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Doctoring Up the Capital Defense System: Raising the Standards for Louisiana s Death Penalty Lawyers

The author extends special appreciation to Phyllis Mann and Tom Lorenzi for their invaluable insight and support during the creation of this article. Thanks are also due to Professors Christine Corcos, Paul Baier, and James Bowers for their guidance and encouragement during this writing.

Introduction

Serious questions are being raised about whether the death penalty is being fairly administrated in this country. If statistics are any indication, the system may well be allowing some innocent defendants to be executed.

-;Supreme Court Justice Sandra Day O'Connor1

There are currently ninety-two inmates sitting in silence on death row at Louisiana State Penitentiary, Angola, Louisiana.2 The majority of those inmates were represented at trial by court-appointed counsel because of their indigency. At least 192 additional indigent capital defendants are awaiting trial in Louisiana.3 As early as 1932, the United States Supreme Court held that where a criminal defendant stands "in deadly peril"4 of his life, the notions of due process mandate the appointment of counsel to represent him. Over two decades later, the Court again held that death is different: "[t]he taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights."5 After almost another two decades, the Court reaffirmed this declaration, holding that "the penalty of death is qualitatively different from a sentence of imprisonment, however long."6 The Court explained that "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."7 Though the members of the Court have changed through the years, the opinion of the Court that death is different has remained constant. This difference between capital punishment and any other criminal sanction commands a "qualitatively" raised standard for the attorneys representing the defendants whose lives are in "deadly peril."

This article will address the woefully inadequate standards of competency currently required of appointed capital defense counsel in Louisiana. Because death is different, different standards are not only appropriate, but mandated.8 Part I of this article explores the extent of the problems relating to ineffective assistance of counsel in capital cases, including the defendant's burden in proving ineffectiveness. Part II explains the current standards for capital defense counsel as recommended by the American Bar Association and contrasts those with Louisiana's current competency standards. Part III of this article examines the complex responsibilities held by an attorney representing a capital defendant. Part IV explores the specialized training of a surgeon as well as the specialized form of review of medical malpractice claims. Finally, Part V parallels the critical and complex nature of a surgeon's responsibilities to that of capital defense counsel and recommends a completely new scheme for Louisiana in death penalty cases.

I. The Magnitude And Scope Of The Problem

When we execute a capital de...

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