ARI SHAPIRO, HOST:
Arkansas has carried out 1 of 2 executions that were scheduled for tonight, part of a series of executions the state wants to do this month before a key drug expires. The courts have put most of the executions on hold, but last week, Arkansas executed Ledell Lee for a 1993 murder. Lee maintained his innocence to his death.
Earlier today, I spoke with Jessica Brand, legal director for the Fair Punishment Project at Harvard Law School. She told me what happened to Lee is part of a pattern of bad representation for defendants around the country. She told me everything went wrong with the way lawyers handled Lee's case.
JESSICA BRAND: He had trial lawyers who begged to get off of his case because they argued there was a conflict. He had a judge who was having an affair with a prosecutor in the case. His first state post-conviction lawyer was drunk in court and literally stated the words blah, blah, blah. His next post-conviction lawyers missed filing deadlines. They had briefs sent back by the court. And then he had a federal post-conviction lawyer who had his license suspended last year because of a mental illness that caused him not to be able to represent his clients.
That's an incredible litany of things to happen in a case, and it meant that only two weeks before his execution did someone finally investigate his life history, his trauma, his mental illness and uncover that he may have had an intellectual disability.
SHAPIRO: How can that many egregious things go wrong in a case where a person's life is literally on the line without anyone flagging it until two weeks before the execution?
BRAND: I think what Ledell's case has shown is what happens in so many of these cases. It's astounding. There is a complete lack of counsel from start to finish in all of these cases. And there are a lot of reasons for them, one of which is, this work is hard. It's grueling, and there aren't a lot of lawyers who do it. And there aren't a lot of lawyers who can do it well. It costs a lot of money to do this well. It costs a lot of time.
And I think Ledell Lee has - his case has really exposed what is the dirty little secret in the death penalty world, which is, this happens all the time. And it happened in the cases that are scheduled for execution tonight as well.
SHAPIRO: Well, I was going to ask about those two men, Marcel Williams and Jack Jones. Is their history of representation as appalling as Ledell Lee, the man who was executed last week?
BRAND: It is. Jack Jones - his case occurred in the '90s. For the first time in 2005, someone presented the extraordinary mental illness that he saw ants and spiders as a child, that there was incredible daily physical abuse in his house, sexual abuse in his house - that's decades after his trial - and the same thing in Marcel Williams's case. No lawyer ever uncovered that his mother was literally pimping him out for food stamps and shelter at the time he was 9 years old.
SHAPIRO: If we assume that the death penalty is not going away but that the process can be fixed, what will it take to fix it?
BRAND: Well, the first thing I would say is, I don't think it can fix it. For 40 years in the modern era of the death penalty, the court has been trying to issue procedural fixes. It's been trying to say intellectually disabled people can't be executed. It's tried to say juveniles can't be executed. It said, you really need a lawyer. And as much as the Supreme Court has tried to fix it, it has completely failed. So I think rather than trying to fix it, it is time for the Supreme Court to recognize its sort of complicity in this system where people don't get counsel is calling into doubt the whole integrity of our judicial system.
SHAPIRO: Is Arkansas much worse than other death penalty states, or is what we're seeing in these cases pretty typical?
BRAND: It's pretty typical. I live in the state of Texas. We are known for our death penalty here. And you see cases after case go up on appeal where the trial lawyers just never did the most basic of investigations.
SHAPIRO: That's Jessica Brand, legal director of the Fair Punishment Project at Harvard Law School. Thanks for joining us.
BRAND: Thanks for having me.
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SHAPIRO: And after we spoke with Brand, the state of Arkansas carried out the execution of Jack Jones Jr.
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