By Naftali Bendavid
Legal Times
May 6, 1996
When James Coleman Jr. first met Stephen Booker in 1983, Booker was 17 days from death.
Booker had killed a 93-year-old woman in Gainesville, Fla., apparently while under the influence of drugs and alcohol.
Six years and countless court hearings later, Coleman convinced the courts to spare his client's life because Booker had not been allowed to offer all the evidence for softening his punishment.
But with Congress' recent enactment of strict timetables and daunting hurdles in the death row appeals process, Coleman is not sure he would agree to represent Booker today.
"Those of us who take these cases are motivated by our belief that even despicable capital defendants ought to have lawyers," says Coleman, a partner at D.C.'s Wilmer, Cutler &Pickering. "There is a tension between that and the time that you have. So some people will decide they can't afford to do it. It's as simple as that."
Coleman's dilemma illustrates perhaps the most immediate effect of the reform of the death penalty appeals process, or habeas corpus, signed into law by President Bill Clinton April 24: It is likely to exacerbate what many consider a critical shortage of qualified death row lawyers.
With the death row population at 3,061 and growing, Congress has delivered a one-two punch in recent weeks. On April 1, lawmakers killed funds for the 20 special offices nationwide that assist attorneys defending death row inmates. Then members passed the habeas law, which presents death row lawyers with complex new rules, shorter deadlines, and a much smaller chance of victory.
Tough Cases Now Even Tougher
The new law was pushed by conservatives frustrated that murderers can cheat the death chamber for decades by pursuing endless habeas appeals, in which the convicts argue that their trial was unconstitutionally bungled. Under the reform, prisoners will be allowed only one federal appeal, except in extraordinary circumstances, and it must be filed within a year.
That scares defense lawyers, who say the habeas process is crucial because a life is at stake and because criminal trials are so often flawed.
It is generally volunteer lawyers who handle habeas appeals, and the system is haphazard at best. Of the roughly 2,000 death row denizens who are ready to file habeas petitions or have already done so, at least 400 have no lawyer. That's because representing "dead men walking" is complicated, time -consuming, and emotionally draining.
For a lawyer with a full caseload and no familiarity with death penalty law, a one-year deadline for filing an appeal is a frightening prospect.
"A lot of the good lawyers are going to look at the time limits and say, 'No way am I going to get involved in that,' " predicts Sean O'Brien, executive director of the nonprofit Public Interest Litigation Clinic in Kansas City, Mo. "A lawyer is obligated not to take a case he can't handle competently. That has to do as much with a lawyer's caseload as with a lawyer's personal competence."
The problem is aggravated because the reform creates 26 pages of new, vaguely worded rules. "This new legislation has made an already complex, for some people, mystifying area of the law three times more complex and mystifying," says George Kendall, an attorney with the NAACPLegal Defense and Educational Fund Inc. "That factor alone is really running people off. And even people who did a case three or four years ago are going to say, 'I've got to go back to Habeas School 101 again.' "
Also rearing its head is a simple psychological factor: Lawyers don't like to take cases that are losers, and the habeas law makes it harder to save a client's life. Federal judges are now allowed to nix a death sentence only if it involves "an unreasonable application of clearly established federal law" -- a standard defense lawyers fear will be almost impossible to meet.
Those who fought hard for the habeas bill consider this so much hand wringing.
"I'm always concerned about having competent counsel representing people in this condition. On the other hand, we have half a million lawyers in this country," says Sen. Orrin Hatch (R-Utah). "We are the most lawyer-ridden society in the world. Idon't think it will be a problem."
Hatch, who chairs the Senate Judiciary Committee, also argues that making appeals harder forces defense lawyers to put their energy where it should be -- into the original trial. "Until now, our best capital litigators were content to work only on habeas cases," Hatch says. "I hope now that will change and they will realize that the trial is the main event."
Paul Kamenar, executive legal director of the conservative Washington Legal Foundation, points out that the Constitution does not guarantee a right to a habeas review. So Congress is certainly not obligated to make sure these inmates get lawyers, he says.
"Where there is a slack, that could be made up through efforts of the various state bar associations and at the national level through the American Bar Association," Kamenar says. "It's not like the resources are going to disappear tomorrow."
The current reform rose from the ashes of a habeas agreement painstakingly crafted three years ago by Sen. Joseph Biden Jr. (D-Del.). The Biden proposal, like this one, would have imposed strict filing deadlines. But in return, it would have required that death row inmates be represented by experienced, competent lawyers.
When the Republicans took over Congress, they simply dropped the latter part of the deal. William Barr, who served as attorney general in the Bush administration, says if the Democrats had made some small concessions a few years ago, they could have avoided the more stringent measure passed last month.
"The irony is, this bill is much tougher than what we would have settled for," says Barr, now senior vice president and general counsel of GTE. "I said to Biden when this all started coming down, 'You should have cut a deal with us while you could.' He just laughed. He kind of agreed."
Biden, ranking Democrat on the Judiciary Committee, could not be reached for comment. But he spoke out against the current habeas law on the Senate floor last June: "I am certain all of my colleagues would agree that although the death penalty should be applied swiftly and with certainty, the worst thing in the world would be for it to be applied wrongly."
While the new habeas law does not require states to provide lawyers, it does give special benefits to those jurisdictions that do. If a state creates "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel," then its inmates get just six months, not a year, to file a federal appeal. And the judge that hears the appeal must rule on it within six months.
But it's not at all clear which states, if any, now qualify for the six-month deadline -- so many inmates across the country don't know if they have six months or a year to file a habeas appeal. Lawyers in California and Pennsylvania have filed suits asking federal judges to declare that their states are not eligible for the six-month deadline.
In some places, a scramble has begun to comply with the new standards. Texas legislators, for example, never bothered providing post-conviction lawyers for death row inmates. But now they're eager to force their prisoners to file their appeals within six months, so they recently passed a law providing for attorneys to be paid $100 an hour from state coffers.
But Texas is running into problems. For one thing, the state's Court of Criminal Appeals, which is responsible for paying the lawyers, requested $4 million over two years, but legislators provided only $2 million. "That has made it a little difficult to fund it," concedes Rick Wetzel, the court's executive administrator.
Further, the lawyers' payments are tentatively capped at $7,500 per case, and many lawyers apparently aren't willing to take on capital cases for that price. So the court has located post-conviction attorneys for only 25 inmates, and roughly 125 of the state's death row prisoners remain lawyerless.
Another state that may foreshadow the future is Missouri.
Missouri was one of 20 states with a Death Penalty Resource Center, but Congress defunded these offices April 1. At least seven of them have shut down, while the others are hanging on with state funds.
The centers, created in 1988, drew fire from opponents who saw them as taxpayer-funded think tanks that devised endless ways to evade legitimate death sentences. Supporters said they brought a measure of rationality and order to capital defense.
When Missouri's resource center shut down, three of its eight lawyers, including Sean O'Brien, formed the Public Interest Litigation Clinic to continue taking death cases.
But they can't keep up. "I can think of four death penalty cases where the courts have called us and I have had to say no because we are completely inundated," O'Brien says. "Ethically, I'm not in a position to take these cases."
Of the roughly 60 Missouri death row inmates who have filed habeas petitions, two are without a lawyer. To some that might not sound like a crisis, but O'Brien disagrees.
"The crisis is not just having a lawyer who's a warm body, but a lawyer who knows the habeas corpus process," O'Brien says. "Of the 60 lawyers representing inmates in the federal system, exactly five have handled a death case before. Fifty -five had never seen a death case in their lives. That's the crisis."
It is unclear exactly what will happen to death row inmates forced to wait a long time for a lawyer. Ronald Tabak, who chairs the American Bar Association's Death Penalty Committee, predicts that more people will wrongly die.
"What we are heading for, quite clearly, is a substantial increase in people who, if their cases were handled properly, could show they were convicted in constitutional error," says Tabak, a special counsel at New York's Skadden, Arps, Slate, Meagher &Flom. "But because they do not get adequate representation they will get executed."
Supporters of the law say that such concerns reflect opposition to the death penalty, not actual doubts about guilt.
"The key thing that's lost in this debate on habeas reform is that in most of the cases, there is not a claim of innocence," says Kamenar of the Washington Legal Foundation.
Ultimately, though, advocates on both sides say it will take a lot of litigation to clarify exactly what the new law means.
Indeed, the rush to court was already under way last week, when the U.S. Supreme Court agreed to consider a Georgia case raising jurisdictional questions about the new law. The justices, on a 5-4 vote, with the conservatives in the majority, agreed to hear oral arguments in Felker v. Turpin June 3, an extraordinarily expedited schedule.
The justices seem to be focusing primarily on a provision in the new law that allows federal appeals courts to have the final say on whether an inmate can file a second habeas petition. Some suggest that stripping the Supreme Court of the final say unconstitutionally restricts its jurisdiction.
But that is a fairly narrow question, and litigation centered more squarely on the law's new roadblocks to successful habeas petitions is certain to follow.
Those whose job it is to recruit death penalty lawyers are taking no chances. Esther Lardent, chief consultant to the ABA's Post-Conviction Death Penalty Representation Project, has signed up about 300 lawyers in recent years.
Now Lardent is intensifying her efforts. In coming weeks, the ABA program will send letters to 70,000 attorneys across the country. Then former judges and other prominent figures in each state will call these lawyers and ask them to take on cases.
Meanwhile, the Washington Council of Lawyers has begun a campaign to recruit small and medium-size firms to work on capital cases, supplementing the larger firms that traditionally take on such work. More than 60 lawyers and 20 law students have signed up for the drive, which organizers hope will spread to other states.
Despite the obstacles, some predict the new habeas law will galvanize death penalty opponents, provoking some to take on capital cases who otherwise wouldn't be inclined to do so.
Douglas Robinson, a partner at the D.C. office of Skadden, Arps, has handled death penalty work in the past and says he would do so again, new law or no new law.
"I'm troubled by the fact that you take a case, and it would have been a meritorious case before, and now it's somewhat of a hopeless case," Robinson says. "But I wouldn't let that deter me. I would fight the good fight, and hopefully other lawyers would as well."
(Legal Times is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
