Article

"Politics, money, and a simple sense of fairness"

The following two articles should give you a sense of the system with regard to the politics of money and geography. There is much more which could be said, but we thought these in particular are quite telling.

Sunday, March 1, 1998--

The following column appeared in The New York Times:

Cheap Justice

Ahh, the attorneys' fees. Let's see, in the post-O. J. universe we've had Oprah vs. the cattlemen in Texas, Bill Gates vs. The Justice Department in Washington, the endlessly blossoming tobacco litigation, and Bill Clinton and his cronies against the world. It's a fabulously prosperous time for lawyers who are at the top of their game. Sometimes you can calculate the fees in the millions; sometimes, incredibly, in the billions.

Oprah and the others will tell you it is money well spent. If you've got the bucks to hire a good lawyer, you've got a good chance of being treated fairly by the courts, of getting justice.

But let's say you're in some sort of trouble and you have approximately no money. What then?

Stephen Bright, the director of the Southern Center for Human Rights in Atlanta, has been looking at the quality of legal representation received by indigent defendants in criminal cases, which are the only cases in which you have a right to a lawyer. He summed up his findings as follows: "If you're the average poor person you are going to be herded through the criminal justice system about like an animal is herded through the stockyards."

Guilty? Innocent? Who cares? Keep them dogies movin'.

Because of the refusal of many jurisdictions to pay for competent counsel, poor defendants in extraordinarily serious situations -- sometimes with their lives on the line -- often find themselves represented by drunks, incompetents, crooks and clowns.

Hamburger flippers at McDonald's are paid more than some court-appointed lawyers. In Virginia, lawyers are paid a maximum fee of $265 for representing indigent defendants in felony cases that carry a sentence of up to 20 years, and $575 if the potential sentence is 20 years or more. That includes cases of 1st-degree murder, although Virginia allows a bit more compensation if it's a death penalty case.

Try to imagine the O. J. Simpson case in the hands of a lawyer who was paid a flat fee of $575.

Even in capital cases, lawyers in many jurisdictions are paid a pittance. As Mr. Bright noted, "An Alabama lawyer who spends 500 hours preparing for a death penalty trial will be paid $4 an hour."

Mr. Bright is aware of what can happen in such cases. John Benn, the 72-year-old court-appointed lawyer in a death penalty case in Houston, slept through the testimony of several witnesses. A reporter for The Houston Chronicle wrote: "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."

Mr. Benn would later say the trial was "boring."

Mr. Bright, in a paper he prepared on the problem of legal representation for the poor, cited another case:

"Wallace Fugate," he wrote, "was sentenced to death after a 2-day trial in Georgia in which he was represented by a lawyer who had never heard of Gregg v. Georgia, the case that upheld the current death penalty law in Georgia; Furman v. Georgia, the decision that declared the death penalty unconsitutional in 1972; or any other case."

Being defended by such a lawyer, he said, "is much like being treated by a doctor who has never heard of penicillin."

Poor or not, many people accused of crimes are innocent. Without adequate legal representation they go to prison and the guilty remain free. In at least some instances, the innocent have been executed.

Nearly 35 years ago, in a case explored by my colleague Anthony Lewis in his classic book, "Gideon's Trumpet," the Supreme Court ruled unanimously that the states must supply lawyers for impoverished persons accused of serious crimes.

While the letter of that ruling has been followed, Mr. Bright is finding that the refusal of so many jurisdictions to pay for competent lawyers has undermined the court's goal of providing a fair trial for all.

"The dream of Gideon has not been realized," he said. "If we are not going to do something about this, we ought to sandblast the words 'equal justice under law' from the front of the Supreme Court building. And we ought to just say that our system of justice is like the sky box at the stadium, or membership in the country club -- available only to people who can afford it."

IN AMERICA / By BOB HERBERT

From the Akron Beacon-Journal, March 1st, 1998

As Gov. Michael V. DiSalle once told the story, the smell of burning flesh, arcing electricity and the "death reflexes" of the doomed often "discommoded" those who gathered at the old Ohio Penitentiary in Columbus to watch them die.

In other words, it really bothered them.

So an inmate with the unlikely name of Charles Justice volunteered to do something about it -- something, that is, to make the spectators feel more comfortable.

He designed iron clamps to fasten prisoners to the chair so they would not flop around as they were being electrocuted.

That was nearly a century ago after Ohio abandoned hanging.

And today, as the state presses to resume the practice of capital punishment after a 35-year hiatus, the option of lethal injection promises an even more civilized ordeal for those invited to watch.

Yet Ohioans are still "discommoded" by it all.

The latest commotion over the death penalty has arisen from the case of Wilford Lee Berry Jr., dubbed "The Volunteer" in legal circles because he wants to waive his appeals and proceed to his death. While Berry is scheduled to die by lethal injection on Tuesday, the status of the execution is uncertain as appeals filed against his will are pending.

DiSalle, who was elected governor of Ohio in 1958, was one of a vanishing breed: a politician who not only looked for ways to grant clemency, but actively tried to abolish the death penalty.

His message was simple: It is not a deterrent, it makes human sacrifices out of society's misfits, and it is unfairly applied.

40 years later, the argument against execution is the same, but few governors are pressing the issue. Capital punishment has become politically correct.

"The problem is, the governors of today have bought into this idea that I've got to be tough on crime," said Margery Koosed, a University of Akron law professor who has specialized in capital punishment issues.

Yet the questions inherent in imposing the death penalty have not gone away.

For instance, punishment for murder in Ohio appears to depend heavily upon where the defendant is tried.

Of the 175 men now waiting to die, 154 of them (88 %) were sent to death row from only 17 of Ohio's 88 counties.

21 other counties have sent only 1, and 49 counties have sent none.

The number of men sent to death row from Ohio's largest counties varies because some counties use it as a bargaining chip. Critics also say not all counties have enough money for the extensive appeals process in a capital case, though prosecutors say that's not so because they are on salary.

Aside from the long-debated moral issue of whether the state has a right to execute, questions of wrongful convictions, discrimination and unequal protection of the law appear to be ongoing and unresolved.

Some of these questions are so pronounced that last year the Ohio State Bar Association asked the state not to resume executions until they are resolved.

Nonetheless, with polls suggesting capital punishment is what the public wants, Ohio's leaders have joined the rest of the country in pushing for the process to start.

Last week, Ohio Attorney General Betty Montgomery went so far as to argue that denying Berry the right to volunteer for his own execution would cause "irreparable harm to Mr. Berry."

She reasoned that he could become a pawn in the dispute.

4 years ago, Montgomery, a former Wood County prosecutor, ousted Democrat Lee Fisher from the attorney general's office after a nasty TV campaign in which they tried to out-tough each other.

Despite the personal attacks, Fisher and Montgomery endorsed capital punishment and agreed on virtually everything except 1 item: who was tougher on criminals.

That same year, Ohio voters approved a constitutional amendment aimed at speeding executions by reducing the appeals process in death penalty cases.

Those convicted of crimes that occurred after Jan. 1, 1995, must appeal directly from the trial court to the Ohio Supreme Court, bypassing the appeals-court level.

Just how firmly Ohioans are behind capital punishment, though, is not as obvious as it may seem.

5 months ago, 75 % of Ohioans polled said they favored the death penalty, yet the same poll showed they made that choice because they believed there was no suitable alternative.

When given an alternative to execution -- specifically, life without parole with restitution by the prisoner to the victim's family – a majority (59 %) chose that option.

Furthermore, the poll, conducted by Ohio State University, revealed that 46% of Ohioans believe the state's system of justice is either "somewhat likely" or "very likely" to convict and execute the wrong person. Erik Stewart, assistant director of the Survey Research Unit, said the study absolutely showed that Ohioans have little faith in their system of justice.

Those results are said to mirror public opinion across the country, yet it all appears to be disregarded by politicians anxious to be seen as tough on crime.

Koosed said she has sometimes come to regard the death penalty as "a cancer on the law."

She said there are simply "too many elected officials who beat the drum for the death penalty" and too few people "who have the moral courage and the ability to say I'm going to lead my society." Meanwhile, Ohio's application of the death penalty is flawed, she said.

Koosed cites the population of death row, noting that some inmates are mentally disabled yet slated for execution because evidence of a defendant's mental condition is not always admissible after the defendant is found competent to stand trial.

 Likewise, she said, the punishment of two defendants for the same crime can vary significantly yet be ignored at the appellate level.

For example, Berry is to be executed for the 1989 murder of his boss, Cleveland baker Charles J. Mitroff Jr., yet Berry's co-defendant was sentenced to life in prison.

Koosed contends Berry's co-defendant also fired a fatal bullet into the victim, also has a history of mental illness and apparently was the 1 who suggested robbery -- the item that transformed the matter into a capital case.

And yet what appears to be a fundamental unfairness of the 2 sentences was ignored on appeal, Koosed said.

"The courts at the appellate review level will generally decline to even consider a co-defendant's sentence as a part of the mix," she said. "I think that stinks."

As to geography, Abe Bonowitz, co-director of Citizens United for Alternatives to the Death Penalty, says a look at the geographical makeup of death row yields a clear picture of what is unfair about it all.

He said both politics and money play an all-powerful role in who is executed and who is not.

In Columbus, Ohio's largest city, Bonowitz pointed out that the Franklin County prosecutor is more inclined to use the death penalty as a plea-bargaining tool -- as in "plead guilty and we won't go for the death penalty."

But in Cincinnati, the state's 3rd-largest city, the Hamilton County prosecutor has told voters he will seek the death penalty for anybody who is "capital eligible."

The results:

Hamilton County (Cincinnati) has 42 men on death row.

And much more populous Franklin County (Columbus) has 8.

As for the money argument, Bonowitz cited the stringent legal requirements for a trial in which the defendant's life is at stake -- requirements that he said include extensive costs that extend to the years-long appeals process.

"If a county doesn't have a large tax base," Bonowitz said, "then the judge is going to say: Don't even ask for the death penalty. We can't afford it."

2 men convicted in Clark County in southwestern Ohio are on death row, with 2 more capital cases pending. "There's definitely some additional attorney time on our part," said Clark County Prosecutor Stephen Schumaker. ".But you really can't quantify it from a prosecutor's standpoint because we're all on salary anyway."

To Bonowitz, money is the most persuasive argument against capital punishment.

"I used to be for the death penalty," he said, "and this is the issue that changed my mind.It's not even about what you did. It's where you did it and whether they have enough money for the trial."

But Koosed said that argument probably won't sway the U.S. Supreme Court.

Already, when confronted with statistics of what appeared to be racial discrimination in death penalty cases, the high court has replied that statistics alone were not sufficient -- intent was required, she said.

Accordingly, building an equal protection argument that says someone was unfairly sentenced to die because of the county where he was tried would require proof that the prosecution intended to treat him unfairly, she said.

"On many of these questions, the federal courtroom doors are simply closed," Koosed said.

According to Koosed, America's resumption of executions flies in the face of a clear trend in the Western world.

England abolished the practice in the 1950s, she said, and since 1976, there is a long list of other nations that have outlawed it.

Countries where capital punishment is banned include Portugal, Denmark, Canada, Norway, Brazil, Peru, France, the Netherlands, Argentina, Australia, Germany, Cambodia, New Zealand, Romania, Hungary, Ireland, Angola and Switzerland.

Aside from the United States, she said, those who have kept the practice include Iraq, Iran, Yemen, Vietnam and China.

"The symbolic value of the death penalty is 1 thing," Koosed said, "but when you deal with the reality of it...you're sitting there going, 'Why do we need this?'"

4 days before leaving office in January 1991, Gov. Richard F. Celeste, expressing his distaste for the death penalty, commuted the sentences of 8 death row inmates to life in prison.

The 8 included 4 women.

"He's the governor, not God," protested Hamilton County Prosecutor Joseph Deters.

"What's really disturbing," Deters said at the time, "is a jury decided they were guilty of the crime. A judge listened. Victims got to speak in court. The appellate courts reviewed it. And everyone was in agreement -- except a governor who was a week away from leaving."

DiSalle likewise ruffled the feathers of prosecutors. As governor from 1959 to 1963, he was unable to persuade the legislature that the death penalty should be abolished.

But he managed to commute the death sentences in 6 of 12 cases.

"During my 4 years as governor of Ohio, he later wrote, "no single area of gubernatorial responsibility produced so much emotional reaction as the process of execution and the right of the governor to commute a death sentence."

In arguing that the death penalty did no good, DiSalle used the story of Charles Justice, the man who made the clamps for the electric chair.

According to DiSalle, Justice was granted an early release and was paroled in April 1910 because of his work on improving the chair.

But his freedom didn't last.

"In spite of his familiarity with the electric chair and its horrible finality, in November of that same year, Justice returned to the penitentiary, having been found guilty of murder in the 1st degree," DiSalle wrote.

"On Oct. 27, 1911, undeterred Charles Justice died in the electric chair that he had helped make more lethal, immobilized by the clamps he had invented."

At 42, Justice became the 38th man to die in the chair, which is still available at the death house, now located at the prison in Lucasville.

During his years in office, DiSalle, who died in 1981, became known for getting involved in capital cases. He even visited death row to get a firsthand account of clemency issues, doing his own questioning of the condemned prisoners.

In the celebrated case of a Cincinnati woman, Edythe M. Klumpp, who was convicted of murdering her lover's wife, DiSalle interrogated the woman after she was given sodium amytal, a so-called "truth serum."

As a result, he became convinced that despite an earlier confession, Klumpp did not fire the shot that killed Louise Bergen and consequently did not deserve execution.

He commuted her sentence to life in prison on Jan. 5, 1961 -- and the resulting furor became 1 of the major issues in his campaign for re-election the next year against then-state Auditor James A. Rhodes.

DiSalle was soundly defeated, but on Jan. 14, 1963, he knocked Klumpp's conviction down from 1st-degree murder to 2nd-degree murder.

It was his last day in office.