Yet the confession expert Alan Hirsch has worked on cases where defense attorneys don’t want juries to see fully taped interrogations, because even with exculpatory comments early on, or even with obvious police pressure, the final moments of confession remain overpowering. “I’ve shown laypeople interrogations that convince me of innocence, and it convinces them of guilt. I’ll point out X, Y, and Z,” he noted, “and they’ll say, ‘Yes, but why would he admit it if he didn’t do it?’ Just seeing him admit it reinforces the inference of guilt.” So, while Hirsch supports full recording, he has discovered that “it’s no panacea.”
Recording can actually help police and prosecutors, who avoid unwarranted charges of abuse and end up with unassailable evidence. “I’m a convert,” said the chief investigator for the sheriff’s department in Kankakee County, Illinois. “When they first started this, I thought they were nuts. I thought there was no way a guy was going to cooperate if he knew he was being taped. Now, I wouldn’t do it any other way.”60
A fifth remedy would require that confessions be backed solidly by independent evidence. While some states bar convictions based solely on uncorroborated confessions, “corroboration” can be a squishy concept in most jurisdictions, including federal courts. Other evidence need only support or bolster the confession, not be proven beyond a reasonable doubt, and judges do not have to instruct juries on corroboration requirements even if asked to do so by defense attorneys, according to several federal appeals courts.
Under the lax standards, confessions replete with inaccuracies have weighed heavily with jurors. The Massachusetts case on recording overturned an arson conviction because interrogators implied leniency by suggesting that the suspect might seek counseling for alcoholism after confessing. They also pretended to have videotaped evidence. And the defendant’s confession was wrong on practically every significant fact, including the fire’s location, the size of the gas can, the hardware store where it had been purchased, the service station that had sold the gasoline, and the place where the can had been discarded.61 In reporting on the case, the Reid training material cautions police against accepting statements that don’t jibe with established details: “A valid confession should contain information about the crime that could only be known by the guilty person and can also be verified as true.” A self-incriminating statement that volunteers specifics and answers questions cogently is not enough. A confession carries great weight, so “it must meet a higher level of proof,” police trainees are told.62 If only the law were as demanding.
Finally, post-conviction challenges to confessions should be assigned to different prosecutors and judges. The district attorney who may have mishandled the case in the first place, and the trial judge whose rulings may have facilitated injustice, are usually normal human beings, seldom enthusiastic about admitting to life-altering mistakes. Even in the face of a DNA mismatch, the original prosecutors can usually be counted on to resist early release or new trials. They are caught in an uncomfortable place between competing roles, as seekers of justice striving for truth, on the one hand, and, on the other, as government advocates pushing for convictions. Few are willing to reverse their own successes. “Part of it is political ambition,” says Alan Hirsch, who has urged that cases of DNA exoneration be transferred to new prosecutors. “Either consciously or unconsciously, they think it’s not going to look good if they concede they put the wrong person behind bars. And part of it is the belief that innocent people don’t confess. You just don’t want to believe it.”
And yet it is true.
CHAPTER THREE
The Assistance of Counsel
The barrier between government abuse and civil liberties is a group called criminal defense lawyers.
—Sheldon Perhacs, defense attorney
PROVING INNOCENCE
ANTHONY RAY HINTON has been sitting on death row since 1986, when his court-appointed lawyer was given too little money to hire a reputable firearms expert to dispute the questionable findings of a police lab. The “expert” he found on the cheap, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule.
Lydia Diane Jones got a life sentence after her lawyer advised her chief defense witness (who was also his client) not to incriminate himself by helping her. He would have testified that drugs found in her apartment were his rather than hers. The judge saw no conflict in the attorney’s representing both the defendant and the witness, and Jones spent six years in jail before wiser judges ruled otherwise.
Ronald Rompilla, convicted of murder, was sentenced to death without his overworked public defenders presenting the jury with mitigating evidence of his troubled background: fetal alcohol syndrome, abusive upbringing by violent parents, and mental illness, which might have tilted jurors toward life imprisonment rather than execution. The Supreme Court narrowly saved him, seventeen years after his crime.
And so on along a spectrum of violations, from the subtle to the blatant. The most vivid denials of the constitutional right to counsel this century have come in the years after 9/11, when lawyers were initially blocked from seeing a couple of Americans designated enemy combatants and from seeing foreigners imprisoned at Guantánamo Bay. Those cases attracted the greatest attention and sparked the sharpest outrage, but they were not typical. More perniciously and less obviously, in shoddy courtrooms and decaying jails across the country, legal representation is routinely shortchanged for thousands of invisible defendants accused of low-grade crimes. Their hardships predated the terrorist attacks and are likely to continue long after the country recovers its balance.
The law is a labyrinth, best comprehended by the high priesthood of attorneys who fashion and interpret its abstruse language. No unschooled layman, standing nakedly unrepresented before the terrible engine of the criminal justice system, can possibly fathom the hidden dangers of error—or the invisible shields that offer unnoticed protection.
“When I go to court and the judge says something, I hear it,” explains Andrew Patel, a New York attorney. “I go to the client, and that client says, ‘What did the judge say?’ It’s not that they didn’t understand the words. It’s that all they can hear is the beating of their own heart, they are in such an alien situation.” That is why “two hundred years ago some pretty smart people set out a road plan,” Patel noted, by writing the Sixth Amendment’s simple declaration: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”
It was an empty platitude for the poor during most of the country’s first two centuries. Except in cases carrying the death penalty, lawyers were not provided for indigents until 1938, when the mandate was imposed in federal courts only.1 In 1942, the Supreme Court explicitly refused to extend the requirement to state and local courts, where about 95 percent of criminal cases were handled.2
Then, twenty years later, in among piles of petitions delivered to the columned Supreme Court building, a humble letter, hand printed in pencil, arrived from a Florida prison. In stilted legalese, a drifter named Clarence Earl Gideon appealed his conviction and five-year sentence on a charge of stealing wine and some change after breaking into a pool hall. His story was stark, his argument simple: he had been denied his right to counsel. Destitute, he had requested a court-paid attorney, and his trial judge had apologetically declined, explaining that Florida law authorized no such thing except in capital cases.
Facing his trial alone, Gideon did badly, especially when a taxi driver testified that Gideon had asked him not to tell anyone that he’d driven him from the pool hall. “That was damaging testimony,” writes Anthony Lewis. “And Gideon, without a lawyer, let it stand without any cross-examination.”
The Supreme Court accepted his appeal, assigned him a prominent lawyer to argue it, and in 1963 ruled unanimously in Gideon v. Wainwright that the Fourteenth Amendment extended to the states the Sixth Amendment’s implicit obligation to provide attorneys to those who coul
d not afford them.3 Gideon got a new trial, this time with a lawyer who probed. When the cabbie repeated Gideon’s request not to tell anyone about the pickup at the poolroom, the lawyer “asked whether Gideon had ever said that to him before,” Lewis reports. “The taxi driver answered, yes, Gideon said that every time he called a cab. ‘Why?’ ‘I understand it was his wife—he had trouble with his wife.’ ” This jury found Gideon not guilty.4
When the lowliest petitions the mightiest in America, dreams are stirred, and so Gideon’s Trumpet, as Lewis named the victory, entered the annals of national virtue. A clarion call for justice could be heard. A wayward system could correct itself. A small voice could set in motion a vast reform.
The reform is incomplete.
While insuring the right to counsel, neither the Constitution nor Gideon says anything about the quality of counsel—how bad the lawyer has to be to violate the right. Standards have been sketched in subsequent cases that leave much to judges’ discretion. To assess a legal defense as “ineffective,” the Supreme Court in 1984 established two tests under Strickland v. Washington: first, a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and, second, that the errors undermined the fairness of the trial and the reliability of its result. The defendant must make both showings, Justice Sandra Day O’Connor wrote for the Court, and they must stand against “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”5
That burden has been difficult to meet, in part because judges rarely get the full picture. Three trial judges assured me, during a lunch in Birmingham, Alabama, that they could see clearly from the bench whether defense attorneys were functioning well or badly. “We know by reputation lawyers who aren’t going to perform properly,” one judge said. “I have never encountered in a capital murder case substantial inadequacy that I can recall.” Lesser charges may bring less capable defense, he added, leading him once to appoint co-counsel to help an incompetent attorney. “It made me feel better. He should have been in another industry.” The judge threw out a conviction years ago because “an old lawyer didn’t ask any questions.”
The judges were all sure of themselves, as perhaps judges have to be. They were unyielding in their certainty that they could assess the quality of the defense. But a key function of a criminal lawyer’s job is to investigate the case outside of court, and that performance is hard to evaluate. How could they tell? They couldn’t quite answer. They couldn’t describe how they figured out whether the defense had sufficient resources to investigate. Finally, they began to show some doubts. In the end, one conceded, “I don’t know how you’d know if a lawyer has done an adequate pretrial investigation.”
Even murkier pictures are presented to appellate courts, said Justice Gorman Houston shortly after he had retired from the Alabama Supreme Court, which agrees to hear only 10 percent of the appeals it receives. At the early stage of determining whether to consider the appeal (by granting a writ of certiorari), the justices have only limited information from the petition, not the intricacies of the whole trial record, which is examined thoroughly only if the court takes the case. “That scares us at times,” he said, “because they [the petitioners] may have left out everything important.”
Therefore, his court has occasionally used an unorthodox approach. “If we think it’s going to be a miscarriage of justice for this conviction to stand, we grant cert.” If not, if counsel’s borderline performance isn’t bad enough to constitute “reversible error,” Houston explained, “we have the clerk of the court call and give the lawyer a tutorial. ‘This should have been raised, you did not properly handle this or that.’ ” That might help the lawyer’s next client, but it doesn’t rescue the current victim of sloppy legal work.
Appeals face other impediments. Defense attorneys loath to admit their flaws rarely support motions to declare their work “ineffective” and even fight to avoid the stigma. That usually leaves the defendant with both the prosecutor and the defense lined up against him, along with a trial judge who’s in no hurry to admit his own mistakes. And under the precedent of court rulings, the government is obligated to pay for a lawyer only at trial and on the first level of appeal, not as the case moves to higher courts.6 The restriction forces impoverished prisoners to rely on pro bono work by nonprofit legal organizations, which have resources to take only the worthiest and gravest cases. As a result, convictions and sentences are rarely overturned for “ineffective assistance of counsel,” although ineffective assistance abounds, in large measure because of inadequate funding.
The lack of money torpedoed Anthony Ray Hinton’s murder defense, and his lawyer, Sheldon Perhacs, was still bitter about it twenty years later.
Some defense attorneys appointed to defend the poor at low fees may be so greedy that they give their clients short shrift so they can get back to the higher-paying private market. They may be so jaded or burned out that they doze off during trial; there have been such cases. Or they may be so new to the bar, so in need of business, that they’re forced financially to take court appointments and inflict their inexperience on the defendants.7
But Perhacs was none of these. He was a crafty idealist who had seen the beauty of the system tarnished, and he felt lonely inside the criminal justice culture. “I don’t fit into the law game,” he told me as he sat at his desk in Birmingham, Alabama. On the wall behind him hung six rifles, part of a collection, from a single-shot Springfield used after the Civil War at the top, down to an M14 at the bottom.
Without robust legal assistance, he noted, you simply can’t get a fair trial. He had watched district attorneys and police muscle their way to convictions, taking their burden to prove guilt and turning it upside down into a presumption of guilt. “Prosecutors regularly do something that our Constitution forbids,” he declared in a deep voice resonant with indignation. “Once they have selected you and have decided they have enough evidence, you better prove you’re innocent, or you’re going to jail.” (In fact, however, the Constitution says nothing about the presumption of innocence; instead, one might argue that it is woven implicitly into the fabric of defendants’ rights.)
Proving innocence is expensive. A dedicated criminal lawyer spends many more hours outside the courtroom than before the jury, retaining costly experts to punch holes in the police lab’s work and hiring investigators to counter the police version with a competing set of facts. That’s what Hinton needed, but there was no way to get it in the twenty hours of work at $50 an hour authorized for Perhacs, or the $500 provided by the court for a firearms expert. Perhacs needed $10,000 for a qualified tool-marks examiner from New Orleans, because the case against Hinton for two murders rested entirely on a dubious lab report. It purportedly matched Hinton’s gun with bullets from the bodies, but the results were more ambiguous than prosecutors let on. Perhacs could not mount a persuasive rebuttal without a true expert, and although he went over his twenty allotted hours, using his own unpaid time worth about $5,000 to $6,000, it was insufficient. Not counting experts, he said, a proper defense in a murder case today would run about $250 an hour, or some $35,000 in Alabama, near the low end of the scale nationwide.
Hinton was arrested after a string of three late-night robberies of fast-food restaurants just after closing time. Each had the same modus operandi: the manager was accosted, forced to the cooler, and shot twice. The first two were killed. The third, Sidney Smotherman, was wounded but survived. As he was leaving, his car was bumped from behind by his assailant, who then forced him at gunpoint to return to the restaurant.
Smotherman was white, Hinton black, and the old racist line “They all look alike” has some bearing on the unreliability of eyewitness identifications across racial boundaries. Smotherman’s description, converted into a sketch, led the police to Hinton, despite significant differences in appearance. Smotherman had described the attacker as shorter than Hi
nton, thinner than Hinton, and without Hinton’s scar across the bridge of his nose. The car he was allegedly driving, a dark sedan, did not resemble the red Nissan owned by Hinton, whose green Chevrolet had been repossessed three months earlier. Nevertheless, shown Hinton’s picture in a photo lineup, Smotherman picked him out. Executing a search warrant, the police found a .38 in Hinton’s mother’s house, the same caliber that had fired the bullets in the three crimes.
Oddly, Hinton was not charged in the Smotherman assault, perhaps because he had a solid alibi. At the time of the crime, he had clocked into the locked warehouse where he worked, fifteen miles away, and didn’t leave, according to his supervisor and fellow employees. As his appellate lawyers argued, he could hardly have slipped out of the monitored warehouse, switched cars, driven fifteen miles in four minutes, and then returned without anyone noticing his absence.
But the clincher for the jury came in that realm of pseudo-precision known as forensics, as easily corrupted in this case as in the FBI’s handling of a fingerprint from the 2004 Madrid train bombings, when a sloppy mismatch sent Brandon Mayfield, an innocent American lawyer, to the brink of prosecution. Here, two examiners at the Alabama Department of Forensic Sciences testified that all six bullets recovered from the three victims showed striations consistent with those test fired by Hinton’s weapon. The experts did not disclose (and Perhacs did not know to request) their work sheets, which were pockmarked with gaps. In the columns where examiners are supposed to record the widths and the numbers of lands and grooves—the telltale signatures that a barrel’s rifling makes on the twisting lead—no numbers appeared: only dashes and question marks.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 12