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Let me provide some background information on this issue. The federal judiciary is required to appoint and compensate at least one lawyer for any death-sentenced inmate in a federal habeas corpus case. See 21 U.S.C. $ 848(q). The federal courts provide counsel in one of two ways. They may appoint an attorney from the private bar (known as a Criminal Justice Act panel attorney) or they may appoint a federal defender organization (FDO).

At its December 1998 meeting, the Defender Services Committee of the Judicial Conference resolved that “Defender Services appropriation funds may not be used to represent an individual under a state-imposed death sentence in a state proceeding unless a presiding judicial officer in a federal judicial proceeding involving the individual has determined that such use of Defender Services appropriation funds is authorized by law.” The Administrative Office (AO) monitors such appearances in state court by FDOs.

The most recent data available to the AO indicate that such appearances in state court are rare. For the period from April 1, 2000, through March 31, 2001, seven of the 67 FDOs reported a total of 47 state court appearances on behalf of 43 clients. The total cost of FDO appearances in state court, including out-of-court and in-court activities, was approximately $157,600. The state court activity was for specified purposes, including: matters related to exhaustion of remedies in state court; motions related to a stay of execution in state court; pleadings related to successor post-conviction litigation; and motions for release of public records. In accordance with the Defender Services Committee policy, these activities were pursued at the direction of a federal judge and in connection with a federal capital habeas corpus proceeding that had been filed in a federal court.

The $20 million referenced at the hearing as being available for state capital case assistance and training is, in fact, limited to use by FDOs to support the direct representation of petitioners in the federal review of state capital habeas cases pursuant to 28 U.S.C. $2254. As noted above, in a limited number of circumstances, these FDOs are authorized to use federal funds to represent death-sentenced inmates in state court proceedings, but only where a federal judge determines that such use of funds is authorized by law.

We believe that part of the confusion on this point may stem from the fact that some attorneys represent indigent defendants in both state and federal capital cases, which may lead to an erroneous assumption that they are paid only by federal sources. The federal judiciary only reimburses counsel for representation in a federal proceeding (except in the circumstances identified above), and other sources of funding must be found to compensate an attorney appearing in a state court action. One defender organization, the FDO serving the Eastern District of Pennsylvania, does receive nonfederal money to support its staff appearing in state court. That FDO is a community defender organization receiving grant funds from the judiciary for its federal court work. It has secured non-federal funds through grants and private contributions to support state court representations. During the most recent reporting period, according to this organization's documents and the independent audit that was done, it did not use federal resources on state court activity.

I appreciate this opportunity to clarify any confusion about these issues. I ask that a copy of this letter be made a part of the record of the hearing. Please let me know if the AO can provide any additional information on this matter to the Committee.






July 16, 2001
Hon. Orrin G. Hatch
Ranking Member
Committee on the Judiciary
United States Senate
152 Dirksen Senate Office Building
Washington, D.C. 20510-6275

Dear Senator Hatch:

Pursuant to a request from a member of your staff, I am writing to clarify the record with regard to a document referred to at the hearing held by the Committee on “Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases.” I want to emphasize that the report, entitled “The Crisis in Post-conviction Representation in Capital Cases Since the Elimination by Congress of Funding for the Post-Conviction Defender Organizations,” does not represent the official position or policies of the Administrative Office of the United States Courts or the Judicial Conference of the United States.

This report was drafted by Janice L. Bergmann, an attorney in a federal public defender organization, at the request of my staff to assist the judiciary in responding to its ongoing obligation to provide lawyers for death-sentenced inmates in federal capital habeas corpus cases. See 21 U.S.C. $ 848(q). In that regard, it has been provided to Judicial Conference's Committee on Defender Services, as well as to capital habeas practitioners participating in the judiciary's strategic planning efforts.

The report was completed in 1999 and updated in 2001. A disclaimer was incorporated into the report in the hope that it would avoid any confusion. I regret that it was not more clear.

The opinions, findings, and conclusions expressed in the report are those of the author. As part of the updating process, portions of the report were sent to various capital habeas practitioners for fact-checking purposes in anticipation of having a revised report available to the Committee on Defender Services at its May 2001 meeting. In order to meet this deadline, Administrative Office staff incorporated a number of the suggestions made by these practitioners into the report when the report's author became unavailable for an extended period this Spring. This activity, however, did not cause the Administrative Office to adopt or endorse

the report, and I want to reiterate that the report does not reflect the official position or policies of the Administrative Office or the Judicial Conference of the United States. Indeed, the judiciary's policy making process frequently is informed by materials garnered from a broad range of sources, and their use to educate judges and others involved in that process about particular points of view does not constitute an endorsement of either the source material or the opinions expressed therein.

I appreciate the opportunity to clarify this issue. I ask that a copy of this letter be made a part of the record of the hearing. Please let me know if the Administrative Office can provide any additional information on this matter to the Committee.




Statement of Norman Lefstein, Dean, Indiana University School of Law at

Indianapolis and Member, Standing Committee on Legal Aid and Indigent Defendants on behalf of the American Bar Association Mr. Chairman and Members of the Committee:

My name is Norman Lefstein. I am currently Dean and Professor of Law at the Indiana University School of Law at Indianapolis.

For many years I have dealt extensively with issues concerning the legal representation of indigent defendants in criminal cases in the United States, including death penalty cases. I was a reporter for the American Bar Association in preparing standards dealing with defense services in criminal cases! and directed a study on the cost and quality of defense representation in federal death penalty cases for a committee of the Judicial Conference of the United States.2 I also have been an expert witness in post-conviction death cases in which the quality of representation furnished by counsel was attacked. Currently, I am a member of the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants. Since 1989, I have served as Chairman of the Indiana Public Defender Commission, which developed death penalty representation standard for the consideration of the Indiana Supreme Court, most of which were later adopted.

This statement is submitted on behalf of the American Bar Association (hereafter ABA or Association). With the exception of its opposition to the use of the death penalty for the mentally retarded and for juveniles who committed their crimes when they were under the age of 18, the ABA has not adopted a position either for or against capital punishment. In 1997, however, because of its concern that the death penalty was not being carried out in accordance with due process principles, and did not adequately minimize the risk of executing innocent persons, the ABA called for a moratorium on the use of capital punishment in the United States.

Since the death penalty was held constitutional a quarter century ago, the Association has adopted policies concerning the administration of capital punishment. Underlying these policies is a concern for protecting the innocent. Thus, the ABA has made protection of the right to effective assistance of counsel a top priority and has developed standards or guidelines for the effective representation of criminal defendants in capital cases.

In 1989, the ABA adopted the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. These guidelines deal with the structure of defense systems for capital representation, the qualifications of counsel to represent defendants in capital cases, and the ways in which counsel should perform their various defense functions. As stated in the introduction to the guidelines, “they enumerate the minimal resources and practices necessary to provide effective assistance of counsel.” Because the guidelines are now more than 10 years old and outdated due to numerous changes in the law, the ABA has recently undertaken to review the guidelines and to propose necessary changes, which will likely be considered for adoption by the Association in 2002.

This statement addresses three fundamental issues that are bound up in the consideration of the Innocence Protection Act of 2001. First, why are standards for the representation of defendants in capital cases necessary? Second, what are the essential elements of a system for capital representation? And, lastly, why is it important that standards for representation in death penalty cases be enforceable? I. WHY ARE STANDARDS FOR THE REPRESENTATION OF DEFENDANTS IN CAPITAL CASES


There is an enormous amount of evidence that the quality of legal representation provided to defendants in capital cases in this country is woefully inadequate. If proof of this assertion is doubted, one need only recall that nearly 100 persons have been released from death rows in this country, with either substantial or incontrovertible evidence of their innocence. Ours is a country that prides itself on the quality of its criminal justice system. In the death penalty area, however, it is clear that something has gone wrong. Too often our adversary system of criminal justice, which requires that the accused be provided a vigorous defense, has not operated as intended. It is largely because of this that the ABA has called for a moratorium on the use of the death penalty, as noted earlier.

The problems in death penalty representation have been repeatedly documented in law journal articles, studies, newspapers, and in decisions of appellate courts. Too often the lawyer who represents the defendant in a capital case is inexperienced and lacks the requisite qualifications to defend a person on trial for his life. The lack of adequate compensation for counsel, experts and investigators sometimes means that the most qualified attorneys refuse to become involved in capital defense representation, thus leaving the defendant to be represented by an inexperienced and untrained attorney. Unfortunately, such lawyers all too frequently conduct inadequate factual investigations, fail to keep abreast of the complex and constantly changing legal doctrines that apply in capital litigation, and make procedural errors that later preclude review of meritorious claims. The deficiencies of lawyers in death

1 See “Providing Defense Services," Chapter Five, American Bar Association Standards for Criminal Justice (2d ed., Little Brown & Co., 1980).

2 See Federal Death Penalty Cases Recommendations Concerning the Cost and Quality of Defense Representation, Report of the Subcommittee on Federal Death Penalty Cases of the Committee on Defense Services of the Judicial Conference of the United States (1998).

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penalty cases also have included the failure to make appropriate objections, to present mitigating evidence, and even to file briefs on appeal.

In one of his last opinions as a member of the United States Supreme Court, Justice Blackmun identified the lack of standards as one of the primary reasons why there are so many problems in the area of defense representation in capital cases. "The absence of standards governing courtappointed capital-defense counsel means that unqualified lawyers often are appointed, and the absence of funds to compensate lawyers prevents even qualified lawyers from being able to present an adequate defense. Many states that regularly impose the death penalty have few, if any, standards governing the qualifications required of court-appointed capital-defense counsel. .

Justice Blackmun offered this analysis in 1994, but his assessment of the situation is still accurate in 2001. Although standards for the appointment of counsel have been adopted by rule or statute in some states, most are not comprehensive and thus fail to deal with all facets of capital representation. In about half of the death penalty states, moreover, there are no court rules or statutes of any kind governing capital defense representation, and this includes a number of jurisdictions that have large death row populations.

The importance of standards for capital representation can perhaps best be understood by recalling what has happened in Illi is. Governor Ryan, a proponent of the death penalty, imposed a moratorium on the use of the death penalty in that state because of the release from death row of numerous defendants determined to be innocent. In these cases, there was abundant evidence that the lawyers who represented the defendants were not qualified by either experience or training to do so. Significantly, until March of this year, Illinois did not have any standards governing the appointment of counsel in death penalty cases or any of the other facets of capital representation.

In contrast, Indiana has had since 1994, by virtue of a Supreme Court rule, one of the more comprehensive provisions governing capital defense representation in the country.4 As a result of this rule, there is considerable evidence that the quality of defense representation in capital cases has improved, as documented in a study that I published in 1996.5 The Honorable Randall T. Shepard, Chief Justice of Indiana, seemingly agrees with this conclusion. As he stated in a speech, "[t]he net result of our rule and [state) appropriations is some very thorough, high quality, and effective representation.". Since the adoption of Indiana's rules, no person has been released from the state's death row because of innocence. Nor has there been a case in which lawyers were appointed pursuant to the Supreme Court's rule, complied with its requirements, and were held to be ineffective.7

In short, whether contained in court rules or statutes, standards for capital defense representation can and do make a difference, just as in other criminal cases requiring counsel for the indigent. Standards can assure that only attorneys with appropriate experience and training are appointed to represent defendants. Thus, standards can be instrumental in assuring that defendants' constitutional rights are protected, reduce the likelihood of error in proceedings, diminish the number of appeals and ultimately enhance the efficiency and effectiveness of the criminal justice process.

The Innocence Protection Act of 2001 contemplates the creation of a National Commission on Capital Representation to develop standards for providing adequate legal representation for indigents in death penalty cases. Although the ABA has never taken a position on the establishment of such a commission, clearly the approach of the proposed legislation is fully consistent with the ABA's guidelines on defense representation in death penalty cases and with other policies of the Association.

3 McFarland v. Scott, 114 S. Ct. 2785, 2786 (1994)(Blackmun, J., dissenting).

4 Ind. R. Crim. P. 24. The rule was originally effective January 1, 1990. Subsequently, it was amended on several occasions. The most important provisions related to defense representation in capital cases did not take effect until 1993.

5 Lefstein, “Reform of Defense Representation in Capital Cases: The Indiana Experience and Its Implications for the Nation,” 29 Ind. L. Rev. 495 (1996).

6 “Capital Litigation from the State Court Perspective or Rushing to Judgment in Fifteen Years,” Speech by Randall T. Shepard at Judicial Meeting of the U.S. Court Appeals for the Seventh Circuit (May 2, 1996).

7 There is one death penalty case in which lawyers appointed pursuant to the Indiana rule were found to be ineffective. However, the caseload of one of the lawyers substantially exceeded the caseload restrictions specified in the Indiana rule. See State v. Prowell, 741 N.E.2d 704 (Ind. 2001).


REPRESENTATION? The ABA guidelines on capital defense representation call for an independent appointing authority to develop qualification and compensation standards, to recruit and train lawyers to handle capital cases, to certify them as competent in this specialty area, and to make the actual appointments of counsel in all cases. The guidelines also provide that this independent authority should establish standards of performance for counsel and monitor their conduct to assure that clients are receiving quality legal representation. In addition, this independent body should have the authority to remove unqualified lawyers from the roster of attorneys eligible to receive appointments in capital cases.

As long as state court judges continue to make capital case assignments without adequate regard for the qualifications and training of counsel, the problems of incompetent counsel will surely continue. Unskilled attorneys will continue to make serious errors during trial; subsequently, post-conviction counsel will seek to discover those errors and seek reversals of death sentences imposed; and state appellate courts and federal courts will bear the brunt of correcting those errors. The only longterm answer is to conduct trials correctly in the first place. In the Association's view, this requires independently appointed, competent counsel.

The recommendation in the ABA's guidelines that the program for furnishing counsel in capital cases be vested in an independent appointing authority had its genesis in earlier reports and standards of the Association. In 1973, for example, the National Advisory Commission, organized during the Nixon administration and comprised of criminal justice experts from across the country, expressed the following viewpoint: “The method employed to select public defenders should insure that the public defender is as independent as any private counsel who undertakes the defense of a fee-paying criminally accused.”

"Š This approach for providing defense counsel to the indigent was spelled out in further detail in the ABA's second edition of Providing Defense Services, adopted by the Association in 1979.9 The current version of these standards, approved by the Association in 1990, reads as follows: "The plan and the lawyers serving under it should be free from judicial supervision only in the same manner and to the same extent as are lawyers in private practice. The selection of lawyers for specific cases should not be made by the judiciary or elected officials. ..."

There are a variety of reasons why judges should not appoint lawyers in indigent cases, or otherwise be involved in the overall supervision of indigent defense, and these arguments are even more compelling when capital cases are involved because the stakes are so much greater. The paramount reason for not having judges appoint defense lawyers is to assure that counsel always feels completely free to act in the client's best interest. While there are obviously many fine judges who preside over criminal cases, there are occasions when judges are angered by motions filed by defense attorneys, resent arguments advanced by counsel, and rule against lawyers insistent upon continuances. Judges, for example, are understandably concerned with moving their dockets, but this is not defense counsel's concern and should never be the reason that a lawyer fails to make arguments or take actions on the client's behalf.

A lawyer should not have to fear reprisals of any kind from either the judge before whom he or she is appearing or some other judge before whom the lawyer might later appear. The power of judges to appoint lawyers and approve claims for compensation necessarily includes the power to withhold appointments and to reduce payments for the time lawyers devote to indigent cases.

A lawyer's advocacy on behalf of an indigent defendant in an appointed criminal case, especially a capital case, should be no more inhibited than the lawyer's advocacy in representing a client in a retained private case. Judges do not select privately retained lawyers or prosecutors. Judges should not be involved in the selection and operation of indigent defense programs either. The appointment of counsel and the oversight of indigent defense by an independent authority should also alleviate the fear of defendants that the judge or some other court official in charge of assignments controls the defense lawyer.

While it was noted earlier that some changes in the Association's guidelines are likely to be recommended next year, clearly the call for an independent appointing authority, which is quite central to the guidelines, will not be one of them. As the

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8 National Advisory Commission on Criminal Justice Standards and Goals, Courts 13.8 (1973). 9 See supra note 1, Standard 5-1.3.

10 “Providing Defense Services," Standard 5-1.3, ABA Standards for Criminal Justice (3d ed.

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