The poorer the defendant, the more guilty they are

Last week, Anthony Ray Hinton was freed having spent nearly three decades awaiting execution on death row in the United States. He had previously been convicted of the 1985 murders of two restaurant managers in Birmingham, Alabama, but thanks to the dogged determination of one non-profit organisation, the Equal Justice Initiative, he has finally been released.

In a case that has been widely reported, bullets collected from the crime scene were found to be the only evidence linking Hinton to the double murder. Yet at a recent retrial, prosecutors explained that by using modern forensic methods, three experts with the Alabama Department of Forensic Sciences had failed to match the bullets to a.38-caliber revolver found in Hinton's home.

How did such a miscarriage of justice occur? Well, according to the US Supreme Court, which ordered his retrial, Hinton had not received adequate legal counsel at the original trial 28 years ago.

While there have been instances of attorneys sleeping through parts of a trial, or arriving at court under the influence of alcohol and drugs, this is not one of those cases. Instead, Hinton's lawyer was under the mistaken belief that his client only had $1,000 to hire a ballistics expert to defend the prosecution's allegations concerning the origin of the bullets.

The only expert willing to take the job was a civil engineer with little ballistics training who, due to only having one-eye, admitted he had difficulty operating a microscope crucial to the examination of the bullets. Unsurprisingly, the expert did not stand up well to cross-examination. So bad was his performance that jurors laughed him out of the courtroom.

The vast majority of defendants in death penalty cases cannot afford legal representation. In such cases, and as anyone familiar with US legal dramas will know, defendants are then appointed a lawyer by the court. Unfortunately many of the appointed attorneys are overworked and underpaid (sound like anyone you know) and, in the most extreme instances, are appointed without the necessary trial experience to defend a capital case.

Court appointed lawyers receive very little recompense for their work, especially during the preparatory stages of a case. By comparison, prosecutors have a much larger budget to play with. In Alabama, for example, the fees available for out-of-court work are capped at a measly $1,000 for defendants. Considering how little money is usually available, is it any wonder Hinton's attorney failed to question the judge's ruling that he was only entitled to a paltry sum of $1,000 for a ballistics expert?

Other than giving me another reason to point an accusing finger at what is supposedly the 'greatest legal system in the world', you might be wondering why I have chosen to write about a 'constitutionally deficient' lawyer and his incredibly unlucky client. Leaving aside the fact that this case involves capital punishment - which the UK finally abolished under all circumstances in 1998 - the truth is we may soon be witnessing some disturbing parallels in our own justice system.

The present Lord Chancellor has paid lip service to legal aid being a 'vital part of our justice system' while essentially putting justice out to tender with only the lowest bidders welcome (regardless of how the MoJ dress it up). Of course, the irony that Grayling is not above using the best QCs the taxpayer can buy to defend various legal challenges is not lost on anyone.

It seems highly unlikely to me that a lawyer will be able to thoroughly prepare a case for trial under the proposed next round of funding cuts due to be implemented this year. And, though I hate to think of the possibility, how many overworked and underpaid practitioners might feel tempted to advise their client to plead guilty just to get that case file off their desk? Even if the lawyer doesn't suggest 'taking a dive', don't forget that the new criminal court charges may also act as an incentive for defendants to tap out early.

It is a shame that there will not be an election debate featuring candidates for the role of next Lord Chancellor. I'd be keen to know what price they would place on justice.

Perhaps Bryan Stevenson, director of the Equal Justice Initiative, who represented Hinton for 16 years, summed it up best when speaking about the US: 'We have a system that treats you better if you are rich and guilty than if you are poor and innocent.'

Are we in for much of the same?

John van der Luit-Drummond is deputy editor for Solicitors Journal

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