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WORKING TO MAINTAIN AND IMPROVE LIVING
CONDITIONS FOR DEATH ROW IN FLORIDA
PRIVATIZATION OF ATTORNEYS
Special Edition – April 2003
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Excerpt from: The Florida Bar News June 15, 1998
The two principal complaints heard when the original Office of the Capital Collateral Representative was created in 1985 remain today: The offices are inadequately funded 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.
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 Legal Resource 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.
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.
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 also have 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.
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 illusion of a 'lawyer.'
TALLAHASSEE, Fla. — Jan. 23, 2003
© Associated Press
Gov. Jeb Bush has proposed that Florida close the three offices of state lawyers who represent death row inmates and instead hire private attorneys.
The governor says the move should save the state about $4 million. But critics say the change could slow down the appeal process and end up making costs as high as they are now, if not higher. Filing appeals in capital cases "is difficult, complex and time-consuming," Larry Spalding, a lawyer for the American Civil Liberties Union, wrote in a memo he drafted Wednesday. "Few attorneys want to take on this type of criminal practice. Fewer still have the ability to do so."
Spalding was the first director of the state office of death row lawyers. It was created by the Legislature in 1985 after courts blocked some executions because inmates didn't have attorneys for appeals.
Before 1985, the state relied on a network of volunteer attorneys to represent death row inmates. Six years ago, the Legislature split the state office up into three regional independent offices. A year later, it added a law to pay private attorneys who have signed up with a state registry to handle overflow cases.
There's not much difference in the performance of the state lawyers and the private attorneys, according to Roger Maas, executive director of the Commission on Capital Cases, a six-member board charged with overseeing capital appeals for the state.
Currently the three state offices have a combined staff of 50 attorneys and 48 support staff and a combined budget of $9 million. They represent 218 death row inmates.
The registry lists 133 private lawyers, and about 60 of them have been appointed, Maas said. Together they represent 72 death row inmates. The budget for the registry attorneys is about $1.5 million.
In Bush's $54 billion budget proposal, he recommends spending $5.8 million on private lawyers next year. His top budget aide, Donna Arduin, told the House Appropriations Committee on Wednesday that the savings "result from only paying attorneys when they're working on cases."
Supporters of the state death row offices, like Spalding and Stephen Bright, executive director of an Atlanta center that represents death row inmates, say by doing nothing but death appeals the state lawyers build up the expertise needed to represent death row inmates properly and efficiently.
Maas said private lawyers with several years experience have the skills to handle a capital case even if they have never done so before.
Neal Dupree, who has run the Fort Lauderdale office for four years, disagrees. "You can't just pick up one case having never done this work and say, 'I'm ready to go,"' he said.
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St. Petersburg Times - Jan. 26, 2003
It is hard to know where to begin in describing the wrong headedness of Gov. Jeb Bush's proposal to abolish the offices that handle Florida's death penalty appeals. Bush claims that by relying on a registry of private attorneys rather than the three state offices that currently represent death row inmates the same level of representation will be provided at a significant cost reduction. In fact, the governor has it backward. In the long run the shift to private attorneys is likely to be more expensive and will result in such a drop-off in the expertise and experience of the lawyers handling these cases that mistakes are bound to occur.
Just as death row prisoners around the country are being released by the dozens because new evidence proves they were innocent of the crime or had confessions beaten out of them, Bush is redesigning our death penalty system to make it more prone to error. On Friday, Rudolph Holton became the 23rd prisoner on Florida's death row to be exonerated since 1973. Persuasive evidence pointing to another man's guilt had been kept out of his trial. Even so, Holton spent 16 years on death row until his innocence was demonstrated by attorneys from the state offices Bush now seeks to close.
Bush's budget for fiscal 2003-04 includes no money for the offices of the Capital Collateral Regional Counsel, which had a budget of about $9.4-million this year. Instead, Bush proposes to provide $5.8-million for private attorneys who put their names on a registry, indicating they are willing to take post-conviction death cases for the limited fees the state is willing to pay.
That might seem like a clear dollar savings, but don't count it. Responsible representation in death-penalty cases takes far more hours than the state claims. According to Neil Dupree, the Capital Collateral Regional Counsel South, the 715 hours in attorney time the state has allotted for these cases doesn't begin to cover the time commitment necessary.
"There is no way in the world that you can do a death penalty case in 715 hours," says Dupree, "and someone who does a case in 715 hours is not doing a complete job."
His concerns are backed up by a reliable study that says it takes about 3,100 hours to provide effective representation to a prisoner on death row.
As yet, no private registry counsel has represented a death row prisoner from the beginning of the post-conviction process through the death-warrant stage. When attorneys on the list realize how little the state is willing to pay for these complicated representations, three things will happen: conscientious attorneys will drop off the registry, some attorneys will bill the state for more than the stated limits (the state promises to fire any attorney who dares do this) and only lawyers willing to cut corners will remain. Dupree says at the end of June when the three CCRC offices run out of funds and the cases have to be transferred to registry attorneys, each case will bring a file that fills between 40 to 190 cartons.
The files will be handed to lawyers who, for the most part, are woefully inexperienced in the highly specialized area of post-conviction death penalty appeals. According to Dupree, his office fields a minimum of four to five phone calls every day from private registry lawyers asking for guidance. In his office, before a lawyer is permitted to be lead counsel on a case, he or she has to have 8,000 hours of post-conviction experience. Dupree estimates that only about half the 133 lawyers currently on the registry have any experience in this area of law, which is known as the profession's brain surgery. When the CCRC office doors close there will be no place for these lawyers to go for help.
Representation for criminal defendants is handled by a public sector public defender system because experience shows that this is a cost-effective and efficient approach. The specialization necessary for death penalty appeals makes relying on public sector lawyers whose only job is to represent capital defendants even more reasonable. This is reinforced by a Nov. 2001 report from the state Office of Program Policy Analysis and Government Accountability. It gave high marks to the CCRC offices for their "accountability and performance," but as to the attorney registry, the review said, "the registry lacks the financial and performance accountability of the regional counsels." Bush claims accountability in government is a priority, though apparently not here.
If Bush is not careful, his plan might take us back to 1984 when the state's execution machinery ground to a halt. In those days, not enough attorneys were willing to volunteer to represent prisoners on death row and the Florida Supreme Court stayed two death warrants because the inmates didn't have counsel. It was this crisis that led to the creation of the first Capital Collateral Representative office.
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REPORT TO THE COMMISSION
ON THE ADMINISTRATION OF JUSTICE
IN CAPITAL CASES
Prepared by ISABELLE POTTS, J. D. and GRETCHEN HIRT, J. D.
FLORIDA STATE UNIVERSITY
SCHOOL OF CRIMINOLOGY AND CRIMINAL JUSTICE
DANIEL MAIER-KATKIN, DEAN
January 1999
V.
WHAT WOULD BE THE EFFECT OF PRIVATIZING POSTCONVICTION PROCEEDINGS?
It appears that there would be a cost saving to the State if postconviction representation were to be privatized. There are concerns about continuity of representation that could be addressed through a transition phase.
As has been discussed in a number of reviews of the cost of postconviction representation, there is no way to determine the actual cost per case. This review uses a yardstick of average cost per case per year. Thus, using the Middle District's information as a sample basis, we come up with an average cost per case per year of $25,000 18. We calculated the average time in postconviction of persons who have either been executed or have had their sentence reduced as a result of their postconviction proceedings at 6.9 years19. Thus, we estimated an average cost per inmate of $172,500 for collateral representation.
The appointment of private counsel has resulted in the significant shortening of the initial postconviction filing. CCRC-North provided information about the planned designation dates and 3.850 motion due dates for their overflow cases. In the Rolling case, for example, the CCRC- North had indicated a designation date of 1/3/2000, with a 3.850 due date of 12/4/2001. The recently-appointed private counsel has already filed the initial 3.850, thus saving 3 years, a potential saving of $75,000 (3 years @ $25,000). In the Thomas case, the time saving in the appointment of counsel is I year and 5 months, a potential saving of $35,500. No comparable information was available from the CCRC-Middle or South.
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Currently, under Florida Statutes 27.711, the Legislature has put a ceiling of $84,000 on all costs for the representation of death-row inmates in postconviction proceedings (as compared with $172,500 average estimated for CCRC). Thus, we have a comparison of the costs of private vs. CCRC representation21:
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| CCRC | Private Attorneys | Cost Saving per Case |
| Cost per case | $172,500 | $84,000 | $88,500 |
In order not to jolt the current system and to maintain the continuity of representation of those currently represented by CCRC, the State could transition from representation by CCRC to privatization by assigning new cases to private attorneys. Since we are seeing an average of 22 death-row inmates that are reaching the postconviction stage every year since 1995, if these inmates were to be assigned to private attorneys, the possible cost saving could amount to:
21 cases x $88,500 = $1,947,000 savings.
The Shevin Commission argued for the intrinsic value of institutionalization of collateral representation: "It helps in training future death penalty qualified attorneys, in maintaining an 'institutional memory' of the historical development of the law, in developing a central registry of postconviction capital cases, and in assuring whenever possible that the same lawyer is assigned to a case throughout the postconviction model."
With two parallel systems of collateral representation of death-row inmates, it will be possible for policymakers to compare the effectiveness of each system. This should help determine the best direction for such representation in the future.
(It is our opinion, that statistics have shown that the system of registry attorneys has not been validated, as shown in other documentation herein.)
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FLORIDA: A Fight Over Limits on Pay, Hours
Mark Olive believes the state of Florida handcuffs its death row lawyers. The death penalty attorney is, for the 2nd time, challenging Florida's capon attorney fees for representing condemned inmates in state habeas corpus proceedings.
A state law limits paid hours to 840, at $100 an hour -- about 1/4 the number of hours that a research group retained by Olive's lawyers said is required to do a competent job.
"It's not about a lawyer making money," said Olive of the Law Offices of Mark E Olive in Tallahassee, Fla., who refuses to work under the caps."It's that I can't ethically agree to represent someone on death row when I'm handcuffed." Olive v. Maas, No. 03-CA-291 (Leon Co., Fla., Cir. Ct.).
Passions run high about fee caps in Florida, as they do in most of the 38states that have the death penalty. There is no federal constitutional right to an attorney in state post-conviction proceedings, the Supreme Court said in Pennsylvania v. Finley, 481 U.S. 551 (1987). States have created such rights in a crazy quilt of statutory schemes. Compensation ranges from none in Georgia to no caps at all in some states, from stringent qualifications for attorneys to those needing only "a law license and a pulse," as a Texas jurist asserted.
Florida created a post-conviction public defenders' office. It handles most of the cases -- 218 of 289 now moving through the system -- and sends the overflow and cases raising conflicts to a panel of private lawyers. However, Florida Gov. Bush proposes to close the office, shifting the task to private bar.
The 840-hour cap is well below the 2,700 to 3,300 hours that Spangenberg Group, a Massachusetts-based justice research and consulting firm, estimates are necessary to complete one case.
Holland & Knight, which is representing Olive, commissioned the Spangenberg study in 1998 based on 188 backlogged cases. To reach its conclusion, the consultants interviewed public and private attorneys who had done post-conviction work in Florida. They also gathered data from law firms that had donated time to this work. The median number of hours per case the firms spent on the 11 reported cases was 5,770.
Florida caps investigative fees at $15,000. Expenses are also capped at that level, though judges can authorize more. Olive called the $15,000 cap on investigative expenses "ludicrously low, just enough to find out what is needed." The Spangenberg study found that the 9 reporting law firms doing work pro bono spent a median of $129,244apiece.
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CRITICISM OF CAPS
Critics of caps on time and expenses in death cases include the American Bar Association and the National Legal Aid and Defender Association. They say an enormous investment in time is needed to challenge a death sentence competently.
Issues must be fresh to the case, since any that arose during trial can be decided only on direct appeal. So habeas counsel must mount an intense investigation to establish a client's innocence or eligibility for a lesser sentence, the experts say. They search for such things as prosecutorial misconduct, faulty eyewitness identifications, false testimony, racial inequities, mental retardation and ineffectiveness of trial counsel. The process includes reviewing files and voluminous motion and trial transcripts, gaining a client's trust and interviewing family, friends, teachers, ministers and jurors. Witnesses have to be re-interviewed and new witnesses searched out. Issues need to be briefed under strict deadlines.
"The hours needed can be enormous," said Olive, 49, "although, frankly, if you do this work all the time, know the law and the edges of it to push, that saves time. "But you can't make assumptions. It's hard to say how many hours it takes, because you never know. That's the point of the suit."
Olive founded and directed Florida's 1st center for habeas representation in 1985, before the state had a government-funded system. He later directed similar operations in Georgia and Virginia.
"Death penalty habeas review is the brain surgery of our profession," said Olive's lawyer, Stephen Hanlon, the Holland & Knight partner who directs its pro bono department and a death penalty lawyer himself. Olive said that if the caps stay in place and the state office closes, habeas work for the state's 360 condemned inmates will lie in the hands of private lawyers, many of whom aren't up to the task.
"Florida is taking a system that has taken 23 persons off death row and is doing the opposite of what that experience would teach," he said."Institutional representation beats private representation any time in criminal defense. If you're looking at a systemic problem, the best people are the ones who do it around the clock. The learning curve is tremendous."
The Spangenberg study said, "Capital post-conviction work is too complex and time-consuming for an attorney without substantial experience to simply pick up the ball and run with it." There is a "paucity of qualified attorneys in Florida and around the country."
ABA guidelines say that at least 2 qualified post-conviction attorneys should be assigned to a case, that they be committed to zealous advocacy on behalf of capital defendants and be possessed of substantial relevant legal knowledge. The guidelines specifically disapprove of caps on compensation.
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Florida pays for one lawyer per client and doesn't lay down any qualifications other than three years' membership in the bar, 10 hours of continuing legal education, if available, and participation in any combination of 5 felony trials, appeals or post-conviction evidentiary hearings.
Death penalty scholar James Liebman, Columbia University, co-author of a study of thousands of death penalty cases in 34 states, said Florida needs a strong habeas system. "Everything our studies have indicated is that Florida is one of the 2 states with the highest risk for serious error for capital verdicts," Liebman said. "The thing that has prevented Florida from becoming the disaster that Illinois became is the relative care that the Florida courts have taken in reviewing these cases, so that any procedure that limits their ability to be careful is dangerous."
Under Florida's present system, 46 lawyers, working in teams, share 200-plus cases in the state habeas office, called CCRC.
Brad Thomas, the Florida governor's public safety policy coordinator, an attorney and Bush's top adviser on the death penalty, said that the governor "is proposing to eliminate our state agency and out source thewhole thing, saving significant money." The office's budget is $9.3million. The governor estimates closing it will save $3.8 million and eliminate 97 jobs.
Roger Maas, who as Florida's executive director of the Commission on Capital Cases is the keeper of the 137-member registry of private lawyers, said that they average 21 years of experience. The state doesn't ask registry applicants about their death penalty experience. Maas, who also oversees the Capital Collateral Regional Council, said that in most cases840 hours are enough, although the office doesn't keep records of the number of hours state lawyers work on each case. If 840 hours aren’t enough, he said, a private attorney is free to work as long as it takes, without compensation. "Any additional hours would fulfill pro bono requirements," he said.
That's also the view of attorney Baya Harrison, a registry member who has five current collateral post-conviction cases and 20 years of experience. He thinks the cap is just fine, although he has "never left a nickel on the table" by billing less."It's not a cap on how much you work," Harrison said.
"It's a cap on how much you get paid. You have pride in your work. I do work I love to do. I can pay my bills." He later added, "I easily average 1,200 hours per case."
Thomas said the state's 75,000-plus lawyers are more than enough to pickup the slack if the council's offices are closed.
"Theoretically," Maas said, "we could do it with existing lawyers, but adding more is a relatively easy thing." He said he regularly gets calls from circuit court judges wanting to appoint lawyers who aren't on the list.
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"It happens all the time," he said. "I send them an application." He does not fear cronyism. "I trust our circuit court judges."
Thomas estimated that, on average, inmates executed since 1994 had spent more than 14 years on death row. "The governor's goal is that capital cases be resolved within 5 years after sentence is imposed," he said. "We don’t believe closing the offices will harm the process, and it could expedite it.
Private attorneys have very promptly moved their cases while providing ethical, competent and zealous representation."
If Olive's case reaches the Florida Supreme Court, it will be the 2nd time on the same issue. In 1999, Olive challenged his exclusion from the registry after he refused to sign a contract that contained the cap. The court held that the cap was not really a cap. It concluded that an attorney could seek additional compensation from the court in cases involving "unusual or extraordinary circumstances ... [if] given the facts and circumstances of a particular case, compensation within the statutory cap would be confiscatory of his or her time, energy, and talent" and that it would violate a trial court's inherent power to ensure adequate representation and a defendant's Sixth Amendment right to effective assistance of counsel. Olive v. Maas, 811 So. 2d 644 (2002).
The case led to Olive's being restored to the registry. It also prompted swift action by the Florida Legislature. 5 days after the court's ruling, David De La Paz, the criminal justice adviser to the speaker of the state House, wrote in a memorandum to his boss that the case law the Supreme Court had relied upon suggested that most death penalty cases would meet the exception and thus become the rule, which would defeat the purpose of the cap. La Paz laid out a rationale for a new statute that would negate the Supreme Court's rulings: Since the state had no constitutional obligation to provide representation, the rights were statute-based, and therefore exclusive, meaning the court ought to stay out of it. De La Paz wrote that the statutory right "expressly precludes any right of the defendant to raise issues as to the adequacy of the post-conviction representation, and therefore could not logically generate a 'right,' on behalf of a defendant's lawyer, to be paid above fee caps." In other words, since competency can't be challenged, caps can't be challenged either. The legislature promptly passed a bill instructing removal of any attorney from the registry who sought compensation above 840 hours.
Almost a year later, after failed negotiations, Olive filed his 2nd attacking the caps. The state's response to the suit for declaratory relief has thus far been a motion to dismiss, based mainly on jurisdictional and ripeness grounds.
(source: Leonard Post, National Law Journal, March 31
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Florida Death Row Advocacy Group 2003 (FDRAG 2003)
137 N Walnut St Box 10
Starke, FL 32091
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