"The System Doesn't Do Innocence Well"

Jay Nickerson Explains The Twists Of The Justice System

The system can't guarantee that the innocent won't be executed

For opponents of the death penalty, the workings of the criminal justice system often seem impossible to understand, much less to have anything to do with justice. In this first in a series of articles, the New Abolitionist interviewed Jay Nickerson, an attorney who specializes in defending death row prisoners, about how the system works.

When someone who is innocent is sentenced to death, why is it so difficult to remedy this through the courts?

The American criminal justice system simply doesn't do innocence well. It is obsessed with finality.

What we have is a system that prevents the review of constitutional violations that go to the heart of a fair trial. We have been on this road for quite some time. People were pretty upset a decade ago to learn when Leonel Herrera who was under the sentence of death put forward a claim of innocence. In that case, the Supreme Court said that "actual innocence" was not "relevant" in Herrera's case.

The trial then assumes critical importance in this scheme. Trials become both the beginning and the end. However, they are seldom worthy of such blind confidence. An attorney who has failed to conduct any investigation can do an excellent job of getting his innocent client convicted and sentenced to death.

Let's assume that a defendant is very lucky. A thorough investigation by experienced post-conviction counsel reveals gross incompetence by his or her trial counsel and prosecutorial misconduct by the state. Post-conviction counsel now has to take the results of that investigation and go back typically to the original trial judge and say, "Judge, my client needs a new trial."

A trial judge's whole focus is to prevent a new trial, any further expenditure by the county, anything that will be used against him in the next election. With few exceptions, a trial judge would rather slit his wrists before ordering a new trial, to say nothing of what lengths the government will go to to discredit a presentation suggesting they engaged in misconduct. So you begin to get some sense of why it is so very difficult.

Why are the rules and procedures of the legal system often an impediment to justice?

Think of the American criminal justice system as a funnel. Trial corresponds to the top of the funnel at its largest diameter. The further down you go, the smaller the diameter becomes. The funnel's bottom corresponds to federal habeas corpus.

A trial can accommodate any defense and any evidence supporting that defense. On appeal, however, the funnel narrows. Now it will accommodate only those errors timely objected to in the manner specified by the state supreme court. Failure to abide by this rule "waives" the review of the error.

As you go down the funnel, the procedural bars become more numerous and more complex. The funnel does not permit you to go back. After you complete state post-conviction, the funnel will not permit the introduction of new facts or legal grounds. Missteps in state court five years earlier can easily translate into every issue being procedurally barred in federal habeas corpus.

The claim itself may be perfectly valid and hundreds of new trials may have been awarded on this very same ground. This system elevates procedure over substance to produce finality, even where it is clear that the trade-off being made is the denial of a fundamentally fair trial.

When a person is too poor to afford an attorney, what happens?

Any person facing confinement or execution is constitutionally entitled to an attorney at trial and in any appeal that state law provides for under the Sixth Amendment. The Sixth Amendment requires meaningful assistance of counsel be rendered at those proceedings.

But the kind of legal representation indigent capital defendants receive varies widely. Probably the best representation, contrary to popular opinion, is provided by public defender agencies in major metropolitan areas that have created capital litigation units that specialize in death cases. Chicago, Philadelphia and Colorado are such examples.

Although many court-appointed private attorneys provide excellent representation, this is a very mixed bag. Some privately appointed counsels are nothing more than hacks that do minimal work for the paltry sums offered. Others are deeply committed individuals.

While most states have minimum standards for attorneys defending capital cases, the standards are not uniform. Merely requiring previous capital trial experience without any attempt to assess the performance at those proceedings is meaningless.

Representation in state post-conviction is a tremendous problem nationally. Good state post-conviction counsel can literally save an individual from bad representation at trial. Bad state post-conviction counsel will forever destroy any chance of success in federal habeas corpus. In the mid-1990s, Congress defunded legal resource centers, a nationwide attempt to provide experienced state post-conviction counsel that could stay with the case as it crossed into federal habeas corpus proceedings.

Unless programs are developed within the states that practice capital punishment, we will continue to hear horror stories. While the federal courts are required to appoint counsel in capital habeas corpus cases, such appointments can come too late in the day to have any meaning.

If a defendant had an inadequate lawyer, how does this affect his or her ability to appeal?

Each state establishes rules about how claims of ineffective assistance of counsel can be brought. Some states now require defendants to bring claims of ineffective assistance of counsel at the same time as their direct appeal -- so-called unitary review proceedings. Other states only permit ineffective assistance of counsel claims to be brought after direct appeal is complete in state post-conviction.

A defendant's claim of ineffective assistance of counsel is critical for two reasons. First, instances of ineffective assistance of counsel have produced by far the largest number of new trials and resentencing proceedings in capital cases. Secondly, these claims are unique in that they may permit a defendant to reach backward into the funnel and resuscitate claims that were waived at trial or on direct appeal.