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  Yale Law School faculty member Stephen Bright offered some unsettling ideas to students in Teresa Miller’s UB Law class last month.

By ILENE FLEISCHMANN

Published: May 31, 2012

A longtime Yale Law School professor and opponent of the death penalty recently made a special guest appearance in UB Law Professor Teresa Miller’s “Criminal Procedure” class, provoking a lively give-and-take with students and raising their awareness that justice often is meted out unevenly.

Stephen Bright, who also serves as president and senior counsel for the Southern Center for Human Rights in Atlanta, visited UB Law School as a guest of Tara Melish, associate professor, and Amy Bach, visiting professor. Miller invited him to speak to her class as someone with intimate knowledge of criminal defense work. Bright has represented capital defendants and served as a legal services attorney in Appalachia and a public defender in Washington, D.C. He also has researched the often-poor quality of legal representation afforded to indigent defendants.

For students learning the basics of how a criminal case is tried, Bright introduced some unsettling ideas. For starters, he asserted, the U.S. criminal justice system, especially as it plays out in state and local courts, is deeply biased against people of color. In 2011, he said, 600,000 people nationwide were stopped by the police, and 84 percent of them were African-American.

“The problem is that if you’re a young black man and constantly being stopped and let go, you really have no remedy for that,” he told students. “The criminal courts have been the part of our society that have been least affected by the civil rights movement. A person of color is more likely to be stopped, to have something happen during that stop like a chokehold, arrested at the end of that stop, denied bail when they come to court, harsher charges may be filed, all the way to what sentence is imposed, such as probation versus jail time. We’ve never really come to grips with the fact that so many features of the criminal justice system are part of the racial history of the country.”

Some evidence of that, he said, is that when black citizens are summoned for jury duty in a capital case, most will acknowledge that they would never vote to impose a death penalty because they recognize the death sentence has been meted out disproportionately to African-Americans. Thus, they’re removed from the jury pool, making it much more likely that a person of color, on trial for his life, will face a jury that’s all white or nearly so.

On the quality of legal representation, Bright described case after case in which arrested individuals were supplied almost comically incompetent lawyers. One, for example, used the phone number of the town bar as his contact number; another didn’t show up for direct examination of a witness, but proceeded with cross-examination anyway.

“Your most fundamental right is the right to a lawyer,” Bright said. “You depend upon the lawyer for all your constitutional rights, to conduct an independent investigation, to put on whatever evidence you have. But in most places, poor people accused of crimes are often poorly represented.”

He showed photos and told the stories of some of those ill-served defendants:

• James Fisher, who spent 26 years in custody, most of it on death row, in Oklahoma. Fisher’s initial court-appointed lawyer tried his case and 24 other cases, including another capital case, in a single month. He offered no closing argument and said only nine words in the penalty phase. When a federal appeals court ruled that he had received ineffective assistance of counsel at his trial, his lawyer for the new trial was “arguably even worse than before, a drug addict and an alcoholic.” After a state court again ruled that he had received ineffective counsel, Fisher was finally released.
• Curtis Flowers, who went through six capital trials in Mississippi.
• Anthony Graves, who spent 18 years in prison, 12 of them on death row, in Texas. Graves was exonerated, Bright said, because the prosecutor neglected to turn over exculpatory evidence, in violation of Brady v. Maryland. Graves’ appeals lawyer was fresh out of law school.
• An Alabama defendant named Holly Wood, who had an IQ of 63 but was executed—in contravention of the U.S. Supreme Court prohibition against executing mentally retarded persons—because his lawyers never established that he was retarded.

A further outrage, Bright said, is the problem of justice delayed. He told the story of a woman charged with having a gun in the family car, who was jailed but couldn’t find a lawyer to file a bond application. Her husband, whom she had been transporting to his kidney dialysis treatments, died while she sat in jail; she couldn’t even get out to attend the funeral. A few months later, Bright said, all charges were dismissed.

“She was never convicted of anything, but it’s hard to imagine being punished any more severely than she was,” Bright said. “Having lawyers able to be there right from the start, just for bond motions, is so important.”

Such issues, he said, go to the very heart of the justice system. “If people are going to be lawyers,” Bright said, “no matter what kind of lawyer you are—prosecutor, legislator, big-money lawyer, whatever you are—lawyers ought to take an interest in the criminal justice system and the kind of representation that people get. Because it goes to the legitimacy and the credibility of the system. If you have a system in which people are being represented so poorly, the system is a farce.”