Indiana Law Review


Indiana Law Review
Volume 29 1996 Number 3

I

ARTICLES

Reform of Defense Representation in
Capital Cases: The Indiana Experience
and its implications for the nation

Norman Lefstein'

Introduction

In order to achieve just results in criminal cases, we expect well-trained and
adequately-supported professional prosecutors, equally talented £ind well-financed

defense lawyers, and impartial judges and juries. This adversary system is

supposed to protect not only O.J. Simpson, but also the thousands of indigent

defendants in the United States who lack Simpson's resources. There is
convincing evidence, however, that in the most serious criminal

prosecutions—cases in which the death penalty is sought—the defendant's legal
representation at trial is oftentimes woefully inadequate and that the quality of

counsel can make a difference in the outcome of the case.
Although the American Bar Association has urged that states adopt rules or

standards for the delivery of defense services in capital cases,' only a few states

have actually done so.^ Indiana, by virtue of a new Supreme Court rule that

* Dean and Professor of Law, Indiana University School of Law—Indianapolis. LL.B.,
1961, University of Illinois College of Law; LL.M., 1964, Georgetown University Law Center.

Since 1990, Dean Lefstein has served as chairman of the Indiana Public Defender Commission,

which is discussed in this Article. The author gratefully acknowledges the invaluable assistance

provided in the Article's preparation by Larry Landis, Director of the Indiana Public Defender

Council, and Paula Sites, a member of the Council's staff; as well as the contributions of Professors

Daniel Cole and Michael Heise (Indiana University—Indianapolis) and Professor Richard Rosen
(University of North Carolina School of Law) all of whom read and commented on a draft of this
Article; and Nathan Feltman and Tricia Leminger, student research assistants at Indiana

University—Indianapolis.
1

.

See Guidelines for the Appointment and Performance of Counsel in Death

Penalty Cases (American Bar Ass'n 1989).

2. In addition to Indiana, Ohio and Virginia have approved rules for the defense of death

penalty cases. See OhioC.P. Sup. R. 65 and Va. Code Ann. § 19.2-163.7 (Michie 1995). Also,

the Oklahoma Indigent System Board has adopted, on an interim basis, the American Bar

Association Guidelines for the Appointment of Counsel in Death Penalty Cases. See Robert D.

Ganstine, Executive Director, Oklahoma Indigent Defense System, Questionnaire for Qualification

of Appointment of Counsel in Capital Cases (Oct. 1993) (on file with author) [hereinafter



496 INDIANA LAW REVIEW [Vol. 29:495

became effective January 1, 1992,^ is one of the few states that has made a
significant effort to improve the quality of representation in death penalty cases.
The Indiana rule, moreover, appears to do a better job of securing the right of the
indigent capital defendant to an effective lawyer than any other such rule in the

country.

After discussing the status of capital defense representation nationwide, this

Article explains the content of Indiana's new rule and its development. The
Article then reviews the rule's surprising impact on the prosecution and defense
of Indiana death penalty cases and its cost. In addition, the Article compares the
Indiana rule with similar rules adopted in other states, particularly the Ohio rule,
which preceded the Indiana rule by several years. In a concluding section, the
Article suggests that Indiana's experience has important implications for the

constitutional foundations on which the death penalty rests.

I. A Brief Overview: Representation in Death Penalty Cases

On June 30, 1994, in one of his last opinions as a member of the United States
Supreme Court, Justice Blackmun summarized the situation confronting
defendants in death penalty prosecutions as follows:

The unique, bifurcated nature of capital trials and the special investigation
into a defendant's personal history and background that may be required,
the complexity and fluidity of the law, and the high, emotional stakes

involved all make capital cases more costly and difficult to litigate than
ordinary criminal trials. Yet, the attorneys assigned to represent indigent

capital defendants at times are less qualified than those appointed in

ordinary criminal cases. ...

Two factors contribute to the general unavailability of qualified
attorneys to represent capital defendants. The absence of standards
governing court-appointed capital-defense counsel means that unqualified

lawyers often are appointed, and the absence of funds to compensate

lawyers prevents even qualified lawyers from being able to present an

adequate defense. Many States that regularly impose the death penalty
have few, if any, standards governing the qualifications required of court-

appointed capital defense counsel. . .

.

In addition to the lack of standards, compensation for attorneys

representing indigent capital defendants often is perversely low.

Although a properly conducted capital trial can involve hundreds of hours

of investigation, preparation, and lengthy trial proceedings, many States
severely limit the compensation paid for capital defense. . .

.

Questionnaire]. See also infra notes 58-61 and accompanying text.

3. IND. R. Crim. p. 24. The rule was originally effective January 1, 1990, and the

amendments became effective on January 1, 1992 and February 1, 1993.

I



1 996] CAPITAL DEFENSE REFORM 497

Court-awarded funds for the appointment of investigators and experts

often are either unavailable, severely limited, or not provided by state

courts. As a result, attorneys appointed to represent capital defendants at
the trial level frequently are unable to recoup even their overhead costs

and out-of-pocket expenses, and effectively may be required to work at
minimum wage or below while funding from their own pockets their
client's defense .... The prospect that hours spent in trial preparation or

funds expended hiring psychiatrists or ballistics experts will be

uncompensated unquestionably chills even a qualified attorney's zealous

representation of his client."*

Justice Blackmun's description of capital defense representation is not new;

there have been numerous articles and reports that have documented the

horrendous problems confronted by defendants in securing adequate

representation in death penalty cases. His is only one of the more recent and most

respected voices to call for reform.

For example, in 1990 The National Law Journal published a special report on
death penalty representation in the southern states of Alabama, Florida, Georgia,

Louisiana, Mississippi, and Texas. The report identified all of the problems
discussed by Justice Blackmun, including inexperienced lawyers, no standards for

the selection of counsel, grossly inadequate fee structures, the unavailability of

funds for investigators and experts, and often minimal evidence presented to the

jury in mitigation during the penalty phase.''

The problems incident to defense representation in death penalty cases are not
confined to the Deep South. A 1992 report of the Death Penalty Information
Center describes capital defense representation in Philadelphia as lacking any

"organized defense system to provide training or support to defend capital

cases—neither a public defender system nor a capital resource center, leaving ill-
trained, often ill-prepared, and inexperienced lawyers to handle the most

demanding criminal cases of all . . . ."^ Further, the report notes that very little
money is available for experts and, consequently, "many of the most qualified and
respected in those professions [,] [psychologists, psychiatrists, social history

investigators,] refuse to provide their services under those circumstances."^

A 1993 report of the American Bar Association noted: "Insufficient
compensation has its most profound consequences in capital cases. A recent study
prepared for the Virginia General Assembly and the Virginia State Bar concluded

that, after taking into account attorneys' overhead expenses, the effective annual

hourly rate paid to Virginia counsel representing indigent capital defendants was

4. McFariand v. Scott, 1 14 S. Ct. 2785, 2785-87 (1994) (Blackmun, J., dissenting).

5. Special Report, NAT' L L.J. , June 11,1 990, at 1

.

6. Michael KROLL, Introduction to DEATH PENALTY INFORMATION CENTER, JUSTICE ON

THE Cheap: The Philadelphia Story (1992).

7. Id. See also Andrew Blum, Defense of Indigents: Crisis Spurs Lawsuits, Nat'L L.J.,

May 15, 1995, at Al, A26 (discussing the problem that the lack of funding can have on an
indigent's legal representation).



498 INDIANA LAW REVIEW [Vol. 29:495

$13."^

In Indiana, prior to the reforms for providing counsel in death penalty cases

discussed in this Article, there was considerable evidence of significant problems
in capital representation. For example, in 1984 the Seventh Circuit Court of
Appeals reversed an Indiana death penalty case, noting defense counsel's lack of

preparation, unfamiliarity with the case, and inexperience.^ As the court observed,
"[defense counsel's] almost nonexistent effort to avoid the death penalty once [the

defendant's] guilt was established is incomprehensible and was extremely
prejudicial to [the defendant]."'"

In a subsequent case, the Indiana Supreme Court reversed a capital murder
conviction due to ineffective assistance of counsel." Defense counsel's final

argument was characterized by the Supreme Court as "reprehensible" because it
seemed primarily to suggest to the jury that it would be "personally inconvenient"

for defense counsel if a guilty verdict were returned:'^

Now, there are several things you can do. You can find him guilty of
murder. And then we all get to come back, don't we, for that other
hearing that we talked about earlier. So you can do that. Ruin my
afternoon, possibly even all day tomorrow. I don't know. That's one of

your possibilities. The other possibility you have . . . would be to find
him guilty of something other than that. . . . And I don't have to tell you
that you don't have to be geniuses to figure out that you can do that.'^

At another point defense counsel referred to his client as a "street person" whom
"I don't even like . . . .""

The most exhaustive review of the problems incident to providing defense
representation in capital cases is contained in a 1994 article published in the Yale

Law Journal}^ After describing outrageous examples of deficient defense
representation reminiscent of those from Indiana cases described above, the

author—a nationally known capital defense litigator—suggests the following
conclusions:

In these examples, imposition of the death penalty was not so much
the result of the heinousness of the crime or the incorrigibility of the

defendant—the factors upon which the imposition of capital punishment

8. American Bar Ass'n, The Indigent Defense Crisis 7 (1993). See also The

SpangenbErg Group, A Study of Representation in Capital Cases in Virginia ( 1 993).
9. Dillon V. Duckworth, 751 F.2d 895, 900-01 (7th Cir. 1984).

10. /J. at 901.

1 1

.

Burris v. State, 558 N.E.2d 1067 (Ind. 1990).

12. /^. at 1073.

13. Id.

14. Id.

1 5. Stephen B. Bright, Counselfor the Poor: The Death Sentence Notfor the Worst Crime

butfor the Worst Lawyer, 103 YALE L.J. 1835 (1 994). The article's author is the Director of the

Southern Center for Human Rights and has been an active death penalty litigator since 1979.



1 996] CAPITAL DEFENSE REFORM 499

supposedly is to turn—but rather of how bad the lawyers were ....
There are several interrelated reasons for the poor quality of

representation in these important cases. Most fundamental is the wholly

inadequate funding for the defense of indigents. As a result, there is
simply no functioning adversary system in many states. Public defender
programs have never been created or properly funded in many
jurisdictions. The compensation provided to individual court-appointed
lawyers is so minimal that few accomplished lawyers can be enticed to

defend capital cases. Those who do take a capital case cannot afford to
devote the time required to defend it properly. As a result, the accused
are usually represented by lawyers who lack the experience, expertise, and
resources of their adversaries on the prosecution side ....

Although it is widely acknowledged that at least two lawyers,

supported by investigative and expert assistance, are required to defend

a capital case, some of the jurisdictions with the largest number of death
sentences still assign only one lawyer to defend a capital case.

In contrast to the prosecution's virtually unlimited access to experts

and investigative assistance, the lawyer defending the indigent accused in

a capital case may not have any investigative or expert assistance to
prepare for trial and present a defense.'^

Because of the deficiencies in capital defense representation, the risk of

wrongful conviction in death penalty cases is real. While some of the mistakes of

capital trials undoubtedly have been discovered on appeal or during postconviction

proceedings, there is no way of knowing whether innocent persons have been
executed or whether innocent persons are currently on death row.

What we do know is that an unusually large number of capital defendants have
been released from death row because of their innocence. As reported by the
Subcommittee on Civil and Constitutional Rights of the U.S. House of
Representatives Committee on the Judiciary:

At least 52 people have been released from prison after serving time on
death row since 1973 with significant evidence of their innocence. In 47

of these cases, the defendant was subsequently acquitted, pardoned, or

charges were dropped. In three of the cases, a compromise was reached
and the defendants were immediately released upon pleading to a lesser

offense. In the remaining two cases, one defendant was released when the
parole board became convinced of his innocence, and the other was

acquitted at a retrial of the capital charge but convicted of lesser related

charges.'^

16. Id. at 1840, 1843-44, 1846.

1 7. StaffOFHouse Subcomm. on Civiland CoNSTrrurioNALRights, Committee on the

Judiciary, 103d Cong., 2d Sess., Innocence and the Death Penalty: Assessing the Danger



500 INDIANA LAW REVffiW [Vol. 29:495

It is also known that an exceptionally large number of prisoners sentenced to
death in state courts have been successful in habeas corpus challenges to their

convictions in the federal courts. Between July 1976 and May 1991, 186 of 407
capital convictions were reversed on constitutional grounds, which is a forty-six
percent rate of reversal. The error rate in noncapital cases is less than five
percent.'^

II. Indiana Criminal Rule 24 and Rules in Other States

The Indiana Supreme Court adopted Criminal Rule 24 in its current form,
effective February 1, 1993. The Rule addresses the most important problems of
capital defense representation discussed in the preceding section, including the

qualifications and compensation of counsel, the number of counsel to be
appointed, and the availability of investigative, expert, and other services

necessary for an adequate defense.'^ However, the Rule might never have been

approved by the Indiana Supreme Court—and almost certainly not in its current
form—but for the establishment by statute in 1989 of the Indiana Public Defender
Commission.^"

Pursuant to the statute, the Commission is authorized to reimburse Indiana
counties fifty percent of their costs for defense services in death cases if there is

compliance with the Commission's "guidehnes" pertaining to defense

representation in such cases.^' The Commission is also directed to make
recommendations to the Supreme Court concerning standards for defense services

in capital cases.^^ In order to reimburse Indiana counties for defense expenditures

in death penalty cases (as well as non-capital cases), the Commission receives

annually from the state, by statute, the sum of $650,000.^^ Until the creation of the
Commission and its reimbursement funding scheme, Indiana counties were solely

responsible for all costs incident to death penalty prosecutions.

After almost one year of meetings and study, in November 1990, the
Commission submitted a proposed criminal rule to the Indiana Supreme Court for

OF Mistaken Executions 3 (Comm. Print 1994).

18. Memorandum from James S. Liebman, Vice Dean and Professor of Law, Columbia

University School of Law, to Representative Jack Brooks, Chairman, Committee on the Judiciary,

U.S. House of Representatives 16 (October 10, 1991). Since 1988, the primary coordinators of

indigent death penalty representation were federally funded Post-Conviction Defender

Organizatiorts (PCDOs). Congress deftmded the PCDOs in 1995, chiefly due to the perception that

they were used as "vehicles for delaying the judicial process"; many are attempting to continue

operations as private non-profit organizations. See Month by Month: The Year That Was, Nat'l

L.J., Jan. 1, 1996, at C2, C3; Marcia Coyle, Death Resource Centers Reborn as Private Groups,

Nat'lL.J., Jan. 15, 1996, at A9.

19. IND. R. Crim. P. 24(B)-(C).

20. iND. Code §§ 33-9-13-1 to -4; §§ 33-9-14-1 to -6 (1993).

21. /^. §§33-9-14-4,-5.

22. /^. §33-9-1 3-3(a)(l).

23. Id. § 33-19-7-5(c).



1996] CAPITAL DEFENSE REFORM 501

appointing and compensating defense counsel in capital cases.^"* In its submission

to the Supreme Court the Commission explained:

[that it was] authorized to set guidelines under which counties are eligible

for state reimbursement of 50% of the county's certified expenditures for
defense services provided in capital cases. ... If the Court adopts the

proposed rule, the Commission will make compliance with the rule a
guideline that must be met in order for a county to be eligible for

reimbursement from the public defense fund . . . }^

In other words, although the Commission could have adopted its own set of
guidelines as a precondition for county reimbursement of defense costs in capital

cases, it decided that it was preferable to make compliance with a Supreme Court
rule the basis for determining county eligibility for reimbursement.

Indiana Criminal Rule 24 ("Rule 24") is based substantially upon the rule

proposed by the Commission. While there are differences between the

Commission's proposed rule and the rule adopted by the Indiana Supreme Court,
the Commission's study of the issue and submission to the Court provides an

excellent example of how lawyers with expertise in a specific area can assist a
state supreme court in its mle-making function. Except as otherwise indicated, the

significant features of the rule, recommended by the Commission, were as follows:

(1) The rule requires that two "qualified" attorneys be appointed in all
death penalty proceedings.^^

(2) The rule establishes qualifications for lead and co-counsel. Lead
counsel must "be an experienced and active trial practitioner with at least

five (5) years of criminal litigation experience."^'' Also, lead counsel must

have had prior experience as lead or co-counsel in at least five felony jury

trials which were tried to completion^^ and have had prior experience in

at least one case in which the death penalty was sought.^" (The
Commission had recommended that lead trial counsel have had at least
nine prior felony jury trials.^^)

24. Indiana Public Defender Comm'n, Proposed Criminal Rule 25: Appointment and

Compensation of Counsel in Capital Cases (November 1990) (unpublished document, on file with

author) [hereinafter Proposed Criminal Rule]. The Commission's proposed rule was sent only to

the Indiana Supreme Court and not released for public comment or discussion. The Commission

suggested that the Court promulgate a new rule, to be called Criminal Rule 25. The Court decided,

however, to rewrite then existing Criminal Rule 24 and to incorporate the Commission's

recommendations and other provisions.

25. Id. at 1-2.

26. IND. R. Crim. P. 24(B).

27. Id. 24(B)(1)(a).

28. Id. 24(B)(1)(b).

29. Id. 24(B)(1)(c).

30. Proposed Criminal Rule, supra note 24, at 13.



502 INDIANA LAW REVIEW [Vol. 29:495

(3) Co-counsel must "be an experienced and active trial practitioner with

at least three (3) years of criminal litigation experience.""^^ In addition, co-

counsel must have had experience as lead or co-counsel in at least three

felony jury trials that were tried to completion.^^ (The Commission had
recommended that two of the prior felony jury trials have been trials in
which the charge was murder or a class A felony under Indiana law/^^)

(4) Additionally, no lawyer is qualified to serve as lead or co-counsel

unless they "have completed within two (2) years prior to appointment at

least twelve (12) hours of training in the defense of capital cases in a

course approved by the Indiana Public Defender Commission.
"^"^

(5) The rule addresses the workload of counsel by informing judges that
in making appointments they are to consider "the nature and volume of

[counsel's] . . . workload ... to assure that counsel can direct sufficient

attention to the defense of a capital case."^^ In addition, the rule directs

judges "not [to] make an appointment of counsel . . . without assessing the
impact of the appointment on the attorney's workload.""*^ Further, the rule

instructs lawyers that their goal must be to "provide each client with

quality representation in accordance with constitutional and professional

standards,"^^ and that excessive workloads that would interfere with

"quality representation or lead to a breach of professional obligations"

must be avoided.^^

(6) In order to implement the foregoing workload objectives, the rule

directs judges not to appoint "salaried or contractual public defenders" to

capital cases if their caseload will exceed 20 open felony cases while the

death penalty case is pending in the trial court.^^ Also, no new cases may
be assigned to a public defender within thirty days of the trial date for a

capital case"^^ (the Commission recommended sixty days "*' ) and none of
the cases of a public defender may be set for trial within fifteen days of a
capital trial"^^ (the Commission recommended sixty days'^'^).

31. IND. R. Grim. P. 24(B)(2)(a).

32. Id. 24(B)(2)(b).

33. Proposed Criminal Rule, supra note 24, at 14.

34. iND. R. Grim. P. 24(B)( 1 )(d), 24(B)(2)(c).

35. Id. 24(B)(3).

36. Id. 24(B)(3)(b).

37. Id. 24(B)(3)(a).

38. Id.

39. Id. 24(B)(3)(c)(i).

40. Id 24(B)(3)(c)(ii).

41 . Proposed Griminal Rule, supra note 24, at 26.

42. iND. R. Grim. P. 24(B)(3)(c)(iii).

43. Proposed Griminal Rule, supra note 24, at 26.



I

1 996] CAPITAL DEFENSE REFORM 503

(7) The Commission recommended that attorneys appointed to a capital

case be compensated at $75 an hour.'*'' The rule adopted by the Supreme

Court reduced the hourly rate of compensation to $70 an hour and added

that payment to the attorneys should be made "upon determination by the

trial judge that such time and services are reasonable and necessary for the

defense of the defendant.'"*^ Also, in an approach not recommended by

the Commission, the rule provides that if "the appointing judge

determines that the rate of compensation is not representative of practice

in the community, the appointing judge may request the Executive
Director of the Division of State Court Administration to authorize

payment of a different hourly rate of compensation in a specific case.'"*^

(8) Finally, in language adopted verbatim from the Commission's

recommendation,^^ the rule provides that "[c]ounsel appointed in a capital

case shall be provided with adequate funds for investigative, expert, and

other services necessary to prepare and present an adequate defense at

every stage of the proceeding, including the sentencing phase.
'"^^

There was only one major Commission recommendation that the Supreme
Court did not adopt. The Commission recommended that it be granted authority

to create and maintain rosters of qualified attorneys eligible for appointments in

capital cases and that judges be authorized to appoint only attorneys whose names

appeared on the Commission's rosters.''^ Further, the Commission proposed that

it be authorized to remove an attorney from one of its rosters, after written notice

and an opportunity for the attorney to be heard, if there was "compelling evidence

that an attorney has inexcusably ignored basic responsibilities."^^

44. Id. at 32.

45. Ind.R.Crim. P. 24(C)(1).

46. Id. The Commission's records reflect only one case in which this provision of Rule 24

has been invoked. In State v. Stevens, No. 67S00-9308-DP-844 (Tippecanoe County, 1995 term),

the trial court asked the attorneys to accept $65 as their hourly fee and the attorneys agreed to do

so. There was no finding, however, "that the rate of compensation [$70] [was] not representative

of practice in the community . . . ." IND. R. Crim. P. 24(C)(1). In fact, it would be exceedingly

difficult to find that $70 per hour is too high a rate for the defense of a death penalty case because

hourly rates of lawyers are invariably more than $70 per hour. Moreover, retained cases for the

defense of a death case in Indiana (as in states everywhere) are virtually non-existent, and if an

attorney were to be retained in such a case the fee charged undoubtedly would be much more than

$70 per hour. See infra notes 92-101 and accompanying text. Accordingly, pursuant to the Rule,

it could be argued that the $70 per hour compensation should be increased in all death penalty cases

because the rate is "not representadve of pracfice in the community . . . ." iND. R. Crim. P.

24(C)(1).

47. Proposed Criminal Rule, supra note 24, at 30.

48. iND. R. Crim. P. 24 (C)(2).

49. Proposed Criminal Rule, supra note 24, at 9-10.

50. /J. at 21.



504 INDIANA LAW REVIEW [Vol. 29:495

Rule 24 is similar to the first such rule in the country on capital defense

representation—Rule 65, adopted in 1987 by the Ohio Supreme Couit.^' Like the
Indiana rule, Rule 65 estabhshes experiential requirements for appointment of

counseP^ including a specialized training requirement.^^ Furthermore, the Ohio
Public Defender Commission (the statewide defense agency) may deny
reimbursement to counties for defense fees and expenses if an attorney appointed

to a capital case is inehgible for assignment under Rule 65.^'^ The Ohio rule also
contains a provision on "support services" that is similar to the Indiana rule.^^

However, the Ohio rule does not address the issue of compensation for appointed
lawyers; rather, the payments for defense lawyers in Ohio death penalty cases are

set by each county and vary throughout the state. ^^ Moreover, as discussed later,

the rule does not appear to have had the same impact in Ohio as Rule 24 has had
in Indiana.^^

Some efforts at reform concerning the appointment of counsel in death penalty
cases are underway in other states as well. For example, the PubUc Defender
Commission in Virginia adopted experiential standards for the assignment of
counsel in capital cases in that state, effective July 1, 1992.^^ In 1993, the

Oklahoma Indigent Defense System Board adopted, on an interim basis, the
American Bar Association 's Guidelinesfor the Appointment and Performance of
Counsel in Death Penalty Cases.^^ In July 1994, the Louisiana Supreme Court
created the Louisiana Indigent Defender Board, which will be responsible for

preparing qualification standards for the appointment of counsel in death penalty

cases and for drawing up recommended rates of compensation for appointed
counsel in such cases. ^^^ Finally, in August 1994, the Tennessee Supreme Court
issued an order creating the Indigent Defense Commission, which will be

responsible for preparing standards for capital cases, including rates of

compensation.^*

51. OhioC.P. Sup. R. 65.

52. Id. 65(II)(A)(2)-(3).

53. Id. 65(II)(A)(2)(c), 65(II)(A)(3)(c).

54. Ohio Admin. Code § 120-1-13(1995).

55. OhioCP. SUP.R. 65(IV)(D).

56. See infra notes 128-133 and accompanying text.

57. See infra Part V for a discussion of the "Comparisons Between Ohio and Indiana."

58. Va. Code Ann. § 19.2-163.7 (Michie Supp. 1994) (describing the appointment of

counsel when an indigent defendant is charged with a capital offense); see also id. § 19.2-163.8

(noting criteria to be considered by the Public Defender Commission and the Virginia State Bar

when adopting standards for appointment of counsel in capital cases).

59. See supra note 1 and accompanying text. See also Questionnaire, supra note 2.

60. La. Rev. Stat. Ann. § 15:144 (West Supp. 1995).

61

.

In re The Indigent Criminal Justice System, 883 S.W.2d 133 (Tenn. 1994). In addition

to creating the Indigent Defense Commission, the Supreme Court of Tennessee set forth guidelines

for the Commission in developing a plan for the delivery of legal services to indigent defendants

in criminal cases.



1 996] CAPITAL DEFENSE REFORM 505

III. Impact OF Rule 24

The overriding goal of Rule 24 was to assure that defendants in capital cases
would receive "quality representation in accordance with constitutional and
professional standards," as stated in the Rule." Although it is impossible to assess

whether that has actually occurred, there is evidence that the Rule has made a
difference in the performance of defense counsel and that it has influenced

prosecutors in deciding whether to seek the death penalty.

Tables one and two below show requests for the death penalty and the
dispositions of cases in Indiana from January 1, 1990 through December 31,
1994:63

TABLE ONE
Death Penalty Requests

1990 1991 1992 1993 1994

Number of Persons for Whom
Death Penalty was Requested

24 22 11 9 15

Number of Different Cases 17 17 9 9 13

Number of Different Counties 11 14 6 6 9

Number of Different Cases
in Marion County in which
Death Penalty was Requested

3 4 2 4 2

Number of Different Cases in
Lake County in which Death
Penalty was Requested

4 1 2 1 1

62. IND. R. Crim. p. 24(B)(3)(a).

63. The data for these tables were assembled through a joint effort by the author and Paula

Sites, a staff member of the Indiana Public Defender Council, who assists defense lawyers assigned

to represent defendants in capital cases. At least as far back as January 1990, Ms. Sites has

maintained information on all death penalty cases in Indiana, keeping track of the counties in which

the cases were filed, the lawyers assigned to the cases, and case outcomes. Except for the

information compiled by Ms. Sites, there does not appear to be a statewide database pertaining to

death penalty cases. iND. R. Crim. P. 24(A) requires prosecuting attorneys to notify the Court

Administrator of the Indiana Supreme Court when a death penalty case is filed. There is no

requirement, however, that case outcomes be reported to the Court Administrator. The Indiana

Public Defender Council, which employs Ms. Sites, provides backup services for attorneys who

represent indigent defendants in all types of criminal cases. The Council is an agency of Indiana

state government. See iND. CODE § 33-9-12-1 (1993 & Supp. 1995).
As this Article was being finalized, the author and Ms. Sites tabulated the number of death

penalty requests filed by prosecutors during 1995. From January 1 through August 15, 1995,

Indiana prosecutors sought the death penalty for nine persons, representing seven different cases

and four different counties. One of the seven cases was from Marion County and one was from

Lake County. While these data for 1995 are incomplete, they suggest that 1995 will be similar to

the period from 1992 to 1994 regarding the number of Indiana death penalty requests; thus, once

again, the number of such requests will likely be fewer than in 1990 and 1991, i.e., prior to the

adoption of Rule 24.



506 INDIANA LAW REVIEW [Vol. 29:495

TABLE TWO
Dispositions of Death Penalty Cases

Based on Year of Death Penalty Request

1990 1991 1992 1993 1994

Guilty/Death Sentence 1 4 __ ..

Imposed by Jury

Guilty/Jury Recommended ~ 1 1 ~
Against Death Penalty/Death

Imposed by Judge

Hung Jury on Death/Death 2 ~ I ~
Imposed by Judge

Guilty/Jury Recommended ~ 2
Death/Death Not Imposed by
Judge

Guilty/Jury Recommended 2 13 1 —
Against Death

Death Request Dismissed 12 11 4 1 2
Pursuant to Plea

Arrangement/Defendant Pled
Guilty/Term of Years Imposed

Death Request Dismissed 3 4 2 2
but not in return for Request
of Plea of Guilty /Defendant

Pled or Went to Trial

Plea of Guilty/No Plea -- -- -- 1
Arrangement/Death Imposed
by Court

Plea of Guilty/No Plea ' 1

Arrangement/Death not
Imposed

Death Request Dismissed/
Pending Trial

Death Request Pending/Case — — — 3 12
Pending Trial

All Charges Dismissed 11 ~ 1 1
Acquittal 2 1 -- -- -j_

Total 24 25 11 9 15

Rule 24 became effective January 1, 1992, and was made applicable to all
subsequent cases in which a death penalty request was filed by an Indiana

prosecutor.'''* Accordingly, it is possible to compare the above death-penalty data

for the two years prior to the Rule's effective date with the three years after the

Rule went into effect. Table One reveals that during 1990 and 1991 Indiana
prosecutors requested the death penalty against forty-six persons in thirty-four

different cases, whereas during 1992 and 1993 the prosecutors sought the death

64. See supra note 3 for the effective date of IND. R. Crim. P. 24 and its amendments.



1996] CAPITAL DEFENSE REFORM 507

penalty against only twenty persons in eighteen different cases. If the data from

1994 are added to the data for 1992 and 1993, the number of persons against

whom the death penalty was sought jumps to thirty-five, involving a total of thirty-
one different cases.

Table Two shows, as of March 1995, the outcomes of Indiana death penalty
prosecutions during the five years of 1990 through 1994. Perhaps most

noteworthy is that for three consecutive years, 1992 through 1994, there was not

a single death penalty case governed by the requirements of Rule 24 (i.e., cases in

which the death penalty was filed after January 1 , 1992) in which a jury returned

a death penalty verdict;^"* however, there were five such verdicts involving cases

in which the death penalty was requested during 1 990 and 1 99 1 . Of the post- 1 992
death penalty cases concluded during 1992 through 1994, there were three in

which the death penalty was imposed, but in each instance the trial court rendered

the verdict. In one case, the jury recommended against death but the court

imposed it;^^ in a second case, the jury hung on the question of the death penalty,

and the court imposed it.^^ In the third case the defendant waived a jury trial on

the penalty issue, pled guilty, and the court imposed a death sentence.
^'^

To what extent can it be said that the reduction in the number of death penalty
filings revealed in Table One, and the outcome differences revealed in Table Two,

are attributable to Rule 24? Admittedly, the relatively small number of Indiana

death penalty cases detracts from the reliability of any suggestion that Rule 24,

independent of other variables, is responsible for differences in the number of
death penalty filings and outcomes. ^^ On the other hand, as discussed below, the

65. The record of "no Indiana death penalty verdicts" could not reasonably have been

expected to last forever. Just as this Article was being completed in 1995, there were three death

cases, all of which were filed after January 1 , 1992, in which juries recommended the death penalty.

See State v. Stevens, No. 67S00-9308-DP-844 (Tippecanoe County, 1995 term) (defendant

sentenced on March 14, 1995); State v. Wrinkles, No. 82C01-9407-CF-447 (Vanderburg County,

1995 term) (defendant sentenced on June 14, 1995); State v. Timberlake, No. 49G02-9302-CF-

01491 (Marion County, 1995 term) (defendant sentenced on August 1 1, 1995).

66. State v. Saylor, No. 48S00-DP-6 (Madison County, 1994 term). The death penalty

request was filed June 15, 1992; Saylor was sentenced to death February 17, 1994.

67. State v. Williams, No. 45G02-9207-CF-001 82 (Lake County, 1 994 term). The death

penalty request was filed Sept. 25, 1992; Williams was sentenced to death March 2, 1993.

68. State v. Prowell, No. 82C0 1 -9305-CF-3 1 3 (Vanderburg County, 1 994 term). The death

penalty request was filed July 7, 1993; Prowell was sentenced to death May 5, 1994.

69. "It is widely recognized . . . that small samples provide a less reliable basis for making

an inference about the true behavior of a decision process than do larger samples of decisions."

David C. Baldus & James W. L. Cole, Statistical Proof of Discrimination § 9. 1 2, at 1 77
(Supp. 1987). See also International Bd. of Teamsters v. United States, 431 U.S. 324, 340 n.20

(1977) ("Considerations such as small sample size may, of course, detract from the value of such

evidence. . . ."). If outcomes in Indiana death penalty cases do not markedly change during the next

several years and the number of death penalty filings remain about the same as they were during

1992-1994, greater statistical reliability can be attached to the data from the first several years of

experience with Rule 24. See, e.g., BALDUS & COLE, supra, § 9.221 , at 309 ( 1 980) ("Test statistics



508 INDIANA LAW REVIEW [Vol. 29:495

statements of prosecutors and defense lawyers interviewed for this Article strongly

suggest that Rule 24 has had an impact on prosecution requests for the death
penalty and on case outcomes.

Moreover, during 1992 to 1993, while the number of death penalty
prosecutions in Indiana decUned, the number of murders and non-negUgent
manslaughters increased:

^^

TABLE THREE
Murders and Non-negligent Manslaughters in Indiana

Murders and Non- Rate per

Neg. Manslaughters 100,000 Population

1989 353 6.3

1990 344 6.2

1991 423 7.5

1992 464 8.2

In view of these data, an increase in the number of death penalty requests during
1992 might have been expected; yet just the opposite occurred. Admittedly, these

data are not entirely compelling because they combine both murders and non-

negligent manslaughters, and do not deal at all with the seriousness of the murders

committed.

To better understand the impact of Rule 24, 1 conducted six lengthy interviews
with prosecutors, defense lawyers, and one person quite familiar with criminal

prosecutions in Indiana. All of the interviewees had practiced in either one or both

of the state's two largest counties, and were selected based upon the

recommendations of persons knowledgeable about Indiana death penalty

prosecutions. All of the interviewees (with one exception) have had extensive

experience in either prosecuting or defending death penalty cases. Two of the
persons interviewed were prosecutors who have not served as defense lawyers.
Two are currently defense lawyers and former prosecutors who have handled death

are also positively related to sample size. All other things being equal, the test statistic and level

of significance rise as the sample size increases.").

70. Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal

Justice Statistics—1990, at 357 [hereinafter Sourcebook—1990]; Bureau of Justice

Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics—1991, at 376;
Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice

Statistics—1992, at 361 ; Bureau of Justice St.^tistics, U.S. Dep't of Justice, Sourcebook
of Criminal Justice Statistics—1993, at 356.



1 996] CAPITAL DEFENSE REFORM 509

penalty cases as both prosecutors and defense lawyers. One of the persons was a
defense lawyer who has not served as a prosecutor. In order to encourage
interviewees to be completely candid in their responses to questions, all were

promised that their names would not be disclosed. The interviews took place
between January and August 1994, and each lasted approximately one to one and

one-half hours. At the end of each interview (with the exception of one that was

tape recorded), I promptly dictated my notes, which were then typed.
Originally, I had planned to conduct additional interviews, but the remarkable

similarity of interviewee responses about Rule 24 indicated to me that additional
interviews were unlikely to be productive. As outlined in the following summary
of their comments, all of the persons interviewed believed that the Rule had a

major impact on the prosecution and defense of death penalty cases.
^'

The interviewees agreed that Rule 24 had led to improved representation by
defense lawyers in capital cases. As one of the prosecutors put it, defense lawyers
are doing a "better job now" than before the Rule, especially because they are
much more likely to retain experts for the mitigation stage of the death penalty
prosecution. This same prosecutor also said that the work of defense lawyers has
"likely" led to more careful and thorough preparation by prosecutors. He noted
that a death penalty verdict returned now would be more likely to be sustained on
appeal, as the appellate court would be less apt to find that defense counsel was

ineffective.

The defense lawyers were much more emphatic in describing the impact of
Rule 24 on the quality of defense services. As one defense lawyer put it, the Rule
has "made a helluva difference" because the defense can now "put together a
defense team" consisting of two lawyers, investigators, and experts. Further, he

said that two defense attorneys were not always appointed to defend death penalty

prosecutions prior to Rule 24. Another defense attorney, experienced in both

capital trials and death penalty postconviction and appellate litigation,

characterized the situation as "drastically different now" compared to before the
Rule. This lawyer recalled one capital case that he handled at the postconviction

stage in which the trial attorney had no prior felony defense experience, let alone

in capital trials, and the attorney had never received any specific training in the

defense of death penalty cases. The trial attorney was appointed because he had
tried three or four felony jury cases as a deputy prosecutor.

This same lawyer also pointed to the mitigation stage of a death penalty

prosecution, noting that defense attorneys in the past did Uttle or no preparation

for the mitigation hearing but now concentrate on the area. He attributed the
change to the training that defense lawyers now are required to receive, which has
raised their "consciousness" about the role that experts can play in the defense of

death cases, and to the fact that trial judges will now appoint experts for the
defense. Another defense lawyer explained that prior to the adoption of Rule 24,

defense attorneys "didn't ask for much in the way of experts and investigators, and

71 . In reporting the comments of persons interviewed, material placed in quotation marks

are the actual words spoken by the interviewees. Where quotation marks are not used, comments

are summarized in words similar to those used by interviewees.



510 INDIANA LAW REVIEW [Vol. 29:495

they couldn't get them if they did ask." Further, trial courts did not appoint

"mitigation specialists" for the defense and "if you sought approval from the court

for much beyond a psychiatric evaluation, you were not going to get it." Yet
another defense lawyer cited the retention of experts as invaluable, recalling that

in one of his cases the information dug up about the defendant by a psychologist

and toxicologist, which was turned over to the prosecutor, convinced the

prosecutor to dismiss the death penalty request. Both prosecutors and defense

attorneys agreed that trial judges usually granted defense requests for experts, and

that this was due both to the language of Rule 24^^ and to Indiana case law.^^

The fees paid pursuant to Rule 24—$70 per hour for each lawyer—were also
deemed to be very important by the defense attorneys in persuading lawyers to
accept death penalty cases and to work diligently on them. As one of the defense
lawyers explained, "there are now defense attorneys willing to take death cases
whereas they would not have done so a few years ago." Further, he said that

attorneys are "willing to work hard on the cases because they know they will be
paid." Another defense attorney called the rate of $70 per hour "reasonable for

government work." He especially thought it was important that there was no cap
on the amount of fees paid to defense counsel because this meant lawyers could

devote themselves to a death penalty case without worrying about whether they

were putting in too many hours. Moreover, trial courts almost never reduce the fee
claims of defense counsel, perhaps, as one defense lawyer speculated, because the

"judges don't want to have any problems with the Commission" when it comes to
the reimbursement of the county for defense costs.

On the other hand, prosecutors were unenthusiastic about the fees paid to
defense counsel in capital cases. One of the prosecutors said he "wished
prosecutors were paid the same as defense lawyers." The other prosecutor who
was interviewed said that he did not quarrel with defense attorneys being paid $70

per hour, but he believed that there should be a ceiling on the amount of their

compensation, perhaps with an escape clause, so that judges could occasionally

authorize more than the maximum compensation. In the absence of a cap on fees,
this prosecutor believed that "defense lawyers run us around."

As noted earlier, the data clearly indicate that fewer death penalty requests

72. See supra text accompanying notes 47-48.

73.

We are persuaded . . . that the trial court did abuse its discretion in denying Castor's
application for a defense psychologist to assist him in defending himself during the

penalty phase of the trial. . . . One of the statutory mitigators which both the jury and

the trial judge must weigh during the penalty phase of the trial is whether the defendant

"was under the influence of extreme mental or emotional disturbance when he

committed the murder." In view of the showing made ... it was incumbent upon the

trial court to allow Castor appropriate resources to develop the opinion of this expert

witness concerning this statutory mitigator. The failure of the trial court to approve the

expenditure of the funds necessary to further develop this opinion was erroneous and

requires reversal of the death penalty.

Castor V. State, 587 N.E.2d 1281, 1288 (Ind. 1992) (citation omitted).



996] CAPITAL DEFENSE REFORM 5 1

1

have been filed by Indiana prosecutors since Rule 24 became effective on January

1, 1992.^^ At the time of my interviews, however, these data had not yet been
published and none of the persons whom I interviewed could, therefore, be certain
that fewer death penalty requests had been filed statewide. Nevertheless, all of my
interviewees were convinced that death penalty requests in Indiana had declined,

although they conceded that they had never seen any actual statistics to this effect.

While I did not reveal in my interviews what the data showed, I inquired of
everyone why they thought prosecutors were now filing fewer death penalty
requests. Everyone agreed that it was because of Rule 24.

As one prosecutor explained, Rule 24 has "put some economic judgment" into
the decision-making about whether to seek the death penalty. Another prosecutor

put it more bluntly, stating that Rule 24 has "definitely put a damper on asking for

the death penalty" because the cases cost the counties more than they used to and

the prosecutor must, therefore, "think two or three times" before filing a death

penalty request. In addition to the cost consideration, this prosecutor claimed that

there were two other effects of Rule 24 that had contributed to a decline in death

penalty filings. He noted that defense lawyers now devote much more time to the
cases and have more resources (e.g., expert witnesses) at their disposal; this, in

turn, puts pressure on a prosecutor's office to devote more of its scarce resources

to death penalty cases, thereby making the cases more costly from a personnel

standpoint and hence less attractive to prosecute. This prosecutor also conceded

that because of Rule 24 it is now more difficult to obtain death penalty verdicts
and that it is not "good politics" for prosecutors to lose death penalty cases.

According to this prosecutor, one of his fellow prosecutors had told him that he
does not intend ever to ask for the death penalty because the cases are just too

costly and difficult to prosecute.

The defense lawyers offered exactly the same reasons in explaining why they
believed prosecutors were seeking the death penalty less frequently. For example,

one of the defense lawyers who had substantial prior experience as a prosecutor
in death penalty cases, told me that "prosecutors have gotten much more careful
in filing for the death penalty" because the cases are now more costly for the
counties and take more of the prosecutor's staff time and resources.

This former prosecutor also discussed political considerations involved in the

prosecution of criminal cases. In his opinion, prosecutors do not really want "a

system that is fair and equal," they want a system in which they can win. Ours is

"an adversarial system and winning is quite important to the prosecutor." As for
the death penalty, a prosecutor does not want to risk losing because that generates

negative publicity and is seen as "a knock on the prosecutor." Furthermore, when
a prosecutor is unsuccessful in obtaining the death penalty in one case, it

discourages the prosecutor from seeking the death penalty in other cases. Because

Rule 24 has enabled the defense to "level the playing field" in death penalty

prosecutions, it's understandable if prosecutors seek the penalty less often.

Finally, this former prosecutor, now defense lawyer, explained that the ability
and qualifications of defense counsel are important considerations for the

74. See supra Table One immediately following note 63.



5 1

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INDIANA LAW REVIEW [Vol. 29:495

prosecutor in deciding whether to seek the death penalty. He doubted that many
prosecutors would admit that the capabilities of defense counsel were important,
but he insisted that they are quite significant. If the defendant is represented by
"super lawyer" who is going to keep the prosecutor "hopping," the prosecutor will
be less likely to ask for the death penalty. Conversely, if the defender is a "weak
lawyer," the prosecutor will be more inclined to proceed with a death penalty
request.

One of the prosecutors summed up his feelings about Rule 24 by observing
that it had enabled defense lawyers "to accomplish indirectly what they could not

accomplish directly," by which he meant either elimination of the death penalty

or at least a significant reduction in the number of cases in which it is sought. At
the same time, this prosecutor conceded that he would still sometimes seek the
death penalty if it was an especially "bad case."

Undoubtedly one of the most significant indirect consequences of Rule 24 was

the successful effort of Indiana prosecutors to persuade the Indiana legislature to

amend the state's life without parole statute. Effective July 1, 1994, Indiana's
death penalty statute was amended so that now "[tjhe state may seek either a death
sentence or a sentence of life imprisonment without parole for murder by alleging

... at least one (1) of the aggravating circumstances hsted in subsection (b)."^^

Because Rule 24 applies only if the state asks for the death penalty, a request

solely for life without parole does not trigger any of the requirements of Rule 24;

thus, for example, there is no requirement in a life without parole prosecution that

the defendant be furnished two lawyers, that they have any special prior

experience, or that the lawyers be compensated at $70 per hour. Prosecutors

acknowledged that they purposely lobbied for the life without parole option,

separate and apart from the death penalty, in order to get around Rule 24.

IV. The Cost OF Rule 24

As noted previously, the Indiana Public Defender Commission is authorized
by statute to establish guidelines for reimbursing counties fifty percent of their

costs for defense services in capital cases.^^ Since its establishment in 1990, the

Commission has twice issued guidelines governing reimbursements to counties.
The Commission's first guidelines were effective September 1, 1990, and
provided that counties were eligible for fifty percent reimbursement of

expenditures for defense services in capital cases, as follows: (1) for attorney

ser\dces provided after September 1, 1990, provided two attorneys were appointed

and each was compensated at a rate of $75 per hour; and (2) for non-attorney

defense expenses incurred after July 1, 1989.^^

The Commission's second set of guidehnes superseded those issued in 1990

and were effective January 1, 1992, the date that Rule 24 went into effect.

Essentially, pursuant to these guidelines counties were eligible for fifty percent

75. IND. Code § 35-50-2-9 (Supp. 1995).

76. See supra text accompanying note 21

.

77. See INDIANA PUBLIC Defender Commission Annual Report app. A (1989-1990).

I



1 996] CAPITAL DEFENSE REFORM 5 1

3

reimbursement for defense services in capital cases, provided the services were

rendered in compliance with Rule 24.^^ From a fiscal standpoint, the only
significant difference between the Commission's two sets of guidelines related to

the hourly compensation rate for attorneys. The Commission originally had
required that counties compensate counsel $75 per hour, whereas Rule 24 provides

that counsel be paid $70 per hour for their services.
^'^

Prior to 1 990, each Indiana county paid for all of its defense expenses in death

penalty cases and no statewide expense data on the cost of such cases were

collected.^" Thus, there is no statewide data available on the cost of defense

services in death cases in Indiana before 1990, although it is generally conceded

that defense counsel were not paid as much as $70 per hour and expert and other
defense expenses were often not approved by the courts and thus were not paid by

the counties.^' Since 1990, however, because of the Commission's statewide duty

to reimburse counties for fifty percent of their defense expenditures in death cases,

the Commission has assembled specific cost data on most Indiana capital cases.
Through December 31, 1994, the Commission processed county claims for

defense expenditure reimbursements in sixty death penalty cases that fell within

its guidelines. The table below depicts the cost of these sixty cases, broken down
by expense category, and shows the average defense cost of a death penalty case

in Indiana.^^

78. See INDIANA PUBLIC DEFENDER COMMISSION ANNUAL REPORT app. A (1991-1992).
79. See supra text accompanying notes 44-45.

80. Interview with Larry A. Landis, Director of the Indiana Public Defender Council, in

Indianapolis, Ind. (March 20, 1995). The Council is a state agency that provides backup support

services to defense counsel in indigent criminal cases in Indiana. Mr. Landis has served as director

of the Council since 1980. See also supra note 63.

81. Interview with Larry A. Landis, Director of the Indiana Public Defender Council, in

Indianapolis, Ind. (March 20, 1995). Further, Mr. Landis reports that prior to establishment of the

Indiana Public Defender Commission and Rule 24, defense counsel in Indiana death penalty cases

were typically paid $40 per hour for their out-of-court time and $50 per hour for in-court time.

Part-time public defenders assigned to death penalty cases received no additional compensation.

82. The data contained in Tables Four, Five, and Six have not previously been reported by

the Indiana Public Defender Commission. The data reported here were compiled by placing

detailed financial information from all sixty of the Commission's cases into a computerized data

base.



514 INDIANA LAW REVIEW [Vol. 29:495

TABLE FOUR
Defense Service Expenses in Capital Cases (1990-1994)

Average Cost

Amount Per Case

Attorney Fees $2,163,227 $36,053

Experts 233,129 3,885

Investigators 213,526 3,559

Paralegals/Law Clerks 56,625 944

Transcripts/Depositions 93,827 1,564

Other Expenses 57,731 962

Total: Non Attorney Expenses 654,838 10,914

Total Expenditures $2,818,065 $46,967

The average amount of attorneys' fees paid to counsel shown in the above
table—$36,053—and the average cost of defense services per case—$46,967—is
almost surely somewhat less than the actual costs today of defense services in

Indiana capital cases. This is because seven of the sixty cases did not include costs

for attorneys' fees since the death penalty request was filed prior to September 1,
1990; and, additionally, fifteen of the sixty cases were still pending as of

December 31, 1994, which means that not all of the defense costs for these cases
had been reported. Further, counsel in forty-five of the sixty cases were appointed

prior to the effective date of Rule 24 and may not have been as diligent in
representing their clients as the lawyers appointed after the Rule took effect.

A more accurate reflection of the defense costs of Indiana death penalty cases
is probably derived from examining the cost data of the twelve completed death

penalty cases filed by prosecutors after Rule 24 went into effect and in which all

claims for reimbursement of defense costs had been filed with the Commission as
of December 31, 1994. The data for these cases is reflected in Table Five:



1 996] CAPITAL DEFENSE REFORM 5 1

5

TABLE FIVE
Defense Service Expenses in Twelve Completed Capital Cases

Average Cost

Amount Per Case

Attorney Fees $610,869 $50,905

4,591

4,693

846

2,581

621

13,334

$64,240

The 60 cases summarized in Table Four show an average expenditure for
defense services of $46,967, whereas the cost of the twelve closed cases shown in
Table Five averaged $64,240, or $17,273 more. The difference is attributable
mostly to payments for attorneys' fees. For both groups of cases the average cost

of non-attorney expenses was similar ($10,914 for the sixty cases and $13,334 for

the twelve closed cases), whereas the cost of attorneys' fees averaged $36,053 for

all sixty cases and $50,905 for the twelve completed capital cases.

The cost of death penalty defense representation is further illuminated by
examining the cost of the twelve completed cases based upon whether the cases
resulted in a jury trial or were resolved in some other fashion. Of the twelve cases,
five were tried to juries. Although none of the juries recommended the death
penalty, in the one case that resulted in a hung jury the judge imposed the death
penalty.^^ Table Six shows the cost of death penalty cases that proceeded to jury
trial compared to those that did not:

Experts 55,101

Investigators 56,324

Paralegal/Law Clerks 10,154

Transcripts/Depositions 30,974

Other Expenses 7,462

Total: Non Attorney 160,017

Expenses

Total Expenditures $770,887

83. State v. Williams, No. 45G02-9207-CF-00182 (Lake County, 1993 term) (defendant

sentenced on March 2, 1993).



5 1

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INDIANA LAW REVIEW [Vol. 29:495

TABLE SIX
Cost of Twelve Completed Cases Based on Whether Jury Trial Held

Amount Average Cost

5 Jury Trial Cases

Attorney Fees $367,993 $73,598

Other expenses 80,485 16,097

Total Expenditures $448,478 $89,695

7 Non-Jury Trial Cases

Attorney Fees $242,864 $34,694

Other Expenses 79,524 11,360

Total Expenditures $322,388 $46,055

As might be expected, the defense costs of the five cases that went to trial
were considerably more than the seven cases that did not. The average cost of
attorneys' fees for the jury trial cases was $73,598 compared to $34,694 for the

cases that were disposed of without a jury trial (an average difference of almost

$39,000). Average expenditures for the jury trial cases were $89,695 compared

to $46,055 for the non-jury cases (an average difference of $43,640).

From Tables Four, Five, and Six, an analysis can be made of the number of
hours that two attorneys appointed to death penalty prosecutions in Indiana

typically spend on the cases during the pretrial and trial stages. Table Four, which

shows an average attorney fee cost of $36,053 in the sixty cases from 1990

through 1994, means that the average number of hours devoted to these cases was

515 (i.e., $36,053 divided by the hourly rate of $70 = 515 hours or 257.5 hours per
each attorney). Table Five, which shows an average attorney fee cost of $50,905

in twelve completed cases, means that the average number of hours devoted to

these cases was 727 (i.e., $50,905 divided by the hourly rate of $70 = 727 hours
or 363.5 hours per each attorney). Table Six, which shows an average attorney fee

cost of $73,598 in the five cases that resulted in jury trials, means that the average

number of hours devoted to these cases was 1,051 (i.e., $73,598 divided by the
hourly rate of $70 = 1,051 hours or 525 hours per each attorney).

The number of hours devoted by attorneys to the defense of death penalty
cases at trial in Indiana appears to be comparable to the number of hours that

attorneys in other jurisdictions have found to be necessary. The Spangenberg

Group, which has performed numerous investigations nationwide in the area of

indigent defense, including studies of capital defense representation, has reported

that "the amount of attorney hours spent on . . . [death penalty] cases at the trial



1 996] CAPITAL DEFENSE REFORM 5 1

7

phase . . . [ranges] from 100 to well over 1,500—with most falHng into the 300-
500 hour range."^"* Further, the Spangenberg Group noted that the Maryland
Public Defender estimated that "staff attorney hours spent on death penalty cases

at the trial level range between 100 and 1,250 (median 600 hours; average 535

hours). "^^ A 1987 study of the Kansas Legislative Research Department, also
reported by the Spangenberg Group, estimated that defense attorneys normally

must spend 800-1,000 hours on the trial phase of death penalty cases.
^^

In financial terms, Indiana likely spends more for defense representation in

capital cases than is spent in many states. ^^ However, as discussed earlier,
numerous articles and studies have documented that the compensation paid to

defense counsel in death penalty cases is often woefully inadequate,^^ so that

payments to counsel elsewhere ought not to be the standard. Although the several

prosecutors interviewed for this Article complained that defense counsel were

being paid too much, the inescapable conclusion is that defense counsel in Indiana

capital cases are not being overpaid and that, if anything, the rate of compensation

ought to be increased.

More than twenty-five years ago the President's Crime Commission
recommended that in indigent criminal cases defense counsel should be paid "a
fee comparable to that which an average lawyer would receive from a paying client

for performing similar services."^^ The American Bar Association Standardsfor
Criminal Justice recommend that assigned counsel be reimbursed "at a reasonable

hourly rate ... for all hours necessary to provide quality legal representation.
"^^^

84. The Spangenberg Group, Study of Representation in Capital Cases in Virginia

22(1988).

85. Id. at 23.

86. Id.

87. It is difficult to learn the exact amount spent on defense representation in each of the

states that has capital punishment. Often the data are not maintained on a statewide basis or reports

are not prepared detailing the expenditures. In states where all of the expenditures for indigent

defense are borne by the county, it is especially difficult to obtain cost information. To illustrate

the problem, consider Oklahoma, in which indigent defense representation in capital cases is the

responsibility of the Indigent Defense System, a state agency created by statute in 1992. Okla.

Stat. tit. 22, §§ 1355-69 (1994). The statute provides that compensation for non-system attorneys

in capital cases shall not exceed $20,000 and that no more than $5,0(X) of this sum may be paid to

non-system co-counsel. However, the statutory maximum fee may be exceeded if the Executive

Director of the agency, with the approval of the agency's board, determines that the case "was an

exceptional one which required an extraordinary amount of time . . . ." Id. § 1355.13. The

Executive Director, Robert D. Ganstine, advised the author in a phone conversation on November

2, 1994, that the statutory maximum fee was often exceeded with his and the board's approval, but

specific financial data was said to be unavailable. Similarly, until the publication of this Article,

financial information for Indiana on defense costs in death penalty cases was not available.

88. See supra text accompanying notes 5-8.

89. President' s Con4mission on Law Enforcement and Administration of Justice,
Task Force Report: The Courts 61(1 967).

90. American Bar Ass'n, ABA Standards for Criminal Justice, Providing Defense



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INDIANA LAW REVIEW [Vol. 29:495

The commentary to this black-letter standard explains why counsel in indigent
criminal cases should be adequately compensated:

First, it is simply unfair to ask those lawyers who happen to have the skill
in trial practice and familiarity with criminal law and procedure to donate

time to defense representation. It is worth remembering that the judge,
prosecutor, and other officials in the criminal courtroom are not expected

to do work for compensation that is patently inadequate. Lawyers do, of
course, have a public service responsibility, but the dimension of the

national need and constitutional importance of counsel is so great that it

cannot be discharged by unpaid or inadequately compensated attorneys.

Indeed, where payments for counsel are deficient, it is exceedingly

difficult to attract able lawyers into criminal practice and to enhance the

quality of the defense bar. But most important, the quality of the

representation often suffers when adequate compensation for counsel is
not available.^'

Although it may be debated whether the fees paid to counsel in Indiana death
penalty cases are sufficient to assure that quality legal representation is provided,

clearly the fees in Indiana (let alone in other death penalty states) are not

"comparable" to the fees paid to "average lawyers" by paying clients, as

recommended by the President's Crime Commission. Most attorneys in private
practice will not accept serious and protracted criminal or civil cases for the fees

paid for representing indigents in criminal cases.

During early 1995, I interviewed private criminal defense attorneys in

Indianapolis and confirmed that they would not accept the defense of a death

penalty case unless they were assured of fees substantially greater than $70 per

hour.^^ One attorney said that the hourly rates for himself and his partner to handle
a retained capital case would be between $150-$200 and $175-$225 respectively.

The firm also would require a $100,000 retainer fee to be applied against hourly

billing charges and $50,000 to be applied against charges for investigators,

experts, and other defense expenses. A second attorney said that his firm would
require $75,000-$ 100,000 as a retainer, and that hourly billing rates would be

$200 for the senior attorney and between $75-$ 100 for the junior member of the
firm. A third attorney estimated that his fee for a death case (which would include
himself and another attorney from his office) would be between $250,000 and

$300,000, to be paid at the start of the case. In addition, he would require the

client to deposit at least $100,000 into a fund to be used for defense expenses.

These attorneys emphasized that these sums were reasonable, in light of the

emotional pressures and time demands of a death penalty case, the need to decline

Services, Standard 5-2.4, at 39 (3rd ed. 1992).

91. /t/. at 41-42.

92. I adhered to my practice in these interviews of promising the lawyers that I would not

reveal their names. I wanted their candid statements about what they would charge for providing

representation in retained capital cases. If anonymity was not promised, I was concerned that the

lawyers might be tempted to understate their charges in order not to appear unduly expensive.



1996] CAPITAL DEFENSE REFORM 519

other legal business while the death penalty case was pending, and the costs of

office overhead.

Indeed, the overhead cost involved in operating a modern law office is

exceedingly high. A 1987 study reported that the annual average operating
expense per attorney, in law firms with one to fifty lawyers, was $65,000,

comprising $46,000 for support staff, $1 6,000 for occupancy expense, and $3,000

for technology. '^^ Thus, it is not surprising that the average hourly rates charged

by most lawyers in private practice almost always exceed $70 per hour.

In a 1995 Tennessee case, a trial court found that "[t]he average hourly cost

of office overhead for the attorneys surveyed is $46.81 for the TBA [Tennessee
Bar Association] respondents and $47.26 for the TACDL [Tennessee Association
of Criminal Defense Lawyers] respondents."^"* The court also concluded that "the

level of compensation affects the quality of representation."^'' Similarly, a recently

completed study of the Massachusetts Bar Advocate Program, conducted by the

National Legal Aid and Defender Association, found that "there is a direct

relationship between the inadequate compensation of Bar Advocates [i.e., lawyers

who provide public defense] and the low quality of representation received by
many indigent defendents." When surveyed through a mail questionnaire, thirty-
six percent of 344 Bar Advocate respondents conceded that in approximately

twenty percent of their cases they did not perform some otherwise appropriate

defense activities due to insufficient compensation. These findings are consistent

with research in other job areas that has sought to measure the impact of

compensation on job performance.^^

A 1993 National Law Journal study of law firms with more than 70 attorneys
reported hourly rates as high as $500 per hour for partners and $280 for

associates. ^^ The three Indianapolis law firms listed in this survey reported the
following bilHng ranges:

.98

Baker & Daniels

Partners $155 - $250

Associates $90 -$150

93. James F. Robenborst & S.S. Samuelson, Expanding? Consider Overhead, Nat'lL.J.,
July 10, 1989, at 15, 16.

94. Tennessee v. Matthews, slip op. at 1 (Grim. Ct. Montgomery County Tenn. Order of

March 28, 1995). In this case, the court ordered that the defense attorney in the pending capital

case be paid $100 per hour for time spent both in court and out of court.

95. Id. at 3.

96. See, e.g., EDWARD E. LAWLER III, Pay AND ORGANIZATIONAL EFFECTIVENESS 124

(1971) (discussing the relationship between job performance and compensation).

97. Kenneth Rutman, Hourly Ratesfor Partners and Associates, NAT' L L.J. , December 20,

1993, at S6. This article is based on survey data collected from law firms across the country. The

firms' principal city locations and the billing rates for partners and associates are given.

98. Id.



520 INDIANA LAW REVffiW [Vol. 29:495

Ice Miller Donadio & Ryan

Partners $160 -$240
Associates $ 90 - $145

Locke Reynolds Boyd & Weisell

Partners $100 -$225
Associates $ 85 - $140

In other words, in these three law firms, when human lives are not at stake,
private clients are charged at least $85 or $90 per hour for the time of the least

experienced associates. These associates, of course, are recent law graduates who
lack the experience and skill to handle a complex civil or criminal case.

The fees charged by these Indianapolis law firms, moreover, are quite typical

of private practice. An article dealing with billing practices among law firms in
Illinois reports that in small firms the maximum and minimum hourly billing rates
for partners are $350 and $85 per hour.^^ Similarly, a Michigan report indicates

that the median hourly billing rate for attorneys in that state is $125. This

represents a 19% increase since 1991, when the rate was $105, and a 67% increase
since 1984 when the rate was $75. '^'^^ Surely lawyers are not being
overcompensated when paid $70 per hour to defend a person on trial for his or her

life! Even in federal death penalty prosecutions, defense counsel are routinely

paid $125 per hour and sometimes more.'"'

Indiana's hourly compensation rate of $70 is especially modest when
compared to the fees typically paid to counsel in civil rights cases in which

attorneys' fees are awarded.'"^ For example, in a federal civil rights action

99. Kelly Fox, Who's the Largest of Them All, III. LEGAL TIMES, July 1994, at 1

.

100. Traci R. Gentilozzi, Results of 1994 Law Practice Economics Survey Released, MiCH.

L. Wkly., Sept. 26, 1994, at 3.

101. Pursuant to 2 1 U.S.C. § 848 (8) ( 1 994), the federal judiciary recommends that attorney

compensation in federal capital prosecutions be between $75 and $125 per hour for in-court and

out-of-court time. See 7 GUIDELINES TO JUDICIARY POLICIES AND Procedure § 6.02 A (2d ed.
1991). In addition, according to Kevin McNally, who has served as Federal Death Penalty

Resource Counsel, "the prevailing rate for counsel appointed in federal capital cases ... is at least

$125.00 per hour." Affidavit of Kevin McNally, United States v. Vest, No. 94-00037-01-04/07-17-

19-23/25-CR-W-3 (V/.D. Mo. 1994). Mr. McNally cites cases from numerous federal jurisdictions

in which the rate was fixed at $125 per hour and notes that in a capital case in Detroit the federal

district court set an hourly rate of $1 50. Id.

102. See 42 U.S.C. § 1988(b) (1994):

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,

1985, 1986 of this title, title IX of Public Law 92-3 18 (20 U.S.C. § 1681 etseq.), the

Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000d et seq.) or section

13981 of this title, the court, in its discretion, may allow the prevailing party, other than

the United States, a reasonable attorney's fee as part of the costs.



1 996] CAPITAL DEFENSE REFORM 521

involving discrimination in public higher education in Alabama, the lead attorney

in the case was awarded his hourly rate of $275 and the other lawyers in the case

received awards based upon hourly rates ranging from $100 to $200 per hour."*^

In approving the amount of fees for counsel, the court considered relevant the

hourly rates charged by private lawyers in the Northern District of Alabama.
'^^"^

V. Comparisons Between Ohio and Indiana

As noted earlier, prosecutors and defense lawyers agree that Rule 24 has made
a difference in the handling of Indiana capital cases, and the data suggest that

prosecutors are now seeking the death penalty less frequently and that juries are
less likely to vote for the death penalty.'"'' These findings led me to investigate
whether there have been similar developments in Ohio, which was the first state

to adopt a rule similar to Indiana's Rule 24. While the inquiry concerning Ohio

has been considerably less extensive than the investigation of Indiana, it seems

clear that the Ohio rule has not had the same impact in that state. There are some
important reasons, however, that probably account for the differences in the two

states.

Rule 65 of the Supreme Court of Ohio Rules of Superintendence for Courts

of Common Pleas, which became effective October 1, 1987, concerns the defense
of death penalty cases. '^^ Like Indiana's Rule 24, Ohio Rule 65 establishes

experiential requirements for the appointment of lead and co-counsel in death

penalty cases. In order to serve as lead counsel, an attorney must have had three

years of criminal or civil litigation experience, have been lead counsel in the jury

trial of at least one capital case or co-counsel in at least two capital cases, and meet

one or more additional requirements. '°^ In general, the requirements are similar

to those of Indiana's Rule 24, except that Rule 24 requires at least five years of

prior criminal litigation experience.'"^

The Indiana and Ohio rules are identical in requiring that attorneys, in order
to qualify for appointments as either lead or co-counsel, attend training programs

103. See Knight v. Alabama, 824 F. Supp. 1022, 1031 (N.D. Ala. 1993). See also Zampino

V. Supermarkets Gen. Corp., No. Civ. A. 90-7234, 1994 WL 470338, at *l-*2 (E.D. Pa. Aug. 31,
1994) (reasonable rates are $150 per hour for an attorney with ten years experience, $100 per hour

for attorney with three to five years experience, and $40 per hour for a law clerk); Moore v.

Secretary of Health & Human Servs., No. 90-2259V, 1992 U.S. CI. Ct. LEXIS 181, at *5 n.2 (Apr.
10, 1992) ($150 per hour is reasonable attorneys' fee in dispute involving the National Vaccine

Injury Compensation Program); Muchnick v. Secretary of Health & Human Servs., No. 90-703 V,
1992 U.S. CI. Ct. LEXIS 148, at *7 (March 25, 1992) (reasonable hourly rates are $175 per hour

for partners, $95 per hour for associates, and $50 per hour for law clerks).

104. Knight, 824 F. Supp. at 1040.

105. 5ee 5M/?ra text accompanying notes 63-68.

1 06. Ohio C.P. Sup. R. 65. See also Committee on the Appointment of Counsel tor

Indigent Defendants in Capital Cases, Report (1990).

107. OhioC.P. SUP.R. 65(II)(A)(2).

108. See supra text accompanying note 27.



522 INDIANA LAW REVIEW [Vol. 29:495

in the defense of capital cases. Indiana's Rule 24 requires that attorneys receive

12 hours of training every two years. '"^ Rule 65 requires that eligible attorneys
"[h]ave specialized training in the defense of persons accused of capital crimes as

defined by the Committee."' ^^^ The "Committee" refers to the Ohio Committee on
the Appointment of Counsel for Indigent Defendants in Capital Cases (the "Rule

65 Committee"), which oversees the implementation of Rule 65. By regulation,
the Committee requires that attorneys receive 12 hours of training every two
years.''*

The Indiana and Ohio rules reflect one other important similarity. In both
jurisdictions, counties are reimbursed for defense expenditures upon compliance

with applicable rules. In Indiana, following compliance with Rule 24, the Indiana

Public Defender Commission reimburses counties 50% of their expenditures for
death penalty cases. "^ In Ohio, the Ohio Public Defender Commission reimburses

counties for defense expenditures upon comphance with Rule 65."^ The
percentage of reimbursement to counties fluctuates, however, because it depends

upon the budget of the Ohio Public Defender Commission. As of October 1994,
the Commission was reimbursing Ohio counties thirty-nine percent of their death

penalty defense costs.
"''

A 1 990 report of the Rule 65 Committee noted that the "response to the
introduction of Rule 65 was dramatic,""^ as hundreds of attorneys sought to

become certified to provide representation in death penalty cases. As of July 1,
1990, 854 attorneys were certified under Rule 65."^ The report also stated that

Rule 65 "is widely believed to have improved the general level of representation

in capital cases.""^ However, according to the available data, no change has

occurred either in the number of Ohio capital indictments or in the number of
defendants being sentenced to death since Rule 65 went into effect.

While there does not appear to be reliable data in Ohio on the number of
capital indictments after 1990, the information has been compiled for the calendar

109. See IND. R. Crim. P. 24(B)(1)(d) & 24(B)(2)(c).
1 1 0. Ohio C.P. Sup. R. 65(A)(2)(c).

111. See addendum to Ohio C.P. Sup. R. 65, Standardsfor Retention on Appointed Counsel

Lists. The Ohio rule differs from Indiana's Rule 24 in that the Rule 65 Committee is required to

maintain rosters of qualified attorneys; the Committee also has the power to investigate and remove

attorneys from rosters who have not received the required training.

112. ^ee .yM/?ra note 21 and accompanying text.

113. 5e^ Ohio Admin. CODE § 120-1-13(1995).

1 14. Letter from Gregory L. Ayers, Senior Assistant Public Defender, Office of the Ohio

Public Defender, to Norman Lefstein, Dean, Indiana University School of Law—Indianapolis (Oct.
24, 1994) (on file with author).

115. Committee on the Appointment of Counsel for Indigent Defendants in Capital

Cases, supra note 106, at 9.

1 16. Id. Of the 854 "qualified" attorneys, 139 were for lead trial counsel and appeal, 237

were for lead trial counsel only, 56 were for trial co-counsel and appeal, 420 were for trial co-

counsel, and 2 were for appeal only. Id. at app. C.

117. /J. at 9.



1 996] CAPITAL DEFENSE REFORM 523

years 1983 through 1990, as reflected in the following table:
"^

TABLE SEVEN

Year Number of Capital Indictments

1983 116

1984 133

1985 111

1986 89

1987 126

1988 114

1989 121

1990 1_13

Because Ohio Rule 65 went into effect on October 1, 1987, and its first full year

of operation was 1988,^'^ it is possible to compare the number of Ohio capital
indictments in the five years before the rule's adoption with the three years

immediately following. As revealed in the above table, there were 575 capital
indictments in Ohio between 1983-1987, yielding an annual average capital

indictment rate of 1 15. During 1988-1990 (the three years following the adoption

of Ohio Rule 65), there were 348 capital indictments, yielding an annual average

capital indictment rate of 1 16.

Similarly, the average number of persons added to death row each year in
Ohio before and after the adoption of Rule 65 seems to have changed only slightly.

The table below shows the number of persons in Ohio sentenced to death from
1983-1993:'^^

118. David C. Stebbins & Jane A. Core, The Ohio Public Defender Commission, Death
Penalty Report 8-9 (1991).

119. Committee on the Appointment of Counsel for Indigent Defendants in Capital

Cases, supra note 106, at 1.

120. Ohio Public Defender Commission, Report to the Honorable George V.

VoiNovicH, the Ohio Supreme Court, and Honorable Members of the General Assembly

of 1993, at 15-17(1993).



524 INDIANA LAW REVIEW [Vol. 29:495

TABLE EIGHT

Year New Death Row Inmates

1983 11

1984 13

1985 18

1986 14

1987 10

1988 14

1989 11

1990 9

1991 13

1992 11

1993 12

Thus, between 1983 and 1987 (the five years preceding the adoption of Ohio Rule

65), 66 persons were sentenced to death in Ohio—an average of 13 persons
annually. During 1988-1993 (the six years following the adoption of Ohio Rule

65), 70 persons were sentenced to death in Ohio—an average of 11.7 persons
annually.

Because the adoption of Rule 24 seems clearly to have discouraged Indiana

prosecutors from seeking the death penalty, and a similar Ohio rule appears not to

have had any discernible effect on the number of capital prosecutions, some of the
possible explanations for the differences were examined. Two discoveries were
that attorneys in Indiana are much better compensated for their efforts in death
penalty cases than are lawyers in Ohio'^' and that expert witnesses and mitigation

specialists are far more likely to be appointed by Indiana trial courts to assist in the

defense of capital cases. '^^ Although these differences, discussed below, are quite

likely the most significant factors contributing to different outcomes in the two

states, it is difficult to be certain without additional investigation.

As noted earlier, Indiana Rule 24 requires that both lawyers in death cases be
compensated at $70 per hour, without regard to whether the time was spent in-

court or out-of-court,'^^ and the average cost of completed death cases is
$46,967.'^"* In contrast, in Ohio the average cost for the defense of death penalty

cases is less than half of what it is in Indiana. In fiscal year 1987, the average

payments for the defense of capital cases in Ohio was $9,553.'^^ By fiscal year

121. See infra notes 1 23- 1 26 and accompanying text.

1 22. See supra note 73 and accompanying text.

1 23. See supra notes 44-45 and accompanying text and text accompanying note 79.

1 24. See supra Table Four at note 82 and accompanying text.

1 25

.

Committee on the Appointment of Counsel for Indigent Defendants in Capital

Cases, supra note 106, at 10.



1 996] CAPITAL DEFENSE REFORM 525

1989, the cost had risen to $13,090 per case,'^^ and in fiscal year 1994 it was

$17,470 per case.
'2^

The relatively low payments in Ohio for the defense of capital cases is
ultimately attributable to a lack of adequate funding. The Ohio Public Defender

Commission reimburses counties, as noted earlier, for thirty-nine percent of their

costs for the defense of capital cases, '^^ but its reimbursements are limited to

$40,000 for two attorneys. '^^ Moreover, reimbursements are based on a maximum
of $40 per hour for in-court time and $50 per hour for out-of-court time.'"'"^ While

most Ohio counties, therefore, pay attorneys $50 and $40 per hour for in-court and

out-of-court time, some pay even less.'-" In addition, contrary to practice in
Indiana, vouchers of attorneys in Ohio death penalty cases are sometimes reduced

by trial judges.'''^ The chart below shows the hourly reimbursement rates adopted

by Ohio counties for defense attorneys in capital cases:
'^^

In-Court Rates Out-of-Court Rates

$55—1 county $50—3 counties
$50—46 counties $45—1 county
$45—5 counties $40—50 counties
$40—27 counties $35—5 counties
$35—3 counties $30—25 counties
$30—6 counties $20—4 counties

Although Ohio's Rule 65 Committee believes that the rule has led to improved

representation in capital cases, the Committee is quite dissatisfied with the level

of compensation provided to counsel. In its 1993 report on capital defense

representation in Ohio, the Committee complained "that attorneys are not

particularly well-compensated"'^"* and that "the fees that are paid to appointed

counsel in death penalty cases are still too low to attract all of the best defense

126. Id.

127. Letter from Gregory L. Ayers, Senior Assistant Public Defender, Officer of the Ohio

Public Defender, to Norman Lefstein, Dean, Indiana University School of Law—Indianapolis (Oct.
24, 1994) (on file with author).

128. Id.

1 29. Telephone interview with Gregory L. Ayers, Chief Deputy Public Defender, Office of

the Ohio Public Defender (Oct. 18, 1994).

1 30. Letter from Gregory L. Ayers, Chief Deputy Public Defender, Office of the Ohio Public

Defender, to the Honorable Nicholas Holmes, Jr., Ross County Court of Common Pleas (Apr. 25,
1 994) (on file with author).

131. Id.

1 32. Telephone interview with Gregory L. Ayers, Chief Deputy Public Defender, Office of

the Ohio Public Defender (May 25, 1994).

133. Letter from Gregory L. Ayers, Chief Deputy Public Defender, Officer of the Ohio Public

Defender, to the Honorable Nicholas Holmes, Jr., Ross County Court of Common Pleas (Apr. 25,
1994) (on file with author).

1 34. Committee on the Appointment of Counsel for Indigent Defendants in Capital

Cases, Second Report 1 1 (1993).



526 INDIANA LAW REVIEW [Vol. 29:495

attorneys from around the state."'^^ Further, the Committee noted that "[o]ften the

fees are so low that attorneys cannot afford to provide representation and therefore

do not become certified under Rule 65." '^^

The 1993 report of the Rule 65 Committee also complained that the "[t]he
amount of funding for expert witnesses and investigation also varies from county
to county and case to case."'^^ In addition, defense attorneys claimed that requests

for the appointment of expert witnesses and mitigation specialists were sometimes

denied by trial judges, '^^ which contrasts sharply with the statements of defense
attorneys in Indiana capital cases. '^^ Moreover, Ohio case law regarding the duty
of the trial court to appoint experts for the defense was described as "not good,"'"*^

a proposition that seems well supported because there does not appear to be a

decision of the Ohio Supreme Court reversing a capital conviction because of a
trial court's refusal to appoint a requested defense expert witness or mitigation

speciahst.*"*^

VI. Indiana's Data, Prosecutorial Discretion,
AND THE Constitutionality of the Death Penalty

If, as suggested in this Article, the quality of defense representation in Indiana

has improved due to Rule 24 and prosecutors have become more selective in
seeking the death penalty, there should be fewer concerns than ever about the

state's scheme for capital punishment. If other states follow the lead of Indiana

and improve their systems for providing counsel in capital cases, will they not also

dispel concerns about their state's death penalty statute? Regrettably, the answer

is no. Improved defense representation will reduce the risk of conviction of

persons genuinely innocent and of persons who, though guilty of the offense,

deserve to be spared the death penalty because of mitigating circumstances.

Improved defense services, however, will not remove the inherent arbitrariness of

capital punishment, and objections to the death penalty on constitutional grounds

will continue.'"*^

135. Id.atU.

136. Id.

137. Id.

138. Telephone interview with Gregory L. Ayers, Chief Deputy Public Defender, Office of

the Ohio Public Defender (Oct. 18, 1994).

139. ^ee jM/jra note 73 and accompanying text.

140. Telephone interview with Gregory L. Ayers, Chief Deputy Public Defender, Office of

the Ohio Public Defender (May 25, 1994).

141

.

A review of Ohio cases does not reveal any decisions of the Ohio Supreme Court in
which a capital conviction was reversed because a trial court refused to appoint an expert witness

or mitigation specialist requested by the defense. For cases in which the trial court's refusal to

appoint an expert for the penalty stage was held not to be reversible error, see State v. Powell, 552

N.E.2d 191 (Ohio 1990) and State v. Esparaza, 529 N.E.2d 192 (Ohio 1988).

1 42. One form of arbitrariness in capital prosecutions relates to the system for providing legal

representation to the accused. Where, in a given state or in comparisons from state to state, there



1 996] CAPITAL DEFENSE REFORM 527

Opponents of the death penalty have long argued that it should be held

unconstitutional because prosecutors have unlimited and unreviewable discretion

to select the persons exposed to its sanction.''^'' Because the Supreme Court has

made it clear that the death penalty cannot constitutionally be imposed in an
arbitrary and capricious manner, the contention is that even if statutes guide the

jury in its discretion, the prosecutor's unbridled discretion should render the death

penalty a violation of the Eighth Amendment. '^"^ The data from Indiana discussed

in this Article lend support to the position of death penalty opponents.

The argument against the death penalty, based upon the broad discretion of

prosecutors, was addressed by Justice White in 1976 in his plurality opinion in

Gregg V. Georgia'}"^^

Petitioner simply asserts that since prosecutors have the power not to

charge capital felonies they will exercise that power in a standardless

fashion. This is untenable. Absent facts to the contrary it cannot be

assumed that prosecutors will be motivated in their charging decision by

factors other than the strength of their case and the likelihood that a jury

would impose the death penalty if it convicts. . . . [T]he standards by

which they decide whether to charge a capital felony will be the same as

those by which the jury will decide the questions of guilt and sentence.

Thus defendants will escape the death penalty through prosecutorial

charging decisions only because the offense is not sufficiently serious; or

because the proof is insufficiently strong. ... If the cases really were

"similar" in relevant respects it is unlikely that prosecutors would fail to

prosecute them as capital cases; and I am unwilling to assume the
contrary.

'"^^

The concerns dealt with in Justice White's opinion in Gregg also were
discussed by Justice Brennan in a dissenting opinion in DeGarmo v. Texas, ^^^

decided in 1985. In DeGarmo, one of two co-defendants was convicted of capital
murder and sentenced to death whereas the other co-defendant, who was equally
subject to prosecution for capital murder, received a sentence of 10 years deferred

probation. Justice Brennan observed that this "gross disparity in treatment" was

are significant differences in the qualifications, experience, training, support services, and

compensation for the attorneys who provide representation for accused persons charged with capital

murder, decisions about who should be executed will turn as much on counsel's performance as on

the appropriateness of the death penalty for a particular person.

143. There are countless cases throughout the country in which defense lawyers have

contended that the death penalty should be declared unconstitutional because of the prosecutor's

unlimited and unreviewable discretion. See, e.g., Jurek v. Texas, 428 U.S. 262, 274 (1976);

Resnover v. State, 460 N.E.2d 922, 929 (Ind. 1984). See also BARRY Nakell & KENfNETH A.
Hardy, The Arbitrariness OF THE Death Penalty 151-61 (1987).

144. See Gregg v. Georgia, 428 U.S. 153, 225 (1976) (White, J., concurring).

145. Id.

146. Id.

147. 474 U.S. 973 (1985) (Brennan, J., dissenting).



528 INDIANA LAW REVIEW [Vol. 29:495

"solely the product of the prosecutor's unfettered discretion to choose who will be
put in jeopardy of life and who will not."''*^ Further, Justice Brennan explained
that Gregg and its companion cases were intended to eliminate "the arbitrary
infliction of death,"^"^^ but that this had not occurred:

The selection process for the imposition of the death penalty does not
begin at trial; it begins in the prosecutor's office. His decision whether

or not to seek capital punishment is no less important than the jury's. Just

like the jury, then, where death is the consequence, the prosecutor's

"discretion must be suitably directed and limited so as to minimize the
risk of wholly arbitrary and capricious action."

Instead, the decisions whether to prosecute, what offense to prosecute,

whether to plea bargain or not to negotiate at all are made at the unbridled
discretion of individual prosecutors. The prosecutor's choices are subject
to no standards, no supervision, no controls whatever.*^"

While Justice White in Gregg believed that prosecutors would decide about
the death penalty based upon the same kinds of factors that guide juries in their
deliberations. Justice Brennan in DeGarmo was convinced that standardless
prosecutorial discretion opened the door to arbitrary decision making. Clearly,

Justice Brennan was correct in expressing concern about a lack of specific

standards governing prosecutors in deciding upon persons for whom to seek the
death penalty. Capital punishment statutes typically do not contain any standards

to guide the prosecutor in making the momentous decision whether to seek the
death penalty. Indiana's statute, for example, simply states that "[t]he state may
seek ... a death sentence ... for murder . . . ."'^' Similarly, neither the
prosecution standards of the National District Attorneys Association'^^ nor the

criminal justice standards of the American Bar Association deal with the charging

function of prosecutors in capital cases.'"

Justice White, moreover, was mistaken in believing that prosecutors would

make their decisions in capital cases based solely upon the standards that guide
juries in deciding whether to impose the death penalty. The data from Indiana

148. /J. at 974.

149. /J. at 974-75.

150. Id. at 975 (citation omitted).

151. IND. Code § 35-50-2-9 (Supp. 1 994).

152. See NATIONAL DISTRICT Attorneys Ass'n, National Prosecution Standards §

43.1 (2ded. 1991).

1 53. See AMERICAN BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION
Function and Defense Function Standard 3-3.9 (3d ed. 1993). One writer has suggested that

"the absence of legislative standards or definitions leaves county prosecutors free to legislate their

own death penalty schemes .... A legislative delegation of such enormous power, without guiding
standards, permits intolerable variances between capital punishment practices from one county to

the next." James E. Lobsenz, Unbridled Prosecutorial Discretion and Standardless Death Penalty

Policies: The Unconstitutionality of the Washington Capital Punishment Statutory Scheme, 7 U.

PUGET Sound L. Rev. 299, 353 (1984).



1 996] CAPITAL DEFENSE REFORM 529

presented in this Article indicate that decisions of prosecutors about whether to

seek the death penalty are sometimes influenced by factors that are quite different

from any that juries are ever asked to consider.'^'* The reduction since 1992 in the

number of Indiana death penalty prosecutions seems clearly related to the changes

that have occurred in the way capital cases are defended. All of the persons
interviewed, as noted before, attributed the reduction of death penalty filings to

Rule 24. One former prosecutor, for example, was quite explicit in stating that the
quality of defense counsel is an important factor that prosecutors consider in

deciding whether to seek the death penalty. In addition, prosecutors referred to the

"economic judgment" that Rule 24 introduced into death penalty decision making,

the burden on prosecutor staffs caused by improved defense representation, and

the risk of adverse publicity resulting from unsuccessful death penalty

prosecutions. In fact, one Indiana prosecutor has apparently declared privately that

he doesn't plan to ask for the death penalty in any case.

The observation that prosecutors are influenced by defense counsel's ability

in dealing with death penalty cases has been noted before. In a Florida study, the

experience of defense counsel was cited by respondents as an important

consideration in determining the prosecutor's strategy in plea bargaining capital

cases. '^^ One question in the study asked about the factors that influence
prosecutors in taking first degree murder cases to trial, to which a respondent

replied, "[fjacts of the case plus how well the attorneys know each other and how
closely they worked together. You pay more attention to a good attorney than one
you know is a lightweight, when he communicates with you about the
case . . .

."^^'

Moreover, the ability of defense counsel is only one of the extra-legal factors

that influence prosecutors in deciding whether to seek the death penalty and how
to deal with a death case once it has been charged. The Florida study, which

included replies from 16 judges, 16 prosecutors, and 38 defense attorneys,

identified numerous extra-legal factors as influencing the decisions of prosecutors.

These included the prosecutor's orientation toward punishment, the judge's

reputation, the prosecutor's caseload, pressure from the police, media coverage,

public opinion, and the political and racial climate.
'^^

Given the variety of factors that influence a prosecutor' s decision about death

penalty cases, it is hardly surprising that studies have found disparities in the way
capital cases are treated among jurisdictions within a state. Thus, the Florida study
found that the region of the state in which the crime occurred made a difference:

The analysis shows a significantly higher level of first degree murder
indictments in the central region of Florida [than in the southern region]

. . . when other legally relevant factors have been controlled. Moreover,

154. See supra text following note 74.

1 55. William J. Bowers, The Pervasiveness ofArbitrariness and Discrimination under Post-

Furman Capital Statutes, 74 J. Crim. L. & CRIMINOLOGY 1067, 1075-77 (1983).
156. /J. at 1075-76.

157. Mat 1076-77.



530 INDIANA LAW REVIEW [Vol. 29:495

the disparity is even greater if we compare this region with the rest of
Florida. ... In other words, the chances of a first degree murder
indictment for otherwise comparable cases were significantly greater in

the central region than elsewhere in Florida.
'^^

Two other studies—one in New Jersey and the other in North
Carolina—found similar sorts of disparities in the charging of capital murder. '^^
In the New Jersey study, which analyzed 703 cases eligible for capital prosecution,
the researchers concluded that "individual prosecutors are engaging in decision-

making which varies greatly across counties and results in an overall capital case
processing system which is impermissibly arbitrary . . . ."'^' In the North Carolina

study, which involved 661 homicides in that state, the researchers found that the

differences in the rates of indictment among the state's judicial districts "cannot
be explained by the quality of the evidence in the cases.

"'^'

That the decision whether to seek the death penalty is dependent upon extra-

legal factors, sometimes quite different factors from those envisioned by Justice

White in Gregg, is perhaps best illustrated by events in Texas. In Harris County,

Texas (population about 2.8 million), ^^^ where Houston is located, death penalty

cases have been pursued with great zeal for many years. During 1992-1994, 64
death penalty jury cases were tried, whereas during the same three-year period

only five such jury cases were tried in Dallas County (population about 1.8

milhon).^^^ From 1984 through 1993, there were 174 death penalty jury trials in
Harris County compared to 35 in Dallas County.'^"* Of persons on death row in
Texas, Harris County is responsible for 108 compared to 31 from Dallas

County. '^^ According to District Judge Doug Shaver, "[m]any places share the
level of violence [in Houston] . . . but only Harris County has had the popular John

B. Holmes as its chief prosecutor since 1979."'^^

Thus, even if defense representation in death penalty cases is improved,

counsel's ability and the extra-legal factors cited in other studies will continue to

influence the decisions of prosecutors in capital cases, resulting in treatment

disparities of eligible defendants. However, both the United States Supreme Court

158. /J. at 1074.

1 59. See Leigh B. Bienen et al., The Reimposition of Capital Punishment in New Jersey: The

Role ofProsecutorial Discretion, 41 RUTGERS L. REV. 27 (1988); Nakell & HARDY, supra note
143.

160. Bienen et al., supra note 159, at 327.

161. Nakell & Hardy, supra note 143, at 125-29.
162. See The World Almanac & Book of Facts 433 (1995) (listing the population of

Harris County as 2,818,101).

1 63. Id. (listing the population of Dallas County as 1 ,852,8 1 0). See also Gordy Taylor, Death

Works Double-Time in the Lone Star State, Nat'lL.J., Oct. 3, 1994, at A7.

1 64. John Makeig, Capital Justice Takes a Lot of County Capital, HOUS. Chron., Aug. 1 5,

1994, at 1 A, 8A.

165. Id.

166. Taylor, supra note 163, at A7.



1996] CAPITAL DEFENSE REFORM 531

and the Indiana Supreme Court have dealt, at least by implication, with disparate

treatment of capital defendants. In his concurring opinion in Gregg, Justice

Stewart rejected the argument that the prosecutor's unfettered decision to seek the

death penalty and to plea bargain made any constitutional difference. '^^ Justice
Stewart acknowledged that a prosecutor could choose to "remove a defendant

from consideration as a candidate for the death penalty. [However, n]othing in

any of our cases suggests that the decision to afford an individual defendant mercy

violates the Constitution."'^^ Similarly, the Indiana Supreme Court has routinely

rejected claims that the death penalty is unconstitutional because of the

prosecutor's broad discretionary power, emphasizing that the jury's subsequent

consideration of the case prevents the death penalty from being imposed arbitrarily

and capriciously.'^''^

Perhaps the most compelling reply to these arguments was suggested by

Justice Brennan in DeGarmo, in which he noted that the jury's decision about the
death penalty is insufficient protection for the scheme of capital punishment

because "discrimination and arbitrariness [by the prosecutor] at an earlier point in

the selection process nullify the value of later controls on the jury."'''" In other

words, a state's system of capital prosecutions is fundamentally unfair when some
persons eligible for capital murder, due to extra-legal reasons, receive mercy,

whereas others eligible for capital murder, due to extra-legal reasons, are denied

mercy. The authors of the previously cited North Carolina study have stated the

proposition well:

Arbitrary favoritism of a degree that undermines the standards as they

appear on the statute books cheats those denied such favoritism even if

they may be equally undeserving of the leniency improperly afforded
others. A capital punishment system that provides arbitrary leniency for
some defendants by definition is responsible for arbitrary executions of
others.'^'

Arbitrary and inconsistent decisions in the charging of criminal cases may be

167. Gregg v. Georgia, 428 U.S. 153, 199 (1976).

168. Id.

169. In Miller v. State, 623 N.E.2d 403 (Ind. 1993), the Indiana Supreme Court explained

that

Indiana has chosen by statute to place the responsibility of criminal prosecution on the

elected prosecuting attorney of a given county. Of course, it is the prosecuting

attorney's decision to prosecute whether it be for the death penalty or some lesser

penalty. His decision does not determine the final outcome. His decision merely places

the person on trial. A determination of guilty and the imposition of a penalty lies with
the jury and the judge. We repeatedly have held that this type of procedure is not
constitutionally impaired.

Id. at 412 (citation omitted). See also Fleenor v. State, 514 N.E.2d 80, 90 (Ind. 1987); Spranger

V. State, 498 N.E.2d 931, 946 (Ind. 1986); Resnover v. State, 460 N.E.2d 922, 928 (Ind. 1984).

170. DeGarmo v. Texas, 474 U.S. 973, 975 (1985) (Brennan, J., dissenting).

171. Nakell&Hardy, jM/7ranote 143, at 161.



532 INDIANA LAW REVIEW [Vol. 29:495

an inevitable facet of our criminal justice system, but the stakes are higher in the

capital punishment area because, as the Supreme Court has recognized, "death as
a punishment is unique in its severity and irrevocability"'^^ and "different in kind

from any other punishment imposed . . . ."'^'' Procedures for separating defendants

for prosecution in other areas of the criminal justice system ought not to be

deemed tolerable where the penalty is death.
In theory, a solution to arbitrary decision making by the prosecutor in death

penalty cases would be a system of judicial review of prosecutorial actions.
However, courts are not well positioned or accustomed to reviewing such matters.

As the Supreme Court has noted, the decision whether "to prosecute is particularly
ill-suited to judicial review.

"'^"^
Further, prosecutors undoubtedly are capable of

making plausible arguments, based upon the facts of a particular case, about the
appropriateness of the death penalty. Accordingly, procedures for reviewing

decisions of prosecutors in individual cases will not necessarily assure that the

death penalty is administered without "arbitrariness, discrimination, caprice, and

mistake."'^^

Conclusion

Developments in Indiana during the past several years demonstrate that the

quality of defense representation in capital cases can be improved. What is
required are rules dealing with the qualifications and workloads of counsel,

adequate compensation for defense lawyers, and the availability at government

expense of expert witnesses and mitigation specialists to assist the defense. The
adoption of Rule 24 by the Indiana Supreme Court'^^ shows what can be done if
the state's highest court is committed to reform. Similar developments in Ohio'^^

and other states'^^ suggest that the criminal justice systems in at least several of the

nation's death penalty states are beginning to move in the right direction, but
overall the pace of improvement is painfully slow and has far to go.

Of all the problems involved in achieving reform, probably none is more
difficult than convincing legislators and other government officials that adequate

funding should be provided for the defense of capital cases. However, full

coverage of defense costs in capital cases is essential, lest the risk of wrongful

conviction '^^ be enhanced and undue reliance be placed on appeals and

postconviction proceedings to correct errors at trial. It also is undoubtedly cost

effective if it means that fewer defendants are sentenced to death and lengthy and

1 72. Gregg v. Georgia, 428 U.S. 1 53, 1 87 ( 1 976) (citing Furman v. Georgia, 408 U.S. 238,

286-91 (1972) (Brennan, J., concurring)).

173. Id. at 188.1 i:>. la. ai loo.

174. Wayte v. United States, 470 U.S. 598, 607 (1985).

175. Callins v. Collins, 1 14 S. Ct. 1 127, 1 129 (1994).

176. See supra notes 3, 26-48 and accompanying text.

1 77. See supra notes 5 1 -57 and accompanying text.

1 78. See supra notes 58-61 and accompanying text.

179. See supra note 17 and accompanying text.



1 996] CAPITAL DEFENSE REFORM 533

expensive appellate and postconviction proceedings are avoided.'^"

Improvement in the quality of defense representation, however, may serve to
highlight other issues incident to death penalty prosecutions, just as it has done in

Indiana. By improving the quality of defense services in Indiana capital cases,
some of the factors that influence prosecutors in exercising their unfettered
discretion to seek or not to seek the death penalty have become more evident.

Both the objective and interview data presented in this Article strongly suggest

that in deciding upon the death penalty prosecutors evaluate more than just the

aggravating and mitigating factors specified for the jury's consideration.'^' The
ability of defense counsel, the cost of the prosecution, and the burden on the

prosecutor's staff, are among the extra-legal factors that prosecutors take into
account.'^^ These findings, in turn, raise significant and enduring questions about

the basic fairness of the scheme for capital punishment in Indiana and other states.

1 80. There appears to be agreement that the cost to the public of a successful death penalty

prosecution is greater than a non-capital prosecution that results in long-term incarceration. See,

e.g. , Phillip J. Cook & Donna B. Slawson, The Costs of Processing Murder Cases in North
Carolina 97 (1993). See also Robert Spangenberg & Elizabeth R. Walsh, Capital Punishment
or Life Imprisonment? Some Cost Considerations, 23 LOY. L.A. L. REV. 45, 48 (1989); Dave Von

Drehle, Bottom Line: Life in Prison One Sixth as Expensive, MIAMI HERALD, July 10, 1988, at 1 2A

("the true cost of an execution is closer to $3.2 million" or approximately six times the cost to keep

that person in prison for his or her natural life); Jeremy G. Epstein, Death Penalty Adds to Our Tax

Burdens, Nat'l L.J., Jan. 16, 1995, at A23, A24 (extensive process and costs involved in

postconviction appeals involving death sentences).

181. See supra text following note 73.

1 82. See supra text following note 73.