Legal deficiency blamed in most overturned cases

The sentence of a man who killed a Mahoning reserve deputy was overturned.
COLUMBUS (AP) -- Attorney incompetence is the top reason cited when federal appeals judges overturn death sentences in Ohio, the state with the nation's second-busiest execution chamber, a review of court rulings shows.
The 6th U.S. Circuit Court of Appeals in Cincinnati blamed ineffective counsel 61 percent of the time, or 13 of the 21 death sentences it has overturned since 1981, the year Ohio's new capital punishment law took effect, according to an analysis by The Associated Press.
Among the sentences overturned was that of John Glenn, convicted Dec. 21, 1995, in the 1981 shooting death of John Litch, Mahoning County reserve deputy sheriff.
The state has executed three inmates this year and expects to put a fourth to death next month. Ohio has executed 14 inmates since 2004, behind Texas with 58 executions. North Carolina executed 12 inmates during the same time period.
In California, by comparison, which has the country's biggest death row at about 650 inmates, 12 of the 25 death sentences reversed by the 9th U.S. Circuit Court of Appeals cited attorney incompetence, or 48 percent, according to the California Department of Justice.
Reversals for attorney incompetence came into question last week after the 6th Circuit's chief judge criticized that court's handling of death cases.
Benefit?
Judge Danny Boggs, who has not looked kindly on court decisions delaying executions in the past, said sensible attorneys reading the court's decisions could conclude their clients had a better chance the less thorough job they did as defense lawyers.
"Thus, if counsel provides fully effective assistance and the jury simply does not buy the defense, then the defendant is likely to be executed," Boggs said. "However, if counsel provides ineffective assistance, then prisoner is likely to be spared, certainly for many years, and frequently forever."
Boggs' comments came in a decision overturning the death sentence of Dewaine Poindexter, convicted of fatally shooting his ex-girlfriend's boyfriend in 1985. The 6th Circuit judges, including Boggs, said attorneys hadn't done enough to turn up evidence that could have convinced a jury not to sentence Poindexter to death.
Judge Martha Craig Daughtrey criticized Boggs for his comments, calling them an affront to attorneys and an accusation against other 6th Circuit judges.
Difficulties
If anything, defense attorneys "representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both," Daughtrey said.
Public defenders say defense attorneys make the easiest target when courts are looking for ways to overturn questionable death sentences.
That's true whether the real problem was errors by a judge or misconduct by a prosecutor, said State Public Defender David Bodiker.
"It's much easier to put the onus on defense counsel," Bodiker said. "Prosecutors seem to get away with not being held responsible."
Challenges
Hamilton County, with five cases reversed for attorney incompetence, challenged Bodiker's comments. As appointed officials who serve for life, federal judges don't need to worry about who they blame, said William Breyer, the county's chief assistant criminal prosecutor.
He also said Bodiker's office often raises attorney incompetence when representing death row inmates before the 6th Circuit.
"Attorneys have a duty not to raise frivolous issues so I assume they were serious about their claims," Breyer said.
In 1999, the state Supreme Court criticized prosecutors for mistakes while noting that few death sentences were overturned because of those errors. Only two of the 6th Circuit's 21 reversals cited prosecutor's mistakes.
"Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt," Chief Justice Thomas Moyer wrote in a case upholding a 1997 death sentence for Angelo Fears for a drug-related robbery and killing in Cincinnati.
Prosecutors shouldn't have asked jurors to consider whether abuse that Fears suffered as a child should outweigh the nature of the killing, the court said.
Boggs' dissatisfaction with the 6th Circuit's history of death penalty reversals is not new.
Five years ago, upset by a delay the court granted condemned inmate John Byrd, Boggs wrote that, where Byrd was concerned, "a majority of the active members of this court would grant a stay based on a hot dog menu."
Byrd was executed in 2002 for killing a Cincinnati convenience store clerk.
The 6th Circuit hears appeals from Ohio, Kentucky, Michigan and Tennessee.