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Ostensibly, this money is to be used for representation of state capital defendants in federal habeas proceedings, after the case has already moved through the state courts. In my jurisdiction, however, capital defense lawyers paid by the federal government have spent at least as much of their time in state court as in federal court.

At the very minimum, the federal millions free up considerable resources for direct use in state court, at the trial, appeal, and post-conviction level. Undoubtedly, capital defense lawyers will still claim it is not enough. (I am not personally aware of any government-funded lawyers, at least at the state and local levels, who believe they have enough resources to perform their jobs optimally.) But the existence of this funding stream surely impacts on the question of whether Congress need impose new federal mandates on the states, with significant financial and legal penalties for those jurisdictions that devise their own different solutions to the problem.

Existing counsel standards. Opponents of the death penalty claim that the system is unfair because lawyers are not sufficiently qualified. The deficit can be redressed, it is argued, only if the federal government steps in to force states to adopt federal standards for appointment of counsel in capital cases.

Under the previous administration, however, the Department of Justice performed a study finding that most state death penalty cases arise in jurisdictions that have already adopted standards for appointment of capital counsel. And in most cases, those standards exceed the qualifications that Congress chose to require for appointment of counsel in federal capital cases.

The Clinton Justice Department study can be found on the internet at http:// www.ojp.usdoj.gov/indigentdefense/compendium/pdftxt/vol3.pdf. It concluded that at least 17 states have by statute or court rule promulgated standards for appointment of counsel at various stages of a capital case. These states include California, Florida, Georgia, Missouri, New York, North Carolina, Ohio, and Utah. (The list does not include Pennsylvania, which does not have statewide standards, but does have detailed standards for Philadelphia, which represents the majority of capital cases in the state.)

At least 14 other states, according to the study, have public defender systems for capital representation. These states include Colorado, Delaware, Maryland, New Jersey, New Mexico, Oklahoma, and Oregon. (The study predates the recent establishment of a statewide indigent defense system in Texas.)

Standards for appointment of counsel in federal cases carrying a potential death sentence are set forth in 21 U.S.C. $ 848(q)(4)(A) and (5–7). They provide only that the court appoint one (and for good cause shown, a second) attorney, who has been a member of the bar for five years and has three years of felony trial or appellate experience. Unlike many of the state appointment standards, the federal standards do not require experience in any prior capital cases, or any training in capital litigation.

This discussion of counsel appointment standards is not to suggest, however, that particular standards necessarily result in reduced claims of attorney error. Experience is actually to the contrary. In Philadelphia, for example, where capital appointment standards were adopted a decade ago, I am unaware of any capital case that does not involve claims of ineffective assistance of counsel. Frequently, counsel whose ineffectiveness is raised will testify that they did indeed err in some fashion. Of course, a lawyer who avoids a death sentence for his client by confessing his own ineffectiveness is, paradoxically, supremely “effective.”

But if the goal is to achieve effective counsel in the constitutional sense, rather than simply to reduce the number of successful capital prosecutions, then it is unclear that any particular appointment methods are optimal whether or not Congress chooses to punish states that diverge from federally mandated provisions.

DISTRICT ATTORNEY'S OFFICE
PHILADELPHIA, PENNSYLVANIA 19102

July 5, 2001
Hon. Patrick Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510-6275

Dear Chairman Leahy,

I was a witness at the June 27, 2001, Judiciary Committee hearing exploring issues related to competency of counsel in state capital proceedings. During the hearing, you read from the posed questions to me concerning an April 2001report by Janice L. Bergmann entitled “The Crisis in Post-Conviction Representation in Capital Cases Since the Elimination by Congress of Funding for the Post-Conviction Defender Organizations.”

Because I was previously unaware of the report, I would like to add to my responses to your questions, which focused on the report's discussion of post-conviction capital litigation in the Commonwealth Pennsylvania.

At page 75, the report alleges that Pennsylvania fails “to provide trained legal counsel for indigent death row prisoners.” The report attempts to justify this charge with several assertions.

First, the report states that the post-conviction capital defender organization originally funded by the federal government in 1994 was downsized and eventually forced to close entirely in 1999. In reality, as I mentioned at the hearing, federal funding for post-conviction capital defense in Pennsylvania never ended; on the contrary, it has increased ten-fold since 1994.

It is true that the organization originally called the Pennsylvania Capital Case Resource Center has changed its name several times—but not its function. The resource center changed its title to the Pennsylvania Post-Conviction Defender Organization, and then, after the so-called “defunding,” to the Center for Legal Education, Advocacy, and Defense Assistance.

At the same time that the CLEADA title emerged, however, so did another; the Capital Habeas Unit of the Federal Defenders Office for the Eastern District of Pennsylvania. This was the entity that officially received the continuing federal funding for post-conviction capital defense in Pennsylvania. The report acknowledges that this organization was created “not long after” the ostensible defunding of the resource center. In reality, there was no gap at all; the Administrative Office of United States Courts Defender Services Division officially acted, months before the "defunding,” to appropriate money to the new Capital Habeas Unit.

The overlap between the resource center and the Capital Habeas Unit was more than temporal. The staff of the habeas unit largely consisted of attorneys who had, until the moment of the unit's creation, been resource center lawyers. Indeed, while two of the resource center's lawyers worked under the separate letterhead of CLEADA, the remainder officially became employees of the capital habeas unit.

But these lawyers did not have to go far to communicate. ČLEADA and the capital habeas unit shared offices on the same floor of the same building. While they had different suite and telephone numbers, lawyers from these offices answered the phones and used the face machines interchangeably, regardless of their official title. (The rest of the Federal Defenders Office, of which the Capital Habeas Unit was officially a part, was housed in a different location.)

Most importantly, however, all of these lawyers continued to work together on state capital cases. The Bergmann report implies that lawyers of the Capital Habeas Unit represent capital defendants only in federal court, after state post-conviction proceedings have been completed. That is flatly false. Lawyers employed by the Capital Habeas Unit represent capital defendants in the majority of-indeed, in almost all-post-conviction proceedings in state court. My colleagues deal with these lawyers, in writing and in person and in state court, every day.

So when in 1999 CLEADA chose to end its independent existence, there was no question what would happen to its lawyers and state court caseload. All were immediately assumed by the Capital Habeas Unit staff. The report carefully asserts that, when CLEADA dissolved, “no state entity in Pennsylvania” was available for capital defense. The author seemingly was aware that an entity did indeed exist, although it had been created and funded by the federal government though the AOUSC.

And that entity has flourished. In 1995, the Defender Services Division allocated $1,590,744 to the Capital Habeas Unit for the portion of FY96 following the upcoming resource center “cut-off” date of March 31-apparently far more federal funding than the resource center ever received as such. For FY97, the Division allocated $2,327,600. In FY98, the allocation was $2,485,100. In FY99, the unit received $2,904,800. And for FY2000, Capital Habeas Unit funding jumped to $5,565,00 When the Pennsylvania resource center was supposedly cut off, there were four federally funded lawyers providing assistance, training, and most of all, direct representation of state capital defendants. Today, there are at least fifteen. The report says none of this.

The report misrepresents Pennsylvania conditions in other respects as well. The report implies that capital defendants go unrepresented, stating that the Commonwealth adopted a one-year filing deadline for state post-conviction petitions (as Congress did for federal post-conviction petitions), yet has no state standards for appointment or funding of post-conviction counsel. In reality, Pennsylvania has a guaranteed right to appointment of counsel for one full round of post-conviction counsel, but to the effective assistance of post-conviction counsel, to be judged on Strickland standards. No court can dispose of the first post-conviction petition without appointing counsel, even if the one-year filing deadline has passe. I am aware of no case in which an unrepresented capital defendant was time-barred from an initial State post-conviction petition. The report says none of this.

As to appointment standards and funding, the report makes no effort to gauge conditions. Instead it simply takes the position that, since these functions are not mandated at the state level in identical, centralized terms for all of Pennsylvania's 67 counties, they must be performed inadequately. Astonishingly, the report fails to discuss practices in Philadelphia, which accounts for roughly three fourths of all homicides in Pennsylvania, and two-thirds of the capital cases.

As I mentioned at the hearing, Philadelphia has for more than a decade had in place appointment standards that far exceed federal standards. The standards apply not just for appointment of trial and direct appeal counsel, but for appointment of post-conviction counsel as well. They require that the court appoint at least one attorney (and two attorneys if the case presents numerous or complex issues). The attorney must have at least five years of litigation experience, must have handled at least ten trials or hearings to final factual resolution, must have taken training within the previous two years focusing on capital post-conviction litigation, and must submit an adversary writing sample and questionnaire to a screening committee of defense lawyers. The report says none of this.

All these commissions are not surprising. The report states that it was prepared “with the assistance of local practitioners.' I know of no Pennsylvania prosecutors, however, who were consulted under the auspices of the report, or who were even informed of its existence after completion.

The report's author is identified as “a federal defender staff attorney.” It is unclear to me from this description whether the author is a direct employee of the Defender Services Division of AOUSC, or whether she is in fact a practicing capital defense attorney; at the least, as a Westlaw search shows, her training and experience are as a capital defense attorney. What is clear, then, it that this report is hardly an objective analysis by a neutral government agency. It is an advocacy document, written by an advocate.

Still, the existence of the report underscores two points made at the hearing: that many state and local governments are now taking great efforts to provide competent capital defense counsel, and that, in many areas, their primary opponent in defending capital convictions is an agency of the federal government. I hope that this more complete discussion of the Pennsylvania experience in capital litigation will aid the Committee in the consideration of the issues before it. Thank you for this opportunity to supplement the record of the hearing.

Sincerely,

RONALD EISENBERG

Deputy District Attorney Chairman LEAHY. Unfortunately, in Illinois, we had to trust some teenage or just-out-of-their-teens journalism students to do what the courts and the whole criminal justice system had not done to find innocent people.

Beth Wilkinson, our next witness, was the lead prosecutor in the Oklahoma City bombing case. She delivered the closing arguments in the sentencing phase of the McVeigh case-in which he received the death penalty—and delivered also the arguments in the Nichols trial.

She began her legal career as a captain in the U.S. Army, where she served as an assistant to the general counsel for the Office of the Army General Counsel. She has also served as an Assistant U.S. Attorney in New York and as the principal deputy chief of the Terrorism and Violent Crime Section at the Department of Justice. She is now a partner with Latham and Watkins here in Washington, and serves as co-chair of the Constitution Project's Death Penalty Initiative.

Ms. Wilkinson, I thank you very much for taking time in what I know has already been a very busy day to be here with us. Go ahead.

STATEMENT OF BETH WILKINSON, CO-CHAIR, CONSTITUTION PROJECTS DEATH PENALTY INITIATIVE, WASHINGTON, D.C.

Ms. WILKINSON. Thank you very much, Mr. Chairman. It is a privilege to be here with you; Senator Hatch, to see you again; Senator Sessions and Senator Feingold to speak about something that is so important to, I believe, everyone on this panel.

I come to you today not just in my personal capacity as a former Federal prosecutor, but also as the co-chairman of the Death Penalty Initiative that made its recommendations public this morning. We are a bipartisan group of people who are in favor and oppose the death penalty, and have worked in a similar way that I think you, Senator Leahy, and you, Senator Hatch, are trying to do on these very important issues.

We have brought together people as diverse as Paula Kurland, who is here today, who is a mother of a victim of a murder who actually witnessed the execution of her daughter's murderer. Her daughter, Mitzi, was murdered at age 21.

We are also joined on our committee by Judge William Sessions, the former Director of the FBI, a proponent of the death penalty and a strong supporter of DNA evidence and analysis.

On the other side of the aisle is David Bruck, a prominent capital defense lawyer who has chosen in his career to defend many people who have faced capital punishment. We even are joined by Reverend James Andrews, who represents a variety of the clergy, including the Presbyterian Church, who oppose the death penalty.

We took the time to come together with our divergent views and make 18 recommendations for what we saw as the minimum standards that States and jurisdictions across the country needed to employ to ensure that capital litigation was improved in our country.

Today, we have announced those recommendations, and three are directly related to the topic of your hearing today and that is the competency of counsel. I personally believe there is nothing more important in any type of litigation, but especially in capital litigation, that defendants receive good and zealous representation.

It is important for obvious reasons, to protect the system, to protect the victims who want to know that the right person was convicted fairly, to streamline the appellate process so we don't have the long delays that some of the other panelists have alluded to this morning, and so that we know our system is working properly and is tested at every level.

As a former prosecutor, I found great comfort in participating in the McVeigh case knowing that Mr. McVeigh and Mr. Nichols were represented by very fine, experienced advocates. In the end, when Mr. McVeigh challenged most recently his death penalty conviction and sentence, I think Judge Matsch and the rest of us found great comfort in knowing that there had been a thorough investigation, a thorough pre-trial process, extraordinary resources expended by the defense that left no doubt that Mr. McVeigh was the perpetrator of the crime.

I believe that most people who participate in the system want to know on both sides that the defendant is being represented zealously. Unfortunately, that doesn't happen in our system in very many instances. While States across the country do have standard, as Mr. Eisenberg noted, few or any of them are enforced on a regular basis. It does us no good to have those standards if those counsel that represent indigent defendants are not actually accomplished, experienced criminal lawyers. As Mr. Bright was saying, many of these lawyers have no experience in criminal law.

What the Constitution Project's Death Penalty Initiative recommends to you, and is consistent with the legislation that we support, the Innocence Protection Act, is that three main fixes be made in the system.

First, there is an independent authority that appoints counsel, sets the standards, and ensures that each individual defendant has adequate and well-trained counsel. Now, Mr. Eisenberg noted that if such an independent authority were established, it might be taken over by people who are zealous anti-death penalty advocates.

Well, first of all, I think most people who defend death penalty defendants are opposed to the system. Few other people would ever take on that type of representation. It is emotionally exhausting, it is intellectually challenging, and it is not well-paying. So I don't think that it should surprise anyone that if there is an independent authority that the people who actually take on the representation would oppose the death penalty. That should make no difference in how they zealously represent the defendants. In fact, if it improves their skills—that is, if they receive more training and they have more experience that is only to all of our benefit.

Second, we want to ensure that all of the counsel who represent individuals in this system are paid properly. Everyone knows and has heard of the stories of people who receive $20 to $40 an hour in Alabama, Tennessee where there is a $20 to $30 limit, and in Mississippi a $1,000 cap. No attorney, no matter how zealous, who has to pay their bills, pay back their law school loans, can afford to take on those types of representations.

It is essential that attorneys are well compensated, and that not only are they compensated but that their investigators and experts can be paid so that they can pursue all of their rights under the system.

Finally, the third recommendation we make is that the current standard under the Supreme Court precedent of Strickland v. Washington for competency of counsel be changed for capital litigation. The idea that you can have effective assistance but fatal assistance, as we have heard described here so dynamically by Mr. Graham, is shocking. We should hold defense counsel who represent capital defendants to a higher standard.

I come here today to thank all of you for all the hard work that you have been doing, and I know you will continue to do on this bipartisan issue, and to provide the support of our committee and me personally for the Innocence Protection Act. I look forward to answering any questions you may have.

[The prepared statement of Ms. Wilkinson follows:]

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