On February 18, 2016, Death Penalty Representation Project Director Emily Olson-Gault provided testimony on behalf of the ABA before the Ad Hoc Committee to Review the Criminal Justice Act Program. The Committee was appointed by the Judicial Conference of the United States to conduct a comprehensive review of the administration and operation of the Criminal Justice Act (“CJA”). The CJA was enacted in 1964 and provides a system for appointing and compensating lawyers to represent defendants financially unable to retain counsel or other defense services in federal criminal proceedings.
The February hearing, held in Birmingham, Alabama, focused on issues related to capital representation in the federal system, including both capital cases prosecuted as violations of federal law, and also those arising out of violations of state law that are reviewed by federal courts in habeas corpus proceedings. Federal habeas proceedings are often the final judicial check on claims such as ineffective assistance of trial counsel, police misconduct, prosecutorial misconduct, racial bias, and actual innocence. They require extensive investigation and the assistance of experts and other specialists, and lawyers must be prepared to navigate an extremely complex set of procedural rules that govern the review of these cases.
In her testimony, Ms. Olson-Gault urged the Committee to require compliance with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and to implement a system for monitoring and enforcing these standards. She noted that the Project often sees poor representation provided by the same lawyers over and over again and urged judges to take actions to correct these problems or prevent these lawyers from being appointed in future cases.
Ms. Olson-Gault also spoke extensively about the role of pro bono counsel and federal defender offices. Federal defender offices with specialized capital habeas units have specially trained and qualified lawyers to handle capital post-conviction cases, with investigators and mitigation specialists on staff to assist the legal team. Pro bono lawyers rely on the expertise of the lawyers in these offices for training and strategic guidance. Some officials have suggested that pro bono lawyers should be used in lieu of capital habeas units. Ms. Olson-Gault testified that this approach is problematic for a number of reasons. Particularly in the federal courts, procedural bars are so strict that a small misstep by counsel could result in the client’s waiving any further court review of his claims, no matter how strong those claims might be on their merits. Federal defenders are essential to helping pro bono counsel avoid these pitfalls. Ms. Olson-Gault commended the law firms that take on these cases for their pro bono service but noted that it is typically only larger law firms that have the necessary attorney and financial resources to properly handle these cases, and there are far more cases in need of assistance than there are available pro bono counsel. At best, pro bono attorneys can fill in the gaps where conflicts or other issues prevent a federal defender office or CJA attorney from handling a case, but they should not be considered as a substitute for a robust, fully-funded capital defense system.
Ms. Olson-Gault’s written testimony, submitted in advance of the hearing, is available here, and you can also watch a video of her live testimony here.