In Depth Look at the Law: Florida's System of Insuring Legal Representation for the Indigent Must Be Changed

In our new series, we'll be looking at Florida's indigent defense system, particularly as it applies to cases where capital punishment is being sought. How are attorneys chosen and compensated for representing the criminal defendant who is without funds to pay for his own defense, especially those facing the death penalty? How is Florida's current indigent defense system critically flawed?

The Florida Legislature Provides for Compensation of Attorneys Who Represent Poor (Indigent) Criminal Defendants in State Matters

First, let's review the action of the Florida Legislature in the past few years. Before the current system was put in place, Florida provided for indigent criminal defense through Chapter 27 of the Florida Statutes. There, a collection of private criminal defense attorneys offered themselves for appointment by the courts in the defense of impoverished defendants in criminal cases under Judicial Administrative Commission (JAC) contracts. The attorneys worked on behalf of their clients, who were entitled to representation by an attorney under the law. In return, these attorneys were compensated by the government.

The 2007 Changes by the Florida Legislature Made Appointments Financially Not Viable for Most Criminal Defense Attorneys

The Chapter 27 system was changed, however. Under the new statutes, Chapter 2007-62, Florida indigent criminal defense effectively discouraged attorneys from placing their names on the list for court appointments and JAC contracts. This occurred in several ways:

1. It set up a lower flat fee system, cutting the rates that had been established under the prior statute and ignoring how costly in time and money some of the criminal defense cases - even routine ones - can become for the defense lawyer.

2. In complex cases, it continued to allow an avenue for attorneys to apply for the right to bill real time at an hourly rate, but it did so in such a way that was complicated, time-intensive, and quite frankly, frustrating in its bureaucracy. (The attorney had to go through many more procedural hoops to get a case approved as "extraordinary and unusual," under what has become known as the "Makemson standard." Makemson v. Martin County, 491 So.2 1109 (Fla. 1986). )

3. It ended periodic billing. Under the old system, appointed attorneys could present invoices for payment by the government periodically (every six months) in those "extraordinary and unusual" cases, as the case went along (and sometimes, criminal cases can go on for years). The new system under 27.5304(3), Florida Statutes (2007), makes the appointed attorney wait until the end of the case before being paid anything - and before he can be sure that the case will indeed be approved as "extraordinary and unusual." Easy to see how an attorney might be wary at undertaking a complicated criminal defense matter when she could expect to invest time and money for years, only to end up being paid a low, flat rate and having to write off a significant amount of money from the books.

With this one alteration by the Florida Legislature (27.5304(3)), many excellent criminal defense attorneys were forced to take their names out of consideration for criminal appointments because they simply could not afford to essentially work for nothing on huge, time-consuming cases for months, and years, at a time. To do so would put them out of business.

As a result, judges had indigent criminal defendants in their courtrooms, and no criminal defense attorneys available to take the judicial appointment to represent the defendant. The defendant has a constitution right to counsel, and the judge had been placed in an untenable position by 27.5304(3), just as the criminal defense bar had been. What to do?

Next week, in part two of the series:
Involuntary appointments begin after criminal defense attorneys are forced to stop voluntarily taking on indigent defense cases, without consideration of the lawyer's budgetary needs (to pay salaries, expenses, etc.).

The Checklist for Death Penalty Qualified Criminal Defense Attorneys in Florida

So far, we have three posts (03/27/09; 04/16/09; 04/20/09) that deal with the role of a judge - at both the trial and appellate levels - in a death penalty case. There's a lot more to consider about the impact that judges have in death penalty considerations, but before we delve further into their role, it seems wise to bring the attorneys into the mix.

First, the criminal defense attorneys. (Next, the prosecutors.)

Before a lawyer can represent a client who is facing capital punishment in a Florida case, he must meet many, many requirements. Why? The Florida legislature as well as the Florida courts have recognized that when a defendant's life is at stake, his legal counsel plays a vital role in making sure that due process of law is achieved.

Once again, it's about your right to due process of law

Every aspect of due process must be vigilantly protected when the State is seeking to kill a defendant as punishment for actions that defendant has allegedly done. The ability of the government to take a citizen's life must be scrupulously monitored and restrained - this is one of the key purposes of our due process standards.

Remember, as Justice Rehnquist alluded to in the Brady Opinion (04/20/09 post), the focus is on the state, not the individual defendant. Anything but the strictest of due process standards in death penalty cases risks the horrors of a fatal error.

Today, even with our due process standards in place, there are many innocent people who have been sent to Death Row, as the Innocence Project can readily confirm. Some innocent people have been executed in this country. Due process is not perfect - after all, it's a manmade construct -- but it's the standard that we have set in our judicial system. It's the best we can do, and our jurisprudence is always attempting to hone and better our due process standards.

Death Penalty Criminal Defense Attorneys in Florida

Perhaps the most important role from a due process perspective in a death penalty case is that of defense counsel. The trial judge, of course, vigilantly monitors each step of the legal process, but it is the defendant's own attorneys that must make the objections to possible violations, and fill the record for appeal with the proper procedural foundations when errors are made.

A trial judge cannot rule on an objection that is not made. An appellate judge cannot rule a point of error left unaddressed.

Different states have different requirements for their death penalty defense attorneys, as does federal law for federal capital punishment cases. In Florida, a specific checklist provides the legal requirements that a criminal defense attorney must have before he sets as lead trial counsel, trial co-counsel, or appellate counsel for a defendant facing the penalty of death.

Florida Rule of Criminal Procedure 3.112 - the Florida Checklist for Death-Qualified Attorneys

According to Florida Rule of Criminal Procedure 3.112, the minimum standards for a death penalty defense attorney are:

(a) Statement of Purpose. The purpose of these rules is to set minimum standards for attorneys in capital cases to help ensure that competent representation will be provided to capital defendants in all cases. Minimum standards that have been promulgated concerning representation for defendants in criminal cases generally and the level of adherence to such standards required for noncapital cases should not be adopted as sufficient for death penalty cases. Counsel in death penalty cases should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, zealously committed to the capital case, who has had adequate time and resources for preparation. These minimum standards for capital cases are not intended to preclude any circuit from adopting or maintaining standards having greater requirements.

(b) Definitions. A capital trial is defined as any first-degree murder case in which the State has not formally waived the death penalty on the record. A capital appeal is any appeal in which the death penalty has been imposed. A capital postconviction proceeding is any postconviction proceeding where the defendant is still under a sentence of death.

(c) Applicability. This rule applies to all defense counsel handling capital trials and capital appeals, who are appointed or retained on or after July 1, 2002.

(d) List of Qualified Conflict Counsel.

(1) Every circuit shall maintain a list of conflict counsel qualified for appointment in capital cases in each of three categories:

(A) lead trial counsel;

(B) trial co-counsel; and

(C) appellate counsel.

(2) The chief judge for each circuit shall maintain a list of qualified counsel pursuant to section 27.40(3)(a), Florida Statutes.

(e) Appointment of Counsel. A court must appoint lead counsel and, upon written application and a showing of need by lead counsel, should appoint cocounsel to handle every capital trial in which the defendant is not represented by retained counsel. Lead counsel shall have the right to select cocounsel from attorneys on the lead counsel or cocounsel list. Both attorneys shall be reasonably compensated for the trial and sentencing phase. Except under extraordinary circumstances, only one attorney may be compensated for other proceedings. In capital cases in which the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed, the Public Defender or Criminal Conflict and Civil Regional Counsel shall designate lead and co-counsel.

(f) Lead Counsel. Lead trial counsel assignments should be given to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

(2) are experienced and active trial practitioners with at least five years of litigation experience in the field of criminal law; and

(3) have prior experience as lead counsel in no fewer than nine state or federal jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead defense counsel or co-counsel in at least two state or federal cases tried to completion in which the death penalty was sought. In addition, of the nine jury trials which were tried to completion, the attorney should have been lead counsel in at least three cases in which the charge was murder; or alternatively, of the nine jury trials, at least one was a murder trial and an additional five were felony jury trials; and

(4) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and

(5) are familiar with and experienced in the utilization of expert witnesses and evidence, including but not limited to psychiatric and forensic evidence; and

(6) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, including but not limited to the investigation and presentation of evidence in mitigation of the death penalty; and

(7) have attended within the last two years a continuing legal education program of at least twelve hours' duration devoted specifically to the defense of capital cases.

(g) Co-counsel. Trial co-counsel assignments should be given to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

(2) qualify as lead counsel under paragraph (f) of these standards or meet the following requirements:

(A) are experienced and active trial practitioners with at least three years of litigation experience in the field of criminal law; and

(B) have prior experience as lead counsel or co-counsel in no fewer than three state or federal jury trials of serious and complex cases which were tried to completion, at least two of which were trials in which the charge was murder; or alternatively, of the three jury trials, at least one was a murder trial and one was a felony jury trial; and

(C) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and

(D) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, and

(E) have attended within the last two years a continuing legal education program of at least twelve hours' duration devoted specifically to the defense of capital cases.

(h) Appellate Counsel. Appellate counsel assignments should be given to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

(2) are experienced and active trial or appellate practitioners with at least five years of experience in the field of criminal law; and

(3) have prior experience in the appeal of at least one case where a sentence of death was imposed, as well as prior experience as lead counsel in the appeal of no fewer than three felony convictions in federal or state court, at least one of which was an appeal of a murder conviction; or alternatively, have prior experience as lead counsel in the appeal of no fewer than six felony convictions in federal or state court, at least two of which were appeals of a murder conviction; and

(4) are familiar with the practice and procedure of the appellate courts of the jurisdiction; and

(5) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases; and

(6) have attended within the last two years a continuing legal education program of at least twelve hours' duration devoted specifically to the defense of capital cases.

(i) Notice of Appearance. An attorney who is retained or appointed in place of the Public Defender or Criminal Conflict and Civil Regional Counsel to represent a defendant in a capital case shall immediately file a notice of appearance certifying that he or she meets the qualifications of this rule. If the office of the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed to represent the defendant, the Public Defender or Criminal Conflict and Civil Regional Counsel shall certify that the individuals or assistants assigned as lead and co-counsel meet the requirements of this rule. A notice of appearance filed under this rule shall be served on the defendant.

(j) Limitation on Caseloads.

(1) Generally. As soon as practicable, the trial court should conduct an inquiry relating to counsel's availability to provide effective assistance of counsel to the defendant. In assessing the availability of prospective counsel, the court should consider the number of capital or other cases then being handled by the attorney and any other circumstances bearing on the attorney's readiness to provide effective assistance of counsel to the defendant in a timely fashion. No appointment should be made to an attorney who may be unable to provide effective legal representation as a result of an unrealistically high caseload. Likewise, a private attorney should not undertake the representation of a defendant in a capital case if the attorney's caseload is high enough that it might impair the quality of legal representation provided to the defendant.

(2) Public Defender. If a Public Defender or Criminal Conflict and Civil Regional Counsel seeks to refuse appointment to a new capital case based on a claim of excessive caseload, the matter should be referred to the Chief Judge of the circuit or to the administrative judge as so designated by the Chief Judge. The Chief Judge or his or her designate should coordinate with the Public Defender or Criminal Conflict and Civil Regional Counsel to assess the number of attorneys involved in capital cases, evaluate the availability of prospective attorneys, and resolve any representation issues.

(k) Exceptional Circumstances. In the event that the trial court determines that exceptional circumstances require appointment of counsel not meeting the requirements of this rule, the trial court shall enter an order specifying, in writing, the exceptional circumstances requiring deviation from the rule and the court's explicit determination that counsel chosen will provide competent representation in accord with the policy concerns of the rule.

CREDIT(S)

Added Oct. 28, 1999, effective July 1, 2000 (759 So.2d 610). Amended July 1, 2002 (820 So.2d 185); Oct. 8, 2008 (993 So.2d 501).

COMMITTEE COMMENTS

These standards are based on the general premise that the defense of a capital case requires specialized skill and expertise. The Supreme Court has not only the authority, but the constitutional responsibility to ensure that indigent defendants are provided with competent counsel, especially in capital cases where the State seeks to take the life of the indigent defendant. The Supreme Court also has exclusive jurisdiction under Article V section 15 of the Florida Constitution to "[r]egulate the admission of persons to the practice of law and the discipline of persons admitted." Implied in this grant of authority is the power to set the minimum requirements for the admission to practice law, see In re Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well as the minimum requirements for certain kinds of specialized legal work. The Supreme Court has adopted minimum educational and experience requirements for board certification in other specialized fields of the law.

The experience and continuing educational requirements in these standards are based on existing local standards in effect throughout the state as well as comparable standards in effect in other states. Specifically, the committee considered the standards for the appointment of counsel in capital cases in the Second, Sixth, Eleventh, Fifteenth, and Seventeenth Circuits, the statewide standards for appointing counsel in capital cases in California, Indiana, Louisiana, Ohio, and New York, and the American Bar Association standards for appointment of counsel in capital cases.

These standards are not intended to establish any independent legal rights. For example, the failure to appoint co-counsel, standing alone, has not been recognized as a ground for relief from a conviction or sentence. See Ferrell v. State, 653 So. 2d 367 (Fla. 1995); Lowe v. State, 650 So. 2d 969 (Fla. 1994); Armstrong v. State, 642 So. 2d 730 (Fla. 1994). Rather, these cases stand for the proposition that a showing of inadequacy of representation in the particular case is required. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These rulings are not affected by the adoption of these standards. Any claims of ineffective assistance of counsel will be controlled by Strickland.

The American Bar Association Standards and many other state standards require the appointment of two lawyers at the trial level in every prosecution that could result in the imposition of the death penalty. The committee has modified this requirement by allowing the trial court some discretion as to the number of attorneys, and by eliminating certain provisions that may be unnecessary or economically unfeasible. Para-graph (e) minimizes the potential duplication of expenses by limiting the compensable participation of co-counsel. In addition, the standard adopted herein requires an initial showing by lead counsel of the need for co-counsel and, while the standard suggests that co-counsel should ordinarily be appointed, the ultimate decision is left to the discretion of the trial court.

The committee emphasizes that the right to appointed counsel is not enlarged by the application of these standards. The court should appoint conflict counsel only if there is a conflict and the defendant otherwise qualifies for representation by the Public Defender. A defendant who is represented by retained counsel is not entitled to the appointment of a second lawyer at public expense merely because that defendant is unable to bear the cost of retaining two lawyers.

Next week, the role of the prosecutor in death penalty cases.

Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England's King John promised that "...[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

King John signed the Magna Carta over 790 years ago. You'd think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you'd be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no - I'm not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I'm looking over at our sister state, Texas, and what's been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)

Chief Justice Sharon Keller has already been investigated and charged by the state's Commission of Judicial Conduct, where she will be facing trial in August. In the state legislature, impeachment proceedings are also being advanced against her.

What Chief Justice Keller Allegedly Did On the Day that Michael Richard Died

On the day that Michael Richard was scheduled to die, everyone knew - the state prosecutors, the Governor's office, the inmate's attorneys, and the Court of Criminal Appeals - that a motion to stay his execution would be forthcoming if the United States Supreme Court made its announcement that it would be considering whether or not execution by lethal injection was cruel and unusual punishment, and therefore an unconstitutional and illegal means of execution.

When that announcement came down from Washington, D.C., on the morning Mr. Richard was scheduled to die by lethal injection, lots of people when into action. His attorneys began working on finalizing a motion to stay the execution, and Justice Cheryl Johnson of the Court of Criminal Appeals, the justice assigned to the task, began working on the Court's response to that motion. Due process of law had begun regarding Michael Richard's legal rights.

Sharon Keller Went Home to Meet a Repairman.

Sometime that afternoon, it is uncontested that Chief Justice Keller left work and went home - purportedly to deal with a repairman. It is also uncontested that the inmate's attorneys had some computer snafu and were unable to deliver the final motion before closing time at the clerk's office. As time sped by, and it became clear that the defense attorneys would not be able to file their motion to stay before the 5:00 closing time for the Clerk of the Court of Criminal Appeals, they called the Court and asked for an additional twenty minutes.

It's All About 20 Minutes.

When the staff attorney of the high court called Justice Keller, relaying the request, she didn't allow the clerk's office to remain open for twenty minutes - giving the inmate's counsel enough time to file the motion. No one knows why.

And because Justice Keller said that the clerk's office would close at five o'clock, Michael Richard was unable to have his motion heard.

He died that night. Michael Richard died at 6:00 p.m. CST on September 26, 2007, executed by lethal injection during a time period where the U.S. Supreme Court was considering the legal issue of whether or not that was a form of cruel and unusual punishment.

Of course, there are questions. Where was Justice Johnson in all this? Why wasn't she involved in this decision? What about filing the motion at the Chief Justice's home?

As part of the Commission's investigation into Justice Keller's actions, another interesting bit of information has been revealed that is also very troubling: apparently, the Justices had already met and voted that they would deny Richard a stay if the U.S. Supreme Court did take up the issue - and they met and voted long before they ever read anything presented to them by Richard's attorneys. With courts like this, you wonder why they even bother having defense motions filed at all.

Due process is never more important than when the death penalty is involved.

Here's the key: due process is never more important than when a death penalty case is involved. Due process of the law must be insured, at every juncture, before our government should be allowed to take the life of any citizen.

Doesn't matter what that citizen may have done. The focus is upon the power of the State, not the culpability of the individual. Strict adherence to the due process of law is supposed to keep those in authority from abusing their power.

And when a Chief Justice finds it acceptable to leave her office early to check on a repairman, when a man is scheduled to die that night - all while there is reason to believe that a due process issue may be involved -- and when the Court itself decides to meet and vote on an issue before the defense can even be heard -- then we all need to stop and consider the seriousness of the current American apathy toward due process of law in this country today.

Protecting Due Process of Law is Our Responsibility

Because due process of the law will remain only so long as it is vigilantly and vigorously respected and protected - by all of us. Trusting those in authority to man the helm here is not enough, as Justice Keller has so wisely taught us all.

Sources:

Austin American Statesman

New York Times

 
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