first_img March 1, 2003 Jan Pudlow Associate Editor Regular News The pros and cons of privatizing death penalty appeals Associate Editor“Florida is without any doubt the No. 1 state in this country for its post-conviction proceedings in death penalty cases,” Chief Justice Harry Lee Anstead told the House Select Committee on Article V.“We are called constantly by other states, and it’s all because the legislature has created and funded a system that assures high quality review in those cases.”Sitting in the audience was retired First District Court of Appeal Judge Charles Miner, who chairs the Commission on Capital Cases.“If we have the model system in the country, why in the name of dollars and cents are we going to change it?” Miner asked with frustration.Yet big change is exactly what Gov. Jeb Bush and Attorney General Charlie Crist want to bring by abolishing three regional offices of state lawyers who handle death penalty appeals, called Capital Collateral Regional Counsel, and replacing them with a network of private attorneys.Brad Thomas, an aide to Bush and a former state prosecutor, told the House Subcommittee on Judicial Appropriations that by privatizing death penalty appeals, lawyers would save the state $3.8 million.“It’s an excellent opportunity, the governor believes, to ensure prompt and efficient representation for those inmates. It is not a reflection of the work being done by the capital collateral agencies,” Thomas said. “It is merely a budget decision.”It’s a bad budget decision, others warn.“I want to let you know that the proposal to eliminate the three offices of the capital collateral representatives is, in my opinion, a poor idea, which, if accepted by the legislature, will increase costs and delay the processing of post conviction cases,” Locke Burt, a former senator who once chaired both the Commission on Capital Cases and the Senate Judiciary Committee, wrote in a letter to Sen. Rod Smith, D-Gainesville, chair of the Senate Appropriations Subcommittee on Article V and Judiciary.“.. . If there’s one thing we’ve learned over the last several years, it’s with any change to the system you create additional litigation, additional cost, and additional delay.”Currently, 50 capital collateral attorneys and 48 support staffers in offices around the state represent 218 death row inmates. Another 133 private lawyers are available on the registry to handle the overflow. Currently, 60 registry attorneys have been appointed to represent 71 death row inmates, with a budget of about $1.5 million.Judge Miner helped draft the statute establishing the private registry and the repository involving lawsuits about public records. He saw firsthand the voluminous records involved in a death penalty appeal when he sat on the Supreme Court as a specially appointed justice for the case of Willie Darden, who was executed in 1998 for a 1973 murder.“They had to send a panel truck to my house with the files,” Miner recalled.He invites proponents of the governor’s plan to do the math:Each case presently represented by the state lawyers involves about 25 boxes of documents – some as many as 40 boxes.Each box requires approximately seven hours just to read in order for a new attorney to get up to speed on the case, estimated Mike Reiter, of the Capital Collateral Regional Counsel North. That means 218 cases with 25 boxes at seven hours of review per box will require about 38,150 hours of review. New attorneys at $100 an hour will expect to be paid $3.8 million just to read the files.When adding in $2,500 per case due a registry lawyer upon appointment, and paying leave liability to dismiss state CCRC lawyers, Reiter estimated the total cost of $4.76 million to shut down the CCRCs and transfer cases to private lawyers.And that’s assuming there are enough private attorneys to take these demanding, complicated, emotionally wrenching cases where a client’s life is on the line, Miner adds.“There are not enough private lawyers to take these cases to begin with,” Miner said. “I made the calls when the registry was first created, calling all over Florida, asking lawyers to please be on this registry.. . . These cases are never over. Once you find a lawyer willing to take a case, he or she knows it could go on years and years. And if you have a general practice, you’re going to attend to the cases that put grits on your table first. You can’t wait until the state pays you.”While Thomas said current CCRC lawyers would be given preference as private registry lawyers so they could put their specialized death appeals expertise to good use, Reiter countered that in the CCRC North, he’s the only attorney in the office who is in a position to do so. Six lawyers on his staff are still in training and not qualified to take cases solo, Reiter told the Senate Article V Appropriations Subcommittee, and another eight or nine lawyers on his staff who are qualified “say they have mortgages and a family and they’ve got to have a job and will not take these cases.”Another problem, Reiter said, is that only 48 of 133 lawyers on the private registry are qualified to practice in federal court.“When it gets to federal court and it’s not one of the 48 qualified, it stops right there,” Reiter said.What the state pays private lawyers who agree to handle death appeals is a matter of further debate. The state pays private attorneys $100 an hour with a cap of $84,000 for legal fees and $30,000 for other costs, such as expert witnesses. In Bush’s $54-billion budget proposal, he recommends spending $5.8 million on private lawyers next year.“Responsible representation in death-penalty cases takes far more hours than the state claims,” according to a recent St. Petersburg Times editorial with the headline “A False Economy.”Neil Dupree, of CCRC South, said the 715 hours in attorney time the state allowed for these cases doesn’t cover the commitment of time actually required to do a competent job, backed up by a reliable study that says it takes about 3,100 hours to provide effective representation to death row inmates. Another concern is that there are no private attorneys on the registry who have handled a death penalty appeal from start to finish.Because what the state is willing to pay private lawyers doesn’t cover the true costs involved, Tallahassee attorney Mark Olive has filed his second lawsuit challenging a law that enforces the fee limit. Last year, the Florida Supreme Court upheld the 1998 law creating the registry, but agreed with Olive that the state cannot impose a limit on what the attorneys are paid, ruling trial judges may approve additional payments when justified. The legislature then passed a law requiring that any lawyer who goes above the limits set by state law be removed from the registry.Thomas, the governor’s aide, told the House Subcommittee on Judicial Appropriations that registry lawyers “get paid when the work is done. That has been very successful.”Two days later, Thomas told the Senate Article V Appropriations Subcommittee that Florida has invested $70 million in the CCRC system and delays have doubled.“What was taking eight years to resolve in 1980 is now taking 14, 16, even 20 years overall,” Thomas said. “The governor is extremely disappointed and frustrated that it takes 15 to 20 years for death penalty cases to be resolved.. . . The registry cases I’ve looked at, when lawyers are paid to perform work, that work gets performed very promptly.”But there is concern at the Commission on Capital Cases that no one can compel a private lawyer to move a case along if it languishes. One death case was assigned to a private lawyer, who upon seeing the voluminous files, bailed out of the case. A second private lawyer did the same thing. A third private attorney finally filed the first pleading after four years.While the Commission on Capital Cases “can ride herd over CCRC lawyers,” Judge Miner said, with private lawyers “the best we can do if it looks like they are stalling on a case is contact the chief judge who may or may not do anything.”In his letter, Burt agreed, saying, “The legislature simply cannot supervise or control 350 private attorneys. You can supervise and directly influence three CCRCs that are subject to Senate confirmation.”A November 21 report from the state Office of Program Policy Analysis and Government Accountability backed that up by giving high marks to the CCRC offices for “accountability and performance,” but said the registry “lacks the financial and performance accountability of the regional counsels.”Rep. Joe Negron, R-Stuart, an attorney and chair of the House appropriations subcommittee, asked whether it wouldn’t be better to have someone outside the system representing death row inmates, rather than the current “situation where the state is trying to execute a person, while that person is relying on an agency of the entity trying to execute him.”“That was discussed and that is part of the rationale for creating the registry,” Thomas responded. “Lawyers in Florida have a long and proud history of protecting the accused.”Rep. Jack Seiler, D-Ft. Lauderdale, also an attorney, worried that “if we have a couple of bad cases involving the registry, we will have an Illinois situation,” referring to Illinois Gov. George Ryan finding so many problems with the fairness of the death penalty that he called for a moratorium, and emptied death row by commuting 167 death sentences to life in prison before he left office in January.Thomas responded by giving the positive example of private attorney Baya Harrison who agreed to take on the death penalty review of the Danny Rolling case for the 1990 murders of five college students in Gainesville.Private lawyers, Thomas said, are “bound by the canons of professional ethics,” that registry lawyers “are men and women of integrity” and the state can “reduce the cost in half and maintain excellent representation.. . . The governor is committed to two principles: reducing the delays and that people convicted and sentenced to death have prompt and zealous representation.”While agreeing with the governor’s goal, Rep. Dan Gelber, D-Miami, a member of the Commission on Capital Cases and a former federal prosecutor, concluded an op-ed piece for newspapers with this warning: “It won’t do to return to a time when death row inmates often lacked counsel or had inept representation. To assume that privatization will cut costs is arrant speculation, especially when an unintended consequence could be even longer and unnecessary delays. The state shouldn’t gamble on this one.”Larry Spalding, a lawyer for the American Civil Liberties Union, remembers well Florida’s failed system of representing death row inmates. He represented two of the first inmates on Florida’s death row in the ’80s and was the first director of the state office of death row lawyers, created by the legislature in 1985 after the courts blocked executions because inmates did not have appeal attorneys.Spalding told the legislators about the difficulty in recruiting private attorneys to take death cases.“There’s a big difference in being an attorney and having an adverse civil judgment entered against you. When you are a CCRC attorney or a registry attorney and you lose, your clients die. Many attorneys cannot handle that a second time,” said Spalding. The time commitment of years and years to do an appeal properly, he added, is not because death appeals lawyers are dragging their feet.Rudolph Holton was recently released from death row, Spalding noted, after it took eight years to finally receive crucial exculpatory information from law enforcement. Twenty-five inmates have been freed from Florida’s death row in the last 30 years Spalding said, and two more are expected soon after DNA testing results.At a recent news conference for Alternatives to the Death Penalty, Juan Melendez, who was freed last year after spending nearly 18 years on death row, said he is a living example of what is wrong with capital punishment and what’s right with CCRC.“If it wouldn’t have been for CCRC,” Melendez said, “I would have been a dead man today.” Senior Editor Gary Blankenship contributed to this report. The pros and cons of privatizing death penalty appealslast_img

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