The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases


Until sometime in the 1970s, the prevailing test for determining ineffective assistance of counsel was whether the attorney performed so poorly as to make the representation a “farce and a mockery of justice.”‘ Judge Bazelonaptly dubbed this standard “a mockery of the Sixth Amendment.” In 1984, the Supreme Court in Strickland v. Washington, a habeas challenge to a capital sentence, finally gave its imprimatur to the test by then universally adopted by the courts of appeals: that of reasonably effective assistance. Yet, whatever may be true in ordinary cases, in the capital setting defense counsel too often deliver – and courts at all levels too often tolerate, when indeed they do not encourage – performance so shoddy as to render the law in its application a mockery of the sixth and eighth amendments.

A perfect illustration of this assertion is the capital trial of Jack House. House ultimately became a client of the NAACP Legal Defense and Educational Fund, Inc. (LDF). Like so many other defendants on trial for their lives, he received his first real representation after he had been convicted of murder and sentenced to death.

House was a white, twenty-seven-year-old father of three, living in Atlanta with his wife of eight years. Although alcoholic and possessing an IQ of seventy-seven, he had regular employment and supported his family. He also had no criminal record except for a number of traffic violations. One April morning, two young boys were found strangled in a wooded area of northwest Atlanta. They were nude, and one of them had been sodomized. Circumstantial evidence – mainly that on the previous day, shortly before the boys disappeared, they had taunted the falling-down drunk defendant, and that an inebriated white man had walked away from the direction of the woods which  the boys had entered earlier – led the police to arrest House. He was then “half-drunk” by his own admission and according to witnesses. The police kept House incommunicado for two days and subjected him to various procedures. After four to five hours of interrogation, he signed a confession.

When at last produced in court, House was permitted his first phone call. He called his mother, who retained Dorothy Atkins, a local attorney practicing in partnership with her husband, Ben Atkins; Ben became lead counsel at trial. Until that moment, Dorothy had never represented a capital defendant and neither attorney had read the new Georgia statute enacted after Furman v. Georgia. In the words of a panel of the Court of Appeals for the Eleventh Circuit, their “state of preparation qualified them only as spectators.”

That indictment, although extreme, was wholly justified. It would take more than the pages allotted in the present forum to relate in full the sins of omission and commission that comprised the second crime in this case: the one committed against Jack House by his attorneys and countenanced by the State of Georgia. But even a quick review of the highlights – or “lowlights” – of House’s so-called defense will demonstrate that his lawyers in effect signed their client’s death warrant themselves. Consider the following:

  • Although the confession amounted to the single most direct piece of evidence against House, and his lawyers heard him claim that it had been procured by beatings, and they had seen the bruises and welts on his body, they took no pictures nor did they call a doctor to substantiate his physical condition. In attacking the confession before the jury, they relied solely on their own testimony.
  • The Atkinses failed to visit the crime scene or interview the state’s witnesses, made no attempt to obtain discovery from the prosecutor, and did not fie any pre-trial motions. Dorothy subsequently explained that they had been “too busy” to seek discovery. As a result, they were admittedly “completely surprised” when the state introduced evidence at trial that a blood sample taken from House’s clothing matched the blood type of one of the victims.
  • They barely spoke to either the defendant or his family even though House’s mother told Ben that she had been telephoned by a man named Michael Pitts, who said he knew who had committed the murders and that it was not House. Furthermore, they formulated no defense strategy. Indeed, Dorothy informed the family that she was “stymied” as to what she should do to ready a defense. On the very eve of trial, she dumped the case on her husband Ben – who had done no preparation at all – because she felt she could not handle it.
  • During the guilt trial, the Atkinses let their client testify in narrative form, without direction. Dorothy asked that the court postpone the state’s cross-examination of House until the next day so that she could attend a church guild meeting, thus giving the state the night to prepare. Furthermore, Ben, now the lead counsel, absented himself from court during the testimony of a key prosecution witness (whom he nevertheless cross-examined!) as well as during approximately half of the state’s summation.
  • Perhaps most typical, and thus most important, Ben and Dorothy did not present any mitigating evidence nor did they prepare an argument at the sentencing phase. Indeed, the Atkinses were even unaware that there was a separate trial on penalty until they found themselves in the midst of it after the conviction. The reason? They simply had not read the new statute. Ben gave the following sentencing summation, reproduced here in its entirety:

May it please the Court, ladies and gentlemen of the jury, any lawyer who finds himself in this position cannot help but feel somewhere along the way there must be something that he could have done to have brought about a different decision, he always does. I must admit I have never been in this position before.

I think there has been enough dramatics already, and all I would like to leave with you for your own sake is, “Vengence [sic] is mine, saith the Lord.” Thank you.

Notably, Ben made no mention of mercy.

  • Finally, counsel filed a boilerplate motion for a new trial. It did not mention that a few days following the trial, three credible neighbors had surfaced, each of whom claimed to have seen the victims alive hours after the time of death proved by the state. Although House had an iron-clad alibi for the later time, this fact was also omitted from the motion. When the Atkinses failed to appear to argue the motion, the court initiated an action to hold them in contempt.

While House surely is one of the worst documented cases of inadequate of defense counsel, it hardly could be called atypical except insofar as counsel were retained rather than appointed, and the client ultimately gained relief. Defense lawyers in capital trials default most often (and plainly, with the most fatal results) in areas directly relating to penalty. Thus, if one represents death-sentenced clients on appeal or in post-conviction proceedings, one frequently reads transcripts devoid or virtually devoid of mitigating evidence only to discover later that investigation, sometimes quite cursory, would have yielded powerful mitigating facts. . .

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