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Letters to the 107th Congress

July 16, 2002

The Honorable Patrick J. Leahy
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Mr. Chairman:

On behalf of the American Bar Association, I write to present our views on several proposed amendments to the Innocence Protection Act, S.486, submitted by Senators Grassley, Kyl, and Sessions. We are troubled by the fact that these proposals conflict with generally accepted ethical obligations of lawyers representing clients in such cases. For this and other reasons explained below, we oppose the amendments as currently drafted.

At the outset, I want to emphasize the ABA believes that the failure to provide qualified counsel at trial and post-conviction has caused many of the serious problems with the administration of the death penalty cited by courts, critics and news organizations nationwide. The provision of knowledgeable, adequately compensated and supported counsel would, in Chief Justice Rehnquist's words, restore the trial as the "main event" in the capital punishment process. Competent counsel, adequately supported with expert, laboratory and other services, are more likely to raise issues at an early stage, to raise them comprehensively, and raise them properly, thereby avoiding later problems of ineffective assistance of counsel and procedural default, both of which result in unnecessary delay.

All three authors of the suggested amendments are clearly troubled by a potential disingenuous assertion of claims by some capital defenders, including "frivolous" claims that result in an unwarranted delay of proceedings and scheduled executions. Before turning to the merits of each proposal, we want to provide you and the Committee with a few general comments on this issue.

First, it should be remembered that all lawyers must act with "zeal in advocacy upon the client's behalf" in the adversarial proceedings that precede an execution. Rule 1.3, Model Rules of Professional Conduct. The commentary to the Model Rule explains that "a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience . and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." This is especially important when a human life hangs in the balance.

Because of the complex and often-changing nature of habeas jurisprudence, it is well-established and sound legal practice to assert all possible claims upon which a client may find relief, including those claims that may be (at that time) in opposition to "well-settled" case law. This preserves the claims and avoids procedural default of issues that may become viable at a later time (e.g., Ring v. Arizona, in which the US Supreme Court overruled its own decision in Walton v. Arizona twelve years earlier.)

Regarding the assertion of ineffectiveness, it should be noted that many lawyers who admit to such failures cite a lack of funding, inexperience, excessive workload, and other factors independent of their ability or desire to be effective advocates for their clients. We agree that lawyers who sleep through capital trials should never receive another capital appointment. But we suggest that the circumstances of each assertion of effectiveness be reviewed before a blanket disqualification of the organization or lawyer is contemplated.

Finally, the absence of any definition of such subjective terms as "repeatedly" and "meritless" (or of numbers qualifying as "large" or "numerous") raises concerns that assertion of many claims in opposition to the developing law of a jurisdiction would jeopardize funding for the capital defender organization. The general concern is addressed in the Model Rules of Professional Conduct, which already prohibits a lawyer from bringing or defending a proceeding, or asserting or opposing an issue, unless there is a basis in law and in fact for doing so that is not frivolous. Rule 3.1, Model Rules of Professional Conduct.

With respect to each of the specific proposals1, we have the following comments:

  1. Kyl Amendment - To prevent certain qualified capital defender organizations from receiving grants.
  2. Without definitions of the terms "repeatedly," "large numbers," "meritless claims," "substantial delay" and "otherwise interfering," there is a substantial risk that the advocacy which is required by capital defenders in death penalty cases would disqualify their organization from any grant funding. The result would mean fewer numbers of qualified counsel available to represent indigent defendants, thus frustrating the intent of this Act. The problem with the word "meritless" is that it can refer to any claim upon which relief is not ultimately granted.

    We are similarly troubled by the use of the word "effect." This language would eliminate funding from capital defender organizations when the "effect" of their advocacy is a delay in execution. Since this will almost always be the case when valid and appropriate claims (such as those of actual innocence) are brought to the attention of a court, this language means ALL effective advocacy on behalf of a client will result in a disqualification for the organization. This amendment, unfortunately, could effectively side step the Constitutional requirements of an adversarial process in all criminal proceedings by requiring capital defenders not to "interfere" with or delay the state's execution of their client.

    Finally, if the State's Attorney General and US Attorney agree that a capital defender organization should be disqualified from receiving any grant funding, they should be required to first submit a report detailing the cause and support for such a decision for review by the Senate Judiciary Committee. The Committee, in turn, should review the report and approve the findings before the decision to disqualify the organization is implemented.

  3. Sessions Amendment - To prescribe factors to be considered in appointment of capital counsel.

    This amendment seeks to prohibit the appointment of attorneys for a variety of events, including a finding or assertion of ineffectiveness. As stated above more generally, the question of ineffectiveness often turns on factors other than incompetence. Leaving such a finding to a court of law or bar association as contemplated by (1) (A) and (B) seems reasonable, as there is opportunity for the variety of factors and circumstances surrounding the conduct to be considered. However, predicating removal of an attorney on the mere assertion of ineffectiveness in writing or oral advocacy a requisite number of times is inadequate since it does not presume a testing of the allegation by a fact finder. More importantly, any such finding of ineffectiveness should not be dispositive of the issue of eligibility, as the amendment directs. Rather, the finding should be a consideration for the appointing entity to evaluate, along with all the other relevant facts and circumstances, regarding the qualifications and experience of the attorney in question.

    Additionally, we oppose the inclusion of "sanctions.for ethical misconduct," because that term is far too broad and vague to be included among the list of offenses precluding appointment. "Ethical misconduct" represents a broad spectrum of behavior ranging from the use of intemperate language directed at opposing counsel all the way to deliberately making a false statement of material fact or law to a court. Finally, the time frame of five years is appropriate for any disqualifying offenses and should be placed back within the language of section 201 (e). As drafted, the overall effect of this amendment, however, would be disqualification of many qualified and dedicated capital defenders, and such a result is inconsistent with the stated objectives of the Act.

  4. Grassley Amendment - To impose sanctions against an attorney or law firm that caused frivolous or unnecessary delay in execution.

  5. The suggestion implicit in this amendment is that a defense lawyer should, at some undetermined point, to avoid "unnecessary delay" in an execution, cease advocating on her client's behalf. If this amendment were enacted, a capital defender would risk sanctions for any conduct that sought to delay or resulted in the delay of her client's execution. Without a definition of "unnecessary," it would force a lawyer to choose between her responsibility to her client under the Rules of Professional Conduct (see, e.g, Model Rule 3.1) and personal sanctions. The inclusion of law firms as potential targets of sanctions will mean that nearly all firms which take capital cases on a pro bono basis will stop doing so.

    This amendment appears to be an attempt to expand the availability of Rule 11 sanctions for "delay." The Rule already exists as a basis for sanctioning any actual misconduct on the part of a lawyer. In addition to Model Rule 3.1 cited earlier, Model Rule 4.4 prohibits a lawyer from using "means that have no substantial purpose other than to embarrass, delay or burden" a third party, even at her client's direction. In sum, there are adequate safeguards already in place to address the Senator's concern, and the effect of the amendment would be a serious reduction in the number of counsel willing and able to take these difficult cases.

For the reasons stated, we cannot support any of these proposed amendments as currently drafted. We appreciate this opportunity to provide our views on this important legislation.


Robert D. Evans
Director, Governmental Affairs Office

cc: Members, Committee on the Judiciary

1We have not reviewed other proposed amendments and take no position on them at this time.

107th Congress Letters Home

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740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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