Some of the world's toughest jobs belong to Florida's three capital collateral regional counsels, who represent death-sentenced inmates. Their sworn duty as lawyers is to do everything that's ethical to save their clients' lives. But if they do that too well, they displease the politicians who grudgingly pay the bills so the courts won't shut the system down.

That's the predicament of Gregory C. Smith, the northern regional counsel in Tallahassee, who has gotten the word from Gov. Jeb Bush to start packing. The governor's office isn't saying why, but 2 plus 2 in this instance adds up to Dan Patrick Hauser, who was put to death five months ago in what amounted to state-assisted suicide.

Hauser, 30, who had strangled a young woman at Fort Walton Beach, refused to allow mitigating evidence at his trial or let lawyers try to save his life. Smith made the attempt anyhow after determining that Hauser had been discharged from the military for mental health reasons, suffered from bipolar disorder, was suicidal and had exaggerated his confession to guarantee the death penalty. The Florida Supreme Court avoided facing any of those issues by holding that Smith had no standing to represent Hauser.

Smith then had to explain himself to a legislative oversight panel, the Commission on Capital Cases, in answer to complaints from the governor's office and a prosecutor. The commission exonerated Smith, however, on learning that the governor's own general counsel had asked him to look into Hauser's case. Smith said he concluded that Hauser had lied to the sentencing judge and that he was obliged, "as an officer of the court and a public officer," to do something about it.

"I don't think he should be criticized for his actions at all," said Parker Lee McDonald, a former Supreme Court justice who chairs the oversight commission.

The three-year terms of the three regional counsels expired Oct. 1. As provided by law, the Supreme Court Judicial Nominating Commission, whose members include Rick Baker, a Bush confidante and St. Petersburg mayoral candidate, recommended three names for each position. Smith was renominated, along with southern regional counsel Neal Dupree of Fort Lauderdale. Bush reappointed Dupree but has demanded three more names for Smith's seat and the middle regional vacancy, whose incumbent didn't want a new term. Under the law, Bush can do that only by rejecting the first lists.

Among those he passed up for the middle region vacancy was Martin J. McClain, currently a legal aid lawyer in New York City, who is one of Florida's most experienced death penalty litigators. He's one of the lawyers who helped avert the execution of Frank Lee Smith, a Florida death row inmate who died of cancer 101/2 months before DNA evidence proved him innocent.

A spokeswoman for the governor said that he wants only to be sure "that we've looked at all the qualified applicants who are out there," but it strains belief that the nominating commission, which had few applicants during the first round, would ever find any who are more qualified than Smith or McClain. Especially now that Bush has signalled what he really wants.

This has potentially tragic consequences for the people of Florida, on whose behalf the death penalty is practiced. If it is to be any better than simple murder, to borrow Justice Harry Blackmun's term, the state must be absolutely sure not only that condemned persons are guilty, but that their guilt is so profound as to deserve the ultimate penalty.

"I don't think he wants to appoint me," said Smith, who said a contact in the governor's office had confirmed that he need not reapply. Smith said that he's going to reapply anyhow.

The nominating commission's duty is to justice, not to the governor. It will fail miserably in that duty if it does not renominate Smith.

Back to Opinion

Contact the Times | Privacy Policy
Standard of Accuracy | Terms, Conditions & Copyright

From the Times
Opinion page