There is a fate worse than the death penalty in the US

Death penalty work is also an exception to the general rule that public interest legal work lacks prestige. Graduates of the best Ivy League law schools will often volunteer at these centers, some become addicted to the work and stay on for years. This is great but it means some of the brightest people in the country are lobbying for the broader use of LWP, meanwhile general homicide defense work is at breaking point.

Imagine being poor, living in New York and being charged with a murder that you did not commit. You would probably be unable to make bail and thus will be detained at the famous Rikers Island prison. Unless you are facing the death penalty you will get a lawyer assigned to you by the State. And what a "lawyer" they will be - they probably will not come and visit you at prison at all, nor will they go to the crime scene to investigate, they won't hire a private investigator - even though they could get funds to do so - and forget about expert witnesses like pathologists or psychiatrists. They will probably spend around 20 hours total on the case, that's about what I spend reading personal e-mail every week. For many clients facing life in prison their only face to face contact will be to meet a harried man or woman who advises them to plead guilty, and fast. Of course you could insist upon your innocence, your right to a trial and a chance to clear your name. But with a lawyer who gets paid $25 an hour for work out of court what are the odds of success?

This is the situation exposed by The New York Times when they ran a three-part expose. After studying all of the homicide cases in New York last year they were horrified to discover that most appointed defense lawyers spent less than 2 weeks preparing murder cases. Two thirds of lawyers do not bother to visit their clients, or undertake vital background work like crime scene checks, investigation and finding expert witness. But forget about preparation, a great number even failed to present alibis in court, some were reprimanded in open court for their shoddy work or misunderstanding the basic principle of criminal law. Not surprisingly, The New York Times uncovered a number of stories where the guilt of the convicted defendant seemed extremely questionable.

But these miscarriages of justice get pushed aside while the death penalty machine is in operation. There is no right to counsel at all for an appeal. As a high profile attorney here told me "the reality is that if you are facing death, someone will probably take your case, if you get life you are usually on your own".

Some who are wrongfully convicted may approach the Innocence Projects set up by various law schools to assist imprisoned people with realistic claims of innocence. But they are deluged with applicants. Many focus solely on DNA based claims and, of course, they prioritize death penalty cases. When I tell people here that I am returning to Australia to help start up an Innocence Project in Sydney the normal reaction I get is a perplexed look and then "but you don't have the death penalty". I always think, for so many reasons, Thank God.