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.
- Bernon Howery is awaiting resentencing after his 1991 death sentence was thrown out because of his attorney's incompetence.
- Attorney Earl Washington often showed up late during Howery's murder trial, did little to investigate other potential suspects and produced few witnesses to show why his client's life should be spared.
- 'He never even talked to me about the facts of the case. To me, it's frightening that this man is a lawyer.' -- Bernon Howery, who was sentenced to death for killing four children, about his defense, Earl Washington
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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.