The Florida Bar News  June 15, 1998

Changes continue in death sentence appeals arena
By Mary Smith Judd
Associate Editor
Eleven months after the legislature divided the agency responsible for collateral representation of death-sentenced inmates into three regional offices, whether the change will clear the agency's backlog,remains an open question.
The legislature this year provided funding for private lawyers to take some of the cases, but those close to the problems are not certain that is a workable solution.
Public interest lawyers representing two of the regional offices pro bono, meanwhile, have asked The Supreme Court to stay all executions until the offices are better funded, and to find a right to counsel in capital post-conviction proceedings within the Florida Constitution ,And a stay granted by the court last year for clients of the three then brand new Capital Collateral Regional Counsel office expired June 1.  The stay, granted to give the offices time to get organized, was extended until June 24 in a one-line Supreme Court order issued June 2. The stay affects 85 ofthe 390 inmates on death row. Five inmates have been executed since January 1997.
The two principal complaints heard when the original Office of the Capital Collateral Representative was created in 1985 remain today: The offires are inadequately ftmded and not properly staffed to handle an ever-increasing workload.
The Spangenberg Research Group recently reported the backlog could be cleared in one year if the legislature would appropriate $25 million, the court system could accommodate the cases and experienced lawyers could be found. The research  group has studied the cost of death sentence appeals nationally, and  10 years ago published a Florida study resulting in increased funding for CCR.

· Recent history
CCR was divided into regional offices last July, and appropriated about one point four  million per office, plus additional money to cover transition costs.
The 1998 legislature approved approximately $1.6 million for the Northern District for the coming fiscal year, $2.3 million for the Middle District and Sl.7 million for the Southern District.  The  budgets include atout $176,000 for six new positions each. Another $500,000 has been appropriated for contract counsel among the office.

Capital Collateral Regional Counsels have been named by the Governor and confirmed by the Senate for the northern and middle regions.  The nominee for the southern region withdrew his  name after failing to receive the recommendation of the senate  Executive Business, Ethics and Elections Committee. The application period for the post closed June 11. Six applications had been recieved when this News went to press June 5.  "The changes have been challenging"  said Northern District Counsel Gregory Smith, the first regional counsel appointed.  'It's starting to be a little more stable and predictable. But this is not the kind of law where you can always tell what's around the corner, ~When I lost all my people, I went to the court and said,'l can't live up to this, he recalled. 'I never would have guessed I would be going from crisis to crisis.'
Smith said the stay has given his office time to hire staff and begin to gets handle on its caseload. His office is handling 63 active cases with 17 cases referred for conflicts or other reasons.
'Finally, I have all the positions filled and I have an excellent, but inexperienced, team,' he said.
" The stay is helping, "Smithsaid. "But I can't catch up with the current staffing.'
Smith said he is hopeful that a new law defining procedures for hiring pnvate counsel will ease some of the congestion in the offices. 'We'll have to see,' he said.
 

'If the state were to fund the CCRCs with S25 million, if 137 lawyers plus the current 27 CCRC lawyers were in place on July, if all of these lawyers did nothing other than work on these 128 backlog cases, and if the state judicial system could accommodate them, this work could be accomplished in about one year.'

At the request of the regional counsel, Holland & Knight's pro bonos coordination office began looking at the funding and stalfing problems last winter.
"They decided this was a train wreck and were of the opinion that we had far more cases than we could reasonably handle,' Smith said. The law firm, at an undisclosed but 'substantial' cost, hired the Spasgenberg Group - the research firm that 10 years ago performed a caseload/workload study of CCR for the ABA Information Program.
The group concluded that 3,100 hours would be required to takes capital case through the state postconviction process.
"We have reviewed these figures numerous times, trying to find ways to be more and more conservative in our analyis"  the new report said. "The focal point of our reassessment has centered on the 3.850 shells.' The report defines 'shells' as means of protecting the capital client against the risk of being procedurally barred from obtaining substantive postconviction reriew of his conviction and sentence.  The group determined 128 of the 270 cases active in the postconviction process are bottlenecked.
"We have concluded that it would take 164 full-time lawyers to complete the state post conviction process in these 118 cases, the report said. 'If the state were to fund the three CCRCs with $25 million, if all of of the additional 137 lawyers plus the current 27 CCRC lawyers required to do this work were in place on July 1,1998, if all of these lawyers did nothing other than work on these 128 backlog cases, and if the state judicial system could accommodate them, this work could be accomplished in about one year.
The report said the work should be co ordinated by the CCRCs  because capital appeals are too time- consuming and specialised for massive employment of the private sector on a one shot basis.  The 1995 closing of the federally funded Volunteer LegalResource Center, which assisted volunteer lawyers in collateral appeals, 'means that private counsel who take on these cures no longer have an organization to which they can turn for support and technical assistance,' the report said.
One of the most vocal advocates for using private lawyers to relieve the agencies is Sen. Locke Burt, R-Ormond Reach, the Senate representative to a special 1996 legislative study panel chaired by former Chief Justice Parker Lee McDonald that looked at the problems surrounding CCR. The panel's recommendations led to the creation of the regional offices.
Burt recalled asking former CCR Michael Minerva and others during the hearings how many lawyers would be needed to clear the backlog, and said estimates were much lower than the Spangenberg estimates.
Burt now serves on the oversight committee to which the regional counsels report quarterly, and this year sponsored a bill establishing procedures for paying private attorneys to assist the CCRCs.
'lt's just unacceptable that you have 40 guys on death row who don't have lawyers,' he said. "The last time I looked there were a lot of lawyers looking for work.'
A new law provides that private lawyers representing death-sentenced inmates in collateral proceedings may be paid $100 an hour up to a $64,000 maximum. Fla. Laws Ch. 98-t98 provides an additional $20,000 per case for investigatare and expenses, Burt said.
Holland & Knight probono department head Stephen Hanlon, who along with Nina Zollo and West Palm Beach lawyer James Green filed the petition to stay executions pending full funding, said lawyers considering taking a case should be cautious.
"They are monster cases,' Hanlon said. 'And there are very few who are qualified to do the work.'
Collateral appeals in a capital case average four times the amount of time as any other criminal appeal, he said - a point not taken by the legislature, according to the appellate team's brief.
"This historic failure of the legislature to adequately fund these agencies has culminated in a post conviction representionn crisis that undermines the efficacy of this count's efforts to provide consistency, fairness and reliability in our capital punishment system,' the brief said.
"The court has studied this problem, 'committeed' this problem, pretty much taken every step that they could short of ordering the legislature to develop a rational funding formula,' added Green, who began defending capital cases in 1976 and has written extensively on the problems that plague the current system.
He said he was motivated to join Hanlon and Zollo by 'the frustration that all lawyers and members of the judiciary feel about the inadequacy of staffing and funding of lawyers at the back end.'
Better support for defense counsel at trial could substantially  reduce errors, and thus reduce litigation at the post-conviction level.

Public Records
Absent from complaints of the regional offices are criticism about funding for conflict cases or a newly instituted method of obtaining public records.
'The fact is,I think we're working okay.  The offices have been very open and willing  to take conflict cases' Smith said. 'The offices all operate on very different philosophies. It's proper for us  to keep some distance.'
  CRC lawyers alsohave long complained about extensive delays in getting needed public records. Assistant attorneys general working on capital cases also have complained that CRC counsel use massive and far-reaching public records requests to slow the process.
CCRC offices hope a new law creating a capital records repository with the Secretary of State's office will eliminate much of the friction. All state agencies with pertinent records are required to copy and file them with the office and submits certificate of compliance to the Attorney General's Office. CCRC and the AG will have open access to the records.
'I think everybody agreed it was a step forward ' said Sen Burt, who sponsored the bill establishing the repository.
"That process has real potential to streamline the process ' Smith agreed.
"The only way to protect my clients' rights is to ask for anything,' said assistant CCRC Michael
Reiter of the middle region.   'Most of these cases will consist of 50, 60, 70 boxes of paperwork.  How in the world  can I know I know whats in those  boxes till I get them?
Reiter an applicant for Southern Region  CCRC said he is hopeful the Middle Region's
second year will run smoother than the fest. "The legislature didn't give us any additional money for the 97-98 year which made the situation very tentative, plus, with a lot of lawyers lessnig, it teek some time to build the office back up."  he said. The legislature gave the office $2,278,000 for 1998-99, he said, adding, 'I believe we can operate within that budget.'

Wanted: Experience

FS27.704 sets criteria for full-time assistant collateral counsel -- three or more years' experience in criminal law at least five felony jury trials, felony appeals, or capitol post conviction evidentiary hearings.
The Associated Press recently reported only 14 of the 27 lawyers working in the three offices meet the state's standards. Only six have ever handled a post conviction capital appeal.
Reiter disagrees with others who say collateral appeals in capitol cases require more experience than other criminal appeals, but said the statutory criteria makes hiring a little more difficult and a little more costly
Hanlon disagrees. "There is an alarming rate of error in federal habeas - eight times the rate of reversal in other cases, he said.  The rate of reversal in other appeals is about five percent, he said.
"The courts just need well-funded lawyers,' he said.'Otherwise, we have the most  dangerous thing of all - the illusian of a 'lawyer.'
 

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