"...No longer shall I tinker with the machinery of death." - Late Justice Blackmun, Supreme Court, in Callins v. Collins (1994)

In death penalty circles, the name James Liebman is not a strange, or unknown one. Judges know the name, as do defense lawyers. Prosecutors know it too, and so do guys on Death Row. They know because Liebman is half of the duo who wrote the definitive work on the American death penalty, examining laws, statutes and cases. J.S.Liebman and Randy Hertz are both law professors (the former, from Columbia U., the latter, from NYU) who have co-authored Federal Habeas Corpus Practice and Procedure, 3rd ed., a 2-volume, 1,979-page monster-piece on the Writ. But it is not this work which has caused the cascade of interviews of Liebman in recent weeks. Liebman and his assistants have published an in-depth report on their study of the American practice of capital punishment from 1973 to 1995, and have learned that America has a "broken system," which is "fraught with error." Liebman studied 5,760 convictions where people were sentenced to death. Of that number, 68% were thrown out on appeal, most because of incompetent, poor lawyering. Other reasons for reversals were prosecutorial misconduct, falsified confessions, crooked cops, and errors by judges. Liebman describes a system that is virtually designed to fail. In published reports, Liebman has stated, "American capital sentences are persistently and systematically fraught with serious error. Indeed, capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt whether we do catch them all." The Liebman report, titled "A Broken System: Error Rates in Capital Cases," documents a system that is rotten at its roots. The vast majority of capital cases begin with the court appointment of a lawyer, as most folks who face the state's ultimate punishment are too poor to afford an attorney.

Those who are court-appointed tend to be the worst crop of lawyers, those who, because they are sole practitioners or from small firms, have the least resources, or are cronies for the judge. Many are under intense economic pressure to please the judge (who both appoints and pays them), by rushing cases through the process. Not surprisingly, bad lawyering, by those who have been described as "egregiously incompetent," accounts for an astonishingly high 37% of reversals. The obvious solution to such a statistical nightmare is the appointment of able, fully resourced, and committed lawyers-at the beginning-at trial!

What Liebman, and his co-authors Jeffrey Fagan and Valerie West, have shown us is a broken system. This report is available at: www.columbia.edu/cu/news/00/06/lawstudy.html. or call: Laura Burstein at (202) 822-5200.

(c)MAJ 2000