Counsel for the condemned

JUSTICE seems to be failing many of the 2,000 death row inmates in the United States who receive inadequate legal assistance. This concern continues to beset the American Bar Association (ABA) and other law groups, many of which take no clear stand on capital punishment but are deeply committed to defendants' rights and a fair and unbiased criminal process.

The Constitution's Sixth Amendment guarantees that a person criminally accused ``...have the Assistance of Counsel for his defense.''

The US Supreme Court clarified this protection over half a century ago, deciding in 1932 that states had a duty to provide lawyers to capital crime defendants who could not afford them. Later, the assistance of counsel requirement was extended to all those charged with felonies and misdemeanors who face prison sentences.

Still, it is the duty of states to fulfill the right to counsel. But lack of funding has often left indigent defendants with poorly prepared or second-rate lawyers.

A 1986 survey of death penalty appeals by United Press International indicates that 1 in 5 claims a Sixth Amendment violation of ``Assistance of Counsel.'' Other reports show that in many capital cases, lawyers are inadequately prepared for trial, witnesses are not questioned before appearing on the stand, and little evidence is presented during sentencing to persuade a jury to spare a defendant's life.

Benjamin Civiletti, who served as US attorney general under President Carter, told a group of lawyers and judges recently that capital cases have been so poorly defended that more than one-third of death row inmates have had their convictions vacated since the restoration of the death penalty in 1976.

Mr. Civiletti is spearheading the American Bar Association's efforts to enlist more lawyers to donate their time to defend poor death row inmates. He stresses that although experienced lawyer volunteers are ``catching'' injustices in the trial process caused by lack of proper legal defense, hundreds of defendants are still facing possible execution because they cannot afford expert lawyers to defend them.

The ABA launched its Postconviction Death Penalty Representation Project about a year and a half ago. Since that time, 400 lawyers across the US have signed up to help indigent death row inmates. And another 800 are showing interest in the project, Civiletti reports.

Sara Ann Determan of the American Bar's section on litigation emphasizes that the 33 percent overturn of convictions signals serious miscarriage of justices at the trial court and appellate levels.

``We are not talking about the kinds of obscure technicalities the man on the street always refers to,'' Ms. Determan says. ``All of these have been reversed for quite serious constitutional errors,'' she adds.

Since the Supreme Court lifted a freeze on capital punishment 12 years ago, 37 states have passed death penalty laws, and more than 90 people have been executed.

Many of these states, however, do not require defendants to be represented by counsel at postconviction hearings. Some don't even provide public defenders for indigent convicts.

Civiletti says the bar association is seeking volunteers to defend capital cases on a state-by-state basis. The association has also created a $50,000 fund to pay for expert witnesses needed in these cases.

This is all good news. The bad news is that the process is failing too many people for lack of funds and adequate legal representation.

Last year, the Supreme Court narrowly rejected a challenge to the death penalty that claimed it was discriminatory to the poor and minorities. The justices said there was no hard-and-fast evidence of this kind of bias - and indicated that even if there were, it could not justify abolishing capital punishment for this reason.

Yet the Constitution requires that the system guarantee justice for all. Inadequate legal representation, for whatever reason, must not be tolerated. Where human life is at stake, the system must be made to work.

A Thursday column