Critics: Killers need advocate

Two lawyers nominated to run the regional office that handles death row appeals have longtime experience as prosecutors.

By GRAHAM BRINK

© St. Petersburg Times, published April 2, 2001

For the past few years, lawyers with little defense experience have dominated the nominees to run the offices that handle appeals for death row inmates.

It's a trend that concerns inmate advocates, who wonder whether the deck is being purposely stacked against the condemned. Fewer experienced defense lawyers make it past the vetting process, they say, and those who do are there for window dressing, not legitimate consideration.

Four years ago, none of the three successful nominees had experience fighting to keep condemned killers from being executed. It's a trend with a good chance of repeating in the Tampa-based middle region office.

The nominees recently submitted to Gov. Jeb Bush for that office include two longtime prosecutors, one who was once accused of harassing a sheriff's detective and the other who is not currently practicing law. The third candidate, a longtime defense attorney, said he would be shocked to get the job given his opposition to the death penalty.

"No experience necessary" shouldn't be a prerequisite for getting the job, said Larry Spalding, who headed the Capital Collateral Representative office from 1985 to 1993 and now works as a lawyer for the American Civil Liberties Union in Tallahassee.

"It's a dangerous policy," Spalding said. "Death row inmates need tough advocates working for them. Otherwise, we are begging for a tragedy."

Bush will consider Tampa attorney Bill Jennings, Sarah Baggett of Jupiter and Kenneth Driggs of Georgia for the job of Capital Collateral Regional Counsel in the state's middle region, which includes St. Petersburg, Tampa and Orlando. The successful nominee will make about $112,500 a year and oversee an office of lawyers and investigators who handle post-conviction appeals for the about 70 indigent death row inmates from the area.

In 1997, Capital Collateral Representative was split into three offices, each with its own regional counsel. The middle region has the most cases, the biggest staff and the largest budget at $3.2-million a year. The successful nominee will replace Valrico attorney John Moser III, a longtime prosecutor appointed in 1997 who chose not to reapply.

Since it was created 15 years ago, CCR has often been criticized for slowing down the pace of executions. In that time, the average stay on death row has climbed from less than 10 years to 14 years. Florida also leads the nation with 21 people having been released from death row for provable or probable innocence.

Last year, the governor's office championed a law to accelerate death appeals, although the Supreme Court later ruled it unconstitutional. Now, critics say the governor is using the nominations process to appoint pro-death penalty candidates who are likely to keep the process moving.

In January, Bush rejected the three original nominees for the northern region, including Driggs. The three nominees from the middle region met a similar fate.

"There were some good names on that list," Spalding said.

The governor's office did not reply to two requests for comment. In the past, Bush's aides have said that the governor is simply looking for the best candidates.

Sherry Magill, chairwoman of the Judicial Nominating Commission that sent the names to Bush, said she didn't feel any pressure to crowd the list of nominees with prosecutors.

"We take a careful look at all the candidates and make the best selections we can," Magill said.

Jennings, 52, spent eight years at the Hillsborough County State Attorney's Office and 12 more as a prosecutor in Polk County, where he headed up several departments. He left in 1998, and took a job with the Hillsborough County Public Defender's Office.

Last year, Jennings supported the death penalty in speeches he gave during his unsuccessful bid to become the Republican candidate for Hillsborough state attorney. During the campaign, news surfaced that a Polk sheriff's detective had accused Jennings of harassment in a report she sent to her sergeant in 1998. Jennings denied the allegations.

Jennings did not include any information about the report in his application for the CCR job, which included a question that asked about allegations from co-workers. He said he didn't think it was a "formal complaint." And besides, he said, the JNC questioned him on the topic during his interview.

"It was three years ago," Jennings said last week. "It wasn't true and it's old news."

Baggett, 37, hasn't practiced law since leaving the Attorney General's Office in November 1999. Since then, she has worked as a co-owner and vice president of a retail store in Jupiter.

Baggett spent seven years with the Attorney General's Office, where she prosecuted more than 60 capital appeals, according to her CCR application. She also spent years litigating a case against a death row inmate who was later exonerated after he died in prison from cancer.

Baggett doesn't have any defense experience, according to her application. She could not be reached but in the past has declined to comment when contacted by the St. Petersburg Times.

In her application, Baggett criticized current CCR attorneys for subverting the legal process.

"The goal of this agency has been to delay the final resolution of these appeals by disruption and chaos," she wrote. "I believe that this attitude violates the code of professional conduct."

Driggs, 52, a public defender in Atlanta, has spent much of his professional life defending death row inmates. He has written extensively on the subject and has testified as an expert witness.

Driggs said some prosecutors, such as Gregory Smith from the northern region, have done a fine job advocating for death row inmates. Smith did such a good job, some people think, that the governor has refused to reappoint him.

On the other hand, death row appeals are the "brain surgery" of the legal profession, Driggs said, and it takes someone willing to deal with the intricacies of the law and constantly fight what is a "very steep uphill battle." Some prosecutors don't have that mentality, he said.

"Without that passion," he said, "the work suffers. And the work cannot suffer when you're dealing with life and death."

- Contact Graham Brink at (813) 226-3365 or brink@sptimes.com.

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