The Right to Counsel in Death Penalty and Other Criminal Cases: Neglect of the Most Fundamental Right and What We Should Do About It,

Abstract

There is no such thing as a small case in the criminal justice system and there is no such thing as a small loss of liberty. Liberty is as precious as anything we have, whether it is for an hour, a day, a weekend, or the rest of one’s life. Jacqueline Winbrone, who was arrested in New York in 2007, illustrates this point. No lawyer came to see her upon her arrest. After bail was set at $10,000, Winbrone, who was the sole caretaker of her husband, attempted to contact her court-appointed lawyer to seek a bail reduction in order to care for her husband, who needed transportation to dialysis treatment several times per week. She was not successful. Days later, her husband died. Ms. Winbrone tried to contact the lawyer to obtain a bail reduction or even a temporary release from jail to attend his funeral. She was not successful. Eventually, she contacted a prisoners’ rights organization that secured her release on her own recognizance. Ultimately, the charge against Winbrone – possession of a firearm found in the family car – was dismissed. Obviously, the death penalty is irrevocable. Only after Todd Willingham was executed in Texas for an arson that killed his one-year-old twins and two-year-old daughter was it determined that the fire was not arson, but started accidentally. The court-appointed lawyers who represented Willingham at trial and in post-conviction review did not know how to handle an arson case, did not realize the testimony given at his trial was inaccurate and unreliable, and did not have the resources to challenge the dubious opinion evidence presented at his trial. Another man, Ernest Ray Willis, convicted of arson in a very similar case, had the good fortune to be represented pro bono by a New York law firm that spent “millions, on fire consultants, private investigators, forensic investigators and the like.” Willis was eventually set free after 17 years on death row. Willingham, on the other hand, had only a court-appointed lawyer who did not believe he was innocent, and by the time it was shown he was innocent, it was too late—he was dead. Many other people have been proven innocent after years in prison because of recent advancements in DNA comparison testing. Some people served twenty or thirty years before they were released, but for someone who has been executed it is just too late. Some people believe that DNA testing will protect the innocent, but biological evidence that can be subject to DNA testing is available in only 10 percent of all cases. The best protection against conviction of the innocent is competent representation for those accused of crimes and a property working adversary system.