Week 2, Entry 1: A Real Estate Attorney for a Capital Murder Case?

Imagine that you’re accused of murder and on trial for your life. You don’t have the money to hire an attorney, and to make matters even worse, you’re in Texas. If you were on trial prior to 1991, your court appointed attorney could have been an attorney with no expertise in criminal law. Fortunately, in 1991, the law was changed and court appointed attorneys must now have expertise in criminal law and pass stringent standards for appointment. However, disparities remain.

A study conducted by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, of 504 capital murder cases in Harris County, Texas, between 1992 and 1999 revealed that those who hire a lawyer were much less likely to be sentenced to death. The District Attorney pursued the death penalty in only 3 percent of cases where a defendant hired an attorney for the entire case and for 27 percent of cases where a court appointed attorney handled the entire case. The statistics for imposition of the death penalty were even more drastic-NONE of the accused who hired an attorney for the entire case was sentenced to die, but 82 percent of those who were represented by a court appointed attorney were sent to death row.



Many feel that the system of court appointed private attorneys is a better alternative to the often overloaded public defender system that exists in so many states. However, Mr. Phillips’ study finds many problems with the system in Texas. Some attorneys are careful not to anger judges, because they rely on contracted fees from these appointments for a part or all of their income, and angering a judge may result in a loss of future appointments. Judges also are in the position of approving or denying support services and expenses of the defense with a court appointed attorney. Some judges have also been known to make questionable appointment decisions, which further undermine the integrity of the process.



Regardless of whether one supports or opposes the death penalty, most would agree that extra care should be taken to ensure an accused receives a fair trial in a case where  his/her life is at stake. Mr. Phillips argues at the conclusion of his report that a Public Defender's Office should be created with funding proportionate to the District Attorney’s Office. It could even be argued that the Public Defender should  be funded slightly better than the District Attorney. If the scales of justice must be unbalanced, it should be tipped in favor of the accused, who stands to lose his/her life. Many would argue that in this era of budget deficits and government cutbacks, we cannot afford to increase spending for public defenders. However, if we cannot afford to give a full and proper defense to an accused in a death penalty case, then one has to ask-Can we afford to have the death penalty at all?