October 18, 2006

Legal Representation In Capital Cases – Privilege or Pretense?

If you think about it, maybe Shakespeare had a point when he said, “the first thing we need to do is kill all the lawyers.” (Hamlet, act II) The evidence is now overwhelming and the verdict is clear – lawyers are getting in the way of carrying out more executions. Then there’s that damned “Constitution” – Were those guys drunk when they got together and drew up the “Bill of Rights?”

We can’t kill the lawyers as we already know they’re a lot like cockroaches – if you kill one, ten more will show up to feed off the carcass. And if it takes a group of drunken men to dream up the Bill of Rights, theoretically protecting every citizen equally against the formidable force of government, then that’s the strongest argument I have heard yet against prohibition.

So, here’s an idea … let’s elect morally corrupt lawyers to political office and every election year they can compete with each other to come up with ingenious ways to just circumvent the inconvenience of Constitutional protections extended to those already convicted and condemned to death; those political parasites that concoct the most insidious means in which to circumvent the Constitutional concept of “due process” and “equal protection” can then be rewarded by being elected to office.

Is this proposition really that absurd? Has it not become an American tradition to campaign for political office on hate and malignancy? The easiest target; of course, is the lowest-of-low – the lumpenproletariats of our own society, those least able to defend against the infinite resources of government and most likely to inflame the lynch mob mentality as when all else fails – especially when you cannot run on issues of substance and matter – one sure way to win votes is to foam at the mouth like a rabid dog, intoxicated by its own blood lust, while screaming to the mobs that gather that you will push for “quicker executions and kill those monsters.” That is the nature of the beast; the southern way to win political office.

Recently, the American Bar Association has called for a moratorium on the death penalty in Florida (See, DEATH PENALTY: Florida Death Penalty System Criticized ) after recognizing that Florida has the highest rate of wrongfully convicted and condemned men and women in the country as since the reinstatement of the death penalty almost 30 years ago, twenty-two death row inmates have been exonerated from death row in Florida. This means that one out of every forty men and women convicted and condemned to death in Florida were wrongfully convicted. Some might agree that, that’s not such a big deal – that, that’s an acceptable error rate when you consider the greater good of aggressively prosecuting murderers. But, what if our government erected roadblocks and began to randomly execute one out of every forty drivers under the pretense of deterring drunk drivers?

The American Bar Association also found that in Florida legal counsel assigned to represent capital defendants in often complex and lengthy trials are inadequately compensated as the state law limits compensation at only $3500 per case and that there is little oversight of “registry” lawyers assigned to represent those sentenced to death in their complex post conviction appeals.

This brings us back to where we began … if we can’t kill the lawyers then clearly the next best thing is to devise means in which to reader them incapable of providing effective and meaningful representation.

Although these morally corrupt parasitic politicians that pathetically prey upon the lowest of the low are vile creatures devoid of conscience, they are by no means stupid. Most are in fact former lawyers … they know that if they do not provide lawyers to those condemned to death they cannot carry out executions. But they have both the intelligence and power to deliberately manipulate this need for representation by concocting politically motivated and manufactured procedural rules that intentionally obstruct the ability of appointed counsel to actually represent the condemned prisoner. Thus, establishing a system of representation that, by deliberate design and intent, promotes the appointment of inexperienced and incompetent lawyers. By which, they successfully circumvent the inconvenience of lengthy post conviction appeals by simply eliminating the ability to present claims of alleged error (including actual innocence) and effectively reducing this presumed privilege of legal representation to nothing but a pretense.

Very few people who support the death penalty are aware that the Supreme Court has unequivocally stated that the Constitution does not prohibit the execution of a person who is actually innocent. Herrera v. Collins, 506 U.S. 390 (1993). That the Constitution only guarantees a “fair trial” and that as long as the person received a fair trial – that being defined as a trial in which no substantial Constitutional errors occurred – even if unquestionably factually innocent, the state could still carry out the execution.

In McFarland v. Scott, 512 U.S. 849 (1994) the Supreme Court recognized that capital post conviction appeals are inherently complex and that without competent legal representation a death sentenced prisoner presumably could not meaningfully pursue the review of claims of Constitutional error affecting the trial. But the same Supreme Court has also made it clear that there is no constitutional right to legal representation in capital post conviction proceedings. Murray v. Giarratano, 492 U.S. 1 (1989)

Without reasonably competent post conviction representation a person under sentence of death – especially when placed and kept in solitary confinement, with most often a minimal education and disabling mental issues – cannot even hope to have the alleged claims of constitutional error necessary to establish the deprivation of a “fair trial” presented to the courts. In Herrera v. Collins the Supreme Court clearly stated that failure to properly and timely present any claims of Constitutional error – including actual innocence – will result in the claims being procedurally barred from review.

Thus, there is no question that without competent post conviction representation those sentenced to death will not be able to present the claims necessary to determine whether they were deprived of a fair trail, or even present newly discovered evidence of actual innocence. Once a failure to properly or timely present such claims occurs, the courts are prohibited from reviewing the case again. See, Herrera, See also, Coleman v. Thompson, 501 U.S. 722 (1991)

Is the American Bar being unreasonable when they’ve recently called for a moratorium on the death penalty in Florida in part because of Florida’s refusal to establish adequate safeguards to ensure that those under sentence of death receive reasonable competent representation? Why should anyone even care if those convicted and condemned to death even receive competent legal representation?

In Florida the state created and funded an office specifically to provide post conviction representation to death row inmates. But since its inception in 1985 as the “Capital Collateral Representation” the office has been inadequately funded. See, Spalding v. Duggar, 526 So. 2d 71 (Fla. 1988); Arbelaez v. Butterworth, 738 So. 2d 326 (Fla. 1999). Without adequate funding the lawyers assigned to provide post conviction representation cannot investigate, develop, and present legitimate claims of constitutional error – including developing evidence necessary to establish the condemned persons actual innocence.

Prosecutorial misconduct has become one of the leading causes of capital convictions being vacated upon appellate review. Repeatedly prosecutors are found to have deliberately concealed exculpatory evidence that if disclosed would have questioned the defendant’s guilt. See, Floyd v. State, 902 So. 2d 775 (Fla. 2005); Mordenti v. State, 894 So. 2d 161 (Fla. 2004); Cordona v. State, 826 So. 2d 968 (Fla. 2002); Rogers v. State, 782 So. 2d 373 (Fla. 2001) But, as recognized in Herrera v. Collins, 506 U.S. 390 (1993) if the lawyers assigned to represent the condemned prisoner do not “timely” develop and present that undiscovered evidence – even if that evidence absolutely establishes the prisoner’s actually innocence – the courts are prohibited from reviewing the claim or providing relief.

Politicians in Florida have consistently obstructed the state funded capital post conviction lawyers from providing meaningful representation. By establishing statutory provisions governing these lawyers, see, Florida Statutes, Chapter 27.701-712 (1998), the elected legislature has assumed control over them; as about half of those presently under a sentence of death in Florida are represented by privately contracted “registry” counsel in their post conviction proceedings. See, In Re Rules of Criminal Procedure, etc, 719 So. 2d 869 (Fla. 1998) even though there is a wide spread acknowledgement that those “registry” lawyers are not qualified to provide such representation. See, e.g. Jan Pudlow, “Justice Rips Shoddy Work of Private Capital Case Lawyers,” The Florida Bar News, March 1, 2005, (quoting Florida Supreme Court Justice Raoul Cantero, appearing before the Florida Senate Committee on Justice on February 16, 2005 “I think some of the worst lawyering I’ve seen is from some of the registry counsel … it seems to me some registry counsel have little or no experience in death penalty cases”), see also, Death Appeals Not Quite Dead, http://www.fadp.org/news/bizrev_5_20.html April 30, 2003 (reviewing history of problems with inexperienced “registry” lawyers in capital cases)

How does Florida respond to this problem of incompetent post conviction representation in capital cases? When adopting “minimal standards” applicable to appointment of lawyers in capital cases, the Florida Supreme Court specifically excluded lawyers appointed in post conviction proceedings, declining to adopt even a minimal standard of competency and experience. See, In Re Amendments to Florida Rules of Criminal Procedure, 820 So. 2d 185, 188 (Fla. 2002)

Further, in cases in which a death sentenced prisoner attempts to argue that his right to a meaningful opportunity to present post conviction claims –including actual innocence – was denied due to the incompetence of assigned legal counsel the Florida Supreme Court has consistently refused to provide subsequent review of these “procedurally barred” claims. Finding that, although legal counsel is provided, there is no constitutional right to “effective” post conviction counsel: therefore, if such counsel does fail to provide competent representation the resulting default cannot be grounds for an exemption to statutorily created procedural rules. See, e.g. Kobal v. State, 901 So. 2d 766, 777-778 (Fla. 2005) (explaining that recognizing exemption to procedural ruled based upon ineffective post conviction representation would open the “floodgates” to more appeals, and concluding that, “As recognized by both this Court and the United States Supreme Court,” defendants have no constitutional right to representation in capital post conviction proceedings.”); Waterhouse v. State, 792 So. 2d 1176, 1193 (Fla. 2001) (“This Court has repeatedly held that ineffective assistance of post conviction counsel is not a cognizable claim.”); Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996)(“claims of ineffective assistance of post conviction counsel do not present a valid basis for relief.”)

Whether one supports the death penalty or not, we as a society have a moral responsibility to ensure that it is carried out in a fair manner. Once a person has been condemned to death the post conviction review process is inherently complex and without competent legal representation those wrongfully convicted and condemned to death have no meaningful opportunity to develop the evidence necessary to prove their innocence. The system has become inherently corrupt by politicians who advocate expediting executions at the expense of necessary safeguards to protect against executing innocent victims, and the courts unwilling to establish judicial protections to ensure competent legal representation is provided. As a result, the presumed “privilege” of capital post conviction representation has been reduced to a pathetic pretense of representation and the inevitable result of that pretense will be that innocent people will be executed because of the deprivations of any meaningful opportunity to prove their innocence.