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The result of these meager fees is that lawyers spend very little time preparing for capital cases when they know, at the outset, that they will only be receiving a flat fee of $1,000. The livelihood of these attorneys is made by the hourly billing and fees they generate from paying clients. They simply cannot afford to take time away from their paying clients to represent their clients who are facing the death penalty. As a result, they ignore their capital clients and prepare little, if at all, for their trials.

Some attorneys handling capital cases have contracts with one or more judicial circuits to handle ALL criminal cases from that circuit. These contracts are for a fixed fee per year. Many of these contracts are for $30,000 or less. Attorneys operating under these contracts often refer to themselves as “part-time public defenders” because they also represent fee-paying clients to supplement their income. Unfortunately, these attorneys are generally not allowed to refuse appointments in criminal cases under these contracts. If they do, the judge can rescind the entire contract. Many attorneys who have attempted to refuse appointments in death penalty cases because they were unqualified are told by judges that their contact will be terminated unless they accept the appointment. Having never represented a person facing the death penalty is not a valid reason for a refusing a capital case appointment under this system.

Trial judges in Mississippi have sole discretion over appointing and compensating lawyers to represent capital defendants. They also have complete discretion regarding appointment and funding for experts, and other assistance. Although there are some judges who pay more than the $1,000 fee for capital cases, the overwhelming majority do not. Because trial judges are elected by a constituency that overwhelmingly supports capital punishment, there is extreme political pressure to ensure that defendants facing the death penalty receive as little money from the county budget as possible. The fact that many of these counties are among the poorest in the nation only further ensures that indigent capital defendants will receive the bare minimum towards their legal representation. In Quitman County, the County Supervisors had to raise property taxes on all residents simply to pay for two death penalty trials. Other counties have reported being unable to purchase a much needed new fire truck or constructing sewer systems for small towns where residents still use outhouses. Judges, therefore, do not want to be put in a position of depleting county funds to pay for a person charged with a capital crime.

The result of having underpaid, unqualified lawyers representing capital defendants is clear: defendants facing the death penalty are not receiving their constitutional right to effective counsel. Capital trials in Mississippi, from the beginning of jury selection until sentencing, are usually completed within a week. By contrast, jury selection in a capital trial in California can often last several weeks. Per capita, Mississippi has the fifth largest death row in the nation.

In one recent case, a lawyer handling a death penalty had not interviewed a single witness the weekend before the trial was to begin. Neither he, nor co-counsel, had ever tried a capital case before. Lead counsel was provided with sample motions challenging the DNA evidence, which was riddled with errors, as well as a motion for a continuance. Counsel, however, decided not to file any of these motions or ask for more time to prepare. Jury selection began on Monday morning. By Wednesday afternoon, the client had been convicted and sentenced to death.

In July of 2000, Mississippi passed legislation to create a state-funded capital trial office and authorized the Governor to appoint a Director. However, because the Governor has yet to appoint a Director to this new office, it is unclear when the office will open its doors. Even when it does, it will face significant obstacles. The legislation provides for a Director, three attorneys, and two investigators. With dozens of capital indictments pending statewide in Mississippi each year, the new office, even if it has qualified personnel, will not be able to provide representation to all defendants facing the death penalty. Moreover, the legislation did nothing toward creating standards for the appointment of counsel in capital cases, or raising the $1000 flat fee also remains. Trial judges retain the authority over appointment of counsel. Therefore, a trial judge has the power to refuse appointing the new office to a capital case. Although, on the surface, it would seem as if a trial judge would prefer to appoint an office with attorneys who would not seek compensation from the judge's county, qualified, experienced capital counsel will likely seek expert assistance, which must still be paid out of county funds. A trial judge can ensure that his county will not bear the cost of an expensive capital trial if he appoints a lawyer who does not know to ask for expert assistance.

The situation regarding appeals and post-conviction for death sentenced prisoners is hardly better. Under Mississippi law, the SAME lawyer who represents a client facing the death penalty at trial MUST represent the defendant on direct appeal. If new counsel represents a death sentenced prisoner on direct appeal, counsel must raise all issues of ineffective assistance of counsel in the same appeal, without the benefit of having the resources provided to post-conviction counsel for discovery, investigative and expert assistance. Therefore, the same, unqualified attorney who represented the client at trial is now representing him on his primary challenge to his conviction and death sentence. Moreover, counsel is given the same, meager $1,000 as compensation.

Until 1998, death sentenced prisoners in Mississippi were not afforded the right to counsel in post-conviction proceedings. However, under pressure from a federal law suit challenging the lack of post-conviction counsel, the Mississippi legislature, in July of 2000, created the Office of Capital Post-Conviction Counsel. This new office, consisting of a Director, two staff attorneys, and one investigator, is responsible for either directly representing, or finding alternate counsel for all 63 prisoners. For those cases where alternate counsel has been appointed, most of the lawyers are from states other than Mississippi. While the Mississippi Supreme Court created standards that counsel must meet before they can be appointed to represent death sentenced prisoners in post-conviction proceedings, only a handful of lawyers in Mississippi meet these qualifications. This, of course, is in large part because the right to counsel did not exist prior to 1998, so few Mississippi lawyers have ever handed a death penalty case in post-conviction proceedings.

The Mississippi Supreme Court has also allowed attorneys representing death sentenced prisoners in post-conviction proceedings to receive higher compensation than the $1,000 rate, and to seek funds for investigative and expert assistance. These attorneys, however, must request these fees from the trial courts. Although the fees are now being paid from a state fund, many trial judges still continue to withhold money for investigative and expert assistance, and some post-conviction lawyers are still being compensated only $1,000 for their work. The state post-conviction fund must not only cover the funds to compensate private attorneys, but pay for investigative and expert assistance in all of these cases, including those cases being handled by the state office.

There has been much discussion of the many, many prisoners who have been released from death rows across the country after it was later determined that they were innocent. One of these prisoners, Sabrina Butler, is from Mississippi. However, because so many death sentenced prisoners were represented by lawyers who were underpaid, inexperienced, and unqualified, there can be little confidence in the outcome of these trials. A three-day trial is hardly the kind of adversarial proceeding that is required for the judicial process to properly function in its truth seeking mission. Whether there are innocent people presently on death row in Mississippi is unclear. However, as innocent people have been freed from death penalty states where the quality of legal representation is much higher, it certainly cannot be assumed that all 63 prisoners on Mississippi's death row are guilty of the crimes for which they have been convicted.

Statement of Michael Pescetta, Assistant Federal Public Defender, Office of

the Federal Public Defender My name is Michael Pescetta. I am an Assistant Federal Public Defender and I am chief of the Capital Habeas Unit in the Office of the Federal Public Defender for the District of Nevada. Our unit litigates most of the federal habeas corpus proceedings resulting from judgments of death in Nevada state courts, and currently we are providing representation in twenty-three such cases. We are therefore familiar with the issues that are routinely presented in these cases and with the problems arising in state court litigation of capital cases.

I have been litigating capital appeals and habeas corpus cases since 1983, first in California (initially as an attorney for the California State Public Defender, and then as Director of Capital Litigation, overseeing all of the capital cases in that office, from 1988 to 1992) and since 1992 in Nevada. I was the director of the death penalty resource center for Nevada from 1992 until 1995, when the resource center was de-funded. I currently litigate only capital habeas corpus cases.

Nevada is in continuing crisis with respect to representation in capital cases. The salient factor is that Nevada has the highest death row population per capita of any state in the nation and the fewest lawyers per capital case of any state. Currently, approximately 30 lawyers are responsible for representing all of the 85 individuals who are under capital sentence; and, with the exception of the approximately 10 to 15 capital trial lawyers in public defender offices, these are the same lawyers who provide representation in capital cases at trial. The effect of this situation on the quality of representation is severe: there are simply too few lawyers who are willing to provide representation in capital cases, particularly in habeas proceedings, and many of the lawyers who do provide representation are woefully unskilled.

The Nevada state system is generally in a position to fund litigation in capital cases if it wishes to. The county public defender offices in Clark County (Las Vegas) and Washoe County (Reno) pay attorney salaries that are competitive with those paid by prosecution offices. While budgets for ancillary services, such as expert witnesses, maybe limited by the county commissio in general public defender offices have been able to secure funds for such services when attorneys request them. When private counsel is appointed by the court, Nevada statutes provide for compensation of counsel at a rate of $75 per hour in capital cases. There is a presumptive cap of $12,000 for attorney compensation in capital trial cases, and of $750 in capital habeas corpus cases, and a presumptive cap of $300 for reimbursement for ancillary services. Nev. Rev. Stats. $$7.125, 7.135. These limits are generally recognized as inadequate for competent representation and they are normally exceeded when counsel requests additional funds, although the amounts actually authorized vary greatly among individual trial judges.

Unfortunately, the potential availability of resources for litigating capital cases does not normally translate into adequate litigation, primarily due to the quality of counsel. In public defender offices, the problem is frequently that lawyers fail to recognize the need for adequate investigation or ancillary services—until last year, neither of the two county public defender offices had any organized training programs at all—and have often treated the litigation of capital cases as routine. In general, the salaries paid in the two largest public defender offices have contributed to a career civil service mentality on the part of lawyers and administrators, and a concomitant unwillingness to antagonize other parts of the criminal justice system, at the expense of vigorous advocacy on behalf of clients. Public defender offices also have not historically used their budgets to hire adequate numbers of investigators to allow them to conduct sufficient investigation in all capital cases, much less in all cases. (For instance, until the year 2000, the Clark County Public Defender's Office had approximately 8 investigators on staff and a yearly caseload of over 31,000 cases.) It appears that this situation does affect the vigor of defense advocacy: a recent study conducted by the Spangenberg Group for the Depa ment of Justice, Bureau of Justice Assistance, and the American Bar Association showed that the trial rate for the Clark County Public Defender is under 0.6%, while the national urban average trial rate is 4-7%.

While the Nevada Supreme Court has imposed experience standards for counsel, Nev. Sup. Ct. Rule 250(2)(b, c), there is no assessment of the quality of representation as a basis for appointment. There is also no formal mechanism for the appointment of counsel other than public defender offices, and individual judges recruit and select attorneys for appointment unilaterally. As a result, lawyers who have done seriously inadequate work on capital cases continue to be appointed to do more of them. In particular, in state habeas corpus proceedings, in which only private counsel are appointed, so few lawyers are willing to accept appointment that courts routinely appoint lawyers whose representation is so inadequate that subsequent federal proceedings require significantly greater expenditure of resources on both procedural and substantive issues. For instance, in over 20% of the capital cases currently pending in state habeas proceedings, representation is being provided by lawyers who have never filed a discovery motion or a motion for funds for ancillary services in any habeas proceeding. It is not uncommon for these lawyers to attempt to litigate claims of ineffective assistance of counsel without even obtaining the files of previous counsel. While these problems have been drawn to the attention of the Nevada Supreme Court and the state trial courts, they have been unwilling to intervene or to mandate closer scrutiny of counsel's actions in state habeas proceedings, and the emphasis has remained on simply processing capital cases through that system in any way possible.

Fundamentally, the problem of adequate representation in capital cases reflects the legal culture in Nevada. Criminal defense lawyers who provide representation in indigent cases, as opposed to representing paying clients, are not held in the same respect as other lawyers, and criminal cases involving indigents are treated with less concern than others. Some defense lawyers appointed in capital cases often treat them as routine and simply do not have the interest in or dedication to this type of work that would motivate them to improve their skills. The Nevada Supreme Court routinely expresses concern about the quality of representation in capital cases, but its actions are often not consistent with its expressed position. For instance, the court has criticized defense counsel, sometimes vehemently, for not raising available issues at the first opportunity, see Beiarano v. Warden, 112 Nev. 1466, 1470, 929 P.2d 922, 925 (1996), but when thorough counsel attempts to raise all available constitutional claims on appeal the court seeks to discourage it. See Hernandez v. State, 2001 WL 668460 (June 14, 2001.) The state trial courts act similarly: they normally do not demand that counsel provide quality representation in capital habeas cases, and (along with the state bar) routinely ignore complaints from clients about counsel's actions in failing to communicate with the client, to raise issues pointed out by the client, or to conduct adequate investigation.

The low quality of defense advocacy has a pernicious systemic effect, because the corrective function of a vigorous defense on the criminal justice system as a whole normally does not occur. For instance, one of the commonest complaints of the defense bar in Clark County is the failure of the district attorney's office to comply with its disclosure obligations under Kyles v. Whitley, 514 U.S. 419 (1995), despite purportedly maintaining an “open file” discovery policy. In 1998 and 1999 the Federal Public Defender conducted depositions of the records custodians of the district attorney's office and the Las Vegas Metropolitan Police Department, in a 17-yearold capital case. These depositions revealed that the district attorney's office has no institutional mechanism for ensuring that disclosable evidence in the possession of the police is included in the disclosure to the defense as required by Kyles. This rev. elation had no effect on the practices of the district attorney, which has been found in subsequent cases to have failed to disclose evidence in the possession of the police; and it has not changed the motion practice of the majority of defense counsel, who continue to rely upon the open file” policy. Similarly, in a case involving a claim of actual innocence, in which evidence relating to other suspects was concealed by Washoe County authorities for almost 20 years, Mazzan v. Warden, 116 Nev.-,993 P.2d 25 (2000), the revelation of the failure to disclose has not had any reported effect on the discovery policies currently in force or in most defense counsel's motion practice with respect to discovery. These are only the most obvious instances in which an absence of vigorous defense advocacy, and appropriate judicial response to such advocacy, has left the state system as a whole functioning below acceptable constitutional standards.

Providing thorough and competent representation at all stages of all capital cases is currently not a reality in the Nevada state system. That goal will be attained, if at all, only with the maturation of the criminal defense bar and with an insistence by the state courts on vigorous and thorough defense advocacy in capital cases.

FEDERAL COURT DIVISION
DEFENDER ASSOCIATION OF PHILADELPHIA
PHILADELPHIA, PA 19106

July 5, 2001
Senator Patrick Leahy
433 Russell Senate Office Building
United States Senate
Washingto D.C. 20510
Senator Orrin G. Hatch
104 Hart Senate Office Building
United States Senate
Washington, D.C. 20510

Dear Senators Leahy and Hatch:

I am writing in regard to S. 486 (The Innocence Protection Act). I am the Chief Federal Defender for the Eastern District of Pennsylvania. In addition to representing indigent defendants charged with federal crimes, my office also represents some prisoners in federal habeas corpus proceedings challenging death sentences imposed by the state courts of Pennsylvania. As such, I and my staff are familiar with standards for quality, and compensation, of counsel in the Commonwealth of Pennsylvania.

I understand that the Innocence Protection Act seeks to insure minimal standards governing the competency of counsel who handle death penalty cases in state court. Of Pennsylvania's 67 counties, only one (Philadelphia) has standards governing appointment of counsel. In this regard, Senator Leahy quoted the 1990 Joint Task Force on Death Penalty Litigation in Pennsylvania, that the lack of standards has led Pennsylvania to having “one of the worst systems in the country for providing indigent defense services, and has experienced “problem [s] of major proportions.

Indeed, in some cases being handled by my office we have seen stark examples of inexperienced and unqualified counsel being appointed to these cases. Scott Blystone was represented by a part-time public defender who had one year's experience as a judicial law clerk and had been practicing law for 342 months at the time of his appointment (Fayette County); Carolyn King was represented by a civil practitioner who specialized in family law who had tried a single criminal case, a oneday trial on drug charges (Lebanon County); Lawrence Christy was represented by two lawyers, one who had graduated from law school three years before trial and had asked for help from the court because he had never tried a capital case, and the other who had graduated from lave school two years earlier and had never tried any criminal case; James Carpenter (York County) was represented on direct appeal by an attorney who had one year of experience who had never represented a client in any appellate proceedings prior to this capital case.

While Philadelphia County has standards, that jurisdiction is responsible for 55% of the Pennsylvania's capital convictions. According to the Pennsylvania Department of Corrections 117 of Pennsylvania's death row inmates (45% of the Commonwealth's death row of 241) are from counties that have no published standards governing compensation of counsel, provision of investigators and experts, and qualifications of counsel.

The capital representation crisis in Pennsylvania is not a semantic question as to whether Pennsylvania provides standards at the county, rather than state-wide, level. It is that Pennsylvania has no adequate system for capital appointments and compensation at any level. As Chief Judge Becker of the United States Court of Appeals for the Third Circuit found, the issue of whether Pennsylvania provides adequate standards and resources for capital representation is not amenable to “countyby county or case-by-case determination.” The Commonwealth of Pennsylvania itself admitted “that Pennsylvania does not meet the [capital representation] requirements of the AEDPA) as of January 31, 1997, and that it has not met them previously.” Death Row Prisoners of Pennsylvunia v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997).

While it is true that the Philadelphia standards would prevent some of the more egregious examples of capital non-representation that occur elsewhere in Pennsylvania, the appointment system is neither neutral nor effective. The City courts have been sued on numerous occasions by appointed counsel because of non-payment and underpayment, and—as was the case at the time of the Task Force report in 1990—, many lawyers have stated that they will not take cases because they cannot afford to do so. Even an experienced capital defense lawyer cannot be effective if s/he is not paid adequately for the hours required to properly handle a case or does not have money for experts or investigators. Counsel qualified for appointment on Philadelphia's list have been found ineffective in five recent post-conviction cases for failing to investigate and present mitigating evidence, and a sixth lawyer who is on Philadelphia's appointment list was found ineffective for failing to investigate and present mitigating evidence in a case tried in a neighboring county.

In short, the observations of the 1990 Task Force report, cited by Senator Leahy during the hearing, retain their force today, notwithstanding any isolated suggestions to the contrary made during the hearing. Pennsylvania would greatly benefit from the adoption of uniform standards governing these important issues. I respectfully request that this letter be made a part of the record. Respectfully,

MAUREEN KEARNEY ROWLEY

Chief Federal Defender

Statement of Hon. Gordon H. Smith, a U.S. Senator from the State of

Oregon I would like to thank you, Chairman Leahy, Senator Hatch, and the rest of my colleagues on the committee for allowing me to speak today. I would also like to thank you for holding this hearing, which will help focus the Senate's, and the nation's, attention on importance of providing competent counsel in death penalty

This subject is important to me because I sit before you today as a proponent of the death penalty. I believe that some crimes are so odious, and so heinous that the death penalty is the only appropriate punishment. I believe further that the death penalty deters crime, and that it ultimately saves lives as a result. But I can only support the death penalty in good conscience if I am convinced, and the American people are convinced, that no innocent person is ever executed, and that people on trial for their lives have adequate legal representation. Competent counsel is a

cases.

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