[Deathpenalty] death penalty news----FLORIDA

[Rick Halperin]

May 13


FLORIDA:

State Officials Appeal to Fla. Supreme Court on Attorney Fee Caps


State officials are appealing to the Florida Supreme Court to overturn a
circuit court ruling that allows private lawyers who represent death row
inmates on appeal to ask a judge for fees higher than the state caps.

The circuit court ruling raises questions about the legal effectiveness
and cost-efficiency of the private attorney registry program, which Gov.
Jeb Bush wants to establish statewide to replace the state-run Capital
Collateral Regional Counsel offices.

The cap "creates what we call an 'illusion of a lawyer,'" said Stephen
Hanlon, a partner at Holland & Knight in Washington, D.C., who represented
Tallahassee solo attorney Mark Evan Olive in challenging the statutory
limits. "There's nothing more dangerous for an inmate on death row than an
illusion of a lawyer."

Hanlon contends that quality representation requires hundreds more hours
of work by the private registry lawyers than is authorized by the state.

State officials disagree.

"When the Legislature has created a sufficient pool of attorneys who are
qualified and willing to work for the fees set out in the statute, it has
done its constitutional job" said Michael Dodson, general counsel at the
office of legislative services in Tallahassee.

In 2003, Gov. Bush pushed through legislation to have private lawyers on
the registry list handle all post-conviction habeas corpus cases in the
northern part of the state while state CCRC lawyers handle cases in the
two southern regions.

Bush argues that private lawyers are better and cheaper. But many legal
experts, Democrats in the Legislature and some Republican legislators
disagree. The state currently is studying which approach works better.

For post-conviction proceedings in state court, private registry attorneys
are capped at $84,000 unless a judge rules they can be awarded more money,
said Roger Maas, executive director for the Commission on Capital Cases.
There is no cap for registry attorneys representing death row inmates in
federal courts.

Olive's case goes back several years. In February 2002, he won a victory
when the Supreme Court held that Florida judges can award attorney fees
higher than the state caps if they decide that it's warranted.

But the Legislature later that year passed a law preventing state funds
from being used to pay registry attorneys above the statutory caps and
allowing attorneys to be removed from the list for asking for more money
or declining to work for the prescribed fees.

During the 2006 legislative session, a bill failed that would have
codified the Supreme Court's ruling that judges can award fees to private
registry lawyers that exceed the state fee caps. The bill would have
required judges to explain in writing why additional fees were awarded.

A Senate staff analysis of that bill reported that the state caps have
been exceeded in 28 death row cases since the private registry was created
by the Legislature in 1998.

NO RIGHT TO EFFECTIVE COUNSEL

Olive regularly handles post-conviction petitions for death row inmates,
which can involve complex claims of prosecutorial abuse, ineffective
counsel or new evidence of innocence.

He filed suit in Leon Circuit Court in 2003 challenging the
constitutionality of the 2002 law allowing the executive director of the
Commission on Capital Cases to remove attorneys from the registry over fee
issues. Olive previously had declined to sign a document binding him to
the state fee caps.

In his 2003 suit, Olive argued that the 2002 law unconstitutionally
infringes on death row inmates' right to effective counsel and interferes
with the authority of the courts. He sought a declaratory judgment.

This past March, Leon Circuit Judge Terry Lewis ruled that trial judges
have the authority under Florida Supreme Court rulings to control
compensation to ensure adequate representation. Lewis also said the state
regularly has issued payments above the caps when approved by a judge.

In addition, Lewis ruled that the executive director of the Commission on
Capital Cases could not remove attorneys from the registry list for asking
for higher compensation.

But Judge Lewis granted summary judgment in favor of the defendants --
Maas and Tom Gallagher, the state chief financial officer -- on Olive's
claim that the state constitution grants death row inmates a right to
effective counsel on collateral attacks of their sentences. "No
constitutional right of death row inmates to effective counsel in
post-conviction proceedings currently exists in Florida," Lewis wrote.

Attorneys for Maas and Gallagher have appealed directly to the Supreme
Court. On the issue of the right to effective counsel, Olive has appealed
to the 1st District Court of Appeal. But Olive is asking that court to
pass the issue directly to the Supreme Court.

Maas declined to comment on the appeal. Richard Donelan, an attorney for
the state Department of Financial Affairs who represents Gallagher, said
his client is appealing only because he was named as defendant. He said
Gallagher, who is running for the Republican nomination for governor, has
little interest in how fees for registry attorneys are regulated.

"Our position throughout was we shouldn't even be in the case because all
we do is pay when the judges order us to pay," Donelan said.

SYSTEM 'WASN'T BROKE'

State Sen. Victor Crist, R-Tampa, a member of the Commission on Capital
Cases, told The Florida Bar News that if the fee caps are not upheld, it's
possible that using private lawyers on the registry won't be cheaper than
using state-salaried CCRC lawyers.

Crist criticized the 2003 switch from the statewide CCRC system to the
mixed system of using both state-employed and private registry lawyers.
"We had a system that wasn't broke and was functioning well before we went
into this private counsel," Crist told the Bar News. "If we can't get this
functioning well, maybe we need to go back to the three [CCRC offices]."
Crist did not return calls from the Daily Business Review for comment.

Neal Dupree, the head of CCRC office in Fort Lauderdale, said the state
fee caps for registry lawyers don't allow lawyers adequate time to
properly represent death row inmates in a post-conviction proceeding.

"I think that is impossible, absolutely impossible," Dupree said. Setting
a ceiling on the amount of billable hours needed to pursue a
post-conviction proceeding is "patently ridiculous."

The private registry system was established by the Legislature in 1998 to
ease the burden on the CCRC, which has been credited with winning
exonerations for some death row inmates.

Gov. Bush and other Republicans have sought to speed up the death penalty
appeals process, and they tried unsuccessfully to eliminate the CCRC in
2003. Under a compromise bill passed that year, the northern CCRC office
in Tallahassee was shut down. The Commission on Capital Cases was ordered
to issue a report in 2007 comparing the effectiveness of private registry
lawyers with CCRC lawyers.

Early last year, Florida Supreme Court Justice Raoul G. Cantero III, a
Bush appointee, caused a stir when he publicly criticized the general
quality of representation by registry attorneys compared with the work of
CCRC lawyers.

"Until we get a holding by the Florida Supreme Court that there is a
constitutional right to post-conviction counsel, we're going to continue
to have this problem" with adequate payment for registry lawyers, Hanlon
said.

But Donelan, Gallagher's lawyer, rejected that. "Mr. Olive is seeking to
establish a right that has never been recognized," he said.

(source: Daily Business Review)