Review faults defense efforts in four death-penalty states

WASHINGTON -- The jurors heard all about the convenience store holdup, the gunshots, and the dead clerk. Their unanimous verdict came swiftly: Warren King was guilty of a senseless slaying that shocked rural Appling County, Ga.

A death sentence almost certainly would be next, unless King's lawyer could persuade the jury to spare his life. But G. Terry Jackson, King's state-appointed lawyer, didn't do much.

With little money to unearth details about his client's past, Jackson did not chronicle the mitigating circumstances that could have helped his client's cause. The jury learned almost nothing about King's low IQ, his childhood in a log cabin with no plumbing or electricity, the savage beatings he took from his alcoholic parents, or the succession of foster homes he shuttled through.

In desperation, Jackson turned to Jesus.

"WWJD," he said, invoking the popular bumper-sticker phrase "What Would Jesus Do?" Jackson told jurors to keep those four letters in mind as they weighed King's future.

A stunned prosecutor objected. The judge told the jury to ignore the comment. Jurors deliberated for 90 minutes and returned with their sentence: death.

Now Warren King sits on death row in Georgia, one of many inmates whose lawyers, at the crucial point when jurors decide between life and death after conviction, made only feeble or incomplete efforts to defend them.

A review of recent death penalty cases in Georgia, Mississippi, Alabama, and Virginia provides, for the first time, an assessment of how commonplace these failures have become.

McClatchy Newspapers reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states. The review found that:

In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty, and serious psychological problems.

By failing to investigate their clients' histories, lawyers in those 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the US Supreme Court has mandated several times.

Appeals courts for the most part have avoided those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned because of the performance of the lawyers.

In Virginia, Alabama, and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.

Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. So far, none of that office's 46 clients has been sentenced to death.

"For government, this is the ultimate policy decision outside of going to war," said Kenneth Starr, a former federal judge and independent counsel. Starr, dean of the Pepperdine University School of Law, has represented several death-row inmates on appeal.

"We are going to sit in judgment of one of our own and take their life. Not doing it right is unspeakably shameful," said Starr, who supports capital punishment.

Starr thinks that the trial lawyers for his client, Robin Lovitt, didn't do it right. Lovitt was found guilty of killing a pool hall manager during a robbery in Arlington, Va.

Lovitt's lawyers did almost nothing to look into his background. They never interviewed family members, collected records, or planned how they might defend his life.

Had they looked, they would have discovered that Lovitt's parents were drug dealers who beat their children, forced them to help package and distribute narcotics, and had wild parties during which guests took turns molesting the children.

In capital cases, the defense lawyer's roles take on a special significance. After conviction, a second proceeding is required to determine whether death is the appropriate sentence.

This second trial, called the penalty phase, requires as much focus and preparation as the first. The goal is to get jurors to see beyond the crime and the victim into the life of the accused.

"No one is born a capital murderer, and clearly something happened between the defendant's birth and the worst act of their lives," said Thomas Dunn, executive director of the Georgia Resource Center, which handles appeals for many of the state's inmates on death row. "There's always a story to be told, and it's the defense lawyer's job to tell it."