This line of argument is so common in capital appeals that it is almost standard procedure. Unfortunately, it is true that many defendants are sentenced to death and ultimately executed as a result of poor quality representation. However, there are different ways this can occur.
The American Bar Association (ABA) recently highlighted the case of Abu-Ali Abdur'Rahman, who was sentenced to death despite being represented by a highly competent, experienced lawyer, simply because the lawyer took on too many cases and did not have the time to prepare all of them adequately. Consequently, crucial mitigating evidence was not presented to the jury, relevant witnesses were not called and the defence made no effort to counter the version of events presented by the prosecution. Following the trial, the Tennessee Coalition to Abolish State Killing reported that eight jurors had signed affidavits expressing their outrage at the failures of the defence. In an interview for the ABA Journal, the lawyer acknowledged that he had been unprepared for trial and should not have taken on the case in the first place.
A case from January 2011 highlights the problems at the other end of the scale. Leroy White was represented by a court-appointed lawyer. The first lawyer was suspended and replaced by a corporate lawyer who had never been in a courtroom before. This lawyer misunderstood the law as it applied to White’s case, rejected a plea bargain, failed to enter an adequate defence and missed critical deadlines in the appeals process. He then withdrew from the case without informing his client.
A number of different studies and investigations further attest to the poor quality of representation provided by court-appointed lawyers. An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates has been represented at trial or on appeal by court-appointed lawyers who have been disciplined for professional misconduct at some point in their careers ("Quality Of Justice" Dallas Morning News, September 10, 2000). Another investigation in Texas, by the Texas Defender Service found that, "Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard." (Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts Texas Defender Service, 2002).
Despite an overall disbarment rate of less than 1%, a Washington study found that one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested (Seattle Post-Intelligencer, Aug. 6-8, 2001). According to a separate investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, "an attorney who had been, or was later, disbarred or suspended - disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away." (Ken Armstrong and Steve Mills, "Inept Defenses Cloud Verdict," Chicago Tribune, November 15, 1999). Finally, in North Carolina, at least 16 death row inmates, including three who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct (Charlotte Observer, Sept. 9, 2000).
The most famous case in relation to ineffective assistance is undoubtedly that of George McFarland, whose case highlighted the issue of sleeping lawyers:
"The Constitution says that everyone's entitled to the attorney of their choice. … The Constitution doesn't say that the lawyer has to be awake."
District Judge Doug Shaver, McFarland v. State of Texas (1992)