Tuesday, February 26, 2008

Homeowner Associations - The Return to Bondage

The Collapse of Democracy in America
A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse (generous gifts) from the public treasury. From that moment on the majority always votes for the candidates promising the most benefits from the public treasury, with the result that a democracy always collapses over loose fiscal policy, which is always followed by a dictatorship. ~Scots Historian, Professor, Alexander Tyler, 1787: The Fall of the Athenian Republic

The average age of the world's greatest [democratic] civilizations has been two hundred years. These nations have progressed through this sequence:

From bondage to spiritual faith;
From spiritual faith to great courage;
From courage to liberty;
From liberty to abundance;
From abundance to complacency;
From complacency to apathy;
From apathy to dependence;
From dependence back into bondage.

It seems, we are, in America are at the end of the progression, moving back into bondage at every turn.

The govenment adopted the new Patriot Act following the terrorist attack on 911. For a detailed section-by-section analysis of the draft bill read the following:

Within the Patriot Act, The Bush administration has developed a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system. . . . - The Washington Post, Dec. 1, 2002 http://www.washingtonpost.com/wp-dyn/articles/A58308-2002Nov30.html

And, now we have a plan for Establishing Martial Law in the United States. http://www.sourcewatch.org/index.php?title=Establishing_martial_law_in_the_United_States

For the first time in American history, the reigns of government would not be transferred from one elected element to another, but the Constitution, itself, can be suspended.

The Department of Justice had been drafting this new legislation --titled "the Domestic Security Enhancement Act of 2003" -- in secret -- over several months -- until the documents were leaked to a journalist, and then broadcast on the Bill Moyer PBS news program, NOW on February 7, 2003:

Along with the new Act it became known there over 600 prison camps in the United States, all fully operational and ready to receive prisoners. The government is not hiding them. They are all staffed and even surrounded by full-time guards, but they are all empty. These camps are to be operated by FEMA (Federal Emergency Management Agency) should Martial Law need to be implemented in the United States.http://www.theforbiddenknowledge.com/hardtruth/con_camps_fema.htm

What about HOAs? Are homeowner associations [HOAs] also part of the new internmet camps of the new world order? Have millions of American's bought right into our own prison system? Under Martial Law all it would take would be a couple of military type guards at the gate, with guns and no one comes or goes. More and more neighborhoods are being turned into homeowner associations, and gates can go up and around them in a matter of hours.

It is estimated that more than 60 million people in America live in homeowner associations, and cities now require most new housing to be in homeowner associations, with layyers and politicians creating homeowner association in neighborhoods where none existed. It is a good money maker for them, and perhaps a way to have control over people in the future.

The homeowner association fraud started in California with the Davis Sterling Act. It was written with loopholes for lawyers to transfer life savings, homes and earnings of homeowners to the litigation, real estate, insurance and banking industry. These laws stripped homeowners of their constitutional and property rights and took away owners ability to limit their expenses and liabilities - the board members, lawyers and managers can fine, lien, assess, use owners homes as security for millions bank loans without the owners' consent, and charge the millions of dollars for lawyers, manager and expert fees to sue them for any reason.

Legislators and law enforcement agencies ignore homeowner's complaints of fraud and racketeering, and it appears the most powerful politicians have been on the take and have written , voted for, or failed to enforce laws.

We only have an illusion of "freedom" -- When I began to speak out against my homeowners association, and the government that is heavily invested in these little communistic-like American gulags, I found myself the victim of true injustice in and by the courts with nowhere to go for any help.

Rule by Fear or Rule by Law?
San Francisco Chronicle
page B-7
Lewis Seiler,Dan Hamburg
Monday, February 4, 2008
The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist. - Winston Churchill, Nov. 21, 1943

Since 9/11, and seemingly without the notice of most Americans, the federal government has assumed the authority to institute martial law, arrest a wide swath of dissidents (citizen and noncitizen alike), and detain people without legal or constitutional recourse in the event of "an emergency influx of immigrants in the U.S., or to support the rapid development of new programs."

Beginning in 1999, the government has entered into a series of single-bid contracts with Halliburton subsidiary Kellogg, Brown and Root (KBR) to build detention camps at undisclosed locations within the United States. The government has also contracted with several companies to build thousands of railcars, some reportedly equipped with shackles, ostensibly to transport detainees.

According to diplomat and author Peter Dale Scott, the KBR contract is part of a Homeland Security plan titled ENDGAME, which sets as its goal the removal of "all removable aliens" and "potential terrorists."

Fraud-busters such as Rep. Henry Waxman, D-Los Angeles, have complained about these contracts, saying that more taxpayer dollars should not go to taxpayer-gouging Halliburton. But the real question is: What kind of "new programs" require the construction and refurbishment of detention facilities in nearly every state of the union with the capacity to house perhaps millions of people?

Sect. 1042 of the 2007 National Defense Authorization Act (NDAA), "Use of the Armed Forces in Major Public Emergencies," gives the executive the power to invoke martial law. For the first time in more than a century, the president is now authorized to use the military in response to "a natural disaster, a disease outbreak, a terrorist attack or any other condition in which the President determines that domestic violence has occurred to the extent that state officials cannot maintain public order."

The Military Commissions Act of 2006, rammed through Congress just before the 2006 midterm elections, allows for the indefinite imprisonment of anyone who donates money to a charity that turns up on a list of "terrorist" organizations, or who speaks out against the government's policies. The law calls for secret trials for citizens and noncitizens alike.

Also in 2007, the White House quietly issued National Security Presidential Directive 51 (NSPD-51), to ensure "continuity of government" in the event of what the document vaguely calls a "catastrophic emergency." Should the president determine that such an emergency has occurred, he and he alone is empowered to do whatever he deems necessary to ensure "continuity of government." This could include everything from canceling elections to suspending the Constitution to launching a nuclear attack. Congress has yet to hold a single hearing on NSPD-51.

U.S. Rep. Jane Harman, D-Venice (Los Angeles County) has come up with a new way to expand the domestic "war on terror." Her Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 (HR1955), which passed the House by the lopsided vote of 404-6, would set up a commission to "examine and report upon the facts and causes" of so-called violent radicalism and extremist ideology, then make legislative recommendations on combatting it.

According to commentary in the Baltimore Sun, Rep. Harman and her colleagues from both sides of the aisle believe the country faces a native brand of terrorism, and needs a commission with sweeping investigative power to combat it.
A clue as to where Harman's commission might be aiming is the Animal Enterprise Terrorism Act, a law that labels those who "engage in sit-ins, civil disobedience, trespass, or any other crime in the name of animal rights" as terrorists. Other groups in the crosshairs could be anti-abortion protesters, anti-tax agitators, immigration activists, environmentalists, peace demonstrators, Second Amendment rights supporters ... the list goes on and on. According to author Naomi Wolf, the National Counterterrorism Center holds the names of roughly 775,000 "terror suspects" with the number increasing by 20,000 per month.

What could the government be contemplating that leads it to make contingency plans to detain without recourse millions of its own citizens?

The Constitution does not allow the executive to have unchecked power under any circumstances. The people must not allow the president to use the war on terrorism to rule by fear instead of by law.

Lewis Seiler is the president of Voice of the Environment, Inc. Dan Hamburg, a former congressman, is executive director

Watch the documentary ENDGAME

Is it too late to turn all of this around? Perhaps. We can only make people aware, but it is the apathy of our own people that have brought us to this point in history.

Sunday, February 24, 2008


Dear Mike Zapler, Reporter, San Jose Mercury News:

Thank you for your article, STATE BAR IGNORES ERRANT LAWYER (02/12/2006.)

Please direct me to find the Mercury News review of "nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients."

As an innocent person, fighting against my homeowners association [HOA] I am now pursuing a complaint of misconduct by both the Riverside County District Attorney, and, the Riverside County Public Defender. Following are excerpts from the complaint:

Going into trial, greatly in need of medical treatment for heart problems, and finding myself represented by defense counsel that was blatantly unprepared, unmotivated and whose incompetence was stunningly conspicuous, forced me, an indigent 67 year old woman to take whatever the court offered, even though I was innocent.

I know, mistakes are made in trials, putting people in prison, even on death row and not everybody who's convicted is in fact guilty. And, I know that "bad lawyering" on both sides is what put me where I am today --wrongly prosecuted!

Innocent people continue to be convicted every day, and bad lawyering in every form facilitates many of these convictions as is fairly well documented by Innocence Project, Causes & Remedies,

In 1998, the most recent year for which figures are available, almost 928,000 adults were convicted of felonies in state courts. Statisitcally it is estmated at least 9,280 and as many as 92,800 innocent people were convicted of crimes they did not commit. (Bureau of Justice Statistics Report, May 17, 1999)

But beyond mistakes, in certain instances we find multiple examples of "bad-cop" law enforcement officers who have certain agendas to not do their job of finding the truth, but rather, decide that they had better protect their position a the expense of innocent people. That is a separate complaint. SEE: COMPLAINT/ CATHEDRAL CITY POLICE and ABUSE BY RIVERSIDE COUNTY SHERIFF'S DEPARTMENT

Then the district attorney's office takes even more steps -- not to find out the truth -- but take steps needed to keep their conviction, ignoring the law, and their own oath. In theory, the prosecution's duty is to seek the truth. (See: ABA Model Rules of Professional Conduct 3.8 cmt.(1) "

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.

Remarkably, the overwhelming majority of prosecutors who obtain convictions of innocent people know or should know the defendant is probably not guilty. (SEE: Martin Kuz, No Way Out: Lawyers say the case against Bob Gondor and Randy Resh could be titled The Insider's Guide to Prosecutorial Misconduct; published in the Cleveland Scene, Jan. 15 2003 -- noting that prosecutors in the case committed grievous misconduct, Matin Yant stated: An assistant prosecutor told me . . . that there was hardly a day that went by that he didn't worry that they convicted two innocent men for a crime they didn't commit,").

The role of the prosecutor differs significantly from that of others who practice law, including criminal defense lawyers: A Prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she perfoms in representing the interests and in exercising the sovereign power, of the state ... the prosecutor represents "sovereignty whose obligation to govern impartilly is as compelling as its obligatin to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States (1935) 295 U.S. 78,88 (People v. Hill (1998) 17 Cal 4th 800, 8. Prosecutors have a special obligation to promote justice and the ascertainment of truth. ... The duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present... the evidence..." People v. Kasim (1997) 56 Cal.App.4th 1360, 1378; "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules. (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323). As an officer of the court, the prosecutor has a heavy responsibility to the court and to the defendant to conduct a fair trial. (United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.)
And then the public defender is all too often synonomous with ineffective assistance of counsel. (SEE: Model Rules of Professional Conduct Rule 1.1 (1983)(amended 1998); A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
There is blatant failure to communicate with the client, or, communicating in a dismissive, callous or hurried manner; perfunctory or no attempt at discovery; narrow, shallow or no investigation; failure to retain needed experts and/or test physical evidence; minimal preparation, weak trial advocacy and superficial or tentative cross-examination. (SEE: Model Rule of Professional Conduct Rule 1.1, cmt. 5 (1983) (amended 1998) competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.)

The defense lawyer owes a duty of loyalty FIRST to the client. People v. Alvarez (1996) 14 Cal.4th 155, 239-240

Defense attorneys know or should know when the "deals" they broker will result in convicting the innocent. An attorney's professional responsibilities are set forth in Strickland v. Washington (1984) 466 U.S. 2668; People v. Pope(1979) 23 Cal.3d 412; and In re Alvernaz (1992) 2 Cal 4th 924.

A person accused, most often without any true investigation, is stigmatized simply by being charged. Then, not being able to testify or defend themselves in a kangeroo-court type of preliminary hearing only adds to the the impression that his or her silence is an indicator of guilt. Presumption of innocence, and reasonable doubt are totally ignored in these court settings. Interestingly, the court has held that it violates due process to use a defendant's silence against him, yet that is exactly what happens in this unjust process. Doyle v. Ohio, 426 U.S. 610 (1976

Then add to all this the lack of ethics from our representatives, SEE: ASSEMBLYWOMAN BONNIE GARCIA AND A LACK OF ETHICS

Thank you,
~Sharon Stephens

Friday, February 8, 2008


In my view (and that is my view and, therefore, may well be wrong) one of the measures of civilization in a society is to see if its laws derive from ethics or if its ethics (or at least its ethos) derive from laws. In my view, the more civilized a society the more is the former the case. Another measure is vulnerable within the protection of the vulnerable in such a society, something which is closely related.
~Dr. Erich H. Loewy; Associate, Department of Philosophy, University of California, Davis


Attention: Curren D. Price Jr. - Co-Chair

The Assembly Legislative Ethics Committee performs several functions with respect to the standards of conduct applicable to members of the Assembly, Assembly staff and lobbyists. It has authority to investigate or initiate complaints against Assemblymembers for alleged violations of ethics law; it issues opinions on ethics matters and provides advice concerning compliance with ethics laws; and it further conducts ethics training programs for members, staff and lobbyists.

1020 N Street #351
Sacramento, CA 95814
Attention: Kathryn E. Donovan


I am requesting that you investigate this complaint against Assemblywoman Bonnie Garcia for violations of the laws of ethics.

The word "ethics" is derived from the Greek word ethos (character), and from the Latin word mores (customs). Together, they combine to define how individuals choose to interact with one another. Many acts that would be widely condemned as unethical are not prohibited by law -- lying or betraying the confidence of a friend, for example.

However some law codes have been incorporated into the public law. All are likely to have some effect on judgments about professional conduct in litigation. Generally, failure to comply with a code of professional ethics may result in expulsion from the profession or some lesser sanction. American Bar Association; Misconduct: Rule 8.4 (d) to engage in conduct that is prejudicial to the administration of justice.


I am a 67 year old great-grandmother. Most of my adult life has been spent in one form of advocacy or another; I have always been a credit to my neighborhood, and, in my professional working life -- I was primarily a case manager in shelters for homeless men and women, and a child-advocate.

When I moved into a homeowners association and saw criminal behavior, and abuses of women and children, and particularly the elderly, I spoke out -- and suffered the most horrendous consequences.

When I turned to my government for help, and called Assemblywoman, Bonnie Garcia, she ignored the problems, allowed her staff to use me for their own personal agenda of promoting Ms. Garcia -- and with no regard, care of concern of the great harm to me and my family.

DECEMBER 2, 2003: Press Conference in my home, in Shadowcrest Homeowner Association with Pat Cooper, Aide to Senator, Denise Ducheny , Desert Sun Reporter, Kim Trone, documentary film maker, Madeline Hunter-Patterson, and several people from the association. Assemblywoman Garcia was invited. A member of her staff, "Candy" called as the meeting was starting, said she would be there, but never showed up. We were there to discuss several problems of the homeowner association (HOA) life-style.

JANUARY 2004: I approached the Assembly woman's office, and was given an appointment on the 29th of the month with Mary Brhel, (wife of ex-deputy district attorney, Martin Brhel) an aide to Ms. Garcia. Prior to attending the meeting with Mary Brhel, I had an appointment next door at the Cathedral City Police Department with Captain Kevin Connor, and Sergeant Charles Robinson. They had called me in on a ruse, as I would discover months later, telling me they were "doing an investigation of a complaint" I had made against Sergeant Hatfield, for his participation in a false arrest, abuse of process and abuse while in custody. (The Cathedral City Police Department has had a vendetta against me since 1999 when I reported a popular officer, Glenn Haas for not doing his job of setting up a Neighborhood Watch, and in fact, literally "selling out" the homeowners in Shadow Crest HOA. After I made that complaint Haas set out to discredit me in every possible way to his fellow officers, and to the community I lived in. An attorney told me, "You complained against 'The Boy's Club' and they will get you!" Over the years that has proved deplorably true.

When I left this "investigation" I told Connor and Robinson I was headed to an appointment in the Garcia Office.When I went into the Cathedral City office of Bonnie Garcia on that Wednesday afternoon it was with the intent to speak to homeowner association problems in the area - which are horrendous -- with non-judicial foreclosure, selective enforcement of the covenants, illegal fines, violence against woman and children by board members, and other human rights violations.

Meeting Mrs. Brhel was like meeting a stern Boot-Camp Sergeant. It seemed very difficult for her to be friendly. When I explained I wanted help with HOA problems, mentioning that "Hispanics are the most foreclosed on group of people in California," she curtly replied, "YOU won't get very far with that one; they don't live in HOAs!" (How little she knows of HOAs!)

I mentioned the seniors in Desert Crest HOA, in Desert Hot Springs, who were also ignored by Bonnie Garcia, and Senator Jim Batton -- all in their 70's and 80's, who had lost their homes to unethical legal practices; she didn't want to talk about it.

She refused to let me address the problems of HOAs in general. Rather she wanted to hear, and insisted I tell her my "personal" story!

So, I told her all about Shadowcrest HOA, and the problems we were experiencing, including void restraining orders to keep me out of board meetings, my false arrests, stalking and battery by board members, perjury, false and illegal fines, and of course the attempts made on two families for non-judicial foreclosure. Brhel acted rightly, and truly shocked, as do most who hear these stories of out of control HOA boards, unethical attorneys, and greedy management companies.

She asked for the names of all those who were abused in Shadow Crest, and I gave them to her, but I learned later she never contacted any of them.

Mrs. Brhel finally warmed up to me and we talked of work I have been involved in as a case manager and advocate in homeless shelters and with children. When I left she asked if I wanted a bouquet of flowers sitting on the floor beside a desk, and said she would speak to the Assemblywoman and call me back.

FEBRUARY 2, 2004: When I didn't hear from Mrs. Behrl, I called the Garcia Office. Brhel was most abrupt and rude, stating; "You have caused all sorts of problems for the police and other government agencies, and have been arrested multiple times so I have put you on a "Threat List" in Sacramento!" She then hung up the phone on me, after telling me, "never call back!"

I was shocked!

A close acquaintance called the Garcia Office she was was told by Chief of Staff, Richard Harmon, in a most condemning voice, "We had a couple of officers in here who gave us the run down on Sharon Stephens!"

Now, who these two officers ?

The Garcia Office has continued to refuse to give the names of these two officers.

FEBRUARY 3-5, 2004: The conspiracy began between the Garcia Office staff, the Cathedral City Police Department, my HOA Board of Directors, and stretching all the way to the District Attorney's office began.

The proof of this conspiracy is well documented by Cathedral City Attorney, Kendall Berkey in the 65 page Memo of Cost in Case No. 0424575 ROBINSON v. STEPHENS, Riverside Count Superior Court, Indio, CA.

When I attempted to contact Assemblywoman Bonnie Garcia, telling her was happening, she sent me a rude letter which stated she "could do nothing to help me!" (I still have that letter.)

Obviously when I told Captain Kevin Connor and Charles Robinson that I was going to the speak with the Garcia people, they thought I was going to complain about the police; they were going to make sure I was discredited so as to not be believed.

Later, Sergeant Charles Robinson had me falsely arrested, and then worked in a conspiracy with Shadow Crest Board of Directors, and Deputy District Attorney, Gianguzi to try and have me sent to jail. The judge threw out all of their bogus filings.

All the while, as is documented, Charles Robinson, Danielle Pasqual, Laura Hanlon, Melissa Holcomb, Judy Williams, and City Council Member, Greg Pettis were working in this conspiracy with the Garcia Office to get restraining orders against me, with the ultimate goal of having me put into jail.

It is all documented.

All to save these two police officers from discipline.

When I insisted on "an investigation into the Bonnie Garcia incident." I was served with a bogus TRO, [temporary restraining order], that never went through the court, by Kendall Burkey and CCPD Chief Stan Henry, and from that point forward I was treated as though there was a real TRO in place.

I was not allowed to make any police reports. I was hung up on consistently by dispatchers, particularly Sandra Hatfield and Danielle Pasqual, and threatened with arrest by Sergeant Patton, and other Watch Commanders if I tried to come into the police department to make a complaint. Everyone at the department was sent a memo by Judy Williams, "Do not speak with Sharon Stephens!" (It is documented.)

Williams told me when I tried to talk with her, "We will take no police reports on Shadowcrest!" She added, "The only time we will come for you is if you are be killed, or need an ambulance!" My right to equal protection was totally taken away from me.

All to save the two police officers that went to the Garcia Office and slandered me.

The behavior by the police continued: violations of my civil and constitutional rights were blatant. I was falsely arrested again and abused while in custody by Glenn Haas, and then falsely arrested for not "stepping up on the grass quickly enough!" [I had just been battered by a board member, Jose Liceaga; he went free even though I asked for a Citizens Arrest as soon as the police arrived, and even his witness said he was the perpetrator; I was ignored as the victim.] Police Officers refused to write police reports for me for criminal behavior by board members, and, even for any one who knew me. Two women are witnesses to this behavior and have suffered because of the police vendetta against me.

For months I asked for an investigation, even going to Cathedral City Council, and when I finally "demanded an investigation into the Garcia incident!" both the police department and Garcia's Office, conspiratorially filed for TROs against me on the same day. Both filled with perjury, claiming I was "a threat and dangerous…"

It was FOUR MONTHS since I had been to the Garcia Office, and there were no police reports, no proof, that I had done anything wrong.

Mary Brhel, and Kendall Berkey went so far as to speak with Cindy Uken of the Desert Sun who not only libeled me in her column, stating I had "walked into the office with a jug of brown liquid and threatened them" [no police report and no witnesses?] and, that they "had to put in a $4,000 security door because of me." [In fact, the office was built with that door.] And, that "Bonnie Garcia had spent all day in court with me. " [Bonne Garcia NEVER came to court!] ALL of these statements, printed in the paper, were perjurious and libelous LIES!

Bonnie Garcia did nothing to help correct these lies.

Assemblywoman Bonnie Garcia has done nothing to correct this story, or to clear my name. She has NEVER talked to me, but has continued to tell people I am "obsessed with her, and a dangerous threat!" She reported me to the Highway Patrol, and Investigator Olavie came and interviewed me, and found me to "not to be a threat!" I have the interview on tape. That made no difference to Bonnie Garcia.

When a Restraining Orders were granted in court, to both the police, and to Ms. Garcia, against me, through more provable perjury on the stand by Mary Brhel, and police officers, under oath, I was truly cut off from being granted my civil rights and treated as a terrorist criminal by both the police and Garcia's office.

Cathedral City Police continue to refuse to write any police reports for the criminal behavior of their own officers, nor will they write any for the criminal behavior of Shadow Crest Board members.I do not have equal protection, as granted under the law. I have been in the hospital three times due to the emotional duress. I have been battered – even hit deliberately by a board member in his car, while I was on foot, with no repercussions for him, or any board member for these batteries. All of the board members show up in court and support each other in their lies to get bogus restraining order. (These orders are all void, and I am working on having them dismissed.)

The restraining order of Bonnie Garcia is also void on the face, and Commissioner McCoy agreed to dismiss it as such if I would have Brhel and Harmon personally served. One of Garcia's office workers was in court during these proceedings, yet I was still falsely arrested when I went to the Garcia office -- to challenge this bogus, void on the face order, and at a Preliminary Hearing the Garcia staff member lied, and did not bother to tell the court the truth of this being a void order!

I went to jail based on these void orders.

I want Bonnie Garcia's bogus and void order dismissed, and my name removed from the "Threat List" in Sacramento.

Most Sincerely,

Sharon Stephens


Thursday, February 7, 2008


How Defense Attorneys Help Convict the Innocent
by Sheila Martin Berry

To ‘know thyself’ must mean to know the malignancy of one's own instincts
and to know, as well, one's power to deflect it.” -

Karl A. Meninger, M.D. (1893-1990)


At least one-fourth of the innocent people convicted of crimes they did not commit—including crimes that never occurred in the first place—know what “bad lawyering” is because it put them where they are today—in prison, even on death row.
1 Yet those of us who advocate for the wrongfully accused and convicted often fail to recognize our own roles in “bad lawyering,” perpetuating the problem and its tragic consequences.

“Bad lawyering” is generally understood to mean “ineffective assistance of counsel,”
2 a relatively new concept arising from the Sixth Amendment3 right of a criminal defendant to “have the Assistance of Counsel for his defense.” Guaranteeing persons charged with crime the right to representation was, in its time, a bold leap forward over English common law, even if counsel proved to be little more than a warm body with “Esquire” behind its name.

The quality of this assistance was not examined until 1932, when the U.S. Supreme Court reversed the convictions of the “Scottsboro Boys”.
4 The reversal was based on Fourteenth Amendment due process violations,5 but the Court noted the right to be represented "is not discharged by an assignment (of counsel) at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”6 Twenty-three years later, the U.S. Supreme Court held the right to effective assistance is a constitutional due process right that must be recognized by all the states.7

Finally, in 1970, the right to effective counsel was explicitly recognized as a part of the
Sixth Amendment's guarantee of the right to counsel in McMann v. Richardson
8, when the Court noted "[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel."9

The Duty of the Defense:

In theory, the prosecution’s duty is to seek the truth,
10 and the duty of the defense is to do nothing.11 The defendant is not required to testify, 12 call any witnesses or present any evidence. He can rely on the fact he is presumed innocent and on the prosecution’s burden of proving the charges beyond a reasonable doubt. 13

The realities stand in stark contrast to theory. While jurors give lip service to the presumption of innocence, most believe the defendant “must have done something” or the state would not have brought its substantial resources to bear on him. Witnesses in uniforms and lab coats whose job it is to protect the public are much easier to believe than someone who has already been stigmatized simply by being charged. Instructions reminding the jury that the defendant is not required to testify do little to overcome the impression that his or her silence is an indicator of guilt.

Reasonable doubt is the most demanding standard, and the least understood.
15 Jurors are told it is such doubt as would cause a reasonable person to hesitate before acting in a matter of importance.16 What does that mean? Is it the hesitation experienced when you buy a used car “as is”? Or is it the doubt you feel when your child says he’ll walk and feed the dog every day if you’ll let him keep it? How does a juror decide when there is no clear understanding of the standard by which evidence is to be measured?

With all these strikes against a defendant, doing nothing leads directly to doing time. In practice, that is exactly what happens in too many instances. “Bad lawyering” accounted for 23% of wrongful convictions among the first 70 DNA exonerations.
17 Examples of the “bad lawyering” in these cases include but certainly are not limited to: failure to communicate with the client or communicating in a dismissive, callous or hurried manner; perfunctory or no attempt at discovery;18 narrow, shallow or no investigation;19 failure to retain needed experts and/or test physical evidence; minimal preparation, weak trial advocacy and superficial or tentative cross-examination.20

These failures don’t exist in isolation from each other. The criminal defense attorney who puts a block on his phone to keep prisoner-clients from calling is the same attorney who doesn’t bother to review the discovery evidence turned over by the state (if a discovery order is even sought), and waits until the deadline for identifying witnesses to begin looking for experts.

Assembly-Line Justice:

Small wonder, then, that with trial approaching, these inadequate advocates urge their clients to plead to the charge in exchange for whatever deal the prosecutor is willing to offer. Professionals estimate that in somewhere between 90% and 99% of these cases, the client is guilty and almost any deal is a good deal.
21 But, if true, in 1% to as many as 10% of criminal convictions, the defendant then is factually innocent.22 In 1998, the most recent year for which figures are available, almost 928,000 adults were convicted of felonies in state courts.23 That means at least 9,280 and as many as 92,800 innocent people were convicted of crimes they did not commit.24 Those are the figures for just one year, for felonies only, and does not include similar convictions in federal courts. And 90% of those innocent people pled guilty.25

The Georgia Court of Appeals recently vacated the conviction of Richard Anthony Heath and issued a ruling condemning what it called “assembly-line” justice.
26 Heath had pled guilty to charges of driving drunk and causing a crash that injured three people.27 In over 400 criminal representations, Heath’s lawyer had never taken a case to trial.28 His representation "was so deficient that it effectively equaled no assistance at all," Judge G. Alan Blackburn wrote in a decision in which the full court joined.29

The Georgia decision is unusual. In most states, a knowing and voluntary guilty plea waives all non-jurisdictional errors.
30 Ineffective assistance claims—usually the only appellate route available in cases where the defendant says he was misled or tricked into changing his plea—are met with the judicial equivalent of rolled eyes and barely stifled yawns.31 The procedural bar is raised, and any innocence claims are stifled.32

Factually innocent defendants who reject plea agreement offers but are convicted thanks, at least in part, to incompetent trial counsel seldom fare better when raising the issue on appeal.
33 As F. Lee Bailey observed, “Appellate courts have only one function, and that is to correct legal mistakes of a serious nature made by a judge at a lower level. Should a jury have erred by believing a lying witness, or by drawing an attractive but misleading inference, there is nothing to appeal.”34

Eyes roll and yawns are stifled as appellate judges consider the ineffective assistance claims of appellants convicted by juries.
35 The decisions generally begin with a recitation of what the appellant must prove—that counsel's performance was deficient, and that such deficient performance prejudiced the defendant.36 This is followed by a warning that the trial court’s findings of what trial counsel did or did not do will be upheld unless clearly in error, and that the appellate court proceeds on an assumption that while trial counsel’s performance may not have been ideal, it was nonetheless satisfactory.37 The appellant must prove trial counsel’s performance was so lacking that it deprived him of a fair trial and calls the verdict into question.38 A few paragraphs later, the court concludes that the appellant was not denied effective assistance of trial counsel.39 Judgment and order affirmed.

In Texas, Calvin Burdine’s lawyer slept through substantial portions of his client’s 1984 capital murder trial, including the questioning of witnesses.
40 He repeatedly referred to homosexuals—including his client—as “queers” and “fairies”. In 1999, the U.S. District Court for the Southern District of Texas granted Burdine’s writ of habeas, finding that a sleeping lawyer is the equivalent of no lawyer.41 But the next year, a three-judge panel of the 5th U.S. Circuit Court of Appeals disagreed, reversing the lower court and reinstating Burdine’s conviction and death sentence. 42 None of the evidence, the appellate panel decided, supported a presumption of prejudice against Burdine.43 They warned that “[t]here are real dangers in presuming prejudice merely from a lack of alertness.”44

In 2001, the same facts were viewed differently by the same court sitting en banc.
45 The District Court’s grant of habeas was affirmed.46 Judge Benavides wrote for the majority:
When a state court finds on the basis of credible evidence that defense counsel repeatedly slept as evidence was being introduced against a defendant, that defendant has been denied counsel at a critical stage of his trial. In such circumstances, the Supreme Court's Sixth Amendment jurisprudence compels the presumption that counsel's unconsciousness prejudiced the defendant.

States of Denial:

In one respect, Calvin Burdine was fortunate.
48 By the time his habeas was heard, his trial attorney was dead.49 Had Burdine’s lawyer been living, it is likely he would have vehemently denied any deficiency in his performance. The en banc decision could well have mirrored that of the 3-judge panel had Burdine’s counsel been there to insist he was just resting his eyes when observers thought he was sleeping, and that he used pejorative terms to describe his client as a strategy, to ensure jurors understood his references.

Despite the jokes about defense attorneys who appeal convictions based on their own ineffective assistance, intractable denial is the norm. Examples abound. In North Carolina, a state commission established a regional Office of Capital Defender to help reduce the number of murder defendants being sentenced to death in the Forsyth County area, which accounts for 14 of the state’s current death row inmates.
50 Robert Hurley, the state’s capital defender, assured the public that establishment of the office was not a comment on the Forsyth County Bar, but local lawyers didn’t see it that way.51

John Barrow, the president of the Forsyth County Criminal Defense Trial Lawyers Association, said he was outraged by Hurley's comments.
52 "He has demeaned the criminal-defense bar in Forsyth County who handle capital cases," Barrow said. "He's wrong."53 Michael Grace, a local criminal-defense lawyer, said that several factors cause Forsyth to lead the state in death-penalty convictions.54 Jurors in Forsyth tend to be conservative and favor death sentences for some convicted killers, he said, an opinion that Hurley and Mike Klinkosum, a newly hired assistant capital defender, agree with. Forsyth prosecutors have much experience in capital-murder cases, and have won many death-penalty convictions, all three men said.55 "People have not been put on death row because of incompetent counsel," Grace said.56

The Texas Defender Service examined the state habeas appeals of nearly all death row inmates since 1995.
57 The study, “Lethal Indifference,” found those inmates had a 1 in 3 chance of being executed without their cases being adequately investigated or argued by a competent appeals attorney.58

The study cited as an example the case of Leonard Rojas, executed on December 4, 2002 for the murder of his wife and brother.
59 Rojas’ state habeas lawyer was assigned by the Texas Court of Criminal Appeals, despite the fact he had been disciplined three times by the state bar and given two probated suspensions.60 He caught another suspension a few weeks after undertaking Rojas’ case.61 It isn’t surprising that the attorney’s writ was woefully inadequate—he ignored issues of competency of defense and prosecutorial misconduct—and he failed to preserve Rojas’ right to file a federal habeas.62

But the habeas attorney doesn’t see it that way. He says his representation was not as bad as the Texas Defender Service makes it out to be.
63 His only concession is his failure to preserve Rojas’ right to federal habeas.64 “I didn’t make sure it got into federal court,” he said. “That’s the thing I did not do.”65

Exonerations of shocking numbers of innocent death row inmates—25 innocent people have been exonerated from Florida's death row since 1976 and the national number of wrongfully convicted death row inmates is more than 100
66—have focused the re-examination of the quality of defense counsel on capital cases.67 The stakes are highest in these cases, literally a matter of life and death. There is no reason to believe bad lawyering plays any lesser role in non-capital cases, from mandatory life felonies to 30-day misdemeanors.

Free vs. Fee:

Truth in Justice, the educational non-profit I direct, receives a steady stream of correspondence from relatives and friends of prison inmates with innocence claims who cite bad lawyering for the conviction.
68 More often than not they begin, “He couldn’t afford a real lawyer, so he had a public defender.”69

Public defenders are often blamed for bad lawyering in criminal cases because they are commonly underpaid and overworked.
70 It is widely acknowledged that the resources available to public defenders’ offices (money and staff) are dwarfed by the resources of prosecutors. It is equally well understood that many private practice attorneys who are appointed to represent indigent defendants seek such appointments because their skills are so poor, it’s the only way they can make a living.

But there is as much bad lawyering in the private sector as in indigent defense. In many parts of the country, the challenge has changed from finding a highly competent criminal defense attorney to finding a criminal defense attorney at all.
71 The criminal defendant who can afford to pay has far fewer choices and less information on which to base those choices than he would if he needed a real estate lawyer to handle a closing.72

People who don’t expect to need the services of a criminal defense lawyer know next to nothing about how to find one. Shame and disgrace keep many of them from asking friends and neighbors for referrals. They may simply dial the number of someone they’ve heard of, whether the press was good or bad. Increasingly, people turn to the Internet to find lawyers, either directly or indirectly. It’s no less a crap shoot than the yellow pages.

I was surprised recently to see a particular Milwaukee, Wisconsin lawyer listed as a referral attorney at the website of a multidisciplinary practice specializing in defending false allegations of child abuse, domestic abuse and sexual harassment. His bio compared him to “Clarence Darrow and other legendary barristers.”
73 But when Milwaukee Magazine74 rated 189 Wisconsin lawyers in 13 disciplines, the same lawyer topped two categories, “Vastly Overrated” and “Least Integrity”.75 Comments included, “Clients erroneously believe that obnoxious lawyers are effective lawyers,” and “A disgrace to the legal profession in particular and the human race in general.”76 The comments are supported by his disciplinary history:

1970: Suspended for one year for harassing and threatening a local judge until the judge committed suicide.
1988: Suspended for two years for, among other breaches, cutting a media rights deal based on his client’s case prior to trial.
1991: Reinstatement denied.
1993: Reinstatement denied.
1994: Reinstated
1996: Public reprimand
2002: Complaint pending; case will be heard by Wisconsin Supreme Court in 2003

Once the unwary have put all their assets into a high-priced but unethical and ineffective defense lawyer, they are as stuck as any indigent forced to take whatever the court gives him. The warning signs may be clear—calls unanswered, evidence untested, witnesses never interviewed, experts not consulted, and the most glaring warning sign, questions met with temperamental outbursts and threats of abandonment.

By the time they figure out they’ve got a lemon, there’s no money left to retain another lawyer. When the lemon lawyer offers them a plea deal on the eve of trial, they’re likely to take it—even though they are innocent. Those who go to trial find themselves represented by counsel who is unprepared, unmotivated and whose incompetence has the effect of adding another prosecutor to the state’s team.

Caveat Emptor:

A Georgia woman wrote me about the attorneys she had retained for her sons, Cecil and James Simmons, convicted in Florida on the uncorroborated testimony of a retarded man of abducting, raping and murdering a Kentucky woman who was traveling through the area

“Since the arrest and conviction of my sons—two different trials, two different lawyers— we are left with the lingering question: IS THERE REALLY HONESTY WITHIN THE SYSTEM? Post-conviction, I began my own investigations of the [attorneys] who represented them [at trial]. [The] lawyer of first son—his foster son was incarcerated for bludgeoning a local man to death. . His foster son was convicted and given 7 years for his confessed crime. [There] also [were] sexual [assault] charges against the lawyer that represented our other son. Two weeks prior to [younger] son’s trial, sexual [assault] charges were dropped against him due to 'unavailability' of claimant who was his prior secretary. [This] information was sent to me by the Bar Association [after sons were convicted]”

But her story only gets worse.

“. . . we retained two more lawyers. (We have had to retain two separate lawyers all during Appeals). Our youngest son’s lawyer we paid $11,000.00 plus $1,000.00 up front to review the transcript, which we paid for ($2.50 per page, over 1,800 pages of trial alone). Two weeks later this lawyer wrote us a letter and had me to do the research work, which involved driving over 400 miles one way, and go to the venue of trials and gather information for him. This I did. After this we heard no more from him [Over a year later], I called his office to see if the Appeals were nearing completion and to see if he had filed for habeas corpus; this had to be done by the middle of Nov. that year [because] Florida has a two year time frame from the date of direct appeal denial. To make this short, my calls were not answered. After days of trying to locate this man—now bear in mind his office was 11 hours from our home—on the fourth day I was told he no longer practiced in that county, and his whereabouts were in question. This lawyer took our money and left town, along with all the documents I had sent to him—documents I would never be able to acquire as another lawyer had secretly supplied them to me. After I filed a complaint with the Bar Association and 3 years later, they found our case worthy of $2,500 refundable. They disbarred him, but only by my investigations were they able to locate him for papers to be served. He had moved to another state and become a real estate broker.”

These parents have been through a total of eleven lawyers. Substantive Brady issues raised in the state habeas, including undisclosed evidence that points toward state employees as the perpetrators, were deemed insufficient to undermine the certainty of the jury’s verdict. The second son expects similar findings in his state habeas.

Some instances of incompetent assistance are so conspicuous that a reasonable person must question whether they are deliberate. The same Georgia mother quoted above wrote me about the conduct of her elder son’s trial attorney: “Pretrial, Cecil’s lawyer called me at home. He asked me to go over the [key witness’] deposition and present to him questions I feel should be clarified by [the key witness], on the stand. I did. I spent long hours, days, doing just this. In the course of [the key witness’] testimony for the prosecution, the prosecutor made a point to be silent while he returned to his table, knowing all eyes were on him, even mine. [The prosecutor] picked up a piece of yellow legal paper and returned to the podium which was within 3 ft. of me. [The prosecutor] began to ask [the key witness] questions. [They were] the questions I had sent to the Defense Attorney, my legal paper, my handwriting. The Defense attorney was in front of me. I tapped him on the shoulders [and] asked him what is going on. He jerked his shoulder from me [and] gave me a nasty look. At the next recess, I confronted him with this. He asked me did I think I was the only one able to obtain yellow paper, and did I really think they would be stupid enough to carry out such an act?”

”He also sat right there and let the prosecutor, during his closing, signal for the cameras to roll (all local television station were allowed in court), turn around to the jurors, and state loudly in dramatization: “EVEN JAMES SIMMONS ADMITTED HOW THEY HANDCUFFED KRISTI AND REPEATEDLY RAPED AND KILLED HER.” Before I could tap him again, Cecil had leaned over to him and asked him wasn't he going to OBJECT—this was untrue. He told Cecil, the jurors knew this was an INADVERTENT statement, the jurors are not as emotionally involved as you and the family. Well, you know and I know those jurors went into deliberations thinking they had a CONFESSION from the brother. You know as well as I know, these actions also tainted all possibility of James receiving an unbiased trial, in that small little county. Defense did not preserve this, so it could not be used for [appeal] purposes. When I brought this to the attention of other lawyers, they said the same—it was just an inadvertent statement, the jurors did not comprehend this as the defendant and family would.”

The Deal Makers:

One of the most insidious forms of bad lawyering leading to the conviction of innocent people falls outside Sixth Amendment review.
86 Cutting leniency deals with the prosecution in exchange for testimony against another criminal defendant occurs outside the courtroom and off the record, and it is passed off—rationalized—as effective advocacy on behalf of a client.87 But when the client is a “snitch”88 willing to sell an innocent person down the river to save his own skin,89 the defense attorney who brokers the deal becomes party to the very miscarriage of justice against which his profession is intended to guard.90

What role do informant/snitch testimony and false witness testimony play in wrongful convictions? These were a significant factor in one-fourth of the convictions of the first 70 DNA exonerations—interestingly, the same proportion as bad lawyering.
91 Examples of the devastating effects of this business-as-usual collusion between defender and prosecutor can be found across the country. In the Chicago, Illinois case of the Ford Heights Four92—Dennis Williams, Kenny Adams, Willie Rainge and Verneal Jimerson—Dave Protess and Rob Warden investigated a snitch who had been put up to his incriminating lie by the brother of a man who turned out to be one of the real murderers.93

In Crewe, Virginia in 1996, Sheila Barbour Stokes provided the key—and only—evidence linking Larry Fowlkes to the robbery and murder of a Nottoway County woman.
94 In exchange for her testimony, Stokes avoided prosecution for her fourth felony offense.95 Fowlkes was convicted with no physical evidence linking him to the crime, and despite a solid alibi.96 Stokes has since recanted, reaffirmed, and again recanted her testimony, while Fowlkes serves a 45-year prison sentence.97

Behind each leniency-for-testimony deal, there is a defense attorney bartering the most favorable terms he can get for his client. Just as the overwhelming majority of prosecutors who obtain convictions of innocent people know or should know the defendant is probably not guilty,
98 so too do defense attorneys know or should know when the deals they cut will result in convicting the innocent.

Often there is no pretense that anything less than framing an innocent person lies at the heart of the agreement. A Wisconsin inmate serving a life sentence for murder—for which he has compelling innocence claims of his own—received a phone call from his defense attorney with a “get out of prison” offer from the same District Attorney who had prosecuted him.
99 All he had to do was help frame an innocent man by falsely testifying the target had solicited him for a “hit contract” on the District Attorney.

The DA had obtained a conviction against a police officer for murder, arson and mutilating a corpse in the death of the cop’s estranged wife.
100 But it was a precarious conviction, dependent on the continued concealment of evidence that no crimes had been committed in the first place,101 and the DA was worried his hard work would fall apart on appeal.102 Fresh charges against the police officer would give the DA a bargaining chip—if the cop would drop his appeal, the DA would drop the new charges.

The inmate’s initial, vehement rejection of the offer was followed by a written reiteration of his refusal. His attorney wrote him, urging him to reconsider.

I have not struck any deal with [the District Attorney] concerning a re-sentencing and/or amendment of charges to a 30-year prison sentence. However, I thought that I should pass that information on to you so that you could consider the same and what the State wants of you in the event we reach a point where your motions are denied and/or later appeal is denied and you find yourself once again in the same position you are currently in, life in prison without parole. Hence, please think about the potential offer and agreement which the State might be willing to enter into and what would be required of you.

The inmate had no problem grasping the inherently unlawful and unethical nature of the offer. When the District Attorney who proffered the deal was unanimously endorsed by Wisconsin’s Federal Nominating Committee for presidential appointment as U.S. Attorney
103, the inmate forwarded documentation of the offer to Senators Herb Kohl and Russ Feingold. They “got it.” Ten days later, the Senators removed the District Attorney from the list of nominees forwarded to President Bush.104

The only one, apparently, who didn’t “get it” was the defense attorney who urged his client to “think about the potential offer . . . and what would be required of you.” When Jeanne Anthony of WHBY-Radio reported the deal in a documentary that re-examined the conviction of the District Attorney’s target
105, she opted not to name the inmate or his lawyer. Ms. Anthony was stunned, following the first broadcast of the program, to receive an irate call from the inmate’s lawyer complaining because he wasn’t identified!


We have come a long way in acknowledging that, in the words of retired Florida Supreme Court Justice Gerald Kogen, “innocent people are convicted every day.” And we have responded. At this writing, there are 40 innocence projects in the United States.
106 Increasing numbers of lawyers and law firms are undertaking pro bono and reduced fee representations of the wrongfully convicted.

But we still have a long way to go. Innocent people continue to be convicted every day, and bad lawyering in every form facilitates many of these convictions.
107 How can we be part of the solution rather than part of the problem? More regulations and laws are not the answer.108 Bad lawyering is already unethical and often unlawful.

The resolution is close at hand. It lies within each of us. Examine your own conduct honestly rather than defensively. Assess yourself from the viewpoint of the innocent person charged with a crime someone else committed, or a crime that never happened in the first place. From that perspective, are slap-dash explanations of law and procedure good enough? When the rest of your life is on the line, is it okay that your lawyer doesn’t have time to subpoena or even interview alibi witnesses? After you’ve sold all your possessions to pay legal fees, do you mind that your lawyer fails to retain experts who could clear you in order to maximize his profits? How about the lawyer who represents the guy you never even met, the state’s star witness against you? Do you feel satisfaction that he’s gotten his client a sweetheart deal in exchange for testifying against you?

Start with yourself. If you don’t want to be the client in these scenarios, don’t be the lawyer in them. Don’t turn a blind eye to the bad lawyering going on around you, either. Challenge yourself and your colleagues to be what you claim to be, advocates for the innocent. Take the advice offered nearly 2,500 years ago by the Greek philosopher, Socrates:
The greatest way to live with honor in this world is to be who we pretend to be.

1 Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer. (Doubleday, 1999, 2001).
2 Model Rules of Professional Conduct Rule 1.1 (1983)(amended 1998); (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”)
3 U.S. Constit. Amend. VI.
4 Powell v. Alabama, 287 U.S. 45 (1932).
5 U.S. Constit. Amend XIV.
6 Powell v. Alabama, 287 U.S. at 69 (1932); in accord Johnson v. Zerbrest, 304 U.S 458 (1938).
7 Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L.Ed. 77 (1955).
8 397 U.S. 759 (1970).
9 Id.
10 See generally ABA Model Rules of Professional Conduct 3.8 cmt. [1] (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”).
11 U.S. Constit. Amend X (Defendant cannot be forced to incriminate himself.)
12 U.S. Constit. Amend. V.; Pennslyvania v. Muniz, 496 U.S. 582 (1990).
13 See generally U.S. Constit. Amend. VI.; as explained in Moore v. U.S., 345 F.2d 97 (D.C. Cir. 1965).
14 See e.g., Doyle v. Ohio, 426 U.S. 610 (1976)(the court held that it violates due process to use a defendant’s silence against him).
15 Supra note 12.
16 See e.g. Palmoral’s Jury Instructions.
17 Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer. (Doubleday, 1999, 2001)
18 Model Rule of Professional Conduct Rule 1.1, cmt. 5 (1983) (amended 1998)(“competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.”).
19 Id.
20 Id.
21 No one can provide accurate statistics on this because, even when people are cleared by DNA, the state, with rare exception, refuses to concede their innocence. The high percentage of innocent people who plead guilty or no contest further obscures a head count with even a stab at accuracy. But see The Innocence Project of the National Capitol Region at (“Based in part on a 1996 Report, reasonably credible estimates are that up to 10 percent of our national prison population may be factually innocent of the crimes of which were convicted. In other words, there may be close to 200,000 innocent people currently serving time in American prisons.”)
22 Id.; see also, e.g., James Leibman, Jeffery Fagan & Valerie West, A Broken System; Error Rates In Capital Cases, 1973-1995, (2000) (error rate of 68% and 7% of retrials lead to acquittals.).
23 Bureau of Justice Statistics Report, May 17, 1999
24 Id..
25 Albert Alschuler, University of Chicago law professor, quoted in “Plea Bargain” by Dirk Olin, The New York Times Magazine, September 29, 2002
26 Heath v. State, 2002 Ga. App. LEXIS 1525 (2002).
27 Id.
28 Id.
29 Id.; see also “Appeals Court Rebukes Assembly-line Justice,” by Bill Rankin, Atlanta Journal-Constitution, November 30, 2002.
30 United States v. Broce, 488 U.S. 563, 569 (1989) (“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.”).
31 See e.g. Waters v. Thomas, 46 F. 3d 1506 (1995)(allowing a broad range of defense attorney omissions at trial.); see also hhtp://www.deathpenaltyinfo.org; but see Curtis Harris, “The Courage Of His Conviction”, City Limits.Org Jan. 2002 at http://www.citylimits.org/content/articles/articleView.cfm?articlenumber=104 (“Court-assigned lawyers for the indigent don't have the resources to conduct their own investigations; they're paid so little, in fact, that they can barely stay in business, just $25 an hour for out-of-court work. In preparation for trials, defense attorneys have extremely limited access to evidence such as police reports and grand jury minutes--a constraint that also makes it difficult to get a conviction overturned. "What lawyers need is time: to interview clients, investigate cases, think about them. But fees are so incredibly low that work goes undone," says Jonathan Gradess, executive director of the New York Defense Association. "That right to counsel, supposedly the crown jewel in the Bill of Rights, is not really counsel at all. If you don't have the tools of forensic evidence, you can appeal the case, but you don't have the evidence to get a conviction overturned.").
32 Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice; 44 Vand. L. Rev. 46, 67 (1991); (noting that the “institutional reluctance” to reverse convictions for ineffective assistance of counsel thus manifests itself in the court’s use of an almost impossible standard.).
33 K. Malleson, Appeals Against Conviction and the Principal of Finality, 21 J. of Law & Soc. 51 (1994).
34 F. Lee Bailey, quoted in “Convicting the Innocent,” by James McCloskey, Criminal Justice Ethics, Vol. 8 No. 1, 1989.
35 Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
36 Strickland v. Washington, 466 U.S. 668 (1984).
37 See supra, note 31; in accord Strickland at 694 (a defendant must demonstrate that defense counsel’s performance prejudiced the defense or that “there is a reasonable probability that but for the counsel’s unprofessional errors, the result of the proceeding would have been different.”); see also Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals, The Justice Project: campaign for Criminal Justice Reform at (“the quality and consistency of attorney performance in the latter stages of the appellate process was studied, especially the critical state habeas corpus proceeding. The findings of this report reveal that a high number of people are being propelled through the state habeas process with unqualified attorneys and an indifferent Court…” at http://justice.policy.net/proactive/newsroom/release.vtml?id=32477&PROACTIVE_ID=cecfcfc7cbcfcdcecfc5cecfcfcfc5cececfc8c6c7c9cbc8c9c5cf ).
38 Id.
39 Bob Burtman, Criminal Injustice, Independent Weekly, Oct. 16, 2002; as reprinted at http://www.deathpenaltyinfo.org/IndWkly-NC.html.
40 Burdine v. Johnson, 66 F. Supp. 2d 854 (S.D. Tex. 1999).
41 Id. at 860.
42 Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).
43 Id.
44 Id.
45 Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001)(en banc).
46 Id.
47 Id.
48 See Stephen B. Bright, KEEP THE DREAM OF EQUAL JUSTICE ALIVE, Yale Law School Commencement Address, New Haven, Connecticut, May 24, 1999 as reprinted at :
“The Houston Chronicle described one of the trials as follows: “Seated beside his client . . . defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep. His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again.And again.Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the [case against his client, George McFarland].” When [the judge] finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial. The 72-year old longtime Houston lawyer explained: "It's boring," This performance does not violate the Sixth Amendment right to counsel, the trial judge explained, because, while the Sixth Amendment guarantees the right to a lawyer, it does not guarantee that the lawyer has to be awake.”
49 Id.
50 www.wsjournal.com/wsj/MGB9NWHB99D.html
51 “Office to take capital cases; Defenders will try to reduce the number of death sentences,” by John Hinton, Winston-Salem Journal, December 3, 2002.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals, The Justice Project: Campaign for Criminal Justice Reform at .
58 “Texas Death Row Appeals Lawyers Criticized,” by JimYardley, New York Times, December 3, 2002
59 Id.; see also Rojas v. State, 986 S.W.2d 241, 244 (1998).
60 See Texas Execution Information Center at (“According to the Texas Defender Service, the lawyer, David Chapman, had a mental disorder, had never worked on a capital appeals case before, and had his law license put on probated suspension three times. Chapman disputed the claims that he bungled Rojas' appeal, noting that Rojas gave three confessions to police.”).
61 Id.
62 “Attorney castigated for bungling appeal,” by James Kimberly, Houston Chronicle, December 2, 2002
63 Id.
64 Id.
65 Id.
66 National Coalition to Abolish the death Penalty; Yet another innocent person freed from Florida death row; national count of wrongfully convicted continues to grow, Jan. 24, 2003; at (last visited Feb. 9, 2003).
67 By JIM VERTUNO; Study: Innocent at risk in Texas system; The Montana Standard, Dec. 3, 2002; (last visited Feb. 9, 2003).
68 Truth in Justice; http://www.truthinjustice.org/.
69 Id.
70 Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992) (“The state paid $11.84 per hour [for the defense attorney]. Unfortunately, the justice system got what it paid for.”).
71 “Convicting the Innocent,” by James McCloskey, Criminal Justice Ethics, Vol. 8 No. 1, 1989; see also Stephen B. Bright, KEEP THE DREAM OF EQUAL JUSTICE ALIVE, Yale Law School Commencement Address, New Haven, Connecticut, May 24, 1999 as reprinted at http://www.schr.org/reports/docs/commence.doc (“ Sometimes a poor person stands alone at the bar of justice, as did Exzavious Gibson, a man condemned to death in Georgia, with an IQ in the 80s, who stood before a judge, bewildered, at the first hearing for review of his case. The judge asked him if he was ready to proceed. Gibson replied that he needed a lawyer. The judge explained that he was not entitled to a lawyer and asked whether he would like to "put up" any evidence he had. Gibson replied that he didn't know what to do; he needed a lawyer. Nevertheless, the judge proceeded with the hearing.”).
72 See Ex Parte Adams, 786 S.W. 2d 281 (Tex. Crim App. 1989) (Adam’s trial lawyer was a real estate attorney ill-equipped to handle his defense.).
73 http://www.alaneisenberg.com/bioprint.htm.
74 “A Good Lawyer,” Milwaukee Magazine, October, 1999
75 Id.; at http://www.milwaukeemagazine.com/toplawyers/.
76 Id.
77 In re Disciplinary Proceedings against Eisenberg, 48 Wis.2d 364, 180 NW2d 529 (1970)
78 In re Disciplinary Proceedings against Eisenberg, 144 Wis.2d 284, 423 NW2d 867 (1988)
79 IN the MATTER OF the REINSTATEMENT OF the LICENSE OF Alan D. EISENBERG to Practice Law, 470 NW2d 898 (1991).
80 In the Matter of the Reinstatement of the License of Alan D. Eisenberg, to Practice Law, 498 NW2d 840 (1993).
81 In re Eisenberg, 619 N.W.2d 530 (2000).
83 http://www.jsonline.com/news/metro/may02/40985.asp
84 The Justice Project: Campaign for Criminal Justice Reform; see (“[The defendant] was represented at his two-day trial by a sole practitioner who had never tried a death penalty case. During a time when Nelson's attorney was personally experiencing financial problems, he was paid between $15 and $20 per hour. His request for co-counsel was rejected. No funds were provided for an investigator, and the attorney didn't even ask for funds for an expert witness. The attorney's closing argument at trial was 255 words. Gary Nelson was sentenced to death. His trial attorney was later disbarred for other reasons.”).
86 According to the Innocence Project website: “The use of jailhouse informants, especially in return for deals, special treatment, or the dropping of charges, has proven to be a specious form of evidence, as has testimony that has only appeared after rewards were offered. Often, the testimony of these snitches and informants has been the key in sending an innocent man or woman to prison for a crime he or she did not commit.” http://www.innocenceproject.org/causes/snitches.php.
87 Rob Warden, THE SNITCH SYSTEM: How Incentivised Witnesses Put 38 Innocent Americans on Death Row, Presented April 25, 2002 at (“False testimony by incentivised witnesses is the second most prevalent factor in wrongful convictions in U.S. capital cases, exceeded only by incorrect or perjured eyewitness testimony, found in 53.5% of cases.”).
88 See Dr. Edmund Higgins, at http://www.dredmundhiggins.com/ (“A "jailhouse snitch" is the most notorious false informant. This is the person who claims that the accused "confessed" to him while in jail.”).
89 Id.; “Typically, the informant receives favorable treatment in return for his damaging testimony…”.
90 See, e.g., Gray case at ; (last visited Feburay 13, 2003.).
91 Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer. (Doubleday, 1999, 2001)
92 See court opinion at http://www.law.northwestern.edu/depts/clinic/wrongful/documents/GrayMemo1.pdf.
93 A Promise of Justice: The 14 Year Fight to Save Four Innocent Men by David Protess and Robert Warden (Hyperion, 1998)
94 FRANK GREEN, Story changes – again: Woman's testimony sent a man to prison; Richmond TIMES-DISPATCH August 11, 2002.
95 Id.
96 Id.
97 Id.
98 Martin Kuz, “No Way Out: Lawyers say the case against Bob Gondor and Randy Resh could be titled The Insider's Guide to Prosecutorial Misconduct”; published in the Cleveland Scene, Jan. 15 2003 (noting that prosecutors in the case committed grievous misconduct, Matin Yant stated: “An assistant prosecutor told me . . . that there was hardly a day that went by that he didn't worry that they convicted two innocent men for a crime they didn't commit,").
99 Natalie Arnold, “John Maloney Asks Court to Throw Out Conviction”; Target Two investigation as reported by WBAY-TV February 7, 2003.
100 Wisconsin v. Maloney, 619 N.W.2d 308(Wisc. App. Ct. 2000)
102 Supra note 96.
103 “Nominee cuts fuel partisan bickering,” by Cary Spivak and Dan Bice, Milwaukee Journal-Sentinel, December 1, 2001
105 “The John Maloney Case: Murder or Miscarriage of Justice?” by Jeanne Anthony, WBAY-Radio, July, 2002
106 See generally Innocence Project, Causes & Remedies, at (last visited december 15, 2002.)
107 Id., at generally Innocence Project, Causes & Remedies, at http://www.innocenceproject.org/causes.
108 See generally Innocence Project, Legislation, at http://www.innocenceproject.org/legislation/display_description.php?id=Senate-Bill-486 (last visited Dec. 12, 2002) (The Innocence Protection Act is pending in both the House of Representatives and the Senate and would safeguard and standardize post-conviction DNA testing for inmates).