{"id":153,"date":"2018-05-01T14:02:03","date_gmt":"2018-05-01T18:02:03","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/?page_id=153"},"modified":"2025-05-12T11:09:42","modified_gmt":"2025-05-12T15:09:42","slug":"adequate-representation-the-difference-between-life-and-death","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/in-print\/volume-55-number-2-spring-2018\/adequate-representation-the-difference-between-life-and-death\/","title":{"rendered":"Adequate Representation: The Difference Between Life and Death"},"content":{"rendered":"

The U.S. Supreme Court\u2019s 2017 ruling in Buck v. Davis highlights the disturbing\u00a0consequences of deficient representation in capital cases. Duane Edward Buck\u00a0was sentenced to death in 1997 after the defense\u2019s own witness testified that\u00a0\u201c[t]here is an overrepresentation of Blacks among the violent offenders\u201d and the\u00a0defendant\u2019s race made him more likely to be dangerous in the future. During\u00a0closing argument, defense counsel failed to object to the State\u2019s reference to this\u00a0testimony. This improper evidence of race was the only evidence presented on\u00a0which the jury could base a finding of \u201cfuture dangerousness\u201d\u2014a necessary\u00a0finding to sentence a defendant to death, as opposed to life in prison. The jury\u00a0sentenced Buck to death based on this improper evidence. Thus, in Buck<\/em>, the\u00a0Supreme Court found ineffective assistance of counsel, holding that Buck\u2019s trial\u00a0counsel performed deficiently and that Buck was prejudiced by that deficiency.<\/p>\n

Buck v. Davis<\/em>, one of today\u2019s clearest violations of a defendant\u2019s constitutional\u00a0right to a fair trial, went un-reviewed on the merits through countless appeals over\u00a0the course of twenty-one years and had yet to be rectified when it reached the\u00a0Supreme Court. Even after the State of Texas recognized a deficiency in Buck\u2019s\u00a0case, procedural roadblocks continued to deny Buck relief. Perhaps most concerning, though, is the fact that the ineffectiveness of Buck\u2019s counsel was foreseeable\u00a0and, thus, preventable.<\/p>\n

The attorney who failed to adequately represent Buck in his initial proceedings\u00a0carried a track record of deficient representation that today totals twenty former\u00a0clients sentenced to death. Unfortunately, this pattern of deficient representation\u00a0by a capital-defense attorney is not unique. Nor is this just a problem in Texas. \u201cRepeat offenders\u201d\u2014attorneys whom courts continue to appoint as defense\u00a0counsel in capital cases despite demonstrably defective representation in past\u00a0cases\u2014present a problem across the country. While no single shortcoming\u00a0renders an attorney\u2019s representation deficient, the most common deficiency of\u00a0repeat-offender attorneys is their failure to zealously advocate on behalf of their\u00a0client at the sentencing phase of trial. For instance, the representation is considered\u00a0\u201cineffective\u201d for purposes of deeming the attorney a \u201crepeat offender\u201d when the\u00a0defense\u2019s case for a life sentence, as opposed to death, is unusually short. Evidence\u00a0of an inappropriately short case at the sentencing phase may include presenting\u00a0little-to-no mitigation evidence; calling few, if any, defense witnesses; and failing\u00a0to interview potential witnesses (either a key witness or a sufficient number of\u00a0witnesses generally). Failing to zealously advocate at the sentencing phase is often\u00a0what leads to a death sentence, as opposed to life in prison.<\/p>\n

The \u201crepeat\u201d aspect of \u201crepeat offender\u201d points to an issue uniquely problematic\u00a0in the capital context. Courts continue to appoint repeat offenders because, having\u00a0tried capital cases previously, repeat offenders project an image of experience.\u00a0Further, these attorneys shortcomings are often insufficient to satisfy the high\u00a0threshold for an ineffective-assistance of counsel claim under the Sixth Amendment. These attorneys gain credibility through experience, while the quality of\u00a0that experience is not often challenged successfully.<\/p>\n

Current measures and remedies designed to prevent deficient capital representation\u00a0are insufficient to guard against the repeat-offender problem. Sixth Amendment\u00a0ineffective assistance of counsel claims, for example, are only remedial and\u00a0do not prevent the appointment of inadequate attorneys in the first place. Buck\u2019s\u00a0plight\u2014spending decades on death row before the Supreme Court finally ruled on\u00a0his ineffective assistance of counsel claim\u2014demonstrates the problem with\u00a0relying on after-the-fact remedial measures to address ineffective counsel. Rather\u00a0than rely on remedial measures, states should improve procedures for the appointment\u00a0of counsel to prevent foreseeably deficient attorneys, like the one who\u00a0represented Buck in his initial trial, from defending capital defendants in the\u00a0future. Given that so much of a defendant\u2019s fate rests in the hands of his or her\u00a0attorney at the sentencing phase of trial, a defendant may live or die depending on\u00a0the quality of his or her counsel. This gamble is unacceptable.<\/p>\n

Section I will discuss in more detail the deficient representation in the trial that\u00a0led to the Court\u2019s decision in Buck v. Davis<\/em>. Section II will explain why the\u00a0appointing court should have known that Buck\u2019s trial counsel was incompetent and\u00a0illustrate why it is necessary to institute procedures to guide judges in their\u00a0appointment of capital defense counsel. It will further reveal that Buck\u2019s plight is\u00a0not unique: the system for appointing capital defense counsel permits conspicuously\u00a0deficient attorneys to continue to represent capital defendants across the\u00a0country. This faulty system is due, in part, to the fact that courts often consider only\u00a0one metric to evaluate a capital defense attorney\u2019s qualifications: the number of\u00a0capital trials in which the attorney has been involved. This standard is an imperfect\u00a0measure of the quality of a capital defense attorney. Section III will suggest a\u00a0two-prong approach for eliminating the appointment\u2014and existence\u2014of repeat\u00a0offenders. States should (1) redefine \u201cexperience\u201d for purposes of appointment\u00a0decisions in capital cases, and (2) institute minimum requirements for offering\u00a0mitigation evidence at the sentencing phase of trial.<\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The U.S. Supreme Court\u2019s 2017 ruling in Buck v. Davis highlights the disturbing\u00a0consequences of deficient representation in capital cases. Duane Edward Buck\u00a0was sentenced to death in 1997 after the defense\u2019s […]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":99,"menu_order":6,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-153","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/153","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/comments?post=153"}],"version-history":[{"count":2,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/153\/revisions"}],"predecessor-version":[{"id":2301,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/153\/revisions\/2301"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/99"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/media?parent=153"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}