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The wrong counsel

Closing the state offices that provide competent legal counsel to death-row inmates shows a disregard for fairness in Florida's already flawed criminal justice system.

Published May 22, 2003

In one of the most short-sighted and callous moves yet in this year's budget process, Gov. Jeb Bush and Republican leaders in the House have begun to dismantle the state offices that provide legal representation to death-row inmates. In his budget proposal, Bush recommended defunding the three Capital Collateral Regional Counsel offices and replacing them with attorneys in private practice willing to take these complicated post-conviction death penalty cases - a move that, in most cases, would guarantee prisoners less qualified, less experienced and less commited counsel.

Last weekend, weary Senate conferees agreed to part of Bush's plan. The Tallahassee CCRC office would be closed and the 64 cases currently handled by the 29 staff members there would be transferred to private-sector lawyers. But CCRC offices in Tampa and Ft. Lauderdale, which currently handle 78 and 74 cases respectively, would remain open (the handshake understanding is that those offices would be untouched for at least the next three years).

This is a done deal, but it is a bad one for Florida. The CCRC is without question the most effective way to provide competent representation to indigent prisoners on death row. Eliminating even part of this program will further weaken Florida's commitment to fairness in its criminal justice system.

Florida already has experience with what happens when the job of representing death-row inmates is turned over to private attorneys who most often have little or no experience in that area of the law. In 1998, the state set up a registry of attorneys in private practice interested in taking post-conviction death penalty cases as an auxiliary to the CCRC offices. In doing so, the state capped the number of hours these attorneys could devote to each step in the process and also capped their fee at $100 per hour. The state refuses to pay for more than 840 hours total, despite a reliable study indicating that it takes at least 3,100 hours to do a credible job. This low rate of compensation attracts too many private attorneys who have no idea what is required in these highly specialized cases.

At the CCRC offices, attorneys must have years of training before being given the job of lead counsel. But the attorneys on the registry are not required to have any post-conviction experience. Predicably, CCRC offices say they are inundated with requests by registry lawyers asking for help in negotiating the minefield of deadlines and submissions in this complex area of law.

A recent article in the Daily Business Review detailed the way the registry's lack of standards and oversight has resulted in multiple legal horror stories, including two cases in which registry attorneys missed vital deadlines resulting in their clients losing the right to file further appeals. A review conducted in 2001 by a state auditing office reported serious problems with the registry's lack of "financial and performance accountability." The same review gave high marks to the efficiencies at the CCRC offices.

Florida leads the nation in the number of death sentences set aside due to constitutional errors - mistakes that include convicting the innocent. It takes the dogged work of experienced counsel to uncover these errors and set things right. But Bush and House Speaker Johnnie Byrd apparently aren't interested in getting things right. Their interest is in having executions come fast and cheap.

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