Bernon Howery needed a lawyer to save his life. Charged with setting a fire in Kankakee that killed four children, including three of his own, he turned to Earl Washington.
A veteran Chicago attorney who had represented a relative of Howery's, Washington took the case in January 1990 for a flat fee of $8,000.
But despite ample leads in the arson-murder case, Washington did not feel compelled to investigate alternative suspects--saying he trusted police to do that. During pretrial hearings and at Howery's 1991 trial, Washington repeatedly showed up late or not at all. Instead of having a jury try Howery, Washington had a judge do it to save time and money, according to another lawyer's sworn testimony.
Howery was convicted, and sentencing began one week later. To show that Howery's life should be spared, Washington needed to present evidence of good deeds Howery had performed or hardships he had suffered. Howery was a two-term Kankakee County Board member with colleagues eager to describe his accomplishments.
One of Howery's fellow County Board members had even called Washington before the sentencing hearing and volunteered to testify. But Washington didn't present him. Washington arrived a half-hour late and called only three witnesses, whose testimony lasted minutes. They said Howery loved his children, but offered little more.
"Ever since you were found guilty, I've been hoping, praying, that there would be some evidence . . . that would allow the court not to impose the death penalty," Judge Patrick Burns told Howery in court the next day. But Burns had been "totally amazed" at how little evidence Washington had offered, he told the defendant, even after he had "almost begged" Washington for more.
Saying the law left him no choice, Burns sentenced Howery to death by lethal injection.
In 1997, the Illinois Supreme Court granted Howery a new sentencing hearing, saying Washington had deprived Howery of adequate legal representation.
Washington's shoddy work on Howery's behalf epitomizes a breakdown in capital trials across Illinois, where, with regularity, defense attorneys have performed woefully or taken cases despite meager qualifications.
Such ineptitude has marred the state's capital trials largely because Illinois does nothing to stop it. Unlike at least a dozen other states, Illinois dictates no minimum standards for attorneys who defend someone's life.
Since Illinois reinstated capital punishment in 1977, 26 Death Row inmates, including Howery, have received a new trial or sentencing because their attorneys' incompetence rendered the verdict or sentence unfair, court records show.
And 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away.
Among those attorneys were David Landau, who, in the face of 78 disciplinary complaints, was disbarred one year after representing a Will County defendant sentenced to death, and Robert McDonnell, a convicted felon and the only lawyer in Illinois history to be disbarred twice. McDonnell represented four men who landed on Death Row. He handled those cases after being disbarred once and then reinstated despite concerns about his emotional stability and drinking, according to state records.
For the adversarial system of justice to work, defense attorneys must vigorously test the prosecution's evidence. But in capital trials so complicated and stressful they challenge even the best of lawyers, the courts themselves have compromised justice by often appointing ill-qualified attorneys to defend poor and uneducated defendants. Such defendants account for the overwhelming majority of Illinois' Death Row population.
When defense attorneys cannot provide a strong defense, the credibility of a death sentence suffers and the chances that innocent defendants will be convicted grow. Ineffective defense work also can lead to reversals on appeal, requiring taxpayers to finance the considerable cost of a second trial or sentencing hearing.
Defense attorneys handpicked by the courts in Illinois capital cases have included a tax lawyer who had never before tried a case, an attorney just two years out of law school and an attorney just 10 days off a suspension for incompetence and dishonesty.
Although more than two dozen defense attorneys in Illinois have performed so inadequately in capital cases that a new trial or sentencing hearing was ordered, the state's lawyer disciplinary agency has suspended or disbarred only one attorney for ineptitude in a death-penalty case.
In 1992, attorney Casandra Watson was suspended for four months because she engaged in a conflict of interest by representing Cook County defendant Willie Thomas on a murder charge while representing a critical witness against Thomas on a welfare-fraud charge. Thomas was sentenced to death for murdering a 15-year-old Harvey girl but received a new trial because of Watson's divided loyalties. At retrial, Thomas was convicted again but escaped the death penalty.
Of the 12 Death Row inmates in Illinois who have been exonerated since 1987, four were represented at trial by an attorney who has been disbarred or suspended. One of the four, Dennis Williams, was represented at his first trial by an attorney who was later disbarred and at his second trial by an attorney who was later suspended. Williams was convicted twice of the 1978 murders of a couple from Chicago's south suburbs before being exonerated by DNA evidence.
When Archie Weston defended Williams at his first trial, Weston was himself facing disciplinary charges. He was subsequently disbarred for mishandling a probate matter.
Even though Weston failed to file crucial motions and raise obvious objections on Williams' behalf, the Illinois Supreme Court initially upheld Williams' conviction. But in light of Weston's disbarment, the court vacated the conviction, saying it could no longer assume Weston had been competent.
While he defended Howery in 1991 in the arson-murder case, Washington also was defending his law license before the Illinois Attorney Registration and Disciplinary Commission. In previous cases, state records show, Washington had failed clients and frustrated courts. He took money to file an appeal, then didn't follow through. He missed deadlines and court dates. A federal appeals court had fined Washington $500 and suspended him from appearing before it. A Will County judge had held him in contempt of court and accused him of manipulating a trial for financial gain.
One year after Howery's trial, Washington's law license was suspended for three months.
While representing Howery, Washington worked alone--something many legal experts believe should never happen in a capital trial and which some states forbid in cases where defendants have counsel appointed for them.
In Illinois, at least 100 defendants sentenced to death were represented at trial by only one attorney, the Tribune found.
Washington's merits as an attorney have stirred considerable debate during his career. Some attorneys and judges have appeared before disciplinary officials and praised his abilities. But his work has been condemned by reviewing courts and some clients. He declined to comment to the Tribune.
"I think the thing that's most disgusting is he's a professional and he did not conduct himself as a professional at all," Howery said in a telephone interview from Kankakee County Jail, where he is awaiting a new sentencing. "He never even talked to me about the facts of the case. To me, it's frightening that this man is a lawyer."
Call for minimum standards
Legal experts say a capital trial's defense should include, at a minimum, two experienced criminal defense attorneys, an investigator and a specialist at developing evidence for sentencing. The attorneys, experts say, should devote hundreds of hours to preparing and trying the case.
"Who your lawyer is is the single most important fact concerning whether you get the death penalty or not. The single most important fact--which is pretty scary," said Andrea Lyon, a University of Michigan law professor who previously tried more than 100 murder cases in Cook County without having a client sentenced to death.
Lyon is known for her painstaking preparation, including research on the defendant and his background so that she can place the crime and the criminal into context. Was the defendant a victim of horrendous abuse? Is he mentally ill or retarded?
Lyon said Illinois should create an agency to train and certify defense lawyers in death-penalty litigation and help direct them to good investigators, forensic experts and other specialists.
"Is it cheap? Hell, no, it's not cheap. But it's a lot less expensive than these 12 deadly mistakes," Lyon said, referring to Illinois' exonerated Death Row inmates.
Earlier this year, the Illinois General Assembly passed a bill that makes approximately $17 million available annually for prosecutors and indigent defendants in capital cases, to be used for such tools as expert witnesses and forensic tests.
And last month, a study committee created by the Illinois Supreme Court submitted a report recommending establishment of a capital litigation trial bar that would mandate minimum standards for both prosecutors and defense attorneys. That proposal is now before the Illinois Supreme Court.
At least 12 other states have established minimum standards for defense attorneys in capital cases. Their rules vary slightly, but typically they require that at least two attorneys be appointed for indigent defendants in capital cases, that the lead attorney meet specific minimums for years of legal experience and felony cases tried, and that the attorneys have received specialized training in capital cases.
"Would you have a chiropractor perform open-heart surgery? Would you have an ophthalmologist do brain surgery? Attorneys who do not do this type of work and are not qualified should not be defending these kinds of cases. It's that simple," said Michael Metnick, a Springfield attorney who has tried capital cases in four counties.
In addition to imposing the unique pressure of defending someone's life, capital trials come with their own rules and motions covering everything from how jurors are selected to how they are instructed before deliberations.
The trials even have a unique structure: the guilt phase, eligibility for the death penalty, then sentencing, where evidence of the defendant's background becomes crucial.
In Illinois, reviewing courts have repeatedly expressed dismay at the representation received by Death Row inmates at trial.
In a Lake County case in which Robert Kubat was condemned to die for the 1979 murder of a waitress, an Illinois Supreme Court justice wrote that a defense attorney provided "legal assistance that would border on the comical if only it were make-believe."
Kubat's court-appointed attorney, former Lake County Public Defender George Pease, neglected to call more than a dozen potentially crucial witnesses and delivered a closing argument a federal judge called "a rambling, incoherent discourse . . . that may actually have strengthened the jury's resolve to impose a death sentence." Federal courts eventually ordered a new sentencing hearing, and Kubat was resentenced to 60 years.
To win an appeal alleging a defense attorney's ineffectiveness, defendants in Illinois and other states must clear a particularly high threshold. Reviewing courts require defendants to prove that the defense attorney was incompetent and that his errors were so grave they probably affected the trial's outcome.
While 26 Illinois Death Row inmates have received a new trial or sentencing hearing based upon their attorneys' ineptitude, dozens of others have been turned away on appeal despite criticism of their attorneys' work.
In many instances where an attorney with dubious credentials has tried a capital case, the attorney was hired by the defendant.
Sometimes, the attorney previously represented the defendant in a civil matter or against low-grade criminal charges. Other times, a lawyer's fee--as low as $200 in one death-penalty case--made him attractive.
In 1987, Cook County murder defendant Paul West hired Vincent Wagner, an attorney of only three years who, according to state records, was distributing fliers at the courthouse that year saying, "Do you need a lawyer? Any case. Any where (sic). Maximum fee--$1,500." Lawyer disciplinary officials later censured Wagner for ethical violations because the fliers provided incomplete and misleading information.
Wagner represented West at sentencing and on appeal but botched the appeal so badly that the Illinois Supreme Court in September of this year vacated West's death sentence. Prosecutors had not properly established West's eligibility for the death penalty, but Wagner failed to catch that crucial error.
Often, low-income defendants skeptical of the public defender's office hire attorneys willing to work cheap, believing any attorney on retainer will work harder. But that perception can lead defendants astray in Cook County, where some of the state's most highly regarded trial attorneys work for the public defender's homicide task force.
Some private attorneys minimize pretrial investigation and cut other corners to preserve as much of their retainer as possible.
In Edgar County, murder defendant Randy Steidl retained attorney S. John Muller for $25,000. Instead of hiring a professional investigator, Muller had a former client work off his debt by interviewing witnesses and serving subpoenas.
The former client, whom Muller had represented in misdemeanor and divorce cases, did not file any written reports because he is dyslexic, Muller said in a deposition. Steidl's death sentence for the 1986 murders of a Paris, Ill., couple was vacated last year based on the ineffectiveness of Muller, who had tried only one previous murder case.
Now serving a life sentence, Steidl is still appealing his conviction.
In 16 Illinois cases where a defendant was sentenced to death, the defendant represented himself. Those defendants frequently made bewildering arguments or bizarre strategic decisions.
In a Vermilion County case, Charles Silagy, charged with the murders of two women, was allowed to defend himself during sentencing even though a psychiatrist hired by the state to evaluate Silagy determined that he suffered organic brain damage and was delusional--facts the psychiatrist now admits he never told anyone. Silagy remains on Death Row and is seeking a new trial.
Another defendant who represented himself was Robert Simpson, charged with murdering a customer during a 1992 Glenwood grocery store robbery. He appeared before jurors in a black satin jacket inscribed with the words "Pimping Ain't Easy."
Ill-suited lawyers appointed
In appointing lawyers to represent indigent defendants, judges in Illinois need not consider credentials, experience or ability. The only requirement is that an attorney have an Illinois law license.
The selection typically is made by a county's or circuit's chief judge, or by the judge presiding at trial. And in Illinois death-penalty cases, many of those judges have tapped lawyers with backgrounds ill-suited for the assignment.
In Kane County two years ago, Judge R. Peter Grometer appointed Herbert Hill to represent Edward Tenney, who was charged with murdering a 76-year-old woman. Hill had gotten his law license back just 10 days before. The Illinois Supreme Court had suspended him for nine months, citing a half-dozen cases in which he took advantage of vulnerable clients or failed them through incompetence or dishonesty.
"That's one of the most extraordinary cases I've heard about in the country," said Stephen Bright, a Yale University law lecturer and a leading national expert on the substandard work of defense attorneys in capital cases. "For a lawyer only 10 days after he's been suspended to be appointed in any case is outrageous. To be appointed in a capital case is just unconscionable."
Asked about the propriety of appointing an attorney just coming off a suspension, Grometer told the Tribune, "Well, they reinstated him."
Grometer said he tapped Hill at the request of another attorney who had been appointed and wanted co-counsel. But the first attorney withdrew from the case before trial, leaving Hill as Tenney's only attorney. A jury sentenced Tenney to death last year.
Hill declined to comment
In counties with few murders and small budgets, public defenders often have limited experience and resources. Still, courts frequently appoint them in capital cases instead of looking elsewhere for attorneys who have tried such cases before.
In Montgomery County, David Grigsby was only two years out of law school when appointed to represent Tuhran Lear, charged with the 1988 murder of a gas station manager. Grigsby had never tried a murder case. As the county's public defender, he had to juggle 100 other cases.
His staff: one secretary. He had no investigator, and the court refused his request for expert help with sentencing. Meanwhile, the local prosecutor received help trying the case from a lawyer in the Illinois attorney general's office, a common form of assistance in Illinois capital trials. The defendant was sentenced to death.
In Bureau County, Matthew A. Maloney had been the part-time public defender for nearly a decade when he was appointed to represent Jeffrey Rissley, charged with the 1991 kidnapping and murder of a 6-year-old girl. Maloney asked the judge for an investigator and was told he could do it himself. So he quit.
"I knew this was complex, and I knew I needed help," said Maloney, who is now in private practice. "If you don't do this regularly, you shouldn't do this at all. Because they're not going to kill you if you screw up. They're going to kill your client."
County officials were loath to adequately fund the public defender, Maloney said.
"These people are criminals; we shouldn't have to pay for them--that's their attitude," he said. "They want the minimum they can give someone without causing themselves trouble."
After Maloney quit, the court appointed John Hedrich, a civil lawyer who specialized in probate and real estate. Without negotiating a deal for leniency in return, Hedrich had Rissley plead guilty, and he was sentenced to death.
Hedrich, now retired in Las Vegas, acknowledged his shortcomings.
"I didn't do a job like a death-penalty lawyer could have done," he told the Tribune. "But the county just wasn't going to hire somebody who would break them doing a good job."
Trying to undo the damage
While Bernon Howery sat on Death Row, his appellate attorneys were working to undo the damage done by Earl Washington, who first handled the case. The granting of a new sentencing hearing provides them a partial victory.
But they believe Howery also should get a new trial, saying Washington's inadequate preparation deprived the judge of the evidence needed to reach a reliable verdict concerning Howery's guilt.
Howery is being represented on appeal by Jenner & Block, one of Chicago's largest and most prestigious law firms. At least five lawyers, two investigators and an untold number of paralegals and support staff members have spent part of the past seven years working on the case--which Washington tried alone.
In Illinois, the resources rallied on appeal often dwarf those summoned to keep a defendant off Death Row in the first place. Teams of appellate attorneys attempt to make up for a defense attorney's bare-bones investigation before trial.
And Jenner & Block, like several top Chicago law firms willing to handle capital appeals, has been working for free, or pro bono.
Howery, who had no prior criminal record, was convicted of setting a December 1989 fire that killed four children. Howery told police that he had carelessly flipped a cigarette into the house's bathroom, which might have caused the fire. But he never confessed to deliberately committing any crime, and there were no eyewitnesses or direct evidence implicating Howery.
Besides Howery's police statements, the prosecution's only evidence was that traces of petroleum distillates had been found on Howery's pants and shoes. Howery told police he had previously spilled gas on the pants while in a garage.
Since Howery's conviction, his appellate attorneys have uncovered evidence--all available before trial--that they say raises suspicion about other relatives of the victims, including one who had been treated as a suspect by police. That evidence showed a financial incentive to commit the crime and undercut an alibi that had been offered to police.
Had Washington presented that evidence, Howery's attorneys contend, he could have greatly improved the chances of an acquittal, particularly given the purely circumstantial case against Howery. But Washington never subpoenaed insurance or financial records, investigated alibis or interviewed potential witnesses, court records show.
In 1994, during an appellate hearing, Howery's current attorney, Marshall Schmitt, pressed Washington about whether he had tried to find witnesses other than those named by prosecutors.
"I didn't go down the street with a billboard on my back saying, 'Are you a witness in the Howery case?' No, I didn't do that," Washington said.
Washington's trial performance, including his repeated late arrivals for court, so angered the judge that he threatened Washington with contempt of court and wrote to lawyer disciplinary officials, according to court records. Washington even had difficulty explaining certain motions he had filed. It turned out that another attorney, who wasn't on the case, had prepared them at the last minute and signed Washington's name, according to court records.
During Howery's appeal, Washington explained his poor performance at sentencing by saying the guilty verdict had left him demoralized and feeling hopeless.
Washington, 69, can be a gifted courtroom speaker. His career highlights include representing one of 10 former Pontiac inmates acquitted in 1981 of murder charges stemming from a prison riot in which three guards were killed. He has won death-penalty cases as well as lost them.
Speaking to a judge in 1984, Washington described the demands of trying capital cases as "the type of pressure that freezes the brain with fear and diminishes the body of a great deal of energy."
"I think each time the defense lawyer battles the electric chair, he dies a little," Washington told the judge.
Over the years, Washington has been losing his eyesight. He compensates through such means as having police reports read into a tape recorder so he can listen to them.
Last year, Washington represented a DuPage County man, Levern Ward, in a grisly triple homicide. Ward was convicted but, unlike his two co-defendants, escaped the death penalty. If that result amounts to a victory for Washington, developments in two other cases the same year count as rebukes.
In March 1998, Rolando Serrano was acquitted of a murder that took place in a Chicago tavern. Serrano had been found guilty and served seven years of a 35-year sentence, but he won a new trial because of an error by Washington, according to court records. Washington failed to ask the judge to instruct jurors that Serrano could be acquitted if they believed Serrano's defense--that he was forced to commit the crime.
And in July 1998, Cook County Judge Daniel Locallo granted Death Row inmate Leroy Orange a new sentencing hearing based upon Washington's incompetence. "At the sentencing phase, he did nothing," Locallo said of Washington, who did not present a single witness when Orange's life hung in the balance.
Locallo's ruling made Washington the only Illinois lawyer since capital punishment's reinstatement to be found ineffective in more than one death-penalty case.
The Orange case had striking similarities to Howery's. Police accused Orange of killing four people in a Chicago apartment in January 1984, then setting the apartment on fire. Washington represented Orange without co-counsel or an investigator.
Prosecutors used a confession to convict Orange. But Orange alleged he confessed falsely after being tortured by police under then-Cmdr. Jon Burge. Orange claimed police used electroshock, squeezed his scrotum and placed a bag over his head. Washington filed a motion to suppress the confession, then withdrew it. Orange said he asked Washington why.
"He said that's going to take too much time and he's not being paid as it is," Orange told the Tribune.
Orange's current attorneys say Washington did not conduct a thorough investigation of Orange's claim about police misconduct. The Chicago Police Department's Office of Professional Standards later determined that systematic torture occurred at the station house under Burge, who was eventually fired.
Washington wound up being paid nothing in the Orange case. After taking the case as a hired attorney, according to court records, Washington asked that Orange be declared indigent so that he could be made court-appointed and get paid by the county. The judge refused.
Neither Howery nor Orange has been resentenced yet.
Shortly before Howery's trial, Washington appeared before the state's lawyer disciplinary commission with his attorney, George Collins, and a group of impressive character witnesses.
Eugene Pincham, who would later join the Illinois Appellate Court, said of Washington: "His reputation for integrity and for dedication to his client (is of) the highest order. Indeed, it is impeccable."
At the hearing, Collins asked Washington, "Do you intend to be a good lawyer?"
Washington answered, "I'll be better than I've been, because I've made some mistakes."
Last summer, the state filed a new set of disciplinary charges against Washington. Those charges, which are still pending, allege that Washington's representation of Howery and Orange amounted to professional misconduct.Copyright © 2015, CT Now