State Rebuffed on Faster Death Penalty Appeals

In a decision that illuminates the politics and the procedural machinery behind the death penalty, a U.S. appellate court has upheld a judge’s refusal to put capital appeals from California on a fast track in federal court.

Because the state has dawdled so significantly in appointing lawyers for so many death row inmates, California does not qualify for a dramatic acceleration of death penalty appeals, the U.S. 9th Circuit Court of Appeals ruled Monday.

Atty. Gen. Dan Lungren’s deputies promised an appeal. Gov. Pete Wilson immediately issued a statement attacking the decision, saying, “Old age should not be the leading cause of death for inmates on death row.”

The ruling came as the state was finalizing a $68-billion budget for fiscal 1998--a budget abruptly trimmed just days ago of about $2 million in new funds for lawyers working on death penalty appeals.

Death penalty opponents--who pronounced themselves elated with the ruling--said the arrival of the new budget serves to highlight the very problems the San Francisco-based 9th Circuit court pointed out:

California has nearly 480 inmates crowding death row. The figure grows by two or three each month.

About 150 of those 480 don’t have attorneys working on their appeals. In theory, every death sentence is automatically appealed to the state Supreme Court; in practice, little work is being done on those cases.

That automatic appeal is just the start of a process that frequently bounces from state to federal court.

And there’s no rush by defense lawyers to take up what is often a thankless job. It currently takes about three years to line up a lawyer, according to state officials. In part, defense lawyers said Tuesday, that is because the state restricts funds for investigators and expert witnesses even as it pays attorneys $98 per hour--if, attorneys added, they can get it.

The “simple question,” said Michael Laurence, a San Francisco attorney and former head of the American Civil Liberties Union’s death penalty project, is whether California provides condemned inmates with “competent [lawyers] who are empowered and have the resources” to investigate and aggressively pursue claims of mitigation or innocence.

The answer, Laurence asserted, is equally simple: “No.”

California has executed four inmates since the death penalty was reinstated in the late 1970s. Their average stay on death row was more than 13 years, according to the state Department of Corrections.

Proponents, opponents and experts on the death penalty uniformly agreed Tuesday that the import of the 9th Circuit’s ruling is likely to be far-reaching.

“It’s the kind of procedural issue that’s hard to get people excited about,” said Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, which has pushed hard to accelerate the appeals process.

“But,” he said, “that’s where the enforcement of the death penalty really lies.”

At its core, the case revolves around rules for the appointment and pay of competent defense lawyers in death penalty cases.

The state currently spends about $5.5 million each year on private lawyer fees for death penalty cases, according to William Vickery, administrative director of the California courts.

The hourly lawyer fee was $75 as recently as 1995, he said.

A proposal on the table this year would have raised the hourly lawyer fee to $125, Vickery said.

The governor had linked such an increase to the establishment of a state agency to handle inmate defense in federal appeals. Private defense lawyers have strongly opposed the creation of such a state agency.

In the meantime, roughly $2 million in the fiscal 1998 budget had been earmarked for the raises. But it was washed away earlier this month in a hurried $1.6-billion cut--most of which went to pay a $1.36-billion legal judgment that was owed the state workers pension fund and that Wilson decreed would be repaid this year.

A Wilson aide insisted Tuesday the $2-million cut was not the governor’s fault. “We certainly think there was a lot of pork . . . in the budget that could easily have been cut and this money could have been found to fund this important project,” said Sean Walsh, Wilson’s deputy chief of staff.

The governor, in a statement issued late Monday, blamed a “small but vocal group of criminal defense lawyers” for killing what he called “the death penalty appeals reform initiative.”

Mary Broderick, executive director of California Attorneys for Criminal Justice, a statewide defense lawyers group, countered that what Wilson called a “reform initiative” would offend “anybody who’s serious about providing credible representation to death row inmates.”

The 9th Circuit case has its roots in a federal initiative that backers said would short-circuit the lengthy delays that have become so common in death penalty cases.

The measure, signed by President Clinton in 1996, essentially came in the form of a deal between the states and the federal government.

The states had the option of “qualifying” by providing competent death penalty attorneys and paying them a reasonable fee.

In exchange, the federal courts would offer expedited review: a six-month window to file an appeal in federal court, another six months for a federal judge to rule, and four more months for a federal appeals court to decide the case after final written arguments.

Meanwhile, the day the law was signed, defense lawyer Laurence, representing Troy Adam Ashmus and other California death row inmates, filed a lawsuit challenging it in federal court in San Francisco.

Ashmus was convicted in 1986 of raping and murdering a 7-year-old girl after luring her to a park to look at ducks.

In May 1996, U.S. District Judge Thelton Henderson sided with the prisoners, saying the state had not properly qualified for the accelerated review in federal court.

On Monday, by a 2-1 vote, the 9th Circuit agreed.

Ron Matthias, the deputy attorney general in San Francisco who handled the case, asserted that the ruling was based on a “number of misunderstandings of law and fact.”

The only relevant issue, he said, was whether the state had properly promulgated rules to appoint and pay competent defense lawyers in death penalty cases.

Judge David R. Thompson, however, framed the issues differently.

Because so many death row inmates don’t yet have an attorney, he wrote, the state would be forcing those prisoners to make “an unacceptable choice.”

Those inmates, he said, would either have to file a “bare-bones” appeal in federal court, with no assurance that a judge would later allow an amendment--or wait until a lawyer was lined up, and almost certainly miss the six-month filing window. “Making this choice is not a matter of litigation strategy,” Thompson wrote. “It is a matter of life and death.”

Thompson also noted that the state’s rules do not provide enough money for defense lawyers to adequately investigate some claims.

The rules provide money only for those claims that are referred to in the “four corners of the appellate record”--that is, in the transcript.

In reality, Laurence said, the state provides $3,000, although that “barely pays for gas.” Anything more requires authorization, he said, adding that it is often uncertain whether such approval will be granted. The state need not pay for a “fishing expedition,” Thompson wrote. But “competent counsel” must be “permitted some latitude.”

Judge Helen Gillmor, a trial court judge from Hawaii specially assigned to the case, concurred.

Judge Robert R. Beezer dissented, saying he believes the 11th Amendment to the U.S. Constitution, which limits the jurisdiction of the federal courts over state defendants, should have barred the inmates’ suit in the first place.

On April 21, the U.S. 4th Circuit Court of Appeals, based in Richmond, Va., denied a similar suit filed by five death row inmates in Maryland, relying on the 11th Amendment.

Matthias, the supervising state prosecutor, promised an appeal of the California ruling, either to a full 11-judge 9th Circuit panel or straight to the U.S. Supreme Court.

“This suit,” he said, “should never have been brought.”