Contents

  • Letter to Legislator
    		•
  • ABA Guidelines
    		•
  • 1997 Florida Statutes
    		•
  • Excerpt: Florida Bar News
  • Media - Tallahassee
  • Media - St Petersburg Times
    		•
  • Report on Justice in Capital
         Cases
    		•
  • Fight Over Limits on Pay,
         Hours
    		•
  • Criticism of Caps
    		•
  • Membership Request Form
    		•
    All Newsletters
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    March 2003

    WORKING TO MAINTAIN AND IMPROVE LIVING
    CONDITIONS FOR DEATH ROW IN FLORIDA

    PRIVATIZATION OF ATTORNEYS
    Special Edition – April 2003

    Prior to 1985, Florida relied on a system of volunteer attorneys to represent death row inmates in the intricate and exacting process of postconviction appeals. CCRC was created after the courts blocked executions because inmates did not have attorneys for appeals. Florida leads the nation in exoneration of the wrongfully convicted. Exoneration does not mean that a sentence is overturned due to a technicality. Exoneration means that the party was proven not guilty of the crime to which they had been sentenced to death row. Florida has exonerated 25 of its former death row prisoners.

    We the People, who find guilt and innocence in the trial phase are human. We make mistakes ...mistakes that can be directly attributed to the complex legal games that are played out in conviction processes. Former Deputy Sheriff Dan Joseph of California stated “ . . . cops like anyone else are competitive people. Some are willing to be creative when they feel it necessary to make sure that those they feel are guilty are punished. They are willing to alter evidence or create evidence where none existed. They are willing to withhold or throw away exculpatory evidence. It exists at all levels of law enforcement, not just local or state.”

    There are documented allegations of defense lawyers in death-penalty cases who slept during the trial or showed up in court under the influence of alcohol. In North Carolina, an attorney who was “ . . . generally considered the best trial lawyer” among the federal prosecutors in his area, deliberately missed a deadline for filing an appeal of a death row sentence, sabotaging his client’s postconviction process. The attorney’s statement was “I decided that (my client) deserved to die, and I would not do anything to prevent his execution.” (Sara Rimer; New York Times; Nov. 2000)

    CCRC deals its share of problems, including under staffing and insufficient funding to cover the ever increasing case load. To its credit, the lawyers it employs are known for their stubborn aggressiveness and recently, for a string of incredible successes in overturning death sentences. They are continually on the verge of being shut down, as the very system that employs them, is the system they are fighting against. It is a testament to their integrity and professionalism that these individuals maintain in such daunting conditions.

    Governor Bush has in the past, praised and defended CCRC. We are left to wonder, why the abrupt about face. The Governor’s first stated goal in capital cases is “that every convicted murderer sentenced to death must be assigned professional, ethical and competent legal representation.” Is there a goal for the wrongly convicted, 25 of whom would be dead if the intended goal of implementation of death were achieved within 5 years of conviction?

    The Commission on Capital Cases, which has several strong supporters of the Death Penalty has given privatization mixed reviews. Commission analysts’ project that closing CCRC would cost over $300,000 in leave time pay, and that paying private attorneys to learn the new cases would cost up to an additional $3.8 million. This leaves some to wonder, if money is the bottom line issue of the proposal to close CCRC, or if it is the deeper political embarrassment associated with leading the Nation in wrongful convictions.

    It is not our intention, to malign registry attorneys’ capabilities or intent. Our purpose is to focus on the repercussions of the States proposal.

    Is CCRC the greatest thing to happen since the invention of the wheel? No, but CCRC is not a broken wheel. Their success rate in wrongful convictions cannot be argued. If their purpose is to intervene in a broken system, as noted by experts during the last decade, then would we not be in error, to disband CCRC? Are we fearful, as We the People, to learn, that we have made mistakes that may result in the execution of innocents? We must search our hearts and decide if we are to allow the State to disband the CCRC offices.

    Please write to your Senator or Representative, expressing your concern about the impending legislation. A suggested guideline follows. Be sure to check the spelling of your Legislator’s name. The Negotiators in both the House and the Senate begin debate next week on this issue. Time is of the essence.

    The Honorable ________________ or Senator ____________________
    The Capitol
    Tallahassee, FL 32399-1300.

    April 18, 2003

    Grassroots concern is growing, that the pending legislation to privatize the death row appellate process will not lead to the handling of cases “in a more professional, timely and cost-effective manner” as suggested by Governor Bush. There is significant reason to believe, that effective counsel cannot be administered under the stipulations and limitations in billable time, that govern the Registry Attorneys.

    Registry attorneys in post conviction capital collateral proceedings must meet the requirements set forth in Statute 27.710. These requirements include: three years practice of criminal, participation in a combination of five felony trials, felony appeals or capital post conviction evidentiary hearings, and to be a member in good standing of the Florida Bar.

    The Commission on Capital Cases website currently lists 135 attorneys who have been approved as Registry Attorneys. There are 60 listed attorneys who expressed interest in taking cases in the Eighth Judicial Circuit. According to information on the Florida Bar Association website, 14 are listed as board certified in Criminal Law; 7 are board certified in Appellate Law, with only 3 being board certified in Criminal Appellate Law; 1 is board certified in Workers Compensation law; and the remaining 38 are not board certified. Of this median group of 60, 1 is not listed as a member in good standing of the Florida Bar; 1 is currently a Public Defender; 2 are not accepting new clients; and 3 live and practice in the States of New York, Illinois, and New Mexico. These statistics do not meet Florida’s own standards for Postconviction attorneys.

    In 1989, the American Bar Association released the Guidelines for Appointment and Performance of Counsel in Death Penalty Cases. Attached, are the postconviction guidelines for qualification for attorney, compensation, and standards. As of July of 2000, 6 cases of private attorneys neglecting deadlines that would allow their clients claims to be heard in Federal Court had been documented. Others, had filed motions so incomplete that the ABA described the works as “non-motion”.

    When Jim Smith, a key proponent in the creation of the Office of capital Collateral Appeals in 1985, was asked recently about the Governor’s proposal to abolish CCR, he frowned and said, “I think it’s a bad mistake.” One hundred and seven people in twenty-five states have been exonerated since the death penalty was reestablished in 1978. Of those, twenty-five have been in Florida. That is 24% of the nations exonerated, and 6% of the current population of Florida’s death row. If even one of this six percent is a wrongful conviction, would that life be worth the estimated budgetary savings that putting their appeals in the hands of possibly ineffective counsel would bring?

    Justice, cannot exist, if even one instance of injustice is allowed to exist. Please consider this information carefully before casting your vote AGAINST the proposal to defund CCRC. Governor Bush wants to save $4 or $5 million by removing an effective state agency. Please also consider that Florida could save more than $51 million annually by abolishing the death penalty and depending exclusively on life without the possibility of parole.

    Thank you for taking the time to read of our concerns.

    Sincerely,

    American Bar Association
    Guidelines for the
    Appointment and Performance of Counsel
    in Death Penalty Cases
    February, 1989

    …In cases where the death penalty is sought, two qualified trial attorneys should be assigned to represent the defendant. In cases where the death penalty has been imposed, two qualified appellate attorneys should be assigned to represent the defendant. In cases where appellate proceedings have been completed or are not available and the death penalty has been imposed, two qualified postconviction attorneys should be assigned to represent the defendant.

    II. APPEAL

    1. Lead appellate counsel assignments should be distributed to attorneys who:

    1. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice: and

    2. are experienced and active trial or appellate practitioners with at least three years experience in the field of criminal defense; and

    3. have prior experience within the last three years as lead counsel or co-counsel in the appeal of at least one case where a sentence of death was imposed, as well as prior experience within the last three years as lead counsel in the appeal of no fewer than three felony convictions in federal or state court, at least one of which was an appeal of murder or aggravated murder conviction; or alternatively, have prior experience within the last three years as lead counsel in the appeal of no fewer than six felony convictions in federal or state court, at least two of which were appeals of a murder or aggravated murder conviction; and iv. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and

    4. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the appeal of cases in which a sentence of death was imposed; and

    5. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
    3. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial and/or appellate experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:

    1. Experience in the trial and/or appeal of death penalty cases which does not meet the levels detailed in paragraphs A or B above;

    2. Specialized post-graduate training in the defense of persons accused of capital crimes;

    3. The availability of ongoing consultation support from experienced death penalty counsel.

    Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent representation.

    III. POSTCONVICTION

    Assignments to represent indigents in postconviction proceedings in capital cases should be distributed to attorneys who:

    1. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

    2. are experienced and active trial practitioners with at least three years litigation experience in the field of criminal defense; and

    3. have prior experience as counsel in no fewer than five jury or bench trials of serious and complex cases which were tried to completion, as well as prior experience as postconviction counsel in at least three cases in state or federal court. In addition, of the five jury or bench trials which were tried to completion, the attorney should have been counsel in at least three cases in which the charge was murder or aggravated murder; or alternatively, of the five trials, at least one was a murder or aggravated murder trial and an additional three were felony jury trials; and

    4. are familiar with the practice and procedure of the appropriate courts of the jurisdiction; and

    5. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the postconviction phase of a criminal case, or alternatively, a program which focused on the trial of cases in which the death penalty is sought; and In addition to the experience level detailed above, it is desirable that at least one of the two postconviction counsel also possesses appellate experience at the level described in 11.B. above (relating to appellate co-counsel).

    2. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial, appellate and/or postconviction experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:

    1. Experience in trial, appeal and/or postconviction representation in death penalty cases which does not meet the levels detailed in paragraph A above;

    2. Specialized post-graduate training in the defense of persons accused of capital crimes;

    3. The availability of ongoing consultation support from experienced death penalty counsel.

    Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent representation.

    GUIDELINE 10.1 COMPENSATION

    1. Capital counsel should be compensated for actual time and service performed. The objective should be to provide a reasonable rate of hourly compensation which is commensurate with the provision of effective assistance of counsel and which reflects the extraordinary responsibilities inherent in death penalty litigation.

    2. Capital counsel should also be fully reimbursed for reasonable incidental expenses.

    3. Periodic billing and payment during the course of counsel's representation should be provided for in the representation plan.

    GUIDELINE 11.2 MINIMUM STANDARDS NOT SUFFICIENT

    Minimum standards that have been promulgated concerning representation of defendants in criminal cases generally, and the level of adherence to such standards required for non-capital cases, should not be adopted as sufficient for death penalty cases.

    1997 Florida Statutes 27.710, 27.711 and 27.704(2): Governing Registry Attorneys

    1. Contract with private counsel who are members in good standing of The Florida Bar or with public defenders for the purpose of providing prompt and cost-effective representation for individuals who are sentenced to death in this state. A private counsel or public defender under contract with the regional counsel must have at least 3 years' experience in the practice of criminal law, and, prior to the contract, must have participated in at least five felony jury trials, five felony appeals, or five capital postconviction evidentiary hearings or any combination of at least five of such proceedings

    2. An attorney appointed to represent a capital defendant is entitled to payment of the fees set forth in this section only upon full performance by the attorney of the duties specified in this section and approval of payment by the trial court, and the submission of a payment request by the attorney, subject to the availability of sufficient funding specifically appropriated for this purpose. The Justice Administrative Commission shall notify the executive director and the court if it appears that sufficient funding has not been specifically appropriated for this purpose to pay any fees which may be incurred. The attorney shall maintain appropriate documentation, including a current and detailed hourly accounting of time spent representing the capital defendant. The fee and payment schedule in this section is the exclusive means of compensating a court-appointed attorney who represents a capital defendant. When appropriate, a court-appointed attorney must seek further compensation from the Federal Government, as provided in 18 U.S.C. s. 3006A or other federal law, in habeas corpus litigation in the federal courts.

    3. Upon approval by the trial court, an attorney appointed to represent a capital defendant under s. 27.710 is entitled to payment of the following fees by the Comptroller:

      1. Regardless of the stage of postconviction capital collateral proceedings, the attorney is entitled to $100 per hour, up to a maximum of $2,500, upon accepting appointment and filing a notice of appearance. This fee is in the nature of a fee for a retainer agreement.

      2. The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the trial court the capital defendant's complete original motion for postconviction relief under the Florida Rules of Criminal Procedure. The motion must raise all issues to be addressed by the trial court.

      3. The attorney is entitled to $100 per hour, up to a maximum of $10,000, after the trial court issues a final order granting or denying the capital defendant's motion for postconviction relief.

      4. The attorney is entitled to $100 per hour, up to a maximum of $4,000, after timely filing in the Supreme Court the capital defendant's brief or briefs that address the trial court's final order granting or denying the capital defendant's motion for postconviction relief and the state petition for writ of habeas corpus.

      5. The attorney is entitled to $100 per hour, up to a maximum of $20,000, after the appeal of the trial court's denial of the capital defendant's motion for postconviction relief and the capital defendant's state petition for writ of habeas corpus become final in the Supreme Court.

      6. At the conclusion of the capital defendant's postconviction capital collateral proceedings in state court, the attorney is entitled to $100 per hour, up to a maximum of $2,500, after filing a petition for writ of certiorari in the Supreme Court of the United States.

      7. If, at any time, the Supreme Court of the United States accepts for review the capital defendant's collateral challenge of the conviction and sentence of death, the attorney is entitled to $100 per hour, up to a maximum of $5,000. This payment shall be full compensation for representing the capital defendant throughout the certiorari proceedings before the United States Supreme Court.

      The hours billed by a contracting attorney under this subsection may include time devoted to representation of the defendant by another attorney who is qualified under s. 27.710 and who has been designated by the contracting attorney to assist him or her.

      1. An attorney who represents a capital defendant may use the services of one or more investigators to assist in representing a capital defendant. Upon approval by the trial court, the attorney is entitled to payment from the Comptroller of $40 per hour, up to a maximum of $15,000, for the purpose of paying for investigative services.

      2. An attorney who represents a capital defendant is entitled to a maximum of $5,000 for miscellaneous expenses, such as the costs of preparing transcripts, compensating expert witnesses, and copying documents. Upon approval by the trial court, the attorney is entitled to payment by the Comptroller for miscellaneous expenses.

      3. By accepting court appointment under s. 27.710 to represent a capital defendant, the attorney agrees to continue such representation under the terms and conditions set forth in this section until the capital defendant's sentence is reversed, reduced, or carried out, and the attorney is permitted to withdraw from such representation by a court of competent jurisdiction.

      4. An attorney may not represent more than five capital defendants at any one time.

    Florida Death Row Advocacy Group 2003 (FDRAG 2003)
    137 N Walnut St Box 10
    Starke, FL 32091