You Don't Always Get Perry Mason

By Richard Lacayo

WITH TWO POWERFUL JOLTS OF ELECTRICity, Roger Keith Coleman was executed last week in Virginia. But the questions about his guilt could not so easily be disposed of -- in part because his court-appointed lawyers failed to put them to rest at his trial. On the night that Wanda Fay McCoy was murdered, Coleman claimed to have been at several points around the coal-mining town of Grundy. Shouldn't his lawyers have tried to retrace his steps on that night and search out witnesses? Shouldn't they have ventured into McCoy's or Coleman's home? At the very least, shouldn't they have presented to the jury the bag of bloody sheets and two cowboy shirts McCoy's neighbor found a few days after the murder?

Over six years ago, Jesus Romero was sentenced to death for taking part in the 1984 gang rape and murder of a 15-year-old in San Benito, Texas. He might ! have been sent to a mental hospital instead if his court-appointed attorney had presented available evidence to the jury that supported an insanity defense. "His lawyer had no idea there was information available that Romero was completely insane at the time of the crime," contends Nick Trenticosta, who handled Romero's appeals. During the course of his appeals, a lower federal court ruled that Romero had received ineffective counsel at his trial, but a higher appeals court reversed that ruling. Last week Romero died by injection in Huntsville, Texas.

Accused killers don't tend to be attractive people. Quite a few of them, perhaps the overwhelming majority, are guilty. But even the most dubious characters are supposed to get a fair trial, in which their attorneys are equipped to make the best possible case on their behalf. Because the majority of murder defendants are also broke, however, many of them get court-appointed lawyers who lack the resources, experience or inclination to do their utmost. When the Supreme Court restored capital punishment in 1976, it did so in the expectation that death sentences would be imposed in a fair and equitable manner. It hasn't always worked that way. Some people go to traffic court with better prepared lawyers than many murder defendants get. And yet no case carries higher stakes than a murder trial in the 36 states where the death penalty is legal.

The question of who defends accused killers has become more urgent lately. In a series of recent cases, the Supreme Court has been closing off the paths through which death-row inmates get federal appeals courts to review -- and review again -- their convictions. That creates more pressure to ensure fair trials in the first place. Perhaps the most serious restriction yet may be handed down in a Virginia case, Wright v. West. That case could permit the justices to rule, in effect, that federal appeals judges should work mostly from the assumption that the courtroom rulings of state-level trial judges are correct. The result would be to limit sharply the kind of questions the federal courts can reopen on appeal.

"What the Supreme Court is saying now is states have got remarkably better at guaranteeing certain liberties," says Ira Robbins, a habeas corpus specialist at Washington's American University law school. In the state courthouses, where the trials are held, however, the guarantee of competent counsel looks rather threadbare. Some cities maintain public-defender offices % to provide attorneys to indigent defendants. Well-funded offices can often afford attorneys who specialize in criminal law and even capital crimes. But a number of states -- including several Southern states with the nation's highest execution rates -- use a shakier system of court-appointed lawyers selected from a list of local attorneys. Many are either young attorneys fresh out of school or older ones who ordinarily specialize in the bread-and-butter work of title searches or divorce litigation.

Though appeals courts have been lenient in ruling that defense attorneys have done an adequate job -- judges deemed meritless all of Coleman's claims of ineffective assistance by counsel -- it's the rare court-appointed lawyer who is skilled in the complexities of capital cases. "This is a highly specialized area of law," says Harold G. Clarke, chief justice of the Georgia Supreme Court, who has reviewed many death sentences. "Even a good criminal lawyer may not have had much, if any, experience in capital cases." Court- appointed attorneys must also be willing to settle for modest fees that rarely cover the cost of a thorough defense. While a private attorney in Atlanta may make upwards of $75 an hour, court-appointed lawyers in Georgia are paid about $30 an hour. In Alabama they cannot be paid more than $1,000 for pretrial preparations. Even if they spend just 500 hours at the task -- the U.S. average in 1987 was 2,000 -- that amounts to $2 an hour. "The lawyer would be better off going to work at McDonald's," says Stephen Bright, director of the Southern Center for Human Rights.

Many of them are also unhappy to find themselves defending accused killers whose victims may be familiar to their neighbors. Nor does it help to know that, if convicted, their clients will have an incentive to turn against them later. Claims of ineffective counsel are a staple of appeals filings -- not only because mediocre lawyering is so common but also because the accusation is a reliable way to gain the attention of appeals courts. That's one reason prosecutors and some defense attorneys scoff at claims that capital-case lawyering is all that bad. "The competency-of-counsel issue has been totally blown out of proportion," says Marvin White Jr., a Mississippi assistant attorney general. "Counsel in the majority of cases has been competent and effective."

That claim is sharply contested by defendants'-rights advocates. "It's not just once in a while that you see a lawyer make a mistake," insists Charles Hoffman, an Illinois public defender who pursues appeals for death-row inmates. "It's over and over and over again." It's easy for inexperienced lawyers to make a mistake. Under the rules established by a 1977 Supreme Court decision, lawyers in a criminal case must recognize potential violations of fair procedure as soon as they take place and raise the objection in court. If they fail to do so during the trial, they may forfeit the chance for their client to raise the issue on appeal. "People talk about criminals often getting off on technicalities," says Hoffman. "Actually, a lot of people are dying because of technicalities."

Some of the worst errors are made during what is called the penalty phase. This is a separate hearing, following a guilty verdict, in which the jury in a capital case must choose between a prison sentence and the death penalty. Prosecutors offer evidence of "aggravating factors" such as excessive cruelty to convince the jury that the convicted killer should be executed. Defense lawyers are supposed to point out "mitigating factors" -- evidence of mental disability, for example, or a history of childhood abuse -- that might lead a jury to choose life in prison. But tracking down the evidence of a client's past is time-consuming and expensive, often requiring the services of social workers, psychologists and investigators whom poorly funded defenders cannot afford to hire.

Seeking to remedy this problem, the Federal Government recently established 15 death-penalty resource centers around the country. Supported by $11.5 million a year in federal funds, as well as state matching funds, the centers recruit, train and assist lawyers who handle appeals for convicts on death row. But attorneys from those centers enter only after conviction, not at the trial, where the Supreme Court now requires that most crucial issues be recognized and raised.

Proposals for similar centers to improve lawyering at the trial phase have gone nowhere. Nor do death-penalty opponents see much hope in the idea of "mandatory pro bono," a system that would require all lawyers and firms to donate some time to representing poor defendants. An attorney who ordinarily specializes in corporate cases or real estate, no matter how competent or well trained, would still be at sea amid the complexities of a murder trial. Says Shelly O'Neill, a Reno public defender: "It's like calling a dentist to do a brain surgeon's work."

- Some experts say a better reform would be for more states to establish public-defender offices, in rural as well as urban areas, and provide them with sufficient funds. Though the $2.2 million annual budget of the Reno office, financed by Washoe County, is far from lavish, it is still enough to afford a permanent staff of 19 attorneys, six of whom are qualified by training and substantial trial experience to handle capital cases.

The Reno operation also has access to some of the same resources that local district attorneys rely on. "If we need an expert from Washington to come testify," O'Neill explains, "we can get the funds from the county to bring him or her in." With those advantages, the Reno office has saved three capital defendants from lethal injection in the past two years.

Reno's approach could be duplicated elsewhere. But are budget-strapped states really likely to pour money into better court defense for accused killers? It's hardly a vote getter. And it's not cheap. But neither is capital punishment. If the U.S wants the death penalty, it will have to pay what it costs to guarantee each defendant the highest level of fairness and equality -- or sacrifice its own standards of justice.

With reporting by Sally B. Donnelly/Los Angeles and Julie Johnson/Washington