Florida fights over death-row lawyers

Gov. Jeb Bush wants to cut capital-appeals agency. Critics say it undermines justice.

A state agency in Florida has become one of the most successful death-row defense services in the nation, working to overturn improper death sentences and, ideally, prevent the execution of innocent individuals.

So why does Gov. Jeb Bush want to shut it down?

"Governor Bush believes that capital cases should be resolved within five years after a death sentence is imposed - not 20 years," the governor's proposed budget says. "Delays of 10 to 20 years in capital cases are not fair to anyone and justice is not served."

Bush's proposed budget, now being debated by state lawmakers in Tallahassee, seeks to speed up executions by privatizing the capital-appeals process - moving the primary responsibility for death-row appeals to private-sector lawyers rather than lawyers working as state employees.

The governor's staff estimates the move could save the state $3.8 million a year while preventing excessive delays in the appeals process. Florida executed three individuals in 2002. There are 366 inmates on Florida's death row.

The proposal comes less than a month after outgoing Illinois Gov. George Ryan granted pardons to every inmate on his state's death row, saying he had no confidence that innocent men weren't among them. Also last month, Rudolph Holton, who spent 16 years on Florida's death row, walked out of prison after a DNA test proved that a key piece of evidence at his trial - a single hair - belonged to the murder victim, not Mr. Holton. Holton became the 25th death-row inmate in Florida released from prison as a result of successful appeals.

The state agency on the chopping block is the Capital Collateral Regional Counsel (CCRC). It employs roughly 100 staff members and lawyers in three regional offices representing more than 200 death row inmates. (The remaining death-row inmates who want to appeal are represented by public defenders or private lawyers who have registered for capital cases with the state.)

If it ain't broke, why fix it?

Critics of the Bush proposal say that there is no evidence private lawyers will pursue capital appeals any faster or more cheaply than state lawyers.

"They are taking a system that is working now and replacing it with a system that may be a quagmire," says Larry Spaulding, who headed the state's death-row appeals agency when it first opened in 1985. Mr. Spaulding is now with the ACLU in Tallahassee.

Not everyone familiar with the system agrees it is working. "It is a shame that it takes 12 years on average in Florida to execute someone who has been convicted of first-degree murder and sentenced to death," says Jerry Blair, president of the Florida Prosecuting Attorney's Association. "That undermines public confidence."

Some CCRC critics say long appeal times are in part a result of a deliberate effort by CCRC lawyers to delay cases rather than litigate them. "If you can delay an execution long enough, what eventually happens is after 10 or 15 years, they are able to raise the specter that somebody has changed their testimony or there is new evidence, and the state is not going to be able to challenge that," says Gary Beatty, a Florida lawyer with 15 years of experience prosecuting capital cases.

Part of the theory behind the Bush proposal is that private lawyers will be less likely to use delaying tactics because their fees will be payable only upon completion of certain portions of the appeals process.

Roger Maas directs the Florida Commission on Capital Cases, a group set up to oversee the death-row appeals process, including the CCRC. He says that while there were documented instances of CCRC lawyers using inappropriate delaying tactics in the past, they have mostly been corrected. "We are moving quicker now," he says. "I don't see undue delays."

Mr. Maas quotes Florida's Chief Justice Harry Lee Anstead as commenting recently that "Florida's death penalty procedures are the envy of the rest of the nation." Both Texas and California are studying Florida's capital-appeals process, he adds.

Pushing an agenda

Mr. Beatty also says most of the state lawyers handling death-row appeals are opposed to the death penalty, and some view it as an illegitimate use of state power that justifies extraordinary efforts to fight it.

"The people who get drawn to the CCRC have an agenda to begin with," he says, adding that some state lawyers appear to be working to advance a political agenda - abolition of the death penalty - rather than simply providing competent legal counsel to death-row inmates.

Others say death-penalty appeals are different. Files can range from 25 to 40 boxes, requiring an average 3,000 hours of work. And the potential outcome is always present in thought. "When a CCRC lawyer loses a case, somebody dies," says the ACLU's Spaulding.

Should the state legislature adopt the Bush proposal, there will likely be enough qualified private lawyers to represent all death-row inmates. Maas says there are 133 lawyers now on the state's registry of private lawyers willing to take death-case appeals and most don't have a case yet. They have an average of 17 years of legal experience, he adds, versus two to three years of experience for most CCRC lawyers.

But he says it is unclear what would happen to the current CCRC clients during any transition. Private lawyers may be reluctant to take a case in mid-stream.

Another unresolved issue is how the state's payment system will work. Private lawyers are expected to complete their appeals within 800 billable hours. But experts say the average death-penalty case takes 3,000 hours.

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