By Bill Ainsworth
The Recorder
June 28, 1996
SACRAMENTO -- Gov. Pete Wilson, the most vocal champion of California's tough-on-crime crusade, has proposed dramatically increasing the numbers and pay of attorneys who defend death row inmates.
Wilson, at a news conference on Thursday, announced a plan that would add more than 100 public defenders to the state's payroll in the next two years; create a separate office of Post-Conviction Counsel to handle federal and state appeals; and raise the pay of private counsel handling death row cases from $95 to $125 an hour, the amount paid in California's federal courts.
At the news conference, Wilson found no irony in supporting a $23 million proposal that could be viewed as the Full Employment Act for criminal defense attorneys. "It's essential to make the system work," he said.
The governor's aim is to speed up executions of convicted murderers by eliminating the backlog of 128 death row inmates who have no attorneys.
California has sentenced 514 people to death since restoring capital punishment in 1978, but only four of those people have been executed.
"We're taking another step toward the day when old age will no longer be the leading cause of death among inmates on death row," Wilson said.
The plan is also aimed at qualifying California for the new federal habeas corpus deadlines. Those deadlines were set aside earlier this month by a Northern District judge, partly because the state has such a large number of unrepresented death row prisoners.
Wilson counsel Daniel Kolkey designed the proposal after meeting for the past six months with lawmakers, Attorney General Dan Lungren, State Public Defender Fern Laethem, Ninth Circuit U.S. Court of Appeals Judge Arthur Alarcon and McGeorge School of Law professor J. Clark Kelso. "We tried to develop a workable solution to an intractable problem," said Kolkey.
Assemblyman Kevin Murray, a Los Angeles Democrat, said the proposal should appeal to conservatives and liberals. "Whether you are pro death penalty or against the death penalty, you want the system to work," he said.
Murray will sponsor legislation that expands the 39 -attorney state public defender's office by adding five new lawyers in fiscal 1996-1997 and 32 more the next year. The office would be responsible for eliminating one-third of the backlog by taking on 43 more cases during the next two years.
Under the plan, lawyers in the office would eventually specialize in direct state appeals. Currently, state public defenders handle both habeas petitions and direct appeals.
Under the Wilson plan, both state and federal habeas cases would be handled by attorneys in the Office of Post -Conviction Counsel. The Department of Finance estimates that within three fiscal years the office would employ 100 attorneys.
But legislation creating the office, sponsored by Democratic Sen. Charles Calderon of Montebello, is designed to allow "maximum flexibility and creativity in managing the office," said Kolkey.
As a result, the director of the new office could hire private attorneys or contract with nonprofit groups to handle the work.
Federal habeas appointments are handled by federal courts, and there is no guarantee that judges will appoint attorneys in the new office. But Kolkey said he expects attorneys in the new office to secure many federal appointments because they would already have handled the state habeas petition.
The third part of the Wilson program would speed up the certification of the record in capital cases. Under legislation carried by Republican Assemblyman William Morrow of San Juan Capistrano, trial counsel would be required to certify the record as complete within 90 days of the imposition of the death penalty. The judge would then have to certify the record as accurate within 90 days of the appointment of appellate counsel.
Currently, certification of the record can take up to five years after a trial is completed.
Private or Public
Wesley Van Winkle, vice president of California Appellate Defense Counsel Inc., welcomed the proposed increase in pay for private attorneys. "By finally increasing compensation of appointed counsel to something approaching the market rate, they are going to wipe out the backlog in the next few years," he said.
At the news conference, Wilson said the plan's overall aim is to reduce the role of private counsel in death penalty cases. But Van Winkle said that's unlikely to happen because "ultimately, the state is going to see that private counsel is more efficient" than public attorneys.
Van Winkle said private attorneys handle cases more cheaply because they work more efficiently and do not have as many bureaucratic restrictions. A legislative analyst's study confirmed this view by finding that private death penalty cases cost $75,000 a year, while cases handled by state attorneys cost $205,000.
Michael Millman, executive director of the California Appellate Project, said he supports the concept of two institutional defenders -- one for direct appeal and one for habeas corpus.
Millman, however, has not discussed the proposal with the Wilson administration. "Any system that is adopted should include the continued participation of the private bar," he wrote in a statement.
Kolkey said the Wilson administration opted to expand the public role in death penalty litigation because the private sector was not doing a good job. "We just can't attract enough private counsel to handle these cases," he said.
(The Recorder is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
