The Worst Lawyers

Death sentences are down across the country—except for where one of these guys is the defense attorney.

Twenty years ago a law professor wrote that the death penalty in America was handed down not “for the worst crime, but for the worst lawyer.” Is that still true?

Photo illustration by Lisa Larson-Walker. Photo by Image Source/Thinkstock and Arizona Department of Corrections via Reuters.

He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row.

One of Carr’s capital clients, Daniel Garcia-Saenz, sent the trial judge a handwritten letter asking for Carr and his co-counsel to be removed from his case because he had “lost all trust and faith in my attorneys.” Saenz explained that his lawyers had visited him only a few times in 15 months and that he became concerned after hearing that Carr had been removed from two of his cases for failing to show up in court on his clients’ behalf.

Carr might not visit his capital clients very often, but he does seem to be dedicated to his job—his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services—even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)

Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.

One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy—they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.

Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row.

After a person is found guilty of capital murder, he or she has the right to present mitigating circumstances to the jury in an effort to persuade jurors not to impose a death sentence. This second phase of a capital trial often lasts weeks or months. Alcantar has a reputation for efficiency in these proceedings—the mitigation case that he put on for one of his clients, David Anthony, lasted less than a day.

In another case, State v. Garcia, Alcantar presented the mitigation case in less than two days—one morning, one afternoon. In a third case, Alcantar’s client, Brian Womble, decided not to present any mitigation evidence. Womble’s new lawyers allege that Alcantar is the one who pushed Womble to forgo mitigation in the absence of a thorough investigation.

In post-conviction proceedings, Womble’s new lawyers have discovered that he was born addicted to the heroin that his mother abused while she was pregnant. As a child, he was thrown down flights of stairs, beaten with a broomstick, and had his head slammed into a wooden fence. He stuttered and suffered from head injuries, neuropsychological impairment, and symptoms of fetal alcohol syndrome. He also had a difficult time in school despite trying hard. Instead of supporting his efforts, his mother, herself addicted to heroin and mentally ill, called him a “fucking retard” and beat him. Womble developed severe depression, tried to kill himself, and had a paranoid delusion that a religious organization controlled his life. He also had hallucinations that demons were living in his furniture. Hours before the crime that landed him on death row, Womble voluntarily entered a mental health treatment facility, saying that he wanted to kill himself and possibly others, and yet was permitted to leave. He then broke into an apartment and shot two people while they were sleeping.

Alcantar discovered almost none of this mitigating evidence; therefore, the jury did not know of any reason to spare Brian Womble’s life. When one of Womble’s jurors later heard about the new evidence in the case, he said, “Knowing all of that, I would have voted for life, no doubt about it.”

Alcantar says he genuinely tried to serve his clients, but he was overwhelmed with the caseload. He blames the state of Arizona for trying so many death penalty cases at once during that period.

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Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana.

Matt Shirk, the elected public defender for Duval, campaigned on a promise to be “less confrontational when dealing with police in court, ensuring his employees would never call a cop a liar.”

When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)

This month, a Florida judge overturned the conviction and death sentence of a man named Raymond Morrison after finding that Eler failed to conduct a basic factual investigation of the circumstances of the crime, failed to secure the testimony of alibi witnesses, and also failed to investigate evidence of Morrison’s “organic brain damage and intellectual disability.” “It was like he had no attorney,” Marty McClain, Morrison’s new lawyer, told the Florida Times-Union.

In 2013, the Florida Supreme Court reversed death sentence of Michael Shellito on the grounds that he had ineffective assistance of counsel. Eler was his lawyer, too. Eler did not conduct a “true follow-up on the matters indicated in the various reports” of his mental health expert, the court found, and he only “made a marginal attempt to present organic brain damage and other impairment as mitigation.” Shellito’s new lawyers discovered that he has bipolar disorder, “a mental age of fourteen or fifteen years, an emotional age of twelve or thirteen years, an IQ in the low-average range, the presence of organic brain damage,” “a prior head injury,” and that he endured “verified physical and sexual abuse.” In State v. Douglas, the Florida Supreme Court found that Eler provided a third capital client with ineffective assistance. A fourth claim is pending before the Florida Supreme Court, and pointed questioning from the justices during argument last month suggests that Eler might be found ineffective once again.

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Twenty years ago, law professor Stephen Bright wrote that the death penalty in America was handed down not “for the worst crime, but for the worst lawyer.” Nathanial Carr, Herman Alcantar, and Refik Eler make it seem like nothing has changed. But that is not the case. The quality of defense representation in capital cases has substantially improved in many places across the country.

Virginia used to lead the nation in per capita executions, but no one has been sentenced to death in the state since 2011. Law professor Brandon Garrett, who authored a study on the decline of the death penalty in Virginia, credits defense lawyers. In 2004, the state Legislature created a system of regional defender offices to handle trial-level capital cases. “The impact of improved lawyering is striking,” Garrett said. It “does not take the ‘best of the best’ or some kind of ‘dream team’,” but it does require “a team of specialist capital defense lawyers and investigators, preferably working in an office, that understand the very different way that a death penalty case must be litigated from its inception.” 

Louisiana is another example of a state that has improved the quality of its defense lawyering in capital cases. In 2007, the Louisiana Legislature created a statewide public defender board, which included an experienced lawyer to serve as the capital case coordinator. More recently, Louisiana enacted statewide standards—establishing minimum experience and training requirements and governing the performance of defense representation in capital cases—that are worthy of national emulation. Perhaps unsurprisingly, given the Virginia study, death sentences have declined throughout Louisiana in recent years.

But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana.

Daryl Gold, who represented nearly 1 in 5 of the people sent to death row in the entire state of Louisiana between 2005 and 2014, is one of those lawyers. He has been suspended from the practice of law three times. Additionally, as the Louisiana Supreme Court explained in his latest disciplinary action, Gold has “received fourteen private reprimands or admonitions for neglecting legal matters, failing to communicate with clients, failing to refund unearned fees, and failing to cooperate in a disciplinary investigation.” Here’s what is amazing: Though prohibited from taking on private clients, Gold was allowed to continue his “public service employment at the Capital Assistance Project” representing poor defendants in capital cases.

His most recent death sentence came in State v. Rodricus Crawford, which involved a father convicted of murdering his infant son despite the fact that the state’s own medical examiner could not be certain that the death was a homicide. This is the case in which the prosecutor, Dale Cox, ignored doubt as to Crawford’s guilt and told the jury to return a death sentence because “when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.”

Despite the fact that Caddo juries have returned eight death sentences since 2005, Gold says he expected his client to be acquitted, and he seems not to have adequately prepared for the possibility that his client would be convicted of murder and a penalty phase would ensue. When the case ultimately did move to the penalty phase, Gold put on less than a day’s worth of mitigation evidence.

Capital defense representation in Louisiana, then, mirrors the national landscape. Mostly, it is vastly improved from the days when tax lawyers with no relevant experience represented people facing the death penalty. As states adopt standards that attempt to protect against wrongful convictions and ensure adequate representation, though, there is resistance to this change—not just from lawyers like Daryl Gold, but also from prosecutors who would prefer to practice against the same old defense lawyers that they have steamrolled over for years. 

In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.