System may be slowing appeals

Introduced as a way to streamline the death penalty process, a registry system using private defense attorneys has led to delays, critics say.

By JO BECKER

© St. Petersburg Times, published July 17, 2000

TALLAHASSEE -- Two years after the Legislature set up a system to steer death penalty cases to private defense attorneys, problems are surfacing that suggest the effort could delay rather than streamline the death penalty process.

In six of the cases in which private attorneys are being paid to pursue required death penalty appeals, lawyers have blown deadlines that could preclude their clients from having their claims heard in federal court. Others have filed motions that were so incomplete the American Bar Association characterized the work as a "non-motion."

The minimum qualifications for the private attorneys fall below those recommended by a state Supreme Court committee. The lawyers must sign a contract limiting both their billable hours and the arguments they can make on their clients' behalf.

Some officials defend the private attorney system, saying the problems are far outnumbered by properly handled cases. They say that putting limits on lawyers will end frivolous appeals and delaying tactics and allow the state to mete out justice more swiftly to condemned killers.

"Maybe there's been problems," acknowledged Roger Maas, who as executive director of the Commission on Capital Cases runs the registry, "but if there are, they'll be addressed."

But others say these early efforts suggest lawyers with little experience in complex death penalty appeal law are doing subpar work that in the end may result in further delays or improper executions.

Critics charge that the program -- called "the registry" -- is another device by the Republican-controlled Legislature to whittle away the rights of the condemned to satisfy voters frustrated at the time it takes to execute killers.

"This is not a lawyer -- it's the illusion of a lawyer," said Stephen Hanlon, a lawyer who does pro-bono death penalty work for Holland & Knight and has challenged the registry in a case before the Florida Supreme Court.

Miami attorney Stuart Mishkin might agree.

When a local judge asked Mishkin to sign up for the registry two years ago, he felt he couldn't refuse.

He now says he had no idea what he was getting into.

Mishkin, a lawyer since 1972, had tried capital cases before. But he had never handled any post-conviction appeals -- those that come after both the state Supreme Court and the U.S. Supreme Court have affirmed a death sentence. It's a field that has been called the brain surgery of criminal lawyering.

"I knew it was specialized, but I did not know to what extent," Mishkin said. "It was a terrible mistake for me to get involved, and a lot of other lawyers I know who are messing with this are having a rough time of it."

Mishkin readily admits that he failed his death row client Ronnie Johnson, 39, a convicted murderer Mishkin describes as a "real live person, a nice person who I feel very concerned that I didn't do right by."

Both the state and federal courts have established time frames within which a death row inmate must file appeals. From the time the U.S. Supreme Court upholds a death sentence, lawyers have one year to file a post-conviction appeal in state court. Once they do, the clock stops running on a separate one-year deadline to file in federal court.

Mishkin blew both deadlines, then withdrew from the case this year without ever filing a motion. As a result, experts say it is possible that Johnson could be barred from raising claims in federal court. At the very least, the question will have to be litigated and could delay Johnson's execution.

"No court has specifically addressed precisely this situation," said Martin McClain, a death row lawyer who works in New York and Florida. "But at the very least it's a huge gamble -- it's a mess."

Mishkin isn't the only lawyer to blow the federal deadline. It has happened in five other cases handled by registry lawyers. A training manual Maas gave the lawyers as recently as January mistakenly said there are no federal deadlines, a point later corrected.

Some of the lawyers who missed deadlines believed that getting an extension in state court solved the problem of the federal deadline, although Maas acknowledged federal law is far from clear on that point.

In some cases, critics have pointed to the quality of the motions in addition to their lack of timeliness.

The American Bar Association said the motion filed on behalf of convicted murderer Richard Hamilton "is but one disturbing example of the problem developing in Florida." Among the problems: The three-page appeal "contains no citations to the trial or appellate record nor to any judicial authority." It was filed four months after the federal deadline expired.

Charles Lykes, a member of the bar since 1980, is Hamilton's attorney. He said he got an extension in state court and did the best he could, reserving the right to expand upon Hamilton's claims at a later date. He blamed the system.

"I didn't even get appointed until sometime in the spring of 1999, and I didn't get his trial transcript until a couple of months ago," said Lykes of Clearwater.

To address some of the problems, Maas said he plans to conduct additional training seminars. He has put together a list of experienced "resource attorneys" who are willing to consult with registry lawyers and persuaded Florida's law schools to help. And he plans to recommend to the Legislature that it adopt more stringent minimum qualifications: A lawyer can now qualify for the registry after practicing criminal law for three years and trying five felony cases, though not necessarily murder.

But Maas said the Legislature gave him no authority to remove lawyers from the list.

Supporters say the attorneys on the registry are experienced litigators with an average of 17 years in the field. Several, such as Tallahassee attorney Baya Harrison, have extensive experience in capital post-conviction work.

Harrison said problems with registry attorneys are the exception, not the rule. Because the program is so new, success is hard to measure: None of the registry cases have progressed far enough to result in either an execution or a reversal. But registry lawyers have been assigned to more than 60 cases since the program's inception, Maas said.

"I think that I'm typical of the majority of the lawyers who are handling these cases," Harrison said. "There's been lots and lots of motions filed and many of them are very good."

Harrison remembers how it used to work.

After Florida's death penalty was reinstated in 1976, death row inmates were represented by private lawyers who did the work for free.

Willing lawyers became increasingly scarce. By the spring of 1985, two men were facing execution who did not have lawyers.

Worried the state Supreme Court would halt capital punishment in Florida if inmates weren't competently represented, then-Attorney General Jim Smith convinced the Legislature to create a state-funded agency to do the work. The Office of Capital Collateral Representative, or CCR, was born.

But over the years, CCR became the prime punching bag for tough-on-crime politicians. A state commission in the late 1980s accused the agency's lawyers of using delaying tactics, violating court rules, filing bogus appeals, slandering victims and coaching defendants to lie. By late 1997, the agency's books were a mess. Hoping to rein in the lawyers, the Legislature split the agency into three regional "CCRC" offices.

In 1998, lawmakers created the registry to partially privatize the work.

"I don't think that CCRC is working the way it should be -- they just delay and delay and consider it a victory as long as they delay the execution of their client," said Rep. Alex Villalobos, the chairman of the House Criminal Justice Appropriations Committee. "By having private counsel involved, it will insert competition into the process."

But Hanlon, the Holland & Knight attorney who has challenged the registry program, said the contract that registry lawyers must sign keeps even good lawyers from doing an effective job.

The lawyers are paid $100 an hour and work under a cap of 840 billable hours. A study commissioned by Hanlon suggested that 3,300 hours are necessary, and the American Bar Association said registry lawyers "are working far fewer hours than is considered necessary by professional standards."

Registry lawyers are also prohibited from filing certain kinds of motions, including "repetitive or frivolous pleadings that are not supported by law."

Several attorneys with extensive experience in capital appeals have told the state Supreme Court they cannot ethically join the registry.

"I fear that, by and large, the attorneys who take these cases will either not be compensated in anything close to a fair way unless they take significant shortcuts," wrote Tallahassee lawyer Edward Stafman. But others argue the state is paying plenty.

"I'm doing this primarily for the money," said Harrison. "This enables me to send my children to private school."

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