Suit: Death Defense Is a Sham
Claim is Fla. provides lawyers but makes it so they can't save inmates.
By Marcia Coyle
National Law Journal
Monday, December 14, 1998

After his state lawyers neglected and misrepresented his case for more than five years, death row inmate Jeffrey Muehleman was ready to go it alone. "These guys," he told a trial judge, "could get me killed quicker than I could get myself killed. That's about the bottom line of it."

Agreeing, Florida Circuit Court Judge Crockett Farnell, in a blistering October opinion, lambasted the lawyers for incompetence and deceit and threw them off the case.

Robert Peede also sensed something very wrong about the lawyers the state of Florida had provided to pursue his post-conviction appeals. He turned to his pen pal of a decade, a soft-spoken Virginia woman who discovered that his lead lawyer, a former prosecutor, had been suspended once and publicly reprimanded another time. Of the two assistants who would argue Mr. Peede's case to the Florida Supreme Court on Dec. 2, one had been out of law school one year; the other had earned his license just weeks before argument.

From a distance, Florida appears to be doing everything right in providing post-conviction legal aid to death row inmates. Unlike many states, it has a statute guaranteeing inmates the right to counsel as they pursue challenges to their death sentences and convictions. Florida has established the Capital Collateral Regional Counsels, state-funded offices from which came the lawyers for Messrs. Muehleman and Peede, with full-time, post-conviction lawyers and staff to handle the cases. And just this year, the state legislature created the Registry Act, a state-funded system to draw private attorneys into post-conviction, death row representation.

But up close, the reality is very different, say lawyers and others close to death row representation. After 14 years of failing to back its allegedly progressive acts with the money necessary to be successful, Florida is providing the "illusion of a lawyer" to death row inmates like Messrs. Muehleman and Peede, charges Miami's Stephen F. Hanlon, the pro bono partner at Holland & Knight L.L.P. That's why Mr. Hanlon has launched legal attacks in the Florida Supreme Court on both the public and private death row counsel systems. And that's also why Michael Mello, a veteran post-conviction lawyer and now a law professor, is no longer taking Florida capital cases as a "matter of conscience."

Says Mr. Hanlon, "The death penalty is a cancer on the justice system and it's now proceeding to devour the profession....The question is whether the courts and the profession are going to give in to these legislative pressures to make it look like there's a lawyer there when there really isn't."

But an incredulous Florida Rep. Victor Crist, R-Tampa, chair of the House Criminal Justice and Corrections Council, charges, "What you're seeing now is just another attempt to thwart the justice system. When is it a right that every inmate has to have the highest-paid, longest-lasting, dream-team of lawyers representing him for life? When is enough enough?"

Florida isn't alone in a decades-old struggle to provide competent death row counsel. Other states have tinkered for years with different formulas--public, private, combinations of public and private, paid and volunteer--only to find the solution, real money, as elusive as ever.

DEATH CONDUCTORS
In 1985, the Florida Legislature responded to a crisis in death row representation--and a threat by the state Supreme Court to halt executions--by creating the Capital Collateral Representative (CCR), a central, state-funded office to represent death row inmates in all post-conviction proceedings.

"There were people in my office who thought creating an office like CCR was a terrible idea," recalls Professor Mello, of Vermont Law School, who was with CCR when its doors opened on Oct. 1, 1985, and stayed for the next 10 years. "Their concern was CCR would, over time, fulfill the legislative history behind its enactment--serve as the conductor on the genteel railroad of death." On the other hand, he adds, "There was a severe counsel crisis. The pool was drying up when I first arrived in the fall of '83. By early '85, the well was completely dry."

CCR's early years were grim, recalls Marty McClain, who started with the office in 1988 and resigned as one of its most senior attorneys in November. Besides their regular cases, attorneys scrambled constantly to deal with roughly 40 death warrants per year, the most stressful type of post-conviction representation, agree capital litigators.

The office also started its life grossly underfunded and never caught up. In 1987, at CCR's request, the American Bar Association Standing Committee on Legal Aid and Indigent Defendants hired indigent defense expert The Spangenberg Group to develop a caseload formula that would assist the Legislature in developing CCR's budget. Relying on the formula, CCR subsequently asked for about $2.9 million--excluding necessary funds for expert witnesses and management staff. The Legislature appropriated $854,000.

Two special commissions created by the state Supreme Court concluded in 1993 and 1997 that CCR was indeed underfunded and recommended extending certain case-filing deadlines to ease the crisis. In 1997, CCR's money ran out.

The Legislature by then had become very frustrated with CCR's lack of financial accountability, recalls Roger R. Maas, executive director of the state Commission on the Administration of Justice in Capital Cases.

Rep. Crist, the first nonlawyer chair of his committee, alleges, "CCR's attorneys were doing things that in the normal world could cause someone to be disbarred....Their activities were simply to obstruct the system. They would order tons of paperwork, information, even if it wasn't remotely related to a case."

But these charges mask the politicians' true frustration with CCR, contends Mr. McClain: "There weren't enough executions taking place." Despite inadequate funding and staffing, he explains, "We were winning cases. If you look at the history of CCR and cases resolved, it's neck and neck: 30 executions and 30 removed from death row. I think people would find that...pretty amazing."

When CCR's money ran out in 1997, so too did its life. After yet another special commission's recommendations, the Legislature carved CCR into three independently run offices, now called Capital Collateral Regional Counsels (CCRCs), in Miami, Tallahassee and Tampa and gave oversight to Mr. Maas' commission.

The lawmakers also changed the way in which the office heads are selected. No longer would public defenders recommend names to the governor for appointment. The committee used by the governor to recommend nominees for state Supreme Court vacancies--with primarily conservative civil attorneys as members, says Mr. Maas--now suggests lawyers for CCRC appointments.

Today, all three CCRC heads are former prosecutors.

"If ever there was a metaphor for what CCR has become, one has to look no further than to who heads them now," insists Prof. Mello, who says he can no longer in good conscience handle Florida death cases. "CCR was carved up by the Legislature in order to fail."

CCR's former heads, counters Rep. Crist, were high-profile, anti-death-penalty advocates. "What better position for them to soapbox on," he says. "The CCRCs are now being run like law offices: Attorneys are assigned clients, their hours are accounted for and each dollar spent is tracked."

RIGHT VS. PRIVILEGE
Shortly after the new CCRCs went into operation, Holland & Knight's Mr. Hanlon went into court. The Legislature, he charges, is continuing its 14-year-long pattern of underfunding.

On behalf of the CCRCs in Miami and Tallahassee, he asked the state high court to find a constitutional right to counsel in capital post-conviction cases and to declare a moratorium on all executions until the Legislature adequately funds the CCRCs according to a caseload formula. In Re: Amendment to Florida Rule of Criminal Procedure, Case Nos. 92,026 and 82,322.

Mr. Hanlon's firm earlier had retained The Spangenberg Group to return to Florida to examine the CCRC setup. In an affidavit filed with the CCRC suit, Robert L. Spangenberg reported the post-conviction counsel system had reached a crisis of "overwhelming proportions."

The problem, argues Mr. Hanlon, is not going to be solved until the state high court declares a state constitutional right to post-conviction counsel. "As long as the Legislature views this as a privilege, they can fund it or not."

But, argues Rep. Crist, it is a privilege, one that Florida provides even though most other states do not, and even though the U.S. Supreme Court has ruled there is no federal constitutional right to counsel in post-conviction appeals. Moreover, the CCRCs' budget of about $6 million for 230 death row inmates, he contends, compares favorably to the money-to-case ratio the CCR once said was necessary to do the job.

But funding isn't the only problem bedeviling the new system, say former and current staff attorneys. When the CCR closed its doors, there was an exodus of experienced counsel; almost half of the existing lawyer staff left for new jobs.

Not surprisingly, then, there have been complaints about competency.

John Moser, director of CCRC-Middle, in Tampa, and two of his attorneys faced an angry Judge Farnell last July in the hearing on Mr. Muehleman's motion to proceed pro se. Responding to Mr. Moser's claims that earlier CCR lawyers were to blame for the problems in the case, the judge said the lawyers from both groups were "cut from the same cloth" when it came to a lack of candor and good faith.

James Walsh, CCRC counsel to Mr. Muehleman, testified before Judge Farnell that he had no post-conviction experience, but had read a law review article and a manual on post-conviction relief.

Mr. Muehleman's case is not unique, says Judge Farnell. "Funding was clearly a problem with CCR. Now the CCRC, I don't know what the story is with them yet. They say, 'We're here to do a great job.' That remains to be seen."

Lawyers in the CCRC-Middle office were also cause for concern in Mr. Peede's case. Lead attorney Christopher DeBock, a former prosecutor and a former public defender, was suspended by the Florida Bar in 1988 and received a public reprimand in 1996. Another lawyer in the office, Jack Crooks, resigned as an assistant county attorney in 1991 after his arrest for exposing himself in an adult bookstore.

The office filed a brief less than 30 pages long with the Florida Supreme Court for Mr. Peede, even though the maximum length is 75 pages and, according to some capital litigators, it is usually difficult to confine arguments to the maximum length.

As word of CCRC-Middle's reputation spread, sociology professor and death penalty scholar Michael Radelet, of the University of Florida, says he received letters "begging for assistance" from four inmates represented by CCRC-Middle.

Mr. Hanlon says he and Mr. Moser, whose office is not a party to the CCRC litigation, have different views of what it takes to handle capital post-conviction cases properly. And that essentially is at the core of the ongoing battle in Florida. "I think the work is just infinitely more complex and time-consuming than he does, from everything I can tell," Mr. Hanlon says.

Mr. Moser counters, "There is a perception that to do this work effectively you have to have been steeped in post-conviction litigation for long periods of time." He says that although Mr. Walsh hadn't previously handled a death penalty appeal, he is an experienced attorney and there is value in having lawyers with different backgrounds. As to attorneys with checkered careers, Mr. Moser says, "Sometimes these types of things make one stronger. I wouldn't want a bunch of choirboys doing this work."

But Gregory C. Smith, head of CCRC-North and a former assistant attorney general, is a party in the Holland & Knight suit. In an October report to Florida's Supreme Court, he warned that his money was running out. "I think if you look at the kind of issues raised by the Spangenberg report, we are just limping along in efforts to do what should be done with clients in these serious cases."

The CCRCs and its predecessor have complained continuously about underfunding and inadequate staffing, says State Assistant Attorney General Richard Martell, chief of capital collateral cases. "One of the things we're arguing about in the CCRC suit--the Spangenberg report sets forth a case-to-attorney ratio, which, in our opinion, is an aspirational goal. In this office, we have 14 people handling over 400 capital cases; when CCRC argues about a caseload of 15 to 16, that's do-able in our opinion."

CCR attorneys did it, but "there was never a moment I felt it was manageable," says former lead attorney Gail Alexander, who was handling 24 cases before she left last year because of stress.

In the parallel federal system, the Judicial Conference of the United States in 1995 adopted a judicial commission report recommending a caseload of four to six capital habeas cases per attorney at the now-defunct federal death penalty resource centers.

In Florida, the same commission that recommended the trisection of CCR also urged the state Legislature to bring private attorneys into capital post-conviction representation. Lawmakers passed the Registry Act, which created a statewide registry of private attorneys available for court appointment in these cases.

The act contains an attorney fee and expense schedule authorizing compensation for a total of 640 attorney hours--up to $64,000--as well as $15,000 for investigative services and $5,000 for all other costs for the life of a case.

Among other restrictions, the act prohibits participating attorneys from representing their clients in a retrial, a resentencing proceeding, a clemency hearing or any related civil litigation. This was an attempt to keep a bright line between the work of these lawyers and public defenders who handle trial matters, say lawmakers.

HOW MANY HOURS DOES IT TAKE?
The act took effect last summer. In October, Mr. Hanlon was back in the Florida Supreme Court attacking the fee caps and restrictions. He argues that the caps unconstitutionally interfere with a court's inherent authority to ensure competent representation by paying lawyers what they need and that the restrictions ethically compromise lawyers in their duty to be zealous advocates. In Re Anthony Mungin, Case No. 94,088.

"There is no evidence before the Legislature or anywhere else that would support the notion that these cases can be done in 640 hours," says Mr. Hanlon, who filed his action on behalf of veteran capital litigator Mark Olive. "In fact, all of the evidence we have from almost 20 years of experience, both public and private bars, is that the number is closer to 3,000." And the registry's current budget--$500,000 for 94 lawyers now signed up--could run out very quickly, he adds.

But Baya Harrison III, of Monticello, Fla., appointed to take over the Muehleman case, says the act "gives lawyers with experience in death penalty work something they never had before--some money to feed our families with if we go through this process."

Mr. Harrison believes that Mr. Hanlon is acting in good faith but has been duped by anti-death-penalty zealots. "I'm a liberal, but the left wing of the anti-death-penalty movement does not want any kind of entrepreneurial, market-driven effort in this."

The registry has assigned 35 cases to private attorneys, says Mr. Maas. "Steve [Hanlon] says it's going to take X number of hours to do these cases, so $64,000 isn't enough. This is a never-ending debate. Whether he's right or not, I've got 94 lawyers standing in line, waiting for a case." With the CCRC and the registry, almost everyone on Florida's death row will have a lawyer, says Rep. Crist. "Claiming there's not enough money in the program when only a handful of states takes the initiative to do what we're doing is ridiculous," he says.

But it's not enough, insists Mr. Hanlon. The state high court, he says, has the opportunity now to lay down principles that will force the Legislature to do it right; if it doesn't, the court will see an endless stream of Robert Peedes and Jeffrey Muehlemans. "Other states are doing less, like Texas," he says. "The only response to that is: Shame on them."

This article appeared in the December 21 issue of The National Law Journal.

Death Penalty Issues
Truth in Justice