Monday, Adam Liptak, the NY Times’ legal reporter, published an article about Jerry Guerinot, a Texas lawyer who holds the distinction of having represented the most people sentenced to death – 20. That’s more people than most states that have the death penalty have on Death Row. He has not won one capital case. Liptak, who writes the always interesting and readable “Sidebar” column pulls no punches in assessing Guerinot in the first sentence of his piece:
“A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.”
Guerinot’s performance raises many of the issues discussed on this blog in prior posts. I am diametrically opposed to the death penalty in all circumstances because it cannot be fairly applied. See “The Death of the Death Penalty” (https://www.courtroomstrategy.com/2010/01/the-death-of-the-death-penalty/) discussing the American Law Institute’s study of the death penalty. Two people commit the same crime in the same fashion, one gets Guerinot, the other gets the next public defender in line. One gets death, the other doesn’t.
Recently, I was asked to address Professor Baz Dreisinger’s Crime and Punishment class at John Jay College. The floor was opened up for questions and one of the students asked “What’s the worst thing about the criminal justice system?” It was a whopper of a question that took two seconds to respond to : The lack of commitment to money for defense of the indigent. Its just not a popular budget item and no one ever got elected to public office on a platform of more money for Legal Aid lawyers. But sub-par defense lawyering is by far the leading cause of wrongful convictions; good lawyering can overcome almost every other cause – unfair judges, overzealous prosecutors, dishonest law enforcement personnel. Here’s a quote from Judge Ruth Bader Ginsburg from Liptak’s article:
“People who are well represented at trial do not get the death penalty.”
Now that may be a stretch (especially coming from someone who has never tried ANY case to a jury, never mind a case where someone’s life hangs in the balance), but a close examination of some of Guerinot’s cases shows that his poor representation led people to the chair. He routinely fails to investigate at all, according to the article. In one case, he met with the defendant for a total of 15 minutes before the trial. While this may sound shocking, this is par for the course from what I have seen first-hand in the wrongful conviction cases I have been involved in. See “Freedom Won for Innocent Man” (https://www.courtroomstrategy.com/2009/12/freedom-won-for-innocent-man-but-maybe-at-the-cost-of-truth/). In all of the cases, the trial lawyer never even visited the scene of the crime and spent only minutes with the defendants. So Guerinot’s conduct is not that unusual in cases where an innocent person was found guilty. Any lawyer can lose a trial, but to lose because of unpreparedness is inexcusable.
But bad lawyering has been compounded by the US Supreme Court’s (under Justice Roberts) narrowing of the right to a habeas corpus petition. The Court is accepting fewer and fewer such cases and has rejected reviewing a few of Guerniot’s cases, including one which is so egregious its being made the subject of a British documentary (the defendant, Linda Carty was a British national). The Texas court which reviewed the verdict found that Mr. Guerinot “made an imperfect attempt to avoid conviction and death” but added that “the Constitution does not require perfection in trial representation.” Of course not, but shouldn’t it at least require the lawyer to contact key witnesses, visit the crime scene and thoroughly prepare with his client? Guerinot did none of those things in Ms. Carty’s case. And both the State court and the Supreme Court found that procedure did not allow review of the case any further. The Texas court said it realized that this was “a harsh result.” A harsh result? This woman is going to go to die by lethal injection!
So Liptak concludes the article with the good news that Guerinot has stopped taking capital cases. But the bad news is that he instead now engages in the volume practice of criminal defense. In 2007 and 2008, for example, he represented a total of 2,000 felony defendants; an insane amount for a solo practitioner. There is no way he could do justice by taking on nearly 3 new clients a day every day for two years. How many people unnecessarily got convicted and did some jail time or had their lives ruined by getting a felony record? We’ll never know. Is it that much worse to do a great harm to a few people or a less harm but to a multitude of people? Why is either acceptable?