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COLUMN LEFT / ROBERT SCHEER : Equal Justice: $11.75 an Hour vs. $1.5 Million : In the end, life or death hangs on how much the lawyer is paid.

February 19, 1995|ROBERT SCHEER | Robert Scheer is a former Times national correspondent

Don't you just love the O.J. Simpson trial? The judicial process is so thorough and fair. There are background checks of witnesses by private investigators, evidence is carefully evaluated by experts and the defendant gets his day in court because counsel performs so effectively. And the ever-fair prosecutors have already agreed to spare us the grisly prospect that our former idol will be gassed.

Thanks to nauseatingly detailed media coverage, people worldwide now learn just how decent the American judicial system is when an accused murderer can come up with $5 million to pay for his defense.

When one can't, it's a very different story. But fortunately for our image, few will ever read "The Machinery of Death," a new report by Amnesty International. This is the organization that everyone respects when it criticizes human-rights practices in other countries. But this report is billed as "a shocking indictment of capital punishment in the United States" and as a result, it has been ignored.

Amnesty estimates that 23 innocent people have been executed in the United States in this century.

In many capital cases, the entire record is less than an inch thick; in some instances, the court-appointed lawyers were drunk and had trouble remembering their clients' names.

These defendants offered slim possibility for gossip shows or movie deals. Many had such limited intelligence that they could barely comprehend their circumstances, let alone complain effectively about improper representation. Remember Rickey Ray Rector, whose brain damage was so severe that he planned to eat his dessert after his execution? Presidential candidate Bill Clinton broke off campaigning in New Hampshire to rush home to witness Rector's execution.

Democrats, cowards too often, now zealously compete with their Republican rivals in enthusiasm for a practice not sanctioned by other Western countries. In Texas, Democratic Gov. Ann Richards tried desperately to prove she was a better executioner then her opponent. She probably was; Texas leads the nation in executions.

In some rural Texas counties, lawyers for indigent clients in capital cases often receive no more than $800 to prepare the entire defense.

Throughout the Southern Death Belt, where most executions occur, the story is sadly the same. In Alabama, the state pays lawyers $20 an hour with a limit of $2,000 to prepare a death-penalty case. Mississippi pays $11.75 an hour. In Kentucky, the cap is $2,500. In comparison, in Los Angeles, the Menendez brothers spent $1.5 million on their first trial before running out of money; for the retrial, the county will pay Erik Menendez's attorney no more than $200,000.

In a recent Yale Law Journal article, professor Stephen B. Bright observed that "In some jurisdictions, the hourly rates in capital cases may be below the minimum wage." The ultimate sentence, as he puts it, is "not for the worst crime but for the worst lawyer."

Can you imagine the networks' talking-head lawyers commenting on a capital case in which the entire defense bill came in at an amount less than the cost of the suits they're wearing?

Since the people who end up on Death Row are generally those with the poorest counsel, it is not surprising that 40% are black. But it is not just a matter of economics. Racial prejudice is a big factor. Since 1977, 85% of those executed were convicted of killing white people. Yet during that same period, nearly half of all homicide victims were black.

Who cares, you might be saying at this point, as long as the murder rate goes down. But it doesn't. The states that permit executions have twice the murder rate of those without the death penalty. Countries that shun the death penalty have far lower murder rates than we do.

The death penalty is irrational--a crime of passion by a society that continuously celebrates violence in every aspect of its culture but is then surprised by its prevalence. Take the case of O.J. Simpson, who became a hero by doing the one thing this society most enthusiastically encourages young black men to do--pound other black men as a sport. I don't know if Simpson is innocent or guilty. But it's obvious that a black man without his money up against a fraction of the evidence already presented in this case would be, in many parts of this country, on Death Row.

It is sickeningly irresponsible for the media to claim that coverage of the Simpson trial is valuable because it instructs the public about the normal workings of the legal system. As the Amnesty International report amply documents, the justice system in this country more typically is a killing machine aimed at indigent defendants--guilty or not.

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