Indigent Defense in Capital Cases

Today, Maura Dolan of the Los Angeles Times provides excellent reporting of the indigent defense crisis as it impacts death penalty appeals in California.  Read the article, "Lack of funding builds death row logjam," in its entirety here.  

It’s a topic that gets covered periodically by the national media: a cruel reality that needs so much more public acknowledgement and awareness.  For example, in 2001, the New York Times covered a similar crisis in Alabama; in 2004, the Washington Post did a story about Robin Maher’s attempts to bring attention to the matter via the American Bar Association’s Death Penalty Representation Project.  However, from our research, most of the discussion of this issue comes not from the main stream media, but from bloggers and non-profit efforts, and the LA Times coverage by Ms. Dolan is most welcome.   

There’s Not Enough Money to Pay Defense Lawyers to Represent Convicted Death Row Inmates

As the LA Times article describes, the problem for those setting on Death Row isn’t that they may or may not have legitimate legal appeals to advance in either state or federal courts, but the reality that there isn’t any money available to pay attorneys to do the work. 

A death penalty case is complicated enough at trial: to appeal one of these cases means going through every detail of the particular matter – from investigation through the sentence of death at the conclusion of the penalty phase.  It’s a time-consuming process to accumulate and digest all the facts. It’s even more time-intensive to take that factual analysis and apply state and federal law, to determine if substantive legal error has occurred.

The Emotional Toll Isn’t Even a Financial Consideration at this Point, but It’s Real

Another excellent point made by this reporting is the LA Times discussion of how defense attorneys face an emotional drain from undertaking the representation of death row inmates.  It is an tremendous challenge to represent defendants at the trial level, when they are facing the possibility of death.  It’s another type of psychological challenge to represent these people when they’ve already been sentenced to die. 

They will be executed unless the appellate process (or technically, clemency) intervenes.  It’s a grueling, cold reality that every death row appellate lawyer must accept – and live with for the rest of their days. 

Another Example of the Real and Growing Indigent Defense Crisis in The United States Today

In California, there is a wait of over a decade (approximately 12 years) for an attorney willing to take on the death row appeal of many inmates.  Yet one more example of the indigent defense crisis in this country for death penalty cases — the emperor without clothes that this blog, and others, keep pointing out as something that must change.  Thanks to the LA Times.

Over in Lee County, Robert Dunn has been arrested for the crime of shooting and killing his wife,  Christine Lozier-Dunn, inside of a Cape Coral, Florida, daycare center, Bobbie Noonan’s Child Care, on January 25, 2008. He’s facing trial for first-degree murder, first-degree armed burglary, and child abuse, and since Mr. Dunn couldn’t afford an attorney he’s been appointed counsel.

Robert Dunn Is Indigent; the Court Has Appointed Dunn’s Defense Counsel

As guaranteed under the federal constitution, Robert Dunn has a legal right to effective counsel, and the State of Florida is legally required to provide him with representation once he’s established himself to be indigent.  (Here’s the hitch: Florida has to pay for this.)

Robert Dunn Faces the Death Penalty – Which Makes for a More Complicated Defense

If Robert Dunn is found guilty of the crime for which he is charged, he could be sentenced to death.  This is a death penalty case, and with it (as we’ve written about previously), a lot more responsibility is placed upon the defense team.  Mitigation specialists, additional investigation, preparation for both a guilt phase and a penalty phase in the trial — Mr. Dunn’s trial team has a huge legal duty here.

New Defense Lawyer David Brener Argues For Need to Re-Do Past Attorney’s Work

Yesterday, Mr. Dunn’s new trial attorney, Fort Myers’ David Brener, appeared before Lee Circuit Judge Margaret Steinbeck to argue that he needs the court’s help in order to fulfill that duty.  Brener is fierce about the lack of effective representation that Robert Dunn has received thus far — and he can tie it directly to state budget concerns.  Once again, it’s all about the money. 

As part of his argument, Mr. Brener called to the witness stand Mr. Dunn’s prior defense counsel, Ita Neymotin, as the duly authorized representative of the five-county Regional Conflict Counsel office (Neymotin ran that shop until just last week).  The RCC is a state agency, and its funding comes from the State of Florida. 

Past Defense Lawyer Testifies to Cost-Cutting Deciding Scope and Length of Depositions

Ms. Neymotin testified under oath that during the Regional Conflict Counsel’s representation of Mr. Dunn from May 2009 until April 2010 (when Brener took over), money talked and because of cost considerations, some witness depositions simply weren’t taken and the length of other witness depositions were set by how much they cost rather than what testimony was needed to be obtained.

Twenty-one depositions are at stake.  The testimony of 21 witnesses is a huge amount of evidence in any trial, but can literally mean the difference between life and death in a capital case. 

21 Depositions at Issue: A Clear Example of Florida’s Indigent Defense Budget Crisis

David Brener has asked Judge Steinbeck to let him retake 21 depositions that were controlled by money, and not by legal concerns.  Brener argues that an effective defense requires that some witnesses be questioned again, because prior defense counsel failed to ask key questions during the prior depositions. 

Answers to these questions are critical to Dunn’s defense.  It’s imperative that the witnesses give those answers, under oath, to give the defense these facts in form that can be used at trial, i.e., as authenticated, admissible evidence.

Right now, the hearing has been continued and we don’t know what Judge Steinbeck will decide.  And her decision is important for us all — since when does a bean counter in a state agency’s bookkeeping department decide what witnesses are important to a case, or how long an attorney can ask questions of a witness (in deposition or at trial)? 

This is a clear example of how injustice has permeated our criminal defense system in this state, and in this country — all because of blind budget concerns.  Something needs to change.   

Yesterday, without comment, the United States Supreme Court denied the petition filed by Georgia Death Row inmate Jamie Ryan Weis

This is shocking. 

This is very bad news.  We’ve written about the Weis case before, including links to the amicus brief filed by a stellar list of Georgia legal scholars, fighting for justice in the indigent defense crisis facing Georgia (and the country) today – and the spotlight that coverage by the New York Times’ Adam Liptak was providing

A Missed Opportunity or a Dodge?

Bottom line, the Weis petition offered the United States Supreme Court an opportunity to address the basic problem facing states today:  where is justice when there is no money in the coffers to pay for the effective assistance of counsel that is constitutionally required – particularly in a death penalty case?

For Jamie Weis, not only was his constitutional right to a competent defense denied him, but also his constitutional right to a speedy trial — all because Georgia didn’t have the money to pay for what was legally mandated.   Legally mandated by the constitutional precedent established by the United States Supreme Court. 

Georgia’s Mr. Weis, Death Row inmates, and defendants facing the possibility of Capital Punishment across the country, are having rights denied them because of budgets without cash flow.  We can only wonder why the High Court has denied them even an explanation for why the Weis Petition was not considered worthy of review. 

New York Times columnist Adam Liptak once again does us all a great service by bringing the national media spotlight to bear upon the crisis facing Cory R. Maples, who sets today on Alabama’s Death Row. 

Sullivan & Cromwell Missed the Deadline to Appeal

Maples’ case currently awaits the determination of the United States Supreme Court.  The High Court must decide the fate of Cory Maples, who relied upon the well-known law firm Sullivan & Cromwell to represent his interests — only to have the deadline pass for him to file an appeal. 

That’s right:  elite Sullivan & Cromwell representation and a basic, basic deadline was blown. 

What the Heck Happened?

As Liptak explains, the Big Firm did not place its firm name within the signature block of the two associates that were on the record as being Maples’ defense counsel.  Nevermind the question of whether or not these two were death qualified, had any past criminal defense experience, etc.  We don’t get there (yet). 

Apparently, Sullivan & Cromwell felt it would be bad public relations to represent a man facing death at the hands of the State of Alabama so shame (and that’s the core issue here, let’s not beat around the bush) kept the firm name off the mailing list.  Which wasn’t such a big deal until the two lawyers left the firm.

Did Sullivan & Cromwell forward the mail addressed to the two associates to their new mailing address?  No.  They sent the notices back to the court.  That’s right: the court.

Return to Sender

Sullivan & Cromwell returned the court’s correspondence back to the court itself.  As the New York Times reports, there were TWO envelopes sent back to the court clerk. 

One was marked “Return to Sender — Left Firm” handwritten across the front and just to make sure, it was also stamped “Return to Sender — Attempted Not Known.” The second piece of court correspondence was stamped “Return to Sender — Attempted Unknown,” without any added handwritten message.

Curious by its absence, any reference to the forwarding addresses of the two lawyers who had left the firm.  Surely the law firm knew them.  Surely the State Bar website could provide them.  Apparently, the Sullivan & Cromwell perspective was that the court could figure it out — it wasn’t Sullivan & Cromwell’s problem.

Except it was.  And it is.  Because the representation of Cory Maples didn’t leave with the two associates — it was merely reassigned to two other firm lawyers. Who knew zip about what was happening until Cory’s mother called to check on the status of the appeal.

What Did Sullivan & Cromwell Do Next?

Swanky Sullivan & Cromwell went before the Atlanta federal appeals court on behalf of Cory Maples.  And lost.   Now, the firm has seen fit to bring in a former United States solicitor general, Gregory G. Garre, to argue on behalf of Mr. Maples before the United States Supreme Court.  And, indirectly of course, he’s arguing for Sullivan & Cromwell at this point. 

His big argument to the High Court on why they should grant his petition?  That Cory Maples should not be responsible for his lawyer’s mistake. 

However, the federal precedent is filled with clients that do get left holding the bag for their lawyer’s mistakes – limitations are passed, deadlines are missed, and the law usually says that the client’s remedy is to sue the law firm for malpractice.  Except that Cory Maples can’t get his life back from Sullivan & Cromwell.  Sullivan & Cromwell’s mail room glitch might well cost Mr. Maples his life. 

Another Lesson in the Crisis of Indigent Defense of Death Penalty Defendants

Why was an elite New York law firm appointed to represent an indigent criminal defendant?  The New York Times reports that the trial lawyers actually told the jury during the penalty phase that they weren’t experienced here, and warned the jurors they “may appear to be stumbling around in the dark.” Result?  The jury came back in favor of the death penalty, with a vote of 10 to 2.

It’s all about money.  Alabama doesn’t budget for indigent appellate defense for those on death row.  Alabama lets elite firms take these cases on pro bono, and they don’t even have to be within the state lines: elite firms like Sullivan & Cromwell.   

The reality is that the error that may cost Cory Maples his life isn’t just the fault of Sullivan & Cromwell.  It’s the responsibility of all who fail to acknowledge and provide for adequate funding for qualified, experienced indigent defense representation in capital punishment cases. 

California attorney Brad Levenson, a federal public defender, was revealed this week to be the new head of a brand new agency over in Texas: the Office of Capital Writs.  Levenson starts work on September 1st.

Texas’ Office of Capital Writs is an Attempt to Solve the Indigent Defense Crisis – In Part

In 2009, the Texas Legislature created (and by that we mean, of course, set aside money in the budget) for the Office of Capital Writs after things became obvious that the indigent defense being provided appealing defendants convicted of capital crimes was ludicrous. 

Studies were done.  Newspapers like the Dallas Morning News regularly reported on the horrors of death penalty indigent defense in Texas today.  The Texas Legislature reacted. 

Light was shed on some pretty shocking scenarios:  death penalty defendants with appellate lawyers having no death penalty defense experience; some having attorneys who had walked away from the appeal/appointment; others having appellate counsel who had died and were never replaced with a new court appointment.  Appalling in any state, but especially in Texas where capital punishment is so favored.  

The Office of Capital Writs Replaces Court Appointed Appeals Counsel in Death Penalty Cases

Starting this fall, Brad Levenson will be responsible for representing Texas Death Row appellants in state habeas corpus appeals. Proponents argue that this solution will not only provide a higher quality of appellate counsel for those setting on Death Row, but it will cost about the same. 

Believers are also arguing that Texas’ OCW will result in lower caseloads and higher accountability in indigent capital defense appeals. 

This Should Be Interesting ….

One wonders how a man with federal experience in another state — especially California, whose liberal approach to the death penalty in its precedent is almost in direct contrast to the perspective given capital punishment in Texas courts — was determined to be the best fit for this new job.  Interesting.

Also, there’s the idea of costs.  One of the core problems with indigent defense is a lack of funds.  The reason behind those court appointments being downright embarrassing for the State of Texas is the reality that there wasn’t enough funding to pay more experienced or higher quality private appellate attorneys sufficiently to take those Death Penalty appeals. 

It’s a core problem across this country – money for indigent defense.  So, while we all support this new tactic to provide decent appellate representation to defendants who set on Texas Death Row, it’s going to be interesting to watch how the Texas Office of Capital Writs will be doing in the next few years.

Best of luck to Mr. Levenson.  We will watch and pray.

Georgia Defendant Jamie R. Weis is getting lots of media attention today, as an article written by Adam Liptak in yesterday’s New York Time’s Sidebar column is being republished and discussed all over the country. 

What NYT’s Liptak has done is place a spotlight upon a case that has been pending before the U.S. Supreme Court for awhile now.  In Cause No. 09-10715, Jamie R. Weis is petitioning the HIgh Court to review a decision of the Georgia Supreme Court, which voted its 4-3 approval of state prosecutors to seek the death penalty against Mr. Weis — even though he has been incarcerated for two years without an attorney.  (Read the Petition for Writ of Certiorari here.)

That’s right. Jailed. No lawyer. Two years. Georgia. Death Penalty Sought.

Mr. Weis’s petition is based in part on an argument that he has been denied his right to a speedy trial. (A criminal defendant’s right to a speedy trial is guaranteed to him/her under the Sixth Amendment, as well as various statutes such as the federal Speedy Trial Act.) 

Indigent Defense Crisis in Death Penalty Cases: Real Issue Before the U.S. Supreme Court in Weis

However, if you’re wondering about money being the reason behind all of this, you’re right.  Like many death penalty defendants, Mr. Weis cannot afford to hire his own counsel.  Apparently, the State of Georgia has not been able to find the funds to pay for an attorney to represent him. 

Powerful Amicus Brief Brings Capital Defense Indigent Defense Crisis Into Focus

In an amicus curaie brief filed last month, several prominent members of the GeorgiaBar presented their arguments to the Supreme Court, in support of Weis’ petition.  Among them: Norman Fletcher, former Chief Justice of the Georgia Supreme Court.  (Read their amicus brief here.)

Tellingly, and importantly, the friends of the court argue that the Georgia state legislature made a "deliberate choice to not adequately fund indigent defense" — and accordingly, defendants should not suffer — and have their constitutional rights ignored — because of a lack of funding.

New York Times Article Helps Bring Public Awareness to Critical Issue

In the court of public opinion, Adam Liptak dovetails the amicus brief’s overview of the current state of indigent defense within the State of Georgia with a discussion of the right to appointed counsel.  Liptak includes the recent decision by the U.S. Supreme Court in Vermont v. Brillon, where they recognized the possiblity of “a systemic breakdown in the public defender system,” but failed to give any solutions to that situation.

Crisis in Death Penalty Indigent Defense Funding Must Be Addressed

One of the recurring themes of this blog is the crisis facing the criminal justice system today, in every state, because of the lack of funding for indigent defense.  Will the High Court finally address the practical realities of implementing the constitutional rights it has recognized with the correlated budgetary commitments it has created? 

Let’s watch and see.  Fingers crossed? Yes.  Don’t hold your breath, though.

Before I begin to get queries on the recent departure of Andrea Lyons from the Casey Anthony Defense Team (since both Ms. Lyon and I served as death penalty qualified counsel for Casey Anthony at one point), I ask that anyone interested read the quote that I gave to Anthony Colarossi of the Orlando Sentinel:,0,2682343.story

 Thanks to all.

There’s a new judge in the Casey Anthony case — Judge Belvin Perry — and he looks to be running a tight ship.  Despite defense counsel requests that hearings on defense costs be private, Judge Perry has ordered that an upcoming hearing on how Casey Anthony’s defense will be funded is to be a public hearing.

May 6, 2010, Hearing on Indigent Defense Costs for Casey Anthony Will Be Public

That’s right:  anyone interested in hearing the details on how the defense of Casey Anthony in the trial of whether or not she murdered her daughter, and whether or not the State of Florida should execute her for that crime (if found guilty) will be PUBLIC

Which, given the media coverage of the Casey Anthony case, means there will be countless news reports giving the financial details of this death penalty defense.

What Is Expected to Happen at the Casey Anthony Budget Hearing

At Thursday’s budget hearing, Judge Perry expects to hear an estimate from the defense team on the number of hours their experts will need.  The Judge has also stated that he will want to know if the experts are willing to work under the fee schedule set by Florida’s Justice Administrative Commission.  (Read the Scheduling Order here.)

The public will soon glimpse into the practicalities of defending someone who’s facing the death penalty in Florida.  Experts — and their hourly rates — will be revealed, and discussed from a budgetary standpoint. 

The JAC Fee Schedule Will Be Discussed – Hopefully, Part of the Indigent Defense Crisis Will Be Seen

The JAC fee schedule will be a subject of discussion, too.  Perhaps Judge Perry should review JAC v. Lenamon before the hearing on Thursday — because the JAC has proven itself all too willing to appeal the decisions of trial judges that seek to be fair and reasonable in this area. 

The experts needed for both the guilt phase and the penalty phase of any death penalty defense case are varied in their special knowledge and expertise and far from inexpensive due to their education and experience.  Their standard hourly rates will not jive with the JAC schedule. 

With the hearing on May 6th, hopefully more people will become aware of the practical realities of indigent defense representation Florida and elsewhere.  Will the experts work for less than their standard rate?  How low does the State of Florida (through the JAC) expect doctors, psychiatrists, forensic specialists, etc., to charge?   Hopefully, the public will see some of these questions answered this week. 

As predicted, coverage is increasing on the impeding June 2010 firing squad execution of Utah’s condemned man, Ronnie Lee Gardner.  The idea that a man will die by bullets instead of injected poison is shocking many – and there’s already chatter about a firing squad being unconstitutionally cruel.

Appeal Points to the Elephant in the Room: Insufficient Funding for Proper Death Row Defense 

Ronnie Lee Gardner’s appeal is of great interest to death penalty defense lawyers all across this country.  Why? 

Because Gardner’s appellate attorneys are arguing error exists because Gardner was not provided adequate money by the State of Utah so he could get the necessary experts and investigators he needed to prove up mitigating factors during the punishment phase of his trial.

In other words, if Utah had provided sufficient defense funding to allow Gardner’s defense counsel to hire psychologists, private investigators, etc. to establish circumtances that countered against the imposition of the death penalty, then Gardner wouldn’t be in a position to choose death by firing squad now. 

Motion for Stay of June 18, 2010 Firing Squad Execution Awaits Ruling

Gardner’s counsel has filed a motion to stay the Order of District Judge Robin Reese, who ordered that 49 year old Ronnie Lee Gardner will be executed by firing squad on June 18, 2010.  This request is in tandem with the emergency appeal filed with the Utah Supreme Court on the indigent defense bases. 

Will the Firing Squad Coverage Bring Attention to the Indigent Defense Funding Crisis?

The lack of adequate funding for indigent defense – especially in capital punishment cases – is a growing crisis in Florida and across the country.  Since it deals with budget concerns and financial analysis, the topic doesn’t get the kind of coverage that other issues do — but maybe Gardner’s case will change things. 

Maybe the firing squad aspect of his story will allow the indigent defense funding issue to dovetail itself into the next few weeks of coverage (assumed to be escalating as June 18th nears).  Let’s watch and see….

(For details on this issue, please read the longer article at our JDSupra repository.)

 JAC gets national recognition in the Casey Anthony case

Florida’s Justice Administrative Commission received a significant amount of media coverage recently when it became involved in the Casey Anthony case, providing the trial court judge with the official JAC position on whether or not Casey Anthony should be confirmed as “indigent” under the law.

The JAC was leery of Anthony’s claims that she was unable to pay for legal counsel, and hearings were held as well as in-camera considerations by the judge.  Casey Anthony was declared indigent by Judge Stan Strickland on March 19, 2010.

What is the JAC?

In 1965, the Judicial Administrative Commission was formed by the Florida Legislature with representatives from the state judicial branch acting as commissioners, i.e., offices of the state attorney and the public defender; the district, circuit, and appellate courts; and of course, the Florida Supreme Court, acting through its Chief Justice (or his designee). Over the years, the commission evolved. There has been a name change: it is now the Justice Administrative Commission. Today, it is comprised of four members, none of whom are judges: two state attorneys and two public defenders. 

And, it’s got lots and lots of power over when and how attorneys are paid for defending the indigent in this state. 

Lenamon and the Justice Adminstrative Commission – the Background of JAC v. Lenamon

In a double homicide, death penalty case involving nine (9) defendants, seven defendants were left with the circuit court judge needing appointed, private criminal defense lawyers as their attorneys due to conflicts with the available public defenders. 

 There were not enough death-penalty qualified defense attorneys within the 20th District, so the judge was forced to look elsewhere, finding the name “Terence Lenamon” on the death-penalty qualified list for the Eleventh Judicial District.   Lenamon was appointed. 

The JAC Contracts

The JAC enters into representation agreements on a district-by-district basis. Here, the JAC had no option but to enter into a new contract — specific to this single representation – with any and all out of district defense attorneys appointed by the trial judge to advocate for clients facing the death penalty in his Lee County courtroom.  So, the JAC and Lenamon entered into a brand new deal.

JAC v. Lenamon – JAC fights the Defense Lawyer

When Lenamon’s first invoice was submitted to the trial court judge, it was approved. When the JAC asked the judge to reconsider, he did. And he didn’t change his mind. When the JAC appealed his ruling to the appellate court, here was that court’s telling language (Opinion, p. 5, fn. 3) (emphasis added):

Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court’s order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.

What’s the Lesson of JAC v. Lenamon?

One lesson: Experienced criminal defense attorneys may not be very welcoming of appointments in other judicial districts after reading Justice Administrative Commission v. Lenamon. This is particularly true when these criminal defense attorneys already know they’ll be paid a much lower hourly rate than any Florida legal market rate as a court-appointed counsel.   Mercenary hearts don’t take court appointed death penalty cases. 

Another: While the JAC is trying to pinch every penny in its budget, the JAC is not recognizing the burdensomeness of forcing an out-of-district attorney to travel to outside his or her practice area to meet a county’s need for a lawyer at their level of expertise. 

In a time when defense attorneys are desperately needed to fill the need imposed by the constitutional right to counsel for the indigent, especially those who are death-penalty qualified, the JAC seems blind to the fact that it is alienating the very resource that is in scant supply. 

Third: The system needs work, when the reality is that a JAC fee fight like this one places the defense attorney in the position of fighting the State of Florida in one courtroom on behalf of his client, and then fighting the State of Florida down the hall, just to try and keep them from cutting his fees for doing his job in the first courtroom.  

There’s a lot wrong here that needs to be fixed.