lawyer in a Pennsylvania
case tailored his presentation of evidence and argument around a death penalty statute that had been
30

declared unconstitutional three years earlier); Trial Record at 1875-76, State v. Smith, 581 So. 2d
497 (Ala. Crim. App. 1990) (No. 5 Div. 458) (defense lawyer asked for time between the guilt and
penalty phases so that he could read the state's death penalty statute); Stephen B. Bright, Counsel for
the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer, 103 YALE L. J.
1835, 1839 (1994) (when asked to name the criminal law decisions with which he was familiar,
defense counsel could name only "Miranda and Dred Scott;" Dred Scott v. Sandford, 60 U.S. (19
How.) 393 (1857), was not a criminal case); Transcript of Habeas Corpus Hearing of Jan. 10-11,
1996, at 396-97, Fugate v. Thomas, Civ. No. 94-V-195 (Super. Ct. Butts Co. Ga.) (parts of which
are reprinted in A Lawyer Without Precedent, HARPER'S, June 1997, at 24, 26) (lawyer unaware of
any case). For a further discussion see infra notes 58-62, 291-99 and accompanying text.
8. See Jeffrey L. Kirshmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to
Effective Assistance of Counsel and the Strikland Prejudice Requirement, 75 NEB. L. REV. 425,
455-60 (1996) (citing cases in which convictions were upheld even though defense lawyers were
intoxicated, abusing drugs, or mentally ill); People v. Garrison, 765 P.2d 419, 440-41 (1989)
(upholding conviction even though counsel, an alcoholic, was arrested en route to court one morning
and found to have a blood alcohol level of 0.27); Bright, supra note 7, at 1835-36 (describing the
case of Judy Haney, whose capital trial had to be suspended for a day because her lawyer was
intoxicated).
9. See McFarland v. Texas, 928 S.W.2d 482 (Tex. Crim. App. 1996) (upholding death
sentence even though lead defense counsel slept during trial); Ex parte Burdine, 901 S.W.2d 456
(Tex. Crim. App. 1995) (upholding death sentence even though defense counsel slept during trial);
David R. Dow, The State, the Death Penalty, and Carl Johnson, 37 B.C. L. REV. 691, 694-95 (1996)
(describing the case of Carl Johnson, who was executed even though his defense counsel slept during
portions of the trial).
10. See Douglas C. Colbert, Thirty-five Years After Gideon: The Illusory Right to Counsel at
Bail Proceedings, 1998 U. ILL. L. REV. 1, 16 (1998).
11. See id. at 9-10 (1998) (finding that failure to provide counsel for bail proceedings is
"commonplace throughout the nation").
12. See id. at 14-19.
13. See Griffin v. Illinois, 351 U.S. 12 (1956).
14. See Douglas v. California, 372 U.S. 353 (1963).
15. See Bright, supra note 7, at 1860-61 n.154 (setting out in full the one-page brief filed in
the case of Larry Gene Heath, whose death sentence was affirmed by the Alabama Supreme Court on
the basis of the brief; Heath was executed); see also id. at 1843 n.55 (describing other grossly
deficient briefs filed in capital cases).

31

16. See id. at 1860-61.
17. See Poor Man's Justice, AM. LAW., Jan.-Feb. 1993, at 45-87 (13 articles describing the
inadequacy of representation for indigent defendants in various parts of the country); Richard Klein,
The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective
Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625 (1986); William S. Geimer, A Decade of
Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 WM. &
MARY BILL OF RTS. J. 91 (1995); Douglas W. Vick, Poorhouse Justice: Underfunded Indigent
Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329 (1995); Bright, supra note 7,
at 1835; Bruce A. Green, Lethal Fiction: The Meaning of "Counsel" in the Sixth Amendment, 78
IOWA L. REV. 433 (1993); American Bar Ass'n, Toward a More Just and Effective System of Review
in State Death Penalty Cases, 40 AM. U. L. REV. 1, 16 (1990) (finding after an exhaustive study that
"the inadequacy and inadequate compensation of counsel at trial" constituted one of the "principal
failings of the capital punishment systems in the states today").
18. See infra notes 202-34 and accompanying text.
19. See Stephen B. Bright, Death by Lottery--Procedural Bar of Constitutional Claims in
Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 W.V. L. REV. 679
(1990); Vick, supra note 17, at 337- 38.
20. MIKE MEARS, A BRIEF HISTORY OF THE GEORGIA INDIGENT DEFENSE ACT 24 (1996).
21. See id.
22. See notes 29-34 and accompanying text; see also Klein, supra note 17, at 679.
23. See infra Section II.A.
24. See Klein, supra note 17, at 658-63.
25. 407 U.S. 25 (1972).
26. See Klein, supra note 17, at 659 (collecting studies showing that defense systems
throughout the country are violating Argensinger).
27. See Ann Woolner, Guilty in Americus? Forget Lawyers, Just Plead Guilty, FULTON
COUNTY DAILY REP., Sept. 23, 1996, at 1.
28. See Consent Order entered Sept. 30, 1998, Parks v. Fennessy, Civil Action No.
1:96-CV-182-3 (WLS) (M.D. Ga.); Ann Woolner, Sumter to Tell Accused of Rights Before Asking
for Plea, FULTON COUNTY DAILY REP., Oct. 5, 1998, at 1.

32

29. Clay Hall, Public Defender is Hired, THOMPSON (GA.) TIMES, Feb. 24, 1993, at 3A.
30. See Clay Hall, Attorney for Hire, THOMPSON (GA.) TIMES, Jan. 27, 1993, at 1A (reporting
that the county was considering changing the way it provides indigent defense in order to lower the
cost to the county).
31. See Hall, supra note 29, at 3A.
32. See Bill Rankin, 'This is Fast-food Justice, and it's No Justice at All,' ATLANTA J.-CONST.,
Jan. 25, 1998, at A9 (reporting that on January 12, 1998, Wheeler met several clients for the first time
in court and consulted with some for less than 10 minutes before entering a guilty plea).
33.See Memorandum from Patrick Keenan (May 18, 1997) (on file with author) (summarizing
compilation of records of cases handled by William Wheeler in 1993, 1994, 1995, and 1996).
34. See id.
35. CLARENCE DARROW ON CAPITAL PUNISHMENT 34 (Chicago Historical Bookworks 1991)
(1924).
36. See Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System,
WALL ST. J., Sept. 7, 1994, at A1.
37. See id.
38. Ex parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J.,
dissenting).
39. Id. The clerk testified that counsel "fell asleep and was asleep for long periods of time
during the questioning of witnesses." Id. at 457 n.1.
40. See Barrett, supra note 36, at A1.
41. Dow, supra note 9, at 694-95.
42. See Ted Rohrlick, The Case of the Speedy Attorney, L.A. TIMES, Sept. 26, 1991, at A1.
43. Id.
44. See id.
45. See id.

33

46. See Jeff Rosenzweig, The Crisis in Indigent Defense: An Arkansas Commentary, 44 ARK.
L. REV. 409, 413 (1991).
47. Id. at 412.
48. Id.
49. See ABA JUVENILE JUSTICE PROJECT ET AL., A CALL FOR JUSTICE: AN ASSESSMENT OF
ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (1995)
(describing the poor quality of representation for children accused in delinquency proceedings); Fox
Butterfield, Few Options or Safeguards in a City's Juvenile Courts, N.Y. TIMES, July 22, 1997, at A1
(describing the woefully inadequate legal representation provided to children, an overwhelming
majority of whom are black, in the juvenile courts in New Orleans).
50. John Paul Stevens, Opening Assembly Address at the American Bar Association Annual
Meeting 13 (Aug. 3, 1996).
51. See id. at 12.
52. See NATIONAL INST. OF JUSTICE, CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE
STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL (1996) (a report by
the Department of Justice on persons convicted of crimes, but later exonerated by scientific evidence).
53. See Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Really
Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1318-19 nn.6-7 (citations to numerous articles
documenting conviction of the innocent).
54. Thurgood Marshall, Remarks on the Death Penalty Made at the Judicial Conference of
the Second Circuit, 86 COLUM. L. REV. 1, 2 (1986).
55. American Bar Ass'n, Toward a More Just and Effective System of Review in State Death
Penalty Cases, 40 AM. U. L. REV. 1, 67 (1990).
56. Id.
57. See Peter Applebome, Two Electric Jolts in Alabama Execution, N.Y. TIMES, July 15,
1989, at A6.
58. See Smith v. Kemp, 715 F.2d 1459, 1470 (11th Cir. 1983) (Smith's lawyers were unaware
of the Supreme Court's decision in Taylor v. Louisiana, 419 U.S. 522 (1975), decided six days before
Smith's trial started).
59. See Machetti v. Linahan, 679 F.2d 236, 241 (11th Cir. 1982) (holding that Georgia's
"opt-out" provision allowing women to decline jury service resulted in the unconstitutional
34

under-representation of women contrary to Duren v. Missouri, 439 U.S. 357 (1979), and Taylor v.
Louisiana, 419 U.S. 522 (1975)).
60. See Smith, 715 F.2d at 1476 (Hatchett, J., concurring in part and dissenting in part).
61. See id. at 1469 (because Smith and his codefendant were tried within a few weeks of each
other in the same county, their juries were drawn from the same unconstitutional jury pool).
62. See id. at 1469-72; see also id. at 1476 (Hatchett, J., concurring in part and dissenting in
part).
63. See KY. REV. STAT. ANN. § 31.170(4) (Michie 1985).
64. See Transcript of July 5, 1988 Hearing, at 15, Commonwealth v. Wilson, No. 87-CR-166
(Kenton Cir. Ct., Ky.).
65. American Bar Ass'n, supra note 55, at 76-77 n.196.
66. See Wilson v. Commonwealth, 836 S.W.2d 872, 878 (Ky. 1992).
67. See Affidavit of Robert Carran on inspection of William Hagedorn's office, Aug. 24, 1988,
Record at 580-81 (Vol. 4), Commonwealth v. Wilson, No. 87-CR-166 (Kenton Cir. Ct., Ky.)
68. See id. at 580.
69. See Transcript of July 5, 1988 Hearing at 18-20, Commonwealth v. Wilson, No.
87-CR-166 (Kenton Cir. Ct., Ky.).
70. Affidavit of John W. Foote, Feb. 3, 1997, at 4, P 7, Wilson v. Commonwealth, No.
87-CR-166 (Kenton Cir. Ct., Ky.) [hereinafter Foote Affidavit] (filed as Defendant's Exhibit 1 in
post-conviction proceedings).
71. See Transcript of July 5, 1988 Hearing at 19, Commonwealth v. Wilson, No. 87-CR-166
(Kenton Cir. Ct., Ky.).
72. See Affidavit of Robert Carran on recovery of stolen property, Aug. 24, 1988, Record at
565-68 (vol. 4), Commonwealth v. Wilson, No. 87-CR- 166 (Kenton Cir. Ct., Ky.).
73. See id. at 574-75.
74. See id.
75. See Wilson v. Commonwealth, 836 S.W.2d 872, 878 (Ky. 1992) (noting that "[a]t many
35

points during the trial, Wilson repeated his assertion that his court-appointed standby counsel were, to
use Wilson's words, 'unprepared, ill-trained, ill-equipped, and lacked the necessary competence and
experience"').
76. See id. at 883 (quoting transcript in which Wilson asks for "competent counsel"); see also
id. at 884 (noting Wilson's "insistence that the court appoint him an attorney who met Wilson's
specifications as a death penalty expert").
77. See Foote Affidavit, supra note 70, at 6, 10 ("There were times during the trial when
Hagedorn was not even present.").
78. See Transcript of Evidence and Proceedings at 204-08, (Vol. 2), Commonwealth v.
Wilson, No. 87-CR-166 (Kenton Cir. Ct., Ky. filed June 28, 1989) (cross-examination of Dr. Dean
Hawley by Mr. Alerding).
79. See Wilson, 836 S.W.2d at 879.
80. See Murray v. Giarratano 492 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987);
see also infra notes 82-83, 87-88, 93-150 and accompanying text.
81. See Fay v. Noia, 372 U.S. 391, 394-426 (1963) (describing the history and role of habeas
corpus); Smith v. Bennett, 365 U.S. 703, 712-13 (1961) (describing the writ of habeas corpus as the
common law world's "freedom writ" and, quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939), saying
"there is no higher duty than to maintain it unimpaired"); Stephen B. Bright, Is Fairness Irrelevant?
The Evisceration of Federal Habeas Corpus Review and Limits on the Ability of State Courts to
Protect Fundamental Rights, 54 WASH. & LEE L. REV. 1 (1997).
82. In Ross v. Moffitt, 417 U.S. 600 (1974), the Supreme Court refused to extend the right to
counsel to discretionary appeals after an initial appeal. In Finley, 481 U.S. at 551, the Court ruled
that neither the Due Process Clause of the Fourteenth Amendment nor the equal protection guarantee
of "meaningful access" required the state to provide counsel for indigent prisoners seeking state
post-conviction relief.
83. 492 U.S. at 10. The Mississippi Supreme Court has held that those condemned do die
have a constitutional right to counsel in state post- conviction proceedings. See Jackson v. State,
1999 WL 33904 (Miss. Jan. 28, 1999). However, other courts have held that there is no exception to
Murray v. Giarratano for inmates who have no source of representation and have their first
opportunity to present certain claims in state post-conviction review. See Gibson v. Turpin, 1999 WL
79655 (Ga. Feb. 22, 1999) (denying Gibson's application for certificate of probable cause to appeal);
Mackall v. Angelone, 131 F.3d 442, 449 n.13 (4th Cir. 1997). With the comprehensive Drug Abuse
Prevention and Control Act of 1970, § 408(q)(4)(B), as amended, 21 U.S.C. § 848(q)(4)(B) (West
1998), Congress created a statutory right to counsel in federal habeas corpus proceedings for
prisoners sentenced to death. See McFarland v. Scott, 512 U.S. 849, 849 (1994). However, counsel's
36

duties are limited to representation in federal habeas corpus review. The prisoner must first exhaust
available state court remedies by seeking state collateral review. See, e.g., United States ex. rel
Whitehead v. Page, 914 F. Supp. 1541, 1543 (N.D. Ill. 1995).
84. Id. at 11.
85. See THE SPANGENBERG GROUP, PROJECTING COSTS FOR VARIOUS INDIGENT DEFENSE
SYSTEMS IN VIRGINIA FOR FY 1986, at 78 (1985).
86. See id.
87. See Bounds v. Smith, 430 U.S. 817 (1977).
88. See id. at 833; Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J., concurring).
89. See Rhonda Cook, Cost of Inmates' Legal Advice Cut, ATLANTA J.- CONST., Mar. 30,
1996, at D3 (reporting that the director of the University of Georgia project, after working for the
project for 24 years, received a two-sentence letter informing him of the termination of the
department's contract with the project).
90. See id.; Ann Woolner, Coping with a Rollback in Inmates' Right to Legal Help, FULTON
COUNTY DAILY REP., Nov. 23, 1998, at 1.
91. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 101,
110 Stat. 1214, 1217 (1996) (codified as amended at 28 U.S.C. § 2244 (d) (1) (West Supp. 1998)).
92. Woolner, supra note 90, at 10, 12-13; see Ann Woolner, Court Shifts Oversight of
Georgia Inmates' Legal Help, FULTON COUNTY DAILY REP., Nov. 12, 1998, at 1, 2; Rhonda Cook,
Inmates' Attorneys Criticized, ATLANTA J.-CONST., Nov. 11, 1998, at C-1.
93. 518 U.S. 343 (1996).
94. See id. at 351.
95. See id. at 354.
96. Id.
97. Id. at 354.
98. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (amending 28 U.S.C. § 2244(d)(1)). This Act established a statute of limitations for
federal habeas corpus petitions of one year from the date upon which the conviction becomes final.
37

The statute is tolled during the time that an inmate exhausts state remedies by seeking state
post-conviction relief.
99. See James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of
Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. REV. L. & SOC. CHANGE 537, 541 n.15
(1991).
100. See Peter Applebome, Alabama Releases Man Held on Death Row for Six Years, N.Y.
TIMES, Mar. 3, 1993, at A1.
101. See Schlup v. Delo, 513 U.S. 298 (1995); Schlup v. Bowersox, No. 4:92CV433 JCH,
1996 U.S. Dist. LEXIS 8887 (E.D. Mo. May 2, 1996)(habeas relief granted based on finding that
constitutional violation led to conviction of Schlup even though he was probably innocent); Kyles v.
Whitley, 514 U.S. 419 (1995) (finding a violation of due process by the prosecution due to failure to
turn over exculpatory evidence).
102. See Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense
Organizations as a Denial of the Right to Counsel, 98 W. VA. L. REV. 863, 912-15 (1996); see also
Marcia Coyle, Republicans Take Aim at Death Row Lawyers, NAT'L L.J., Sept. 18, 1995, at A1
(describing the effort of South Carolina's Attorney General and other members of the National
Association of Attorneys General to eliminate funding for the post-conviction defender organizations
even though the organizations had established the innocence of at least four men condemned to die).
103. See Howard, supra note 102, at 915-20.
104. See David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to
Cut Capital-Representation Centers, FULTON COUNTY DAILY REP., Sept. 8, 1995, at 6 (pointing out
that eliminating funding for the capital representation centers would increase the cost of providing
representation, but decrease the quality).
105. Pub. L. No. 104-132, 110 Stat. 1214 (amending 28 U.S.C. ch. 153).
106. Id. §§ 101, 105 (codified as amended at 28 U.S.C. § 2244(d)(1) (West 1998)). The Act
also established a statute of limitations of 180 days for states which meet certain standards of
providing counsel in capital post-conviction proceedings. See id. § 107 (codified as amended at 28
U.S.C. § 2263). It prohibits federal courts from granting habeas corpus relief unless the decision of
the state court "was contrary to, or involved an unreasonable application of, clearly established
Federal law," Id. § 104(3), codified as amended at 28 U.S.C. § 2254(d)(1), severely limits when a
federal court may conduct an evidentiary hearing, see id. § 104(4), codified as amended at 28 U.S.C.
§ 2254(e)(2), and prohibits second or "successive" petitions for habeas corpus relief except in very
narrow circumstances. See id. §§ 105, 106 (codified as amended at 28 U.S.C. §§ 2255, 2244(b)).
107. See Gibson v. State, 404 S.E.2d 781 (Ga. 1991); Bill Rankin, When Death Row Inmates
38

Go to Court without Lawyers, ATLANTA J.-CONST., Dec. 29, 1996, at D5 (reporting Gibson's IQ as
"in the 80s").
108. See Transcript of Sept. 12, 1996 habeas corpus hearing, Gibson v. Turpin, No.
95-V-648 (Ga. Super. Ct. Butts County).
109. Id. at 2-3.
110. See Rankin, supra note 107, at D5 (reporting that counsel opposing Gibson was Paige
Whitaker, "one of the top death penalty litigators for the Attorney General's Office").
111. Transcript of Sept. 12, 1996 habeas corpus hearing at 67, Gibson v. Turpin, No.
95-V-648 (Ga. Super. Ct. Butts County).
112. See Letter from Paige Whitaker, Assistant Attorney General, to Judge Carlisle Overstreet
with enclosed order (Feb. 18, 1997) (on file with author); Order signed Mar. 6, 1997 by Judge
Overstreet, Record at 28, Gibson v. Turpin, No. 95-V-648) (Ga. Super. Ct. Butts County).
113. Gibson v. Turpin, 1999 WL 79655 (Ga. Feb. 22, 1999).
114. See Ex parte Skinner, No. 20,203-03 (Tex. Crim. App. Dec. 2, 1998) (dismissed because
petition filed one day late); Ex parte Smith, 977 S.W.2d 589 (Tex. Crim. App. 1998) (petition
dismissed because filed nine days late); Ex parte Colella, 977 S.W.2d 621 (Tex. Crim. App. 1998)
(petition filed because 37 days late).
115. Ex parte Smith, 977 S.W.2d at 611.
116. Id. at 613, 614 (Baird, J., dissenting).
117. Id. at 614 (Overstreet, J., dissenting).
118. See Order of Dec. 2, 1998, at 1, Ex parte Skinner (No. 20,203- 03).
119. See id. at 1-2.
120. Id. at 6 (Mansfield, J., concurring).
121. Id. at 5 (Baird, J., dissenting).
122. Ex parte Martinez, 977 S.W.2d 589, 589 (Tex. Crim. App. 1998) (Baird, J., dissenting).
123. See id. at 589 n.2.
124. See id.
39

125. Ex parte Wolfe, 977 S.W.2d 603 (Tex. Crim. App. 1998).
126. Id. at 603 (Baird, J., dissenting). Judge Baird described the application as follows:
The instant application appears to allege ineffective assistance of trial counsel, but also includes a
wish list of discovery, research, and hearings necessary to represent applicant. No cases are cited.
No analysis of the law is presented. Indeed, even the State recognizes this 'application' appears to be
a motion for discovery.
Id.
127. See id.
128. See Jane Elliott, Habeas System Fails Death Row Appellant, TEX. LAW., Mar. 9, 1998,
at 1.
129. See Ex parte Kerr, 977 S.W.2d 585, 585 (Tex. Crim. App. 1998) (Overstreet, J.,
dissenting).
130. See id.; Elliott, supra note 128, at 1 (quoting affidavit in which the lawyer admitted that
he thought he could not attack conviction, had been advised that he made a "gross error in judgment,"
and admitted that he may not have been competent to represent Kerr).
131. See Elliott, supra note 128, at 1.
132. See id.
133. See Ex parte Kerr, 977 S.W.2d at 585.
134. Id. at 585 (Overstreet, J., dissenting).
135. Id.
136. Elliott, supra note 128, at 1 (quoting the chief appellate lawyer for the district attorney's
office handling the case).
137. TCDLA Urges Members to Pass on Accepting Habeas Cases, TEX. LAW., June 22,
1998, at 4 [hereinafter TCDLA Urges] (Resolution passed by the Board of Directors of the Texas
Criminal Defense Lawyers Association on June 6, 1998).
138. See Paul Duggan, On Death Row, Not Even Dying is Certain, WASH. POST, Dec. 20,
1998, at A22.
139. See Cantu-Tzin v. Johnson, 162 F.3d 295, 297 (5th Cir. 1998), stay granted, 119 S.Ct.
40

587 (1998), cert. denied, 119 S.Ct. 847 (1999) (one lawyer was forced to withdraw due to a conflict
of interest; the second was permitted to withdraw after asserting "irreconcilable differences" with
Cantu).
140. See supra note 106 and accompanying text.
141. See Hearing of Aug. 15, 1997, at 26-29, Cantu v. Johnson, No. 71, 314 (Tex. Crim.
App. 1997).
142. See Cantu-Tzin v. Johnson, 162 F.3d at 296, 298-300. Two judges on the Court of
Appeals said that Cantu requested discharge of the third lawyer "because Cantu thought for various
reasons that [the lawyer] was not representing him effectively," id. at 297, without ever mentioning
that the lawyer had failed even to visit Cantu and knew nothing about the Antiterrorism Act, in
finding that Cantu was "dilatory" and "flouted the state court's procedures." Id. at 299. Judge
Benivides, dissenting, pointed out that because the federal district court had denied Cantu counsel and
an evidentiary hearing, he had no opportunity to present evidence or arguments to show that he had
not been dilatory or flouted the state procedures. See id. at 301 (Benivides, J., dissenting).
143. See Man Executed for Murder-for-hire Plot, DALLAS MORNING NEWS, Feb. 17, 1999, at
21A.
144. The Court no longer faces the dissents of Judges Baird and Overstreet. Judge Baird was
defeated in his bid for reelection in 1998, and Judge Overstreet gave up his seat to seek other office.
See Bruce Nichols, GOP Candidates Sweep 3 Seats; Appeals Court Will be All-Republican for the
First Time, DALLAS MORNING NEWS, Nov. 4, 1998, at 35A.
145. Elliott, supra note 128, at 1.
146. Cynthia Orr & E.G. "Gerry" Morris, Dear 11.071 Appointed Counsel:, VOICE FOR THE
DEFENSE, Apr. 1998, at 23.
147. See ALA. CODE § 15-12-23(d) (1998).
148. See Gibson v. Turpin, 1999 WL 79655 (Ga. Feb. 22, 1999) (upholding refusal to
provide a lawyer for death-sentenced inmate in state post-conviction review); see also THE
SPANGENBERG GROUP, AN UPDATED ANALYSIS OF THE RIGHT TO COUNSEL AND THE RIGHT TO
COMPENSATION AND EXPENSES IN STATE POST- CONVICTION DEATH PENALTY CASES 20 (1996);
Rankin, supra note 107, at D5 (reporting that Georgia makes no provision for counsel in capital postconviction proceedings and describing efforts of Georgia's chief justice to get law firms to volunteer
to take cases).
149. Pub. L. No. 104-132, 110 Stat. 1214 (1996). The Act is not limited to capital cases.

41

150. See Keating v. Hood, 922 F. Supp. 1482 (C.D. Ca. 1996), dismissed to allow exhaustion
of state remedies, 133 F.3d 1240 (9th Cir. 1998).
151. See, e.g., Haley v. Gross, 86 F.3d 630 (7th Cir. 1996) (holding prison officials were
deliberately indifferent to safety and welfare of prisoner who was severely burned when cellmate, who
had been acting strangely, set cell on fire after prisoner's pleas to be moved were ignored); Vosburg v.
Solem, 845 F.2d 763, 766-67 (8th Cir. 1988) (risk of sexual assaults pervasive and prison officials
failed to respond reasonably); Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984) (describing
pervasive risk of sexual assaults in prisons due to inadequate patrols, improper positioning of guards,
inadequate inmate classification system, and failure to report assaults and pursue prosecution).
152. See Andrew A. Skolnick, Prison Deaths Spotlight How Boards Handle Impaired,
Disciplined Physicians, 280 JAMA 1387 (1998) [hereinafter Skolnick, Prison Deaths] (describing
deaths of prisoners treated by doctors who lost their medical license after criminal convictions or
findings of professional misconduct, but were provisionally licensed to practice in prisons); Andrew
A. Skolnick, Critics Denounce Staffing Jails and Prisons With Physicians Convicted of Misconduct,
280 JAMA 1391, 1391 (1998) (reporting that "inadequate medical staffing in many correctional
facilities is compromising the health and safety of inmates"); see also Cortes-Quinones v.
Jiminez-Nettleship, 842 F.2d 556, 560 (1st Cir. 1988) (mentally ill prisoner dismembered by
cellmates; prisoner was not segregated and did not receive treatment); THE OXFORD HISTORY OF THE
PRISON 250-51 (Norval Morris & David J. Rothman eds., 1995) (incidence of AIDS is fourteen times
higher in state and federal prisons than in the general population; frequency of tuberculosis among
prisoners in New Jersey is eleven times higher than in the general population).
153. See NILS CHRISTIE, CRIME CONTROL AS INDUSTRY: TOWARD GULAGS, WESTERN STYLE?
(1993) (describing failures of the American prison system from the perspective of an eminent
Norwegian criminologist); David J. Rothman, The Crime of Punishment, N.Y. REV. OF BOOKS, Feb.
17, 1994, at 34 (describing the severe overcrowding in U.S. prisons, pseudo-military "boot camps"
for young offenders, and other aspects of the culture of punishment in this country).
154. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, § 504(a)(15), 110 Stat. 1321 (1996).
155. See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 803(d), 110 Stat.
1321 (1996) (amending 42 U.S.C. § 1988).
156. See id. §§ 802-03 (amending 18 U.S.C.A. § 3626 and other statutes); Kristin L. Burns,
Return to Hard Time: The Prison Litigation Reform Act of 1995, 31 GA. L. REV. 879 (1997).
157. 18 U.S.C. § 3626(a)(1)(A) (1998).
158. See id. § 3626(b); see also Benjamin v. Jacobson, 124 F.3d 162 (2d Cir. 1997); Pyler v.
Moore, 100 F.3d 365, 370-72 (4th Cir. 1996), cert. denied, 520 U.S. 1277 (1997); Garvin v.
42

Branstad, 122 F.3d 1081, 1085-87 (8th Cir. 1997).
159. See Hedieh Nasheri, A Spirit of Meanness: Courts, Prisons and Prisoners, 27 CUMB. L.
REV. 1173, 1188-99 (1996-97).
160. See, e.g., Snipes v. Detella, 95 F.3d 586 (7th Cir. 1996) (holding prison physician did not
act with deliberate indifference when he allegedly decided not to administer a local anesthetic before
removing inmate's toenail); Hosna v. Groose, 80 F.3d 298 (8th Cir. 1996) (holding that denial of
exercise may be constitutional violation only when inmate's muscles atrophy or if inmate's health is
threatened); Crowder v. True, 74 F.3d 812 (7th Cir. 1996) (claims of paraplegic inmate that he was
denied a wheelchair, physical therapy sessions, exercise, recreation, hygienic care, and medical care
rejected because of failure to show deliberate indifference on the part of prison officials); Shakka v.
Smith, 71 F.3d 162, (4th Cir. 1995) (holding refusal to allow prisoner to take shower for three days
after human excrement and urine were thrown on him by other inmates did not violate Eighth
Amendment where inmate was provided with "water and cleaning materials" to clean himself and
cell).
161. Hutto v. Finney, 437 U.S. 678, 681 (1978) (quoting Holt v. Sarver, 309 F.Supp. 362,
381 (E.D. Ark. 1970)).
162. See Hutto, 437 U.S. at 682 n.4.
163. See id. at 682 n.5.
164. Id. at 681 n.3.
165. See DAVID M. OSHINSKY, WORSE THAN SLAVERY: PARCHMAN FARM AND THE ORDEAL OF
JIM CROW JUSTICE 149-51 (1996).
166. See id. at 242.
167. Id. at 245; see also Gates v. Collier, 349 F. Supp. 881, 881- 905 (N.D. Miss. 1972),
aff'd, 501 F.2d 1291 (5th Cir. 1974).
168. See id.
169. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d
283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).
170. See Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part and rev'd in part,
679 F.2d 1115 (5th Cir. 1982), modified on rehearing, 688 F.2d 266 (5th Cir. 1982).
171. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant
part, 801 F.2d 1080 (9th Cir. 1986).
43

172. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985).
173. See Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L.
REV. 639, 670-81 (1993) (describing reforms accomplished through corrections litigation).
174. See Skolnick, Prisoner Deaths, supra note 152, at 1389.
175. See id. at 1387.
176. See id. at 1389.
177. Id. at 1389-90.
178. See id. at 1389.
179. Id. at 1390.
180. See David C. Anderson, CRIME AND THE POLITICS OF HYSTERIA 206-56 (1995); THE
REAL WAR ON CRIME 63-98 (Steven R. Donziger ed., 1996); Stephen B. Bright, The Politics of
Crime and the Death Penalty: Not "Soft on Crime," But Hard on the Bill of Rights, 39 ST. LOUIS U.
L.J. 479 (1995).
181. See Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. TIMES, Mar. 26,
1995, at 16 (describing return of chain gangs to Alabama); Brent Staples, The Chain Gang Show,
N.Y. TIMES MAG., Sept. 17, 1995, at 62.
182. See Adam Nossiter, Judge Rules Against Alabama's Prison 'Hitching Posts,' N.Y.
TIMES, Jan. 31, 1997 (Alabama inmates chained to metal bar in 90 degree heat for hours at a time and
not allowed to use the restroom or have a drink).
183. See Cynthia Tucker, State's Prisons are Filled With Thugs, All Right, ATLANTA
J.-CONST., July 13, 1997, at H9.
184. Rhonda Cook, A Tough Chief of Prisons, ATLANTA J.-CONST., Dec. 15, 1996, at G1.
185. See Rhonda Cook, 235 Prison Teachers Fired to Save $8 Million, ATLANTA J.-CONST.,
Dec. 7, 1996, at A1.
186. See id.
187. See Cook, supra note 184, at G1.

44

188. See id.
189. See Charles Walston, Inmates Face 4-mile Walks, ATLANTA J.-CONST., Jan. 3, 1996, at
A1.
190. Editorial, Death Sentence for Rehab, ATLANTA J.-CONST., Dec. 19, 1996, at A20.
191. See Rhonda Cook, Prison Officials Recall Blood Bath, ATLANTA J.- CONST., May 17,
1997, at D2 [hereinafter Cook, Prison Officials] (reporting on testimony by prison officials in
depositions taken in lawsuit filed in connection with the case); Rhonda Cook, Depositions Detail
Abuse of Inmates, ATLANTA J.-CONST., Sept. 9, 1997, at C1 (reporting that "latest revelations suggest
a system-wide belief that beating prisoners is OK").
192. Rhonda Cook, Guard Recalls Beatings as Payback Time, ATLANTA J.- CONST., June 29,
1997, at C1.
193. Cook, Prison Officials, supra note 191 (quoting from deposition of guard Phyllis
Tucker).
194. See Rhonda Cook, Federal Judge Approves Settlement in Inmate Lawsuit That Alleged
Abuse, ATLANTA J.-CONST., Apr. 24, 1998, at B2.
195. See Rick Bragg, Prison Chief Encouraged Brutality, Witnesses Report, N.Y. TIMES, July
1, 1997, at A12; Bob Herbert, Brutality Behind Bars, N.Y. TIMES, July 7, 1997, at A15; Nat Hentoff,
Cracking Heads in Georgia, WASH. POST, June 14, 1997, at A19.
196. See, e.g., Rhonda Cook, Prison Story Hits Prime Time, ATLANTA J.- CONST., Sept. 25,
1997, at B1 (discussing a 14-minute report by Sam Donaldson on "Prime Time Live," and that
"[s]everal major national news organizations ... have picked up on the story").
197. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (state trial should be the "main event,"
not a "tryout on the road" before post-conviction proceedings).
198. David Bazelon, The Defective Assistance of Counsel, 42 U. CIN. L. REV. 1, 2 (1973).
199. Chief Justice Harold G. Clarke, Annual State of the Judiciary Address, reprinted in
FULTON COUNTY DAILY REP., Jan. 14, 1993, at 5.
200. 466 U.S. 668 (1984).
201. See Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the
Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625, 658-63
(1986)
45

202. See State v. Peart, 621 So. 2d 780, 784 (La. 1993).
203. See id. A serious case was defined as "one involving an offense necessarily punishable by
a jail term which may not be suspended." Id. at 784 n.3.
204. See id. at 784.
205. See id. The Louisiana Supreme Court found that, because of the excessive caseloads and
insufficient resources of the public defender office, the clients served by this system are "not provided
with the effective assistance of counsel the [C]onstitution requires." Id. at 790
206. See Jan Ackerman, Public Defenders Feel Betrayed by Heavy-Handed County Axing,
PITT. POST-GAZETTE, Feb. 27, 1996, at B1.
207. See id.
208. See id.
209. See id.
210. Jan Ackerman, Justice on a Tight Budget; Commissioners Are Courting Disaster by
Cutting Budget of Overworked Public Defenders, PITT. POST-GAZETTE, Feb. 4, 1996, at A1 (quoting
a study done on behalf of the American Bar Association by the Spangenberg Group, a Massachusetts
based consulting firm, stating that the Allegheny County public defender's office was in crisis).
211. Id.
212. See Ackerman, supra note 206, at B1.
213. See id.
214. See Dave Daley, Defense Attorney Fears Poor Clients Will be Hurt by Cuts,
MILWAUKEE J., Mar. 16, 1995, at A18.
215. See id.; see also Daniel Bice, Lawyers May Boycott Public Cases, MILWAUKEE J., Apr.
7, 1995, at B5.
216. See Daley, supra note 214, at A18.
217. See id.
218. See Sharon Theimer, Are Legal Eagles Flying Out of Orbit?, CAPITAL TIMES, Nov. 25,
1996, at 1A.
46

219. See supra notes 29-48 and accompanying text.
220. See VA. CODE ANN. § 19.2-163 (Michie 1998). The statute provides that after July 1,
1999, lawyers are to receive up to $882 in felony cases punishable by more than 20 years and $318
for a felony punishable by less than 20 years, but the other rates remain the same. The statute
provides for a "reasonable amount" for the defense of a capital case.
221. See Laura LaFay, Virginia's Poor Receive Justice on the Cheap, VIRGINIAN-PILOT, Feb.
15, 1998 at A1; Felony Murder: Soup to Nuts--$575, CRIM. PRACTICE REP., Jan. 28, 1998, at 25
[hereinafter Felony Murder].
222. See LaFay, supra note 221, at A1.
223. See id. at A10 (reporting that Judge James E. Kulp announced that he would remove
from the list of attorneys eligible for court appointments any lawyer who raised the issue); Felony
Murder, supra note 221, at 27.
224. See ALA. CODE § 15-12-21 (Supp. 1992). Lawyers can be reimbursed for their overhead
expenses. See May v. State, 672 So. 2d 1307 (Ala. Crim. App. 1993)(allowing reimbursement for
office overhead expenses and upholding $1000 statutory cap on attorney fees).
225. See Marianne Lavelle, Strong Law Thwarts Lone Star Counsel, NAT'L L.J., June 11,
1990, at 34.
226. See THE SPANGENBERG GROUP, A STUDY OF REPRESENTATION IN CAPITAL CASES IN
TEXAS 156-57 (1993) (prepared for the State Bar of Texas).
227. See MISS. CODE. ANN. § 99-15-17 (Supp.1990); see also Wilson v. State, 574 So. 2d
1338 (Miss. 1990).
228. See State v. Wigley, 624 So. 2d 425 (La. 1993) (holding that fees for a lawyer's services
need not be paid, but that lawyers were entitled to recover their reasonable out-of-pocket expenses
and overhead costs). Louisiana had previously required the lawyer to pay all expenses and made no
provision for overhead costs. See State v. Clifton, 172 So. 2d 657 (La. 1965).
229. LaFay, supra note 221, at A10 (quoting Virginia Beach Commonwealth Attorney Bob
Humphreys).
230. Id.
231. See, e.g. Edward C. Prado, Process and Progress: Reviewing the Criminal Justice Act,
58 LAW & CONTEMP. PROBS. 51, 57 (1995) (complaints on reduction of fees and processing delays
47

"pervasive" among defense attorneys).
232. See, e.g., Stephen J. Schulhofer & David D. Friedman, Rethinking Indigent Defense:
Promoting Effective Representation Through Consumer Sovereignty and Freedom of Choice for all
Criminal Defendants, 31 AM. CRIM. L. REV. 73, 94 (1993) (noting that judges or court
administrators "often reduce fees, sometimes in a way that the attorneys consider arbitrary"); Orr &
Morris, supra note 146, at 23 (warning lawyers that the Texas Court of Criminal Appeals "has been
routinely cutting vouchers without explanation").
233. Judge Frank Johnson pointed out the impossibility of making such a showing in Moore v.
Kemp, 809 F.2d 702, 742-43 (11th Cir. 1987) (Johnson, J., concurring in part and dissenting in part).
Judge Johnson asked "how could [counsel] know if he needed a microbiologist, an organic chemist, a
urologist, a hematologist, or that which the state used, a serologist? How further could he specify the
type of testing he needed without first hiring an expert to make that determination?" Id. at 743.
Judge Johnson noted that the lawyer faces "a proverbial 'Catch 22,' making it impossible for all but
the most nimble (and prescient) defendant[s] to obtain expert assistance." Id. at 742.
234. See, e.g., Pierre Thomas, First Fruit of Crime Bill is Marketed; Reno: $200 Million to
Police in October, WASH. POST, Sept. 9, 1994 at A25 (describing plans of Attorney General Reno to
distribute $200 million for 2,600 police officers as part of implementation of a $30 billion allocation in
crime bill); Melody Petersen, Before an Election, Prisons are Good. The Bills Come Later, N.Y.
TIMES, Aug. 10, 1997, at 13NJ-6 (New Jersey edition) (describing adoption of a crime bill increasing
the sentences for drug dealers).
235. See Anderson, supra note 180; THE REAL WAR ON CRIME, supra note 180, at 63-98;
Bright, supra note 180, at 479.
236. See Gil Lawson, Patton Sets Execution Date in 5 Death-Row Cases; Order Issued to
Speed Appeals, LOUISVILLE COURIER J., Jan. 4, 1996, at 1B.
237. See id.
238. See Gil Lawson, Praise Can't Assure Public Advocate of Keeping Her Job, LOUISVILLE
COURIER J., May 10, 1996, at 1B.
239. See Gil Lawson, Patton Picks Lewis to Replace Connelly as Public Advocate; Appointee
is 20-Year-Veteran of Defender Systems, LOUISVILLE COURIER J., Sept. 18, 1996, at 1B.
240. See Lawson, supra note 238, at 1B.
241. See Robin Blumner, Killing Agency Won't Speed Up Executions, ST. PETERSBURG
TIMES, Feb. 16, 1997, at 4D.

48

242. Inexperience Defines Chiles' Death Row Staff, FLA. TODAY, Oct. 5, 1997, at 8B
[hereinafter Chiles' Death Row Staff].
243. See FLA. STAT. ANN. § 27.701 (West Supp. 1998).
244. See id.
245. See Chiles' Death Row Staff, supra note 242, at 8B; Key Appointees Lack Death-Row
Experience, TAMPA TRIB., Sept. 30, 1997, at 5; Jackie Hallifax, New Death Row Lawyers Have No
Background in Capital Appeals, TALLAHASSEE DEMOCRAT, Sept. 30, 1997, at 1B.
246. See Jackie Hallifax, Chiles Appoints 2 New Death Row Attorneys, MIAMI HERALD, Aug.
9, 1997, at 6B.
247. See Chiles' Death Row Staff, supra note 242, at 8B.
248. See DAVID VON DREHLE, AMONG THE LOWEST OF THE DEAD: THE CULTURE OF DEATH
ROW 268 (1995) (describing how Governor Bob Graham's signing of death warrants enabled him to
reinvent himself as tough after being initially dubbed "Governor Jello"); id. at 200-01 (reporting that
Graham increased the number of warrants he signed when running for reelection as governor in 1982
even though he knew they would not be carried out because of a pending court decision); id. at 293
(reporting that Graham again stepped up the number of warrants he was signing each month when
running for the Senate in 1986, causing one assistant attorney general responsible for representing the
state in capital cases to remark that "[n]ine months of Bob Graham running for the Senate nearly
killed me"). Graham's successor, Bob Martinez, signed over 90 death warrants in his four years in
office and ran television advertisements showing the face of serial killer Ted Bundy, who was
executed during his tenure. See Richard Cohen, Playing Politics With the Death Penalty, WASH.
POST, Mar. 20, 1990, at A19.
249. See Jenny Staletovich, Office That Defends Death Row Inmates Near Collapse, PALM
BEACH POST, May 4, 1998, at 1A. Buenoano was executed in March, 1998. See id.
250. See id.
251. See id.
252. William R. Levesque, Death Row Inmate Gets New Attorneys, ST. PETERSBURG TIMES,
Oct. 27, 1998, at 3B; see also Editorial, A Formula for Failure, ST. PETERSBURG TIMES, Nov. 7,
1998, at 12A (noting "[r]arely does a judge lash out at attorneys in such a blistering attack in an
official ruling, but this one was deserved").
253. See Jackie Hallifax, One Death Row Appeals Office is Struggling With its Caseload,
TALLAHASSEE DEMOCRAT, Oct. 1, 1998; see also Marcia Coyle, Suit: Death Defense in a Sham,
49

NAT'L L.J., Dec. 21, 1998, at A1.
254. Alan Johnson, 2 Fired Public Defenders Take Fight to Higher Level, COLUMBUS
DISPATCH, Feb. 29, 1996, at 7C.
255. See Attorney General is Keeping the Death Penalty Argument Alive, CINCINNATI POST,
Apr. 8, 1996, at 6A.
256. Alan Johnson, Public Defender Signals New Tack on Capital Cases, COLUMBUS
DISPATCH, Feb. 20, 1996, at 1A.
257. Mary Beth Lane, Lawyers File Job-Loss Actions; Complaints Name Public Defender,
PLAIN DEALER, Feb. 29, 1996, at 6B.
258. Alison Frankel, Too Independent, AM. LAW., Jan.-Feb. 1993, at 67, 68; see also John J.
Cleary, Federal Defender Services: Serving the System or the Client, 58 LAW & CONTEMP. PROBS.
65 (Vol. 1 1995).
259. See id. at 67.
260. See supra notes 36-41 and accompanying text.
261. See Frederic N. Tulsky, Big-Time Trials, Small Time Defenses, PHILA. INQUIRER, Sept.
14. 1992, at A1.
262. Id.
263. Id.
264. See, e.g., Andrew Hammel, Discrimination and Death in Dallas: A Case Study in
Systematic Racial Exclusion, TEX. FORUM ON CIV. LIBERTIES & CIV. RTS., Summer 1998, at 187, 225
(observing "unhealthy cronyism between trial judges, who control the appointments, and private
criminal defense attorneys, who need the work"); Andy Court, Rush to Justice, AM. LAW., Jan./Feb.
1993, at 58 (reporting that the system of assigning lawyers to defend indigent cases by judges in
Detroit "may discourage the lawyers from doing anything that might alienate the judge by impeding
his or her efforts to move the docket" and quoting a judge as observing that lawyers are "more
interested in presenting to you a situation that accommodates the moving of the docket, as though
that's going to endear them to you and cause you, when you are on assignment [duty], to give them
more cases").
265. Hammel, supra note 264, at 225-26.
266. See id. at 226.

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267. See Jane Elliott, Habeas Surprise: Court Orders 48 to Take Death Cases, TEX. LAW.,
Dec. 2, 1996, at 1.
268. See Kathy Walt, Lawyers Who Aid Condemned Paid $265,000/State Payments by Far
Largest to Any Attorneys, HOUS. CHRON., Oct. 3, 1997, at 33A.
269. See id.
270. See supra notes 114-37 and accompanying text.
271. See supra notes 145-46 and accompanying text.
272. See supra notes 122-37 and accompanying text.
273. TCDLA Urges, supra note 137, at 4 (Resolution passed by the Board of Directors of the
Texas Criminal Defense Lawyers Association on June 6, 1998).
274. The Austin American-Statesman said in an editorial that "[b] arbarism is an appropriate
description" of the court's refusal to hear a post- conviction petition because the lawyer it appointed
failed to file within a deadline. Editorial, A Disgraceful Vote, AUSTIN AMERICAN-STATESMAN, Apr.
27, 1998 at A1. The paper opined that the "disgraceful vote" would "only heighten the state's deadly
reputation and make its judiciary appear to be barbaric." Id.
275. Polk County v. Dodson, 454 U.S. 312, 332 (1981) (Blackmun, J., dissenting).
276. Glasser v. United States, 315 U.S. 60, 76 (1942).
277. 466 U.S. 668 (1984).
278. See id. at 694.
279. Id. at 689.
280. Id. at 688.
281. See William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical
Undermining of the Right to Counsel, 4 WM. & MARY BILL RTS. J. 91 (1995) (criticizing the
Strickland standard and calling for its replacement).
282. Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring).
283. See supra notes 17, 32-49 and accompanying text.
284. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Says, HOUS. CHRON.,
51

Aug. 14, 1992, at A35.
285. Id.
286. See McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996).
287. Id. at 527 (Baird, J., dissenting).
288. See Ex parte Burdine, 901 S.W.2d 456 (Tex. Crim. App. 1995).
289. See Dow, supra note 9, at 695, 701, 706 n.44.
290. See id. at 701, 706 n.44; see also Johnson v. Scott, 68 F.3d 470 (5th Cir. 1995).
291. 428 U.S. 153 (1976).
292. 408 U.S. 238 (1972).
293. See A Lawyer Without Precedent, HARPER'S MAG., June 1 1997, at 24, 26 (setting out
the lawyer's testimony). For a discussion of the examination in question see Transcript of Habeas
Corpus Hearing of Jan. 10-11, 1996, at 396-97, Fugate v. Thomas, Civ. No. 94-V-195 (Super. Ct.
Butts County Ga.).
294. Trial transcript in Fugate v. State, 431 S.E.2d 104 (Ga. 1993).
295. Dec. 10, 1996 Application for a Certificate of Probable Cause to Appeal at 1, Fugate v.
Thomas, No. S97R0434 (Ga.).
296. See Order of Apr. 24, 1997, Fugate v. Thomas No. S97R0434 (Ga.).
297. See Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas
Claims in Capital Cases, 23 LOY. L.A. L. REV. 193 (1989); Bright, supra note 19, at 679.
298. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) (where defendant failed to comply
with contemporaneous objection rule at trial, court refuses to address issue).
299. See, e.g., Anderson v. Harless, 459 U.S. 4 (1982) (holding federal issue not preserved
for federal habeas corpus review because counsel argued only the due process clause of the state
constitution to the state courts, not the due process clause of the federal constitution).
300. See, e.g., Messer v. Kemp, 831 F.2d 946 (11th Cir. 1987) (en banc), cert. denied, 485
U.S. 1029 (1988); Moore v. Kemp, 809 F.2d 702 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054
(1987); Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988), cert. denied, 488 U.S. 872 (1998) (all
cases in which funds were denied for critical expert assistance--a mental expert in Messer, a forensic
52

expert in Moore, and a ballistics expert in Stephens--and the reviewing court held that counsel had
failed to make an adequate showing of need).
301. Strickland v. Washington, 466 U.S. 668, 693 (1984).
302. See State v. Peart, 621 So. 2d 780, 790 (La. 1993).
303. See Rivera v. Rowland, No. CV-95-0545629S (Conn. Super. Ct. filed Jan. 22, 1997).
304. See Don J. DeBenedictis, Deadbeat Dads Beware; Bar Rules Issued on Child Support,
Building Fund, FULTON CO. DAILY REP., Feb. 6, 1997, at 1.
305. 372 U.S. 335, 344 (1963).
306. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996) (Thomas, J., dissenting) (suggesting that
the Supreme Court's decisions in Griffin v. Illinois, 351 U.S. 12 (1965), providing for free transcripts
to allow appeals by the poor, and Douglas v. California, 372 U.S. 353 (1963), requiring counsel for
indigent defendants on appeal, were the result of a "fetish for indigency," were wrongly decided and
should be overruled); Lewis v. Casey, 581 U.S. 343, 365-78 (suggesting that Bounds v. Smith, 430
U.S. 817 (1977), requiring legal assistance to prisoners, Griffin, and Douglas were wrongly decided).

53