Oklahoma Death Penalty Case Flags Inadequate Defense Funding

    Tulsa Police Chief Wendell Franklin did not want to release the dashcam video of two officers getting shot by David Ware almost two years ago. When a judge ordered him to do so, he spent a press conference spouting opinions like “criminals have more … rights than what you and I do.” He attempted to dispel accusations that his department was misleading the publicdespite admitting that its description of Ware’s behavior “may not be totally accurate.”

    The arrest affidavit said that Ware was pulled over for expired tags. Officers alleged they that told him they would have to tow the car, but that Ware refused to get out, stating the officers were violating his rights. The affidavit claimed he thwarted one officer’s taser by ripping out the shock prongs. It also claimed that officers tried to deescalate the confrontation by using pepper spray.

    Ware’s version of events is different. “This is about a citizen being assaulted by police officers and his right to defend himself,” one of his court-appointed defense attorneys, Robert Don Gifford, told Filter.

    After one of the officers died from his wounds, Ware faces a first-degree murder charge. Tulsa County District Attorney Steve Kunzweiler announced that he is seeking the death penalty.

    During the COVID-19 era, the number of death sentences nationwide has shrunk to its lowest level since the Supreme Court reauthorized executions in Gregg v. Georgia, a 1976 decision. Eighteen new death sentences were issued in 2020, and the same number in 2021.

    But the state of Oklahoma has played a prominent role in keeping capital punishment alive. Only seven states issued any death sentences in 2021, with just two of those—Alabama and Oklahoma—handing down four or more.

    And there’s no likelier reason to be sent to death row than killing a cop. Even Philadelphia District Attorney Larry Krasner, a firebrand reformer who campaigned on never seeking the death penalty, allowed the threat of it to be used as leverage in one case—that of a defendant who killed a police officer, in which a plea bargain resulted in life without parole.

    The motion asserts that Oklahoma’s fee caps for indigent defense lawyers unconstitutionally pit attorneys’ financial interests against clients’ rights.

    Tulsa Police Department’s record lends background support to Ware’s case. Police Scorecard, an organization that evaluates performance on a variety of criteria, ranked Tulsa 435th out of the 500 departments for which it collected data from 2013 to 2020. Tulsa PD was in the top 10th percentiles for use of force, use of deadly force, and unarmed victims of deadly force. And when people complain about misconduct or abuse by the Tulsa PD, they are virtually never listened to. Out of 1,092 civilian complaints, only 2 percent were sustained from 2016 to 2018.

    Ware’s trial is scheduled for April. “Most death penalty cases are not about guilt or innocence, but merely about appropriate punishment. That’s not the case with Mr. Ware,” Gifford said. But beyond planning the case for their client’s innocence, he and co-counsel Kevin Adams recently filed a legal motion asking the trial court to take the death penalty off the table—one with wide implications for a key area of death-penalty injustice.

    The motion asserts that Oklahoma’s fee caps for indigent defense lawyers—at $20,000 for first-chair and $5,000 for second-chair counselunconstitutionally pit attorneys’ financial interests against the vindication of their clients’ rights. After estimating how many hours it would take to provide Ware an adequate defense, his attorneys calculated that they would expect to make less than $20 an hour, which is extraordinarily low for the provision of legal services.

    Academic researchers have previously pointed to the consequences of inadequate defense funding.

    Ware’s attorneys say they will put in the necessary hours regardless. “To be clear, it isn’t about trying to put money in a lawyer’s pocket,” Gifford said. “It’s about ensuring that the few ‘death qualified’ lawyers out there can afford to take on a death penalty case in Oklahoma state courts.”

    Academic researchers have previously pointed to the consequences of inadequate defense funding. In 2017, a group of economists published a paper showing that people represented by court-appointed indigent counsel (private attorneys appointed by courts when public defenders have a conflict of interest) are significantly more likely to face worse outcomes than privately retained attorneys, as well as public defenders. The researchers concluded that this had to do with low fees incentivizing counsel to seek early guilty pleas.

    A 2021 paper from Andrew Lee at the University of Texas-Austin additionally found that when six North Carolina counties moved from hourly rates to flat fees for indigent counsel, defendants were “11% more likely to be convicted and 37% more likely to be incarcerated, a result driven by an increase in guilty pleas.”

    Those studies did not focus on death penalty cases. But worse outcomes for defendants who can’t afford private legal representation would seem particularly intuitive when capital trials are bifurcated into two trials.

    Prosecutors have to first prove that the defendant actually committed first-degree murder, the only death-eligible offense under both Oklahoma and US law. Then, at the penalty trial, they must convince a jury to decide unanimously that the defendant, now considered legally guilty, deserves to die.

    It is usually the penalty trial that requires the most work hours of counsel. To build a convincing case for jurors that their clients are not just their crimes, good capital defense attorneys must spend a tremendous amount of time researching their backgrounds for mitigating evidence.

    It’s not just Oklahoma that can be accused of tipping the death-penalty scales in this way.

    “Courts today routinely authorize funding for hundreds of hours of mitigation investigation in capital cases,” Russel Stelter, the former national mitigation coordinator for federal death penalty projects, once testified. Investigation of this kind, he continued, involves the pursuit of “objective, reliable documentation about the client and his family, typically including medical, educational, employment, social service, and court records.” Jurisdictions that provide grossly inadequate funding for such exhaustive research can easily cost defendants’ lives.

    It’s not just Oklahoma that can be accused of tipping the death-penalty scales in this way. Florida, a state with similarly low fee caps for indigent capital defenders, is currently embroiled in scandal over the issue. Between 2015 and 2020, prolific capital defense attorney Terence Lenamon handled 34 capital cases and was paid about $2.4 million by the state of Florida. That translated to around $100 an hour, but only because he was excessively billing, according to the state’s Justice Administration Commission.

    In addition, when Lenamon represented both Harrell Braddy and Wadada Delhall, he presented mitigation evidence that the state of Florida considers irrelevant to death sentencing, such as adjustment to life in prison and testimony from family members. Permissible mitigating evidence under Florida law includes facts like several mental illnesses or cognitive impairment.

    Proponents of the death penalty often argue that it’s necessary to deter killings of police officers. Research from the Death Penalty Information Center shows that police officers are actually murdered at higher rates in death-penalty states.

    Yet elected prosecutors like Tulsa DA Kunzweiler face especially intense political pressure to seek death in such cases. When Vice President Kamala Harris was the district attorney of San Francisco, she refused to do so for the man who killed Officer Issac Espinoza in 2004. Espinoza’s widow, Renata, blasted Harris, stating “She had just taken justice from us. From Isaac. She was only thinking of herself.” The city police union and some local Democrats joined the pile-on against her. That is the scenario that most elected officials seek to avoid.

    Kunzweiler, whose jurisdiction didn’t impose any of Oklahoma’s death sentences in 2021, has not been among the state’s most aggressive prosecutors in seeking death. But short of a judicial ruling blocking the death penalty in Ware’s case, it is hard to imagine the Republican, who has an anti-reform track record, abandoning it here.



    Photograph of Tulsa County Courthouse by Jimmy Emerson via Flickr/Creative Commons 3.0

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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