Why Florida Statutes Don't Work for Capital Defense Representation: Funding Isn't There - Terry Lenamon Writes the Innocence Commission With Details

Back in May 2012, Terry Lenamon in his role as Chairman of the Board of Directors for the Florida Capital Resource Center, wrote to Les Garringer, the Executive Director of the Florida Innocence Commision, to explain how recent Florida laws have impacted the ability of Florida capital defense attorneys to effectively do their jobs, which is defending people that the State of Florida seeks to execute. 

Here are excerpts from that correspondence which may be of interest to our readers and those concerned about the death penalty in this country.  Terry writes:

Florida’s capital defendants are facing a deficiency in effective representation, particularly in those areas of the State responsible for the highest number of death sentences. One of the primary reasons for this deficit in quality representation is Florida’s statutory scheme for compensating private court-appointed counsel – section 27.5304, Florida Statutes (2010). For several reasons, the current scheme works to discourage qualified private attorneys from registering for court- appointment. At the same time, the statute provides economic incentive for  those who do register to spend as little time on a case as possible. Together, these unintended consequences have resulted in a significant decrease in the quality of representation available to capital defendants.

Highly Qualified Attorneys Need Not Apply

The compensation scheme codified in section 27.5304 was intended to save the State money by limiting attorney’s fees and encouraging plea deals. Thus, section 27.5304(5) provides a schedule of flat fees for attorneys based on the class of offense, and as noted in subsection (11), the Legislature intended “that the flat fees prescribed . . . comprise the full and complete compensation for private court-appointed counsel.” However, for more serious or complex cases, these flat fees are set unreasonably low:

1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000.
5. For representation on appeal: $2,000.

§27.5304(5)(a) (2010).

The fees are especially unreasonable as they relate to capital cases. A properly managed capital case that reaches trial typically lasts several months, if not years, and will generally require hundreds of hours of attorney time to prepare. However, based on a recent survey in which 91% of responding Florida lawyers listed their hourly rate at $150 or higher, the statutory flat fee for capital cases amounts to 100 hours or less of attorney time – an amount that barely covers the in-court time of an attorney over the course of both phases of a trial. [2]  Thus, in the capital context, the prescribed flat fees immediately discourage qualified attorneys from registering for court-appointment – and even more so for attorneys with greater experience who presumably charge a higher rate.....

 

Terry Lenamon Moves to Disqualify the Courts in Two Death Penalty Cases Based on Florida Statute 27.5304

Terry Lenamon is in the news again as he fights to save two men from the death penalty in Florida, filing motions in two separate Marion County death penalty matters, on behalf of James Edward Bannister and Michael Lamar.

He is arguing that the Florida Statute 27.5304 not only establishes how private court-appointed counsel are paid but that the law creates a conflict of interest for judges who are presiding over these indigent cases.  The motions request disqualification of the court, where the judge not only presides over the case itself but also approves the defense expenses including the attorney's fees for representing the indigent defendant. 

It's the idea that the judge may short cut in order to save money in an indigent case that is seeking to impose the death penalty that is the crux of Lenamon's argument. 

Will it succeed?  Stay tuned.

Death Penalty in 2011: Amnesty International's Global Overview

 
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