Defending a person charged in a serious criminal case, under the best of circumstances, is a difficult task and an extraordinary professional responsibility. Defending a death penalty case under any circumstance is much more arduous and requires years of commitment and dedication. In a criminal case, defense the attorney has a client’s freedom and community status in their hands, while in a capital case, defense counsel has a client’s very life in their hands. The difference in the two is as stark as the difference between a Ford F-150 and an 18-wheeler.


Ineffective Assistance in Death Penalty Cases


Since 1987, the U.S. Supreme Court and federal circuit courts of appeals have handed down more than 100 decisions in capital cases in which defense counsel was found to have provided unconstitutional, ineffective assistance to their clients. More than two-thirds of those decisions were rendered over the past two decades. Though numerous, these decisions reflect only a fraction of the cases in which bad lawyering sent defendants, some undoubtedly innocent, to death row.


As criminal defense attorneys, it is hard for us to say that bad lawyers are as detrimental to the criminal justice system as rogue prosecutors. Prosecutors have a special ethical responsibility to see that justice is done, not just convictions had. Courts also have an insidious role in this injustice, in that they tolerate, allow, and, in some cases, even encourage misconduct by both defense counsel and prosecutors.


Repeat Offenders Provide Ineffective Assistance


This was evidenced by a 2017 decision from the U.S. Supreme Court in a Texas death penalty/ineffective assistance case, Buck v. Davis. Writing in the April 2018 American Criminal Law Review, attorney and author Rosie Gorn had these damning observations about the Buck case:


“Buck v. Davis, one of today’s clearest violations of a defendant’s constitutional right to a fair trial, went un-reviewed on the merits through countless appeals over the course of twenty-one years and had yet to be rectified when it reached the Supreme Court. Even after the State of Texas recognized a deficiency in Buck’s case, procedural roadblocks continued to deny Buck relief. Perhaps most concern­ing, though, is the fact that the ineffectiveness of Buck’s counsel was foreseeable and, thus, preventable.


“The attorney who failed to adequately represent Buck in his initial proceedings carried a track record of deficient representation that today totals twenty former clients sentenced to death … This attorney has since stopped his capital defense work. Unfortunately, this pattern of deficient representation by a capital-defense attorney is not unique. Nor is this just a problem in Texas. ‘Repeat offenders’—attorneys whom courts continue to appoint as defense counsel in capital cases despite demonstrably defective representation in past cases—present a problem across the country. While no single shortcoming renders an attorney’s representation deficient, the most common deficiency of repeat-offender attorneys is their failure to zealously advocate on behalf of their client at the sentencing phase of trial. For instance, the representation is considered ‘ineffective’ for purposes of deeming the attorney a ‘repeat offender’ when the defense’s case for a life sentence, as opposed to death, is unusually short. Evidence of an inappropriately short case at the sentencing phase may include presenting little-to-no mitigation evidence; calling few, if any, defense witnesses; and failing to interview potential witnesses (either a key witness or a sufficient number of witnesses generally). Failing to zealously advocate at the sentencing phase is often what leads to a death sentence, as opposed to life in prison.


“The ‘repeat’ aspect of ‘repeat offender’ points to an issue uniquely problematic in the capital context. Courts continue to appoint repeat offenders because, having tried capital cases previously, repeat offenders project an image of experience. Further, these attorneys’ shortcomings are often insufficient to satisfy the high threshold for an ineffective-assistance of counsel claim under the Sixth Amendment. These attorneys gain credibility through experience, while the quality of that experience is not often challenged successfully.”


SCOTUS Smacks Texas Court of Criminal Appeals 


This past term, the U.S. Supreme Court once again had a chance to deal with an ineffective assistance claim in a Texas death penalty case. Terence Andrus had a horrific childhood, scarred by a host of parental neglect and abuse issues, not to mention juvenile institutional confinement that left him both traumatized and suicidal.


In 2008, at age 20, Andrus attempted a carjacking in a Kroger grocery store parking lot in Sugar Land. He was under the influence of PCP-laced marijuana at the time. The carjacking didn’t go well as Andrus fired multiple shots that left the car owner and a bystander dead. He was charged with capital murder.


Andrus’s attorney pretty much conceded his client’s guilt to the jury. He did not present either an opening or closing statement and did not call a single witness during the guilt/innocence phase of the trial. And at the punishment phase—the phase in which the jury had to decide between a life or death sentence—counsel’s performance did not improve much. He called two witnesses—Andrus’ mother and father—but did very little to develop any mitigation evidence that would have prevented a death sentence.


Defense Counsel Failed to Perform Thorough Investigation


Counsel’s performance clearly fell short of the Supreme Court’s requirement in capital cases that defense counsel “conduct a thorough investigation of the defendant’s background.” In its 6-3 Andrus decision, the Court pointed out that:


“Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.”


The Court cataloged a host of issues counsel could have, but did not, develop through a thorough background investigation. After an eight-day evidentiary hearing, the state trial court found more than ample reason to vacate Andrus’ death sentence and ordered a new punishment hearing. The Texas Court of Criminal Appeals, however, reversed the trial court findings and reinstated the death sentence.  


Texas Court of Criminal Appeals Ignores “Tidal Wave” of Available Evidence


And therein lays the problem with ineffective assistance claims in capital cases. The trial court conducted an extensive evidentiary hearing at which compelling evidence, even from defense counsel’s own testimony, revealed that Andrus had not received effective counsel at the punishment phase of his trial. But the Court of Criminal Appeals reversed that order, signaling the Court was prepared to let Andrus be executed despite the compelling evidence that his Sixth Amendment rights had been violated.


Three justices on the Supreme Court—Thomas, Alito, and Gorsuch—were also prepared to let Andrus’ execution proceed. The only issue for Justice Alito was that Andrus had killed “two innocent people” and, therefore, should be put to death.


Capital cases like Buck and Andrus underscore a serious problem in the Texas death penalty arena; namely, that death sentences are too often affected by defense counsel’s poor performance. There are too many reasons for this problem to be listed here. Suffice it to say that prosecutorial misconduct and deficient defense counsel performance stand as only two of many compelling arguments why the death penalty should be abolished not only in Texas but across the nation as well.