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A dubious candidate for defender

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By MARTIN DYCKMAN

© St. Petersburg Times, published March 11, 2001


TALLAHASSEE -- A skilled lawyer is supposedly able to turn on a dime, prosecuting people one day and defending them the next. Or vice versa. But even by that standard, a dizzying pirouette may be in store at one of the three agencies that defend Florida's death row inmates.

In January, Gov. Jeb Bush rejected all six nominees for the northern region and middle region capital collateral representatives and asked the Supreme Court Judicial Nominating Commission, which had picked them, to send him new lists.

It looked at the time, and looks so even more now, that the governor's office was settling a score with Gregory C. Smith, the northern regional counsel, for his effrontery in trying to save a prisoner, Dan Patrick Hauser, who wanted to be executed.

Katie Baur, the governor's spokesperson, insisted that Bush simply wanted "a wider variety of choices" and that Smith, or any of the other rejected nominees, might yet be chosen. But Charles T. Canady, Bush's general counsel, contradicted Baur in a Feb. 23 letter to the nominating commission. When a governor rejects a slate, he wrote, the law requires "three new nominees," and that's precisely what Bush wants for each position.

The governor's office did not publicize Canady's letter.

Relying on that and on informal advice from the attorney general, the commission told Smith that he could be reconsidered only for a new term at the middle region. He declined.

Among the other applicants -- whom the commission passed over last time -- is a former assistant attorney general, Sara Baggett, of Jupiter, who spent seven years trying to sustain the convictions and death sentences that capital collateral lawyers, and others, were appealing.

Other assistant attorneys general have changed sides. Smith, for one. He was on the team that helped send Ted Bundy to the electric chair. But he later worked 12 years for three governors before becoming a death row defender.

Baggett would be conspicuous, however, because her entire previous experience -- except for a six-month stint prosecuting traffic cases -- was on the prosecution side and because of her low opinions of the agency she proposes to lead.

She wrote in her application that she personally litigated as many as 40 death appeals and was responsible for supervising hundreds more.

One of the inmates she opposed was Frank Lee Smith, who in December became the first condemned person to be posthumously cleared by DNA evidence -- after he had died of cancer during his 15th year on death row.

"That turn of events has profoundly affected me," Baggett wrote in her application.

Who knows, Baggett might make a better defender for that. But death row inmates and their advocates will hardly be reassured, as most of her application amounts to an angry screed against the capital collateral defenders.

Under "past administrations," she wrote, inmates have been represented by anti-death penalty ideologues who wanted to "collectively dismantle the entire system . . .

"The goal of this agency has been to delay the final resolution of these appeals by disruption and chaos, for these attorneys believe that any attempt on their part to pursue these cases in a timely manner creates a conflict of interest with their clients," she claimed.

Baggett repeatedly accused the defenders, collectively, with "unprofessional" and "unethical" conduct. She named no names.

As for herself, she said, "unlike the current practice, procedurally barred claims and claims unsupported by fact or law would not be pled. Moreover, the public records process would not be abused for the sake of delay. Rather, the cases would be investigated and litigated with the goal of thoroughly, fairly, and vigorously presenting those claims that would have the highest indicia of success."

"I don't think she has accurately described the system," said Martin McClain, a former capital collateral attorney who represented Frank Lee Smith and who is a candidate for Gregory Smith's job at Tallahassee. McClain cited the Frank Smith case as one of three that the Supreme Court reversed at one time or another in which he said Baggett had been "adamantly opposed and obstinate and difficult."

He said Baggett's first application wasn't nearly as strident in its characterization of the capital collateral defenders.

Accurate or not, Baggett's new rhetoric echoes that of the governor's office and its allies in last year's controversy over a law speeding up death appeals. (The Supreme Court ruled it to be unconstitutional.) It's a safe bet that if she's nominated, Bush will appoint her. If you listened at his keyhole, you'd probably hear Brad Thomas, his death penalty adviser, murmuring, "Oh please, please, make my day." The other three applicants for the northern region are all experienced defenders from one or another of the capital collateral offices.

It will be interesting to see whether the nominating commission, whose members include Bush confidante and St. Petersburg mayoral candidate Rick Baker, sticks by its guns. McClain was one of the nominees Bush rejected for the middle district despite -- or was it because of? -- his reputation as one of the nation's best death row defenders.

Baggett didn't want to talk about her application.

"I appreciate the phone call," she said, "but I think I'm going to decline to make any statements to you." Maybe later, she said.

She did confirm, however, that she is not currently practicing law. She has been running a clothing store in a shopping mall.

In fact, it appears that she either quit the attorney general's office without notice or was asked to. In an e-mail dated Nov. 12, 1999, she wrote that, "Although it was important to me that I leave on good terms, circumstances have prevented me from remaining even to conclude my current projects. Therefore, my date of separation is November 12, 1999."

The nominating commission might want to know more about that. What circumstances? And might there be any under which she would abandon death row clients so abruptly?

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