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A matter of law and death

As much as Gov. Jeb Bush and the Legislature would like to provide death row inmates with representation on the cheap, Florida courts are nobly standing in the way. The latest ruling by a circuit court in Leon County rejects an attempt by lawmakers to punish lawyers who provide their clients with legal assistance beyond a set number of compensated hours. It is a victory for due process and the proper administration of justice.

If this state has learned anything through the multiple exonerations of prisoners through DNA evidence, it is that the criminal justice system is fallible. Providing additional due process before taking a prisoner's life helps ensure that the right person was convicted and the procedure was fair.

But for years the governor has tried to find ways to handicap the attorneys who do post-conviction death penalty appeals. He and Republican lawmakers have been frustrated by the success rate of the state offices of Capital Collateral Regional Counsel in suspending executions and getting death sentences set aside due to faulty process.

In 2003, Bush engineered the closure of one of the three highly specialized CCRC offices, replacing it with a list of private lawyers who generally had little experience handling death row appeals. The attorneys who signed up to be on the registry had to promise to limit their representation to 840 compensated hours. It was a figure that didn't come close to the number of hours that an average death penalty case requires, which was closer to 3,000. The idea was to provide a lawyer, but not a very good one. Last year, Florida Supreme Court Justice Raoul Cantero described the legal work of the registry lawyers as "the worst lawyering I've seen."

The cap on fees was a clear attempt to keep attorneys from providing their clients with the full defense they are entitled to and was soon abrogated by the Florida Supreme Court. But not to be outmaneuvered, the Legislature came right back and adjusted the law to bar any attorney who requested fees above the stated maximums from remaining on the state registry. Late last month, Leon Circuit Judge Terry Lewis set aside that provision, too.

There is no reason for the state to appeal this latest ruling. Florida courts are not going to allow the Legislature to direct attorneys to violate their professional responsibilities toward their clients.

Experience has demonstrated that post-conviction death penalty work is most effectively handled by lawyers who specialize in the practice. To its credit, the Legislature is considering legislation (H.B. 325, C.S./S.B. 360) to substantially raise the minimum standards for all registry attorneys. Still, the CCRC model serves justice and Florida's court system best. The state should reopen the office that was closed.

[Last modified April 10, 2006, 05:44:02]