ABA wants to raise bar on capital cases

? Six years after urging a halt to executions, the American Bar Assn. is ready to issue states another challenge: fix shoddy defense systems for accused killers.

The nation’s largest lawyers’ group is overhauling 14-year-old standards for capital defense lawyers in the face of criticism from Supreme Court justices and others about the quality of legal representation.

The ABA’s policy-making board will vote early this week on a plan encouraging states, and in some places counties, that pay for the defenses of poor defendants to update their standards. Some governments follow the 1989 guidelines. Many others have no standards.

“In a lot of states all you need is a bar card,” said Lawrence Marshall, a Northwestern University law professor who spoke Saturday at the ABA’s winter meeting in Seattle about “horror stories” of inept lawyers, including some who slept through parts of capital trials.

Among the recommendations are bolstering defense teams to include two lawyers, an investigator, a background specialist, and in some cases an expert to help with jury selection.

Supporters contend that changes will help defense teams compete against often better-paid and equipped prosecutors.

Critics say cash-strapped states cannot afford to do more.

Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation said the ABA is pushing extravagant and unnecessary expenses.

“They want to say that if you don’t provide the gold standard in defense, then you can’t have the death penalty. And that is the real agenda,” he said.

The ABA has been criticized by some as being too liberal for taking stands such as its February 1997 recommendation that states put a moratorium on executions because of concerns the punishment was not fair.

Supreme Court Justices Sandra Day O’Connor and Ruth Bader Ginsburg publicly questioned the quality of death penalty lawyers in 2001, and the court will hear arguments in March in a bad lawyering case.

The justices will consider whether the appointed lawyers of a Maryland man did enough to collect sympathetic evidence for jurors considering his fate. The case turns on the man’s rights under the Constitution’s Sixth Amendment, which guarantees defendants a lawyer.

The ABA has filed a brief in that case, supporting the death row inmate.

In the meantime, the 400,000-member association is hoping states will be willing to voluntarily make changes, some potentially costly and others not. The group has not estimated the cost.

When the ABA wrote the last guidelines in 1989, about 2,000 people were on death row. Now there are nearly 3,700.