Los Angeles Times Wednesday April 3, 1996
COPYRIGHT (c) 1996 Times Mirror Company
By MACK REED, TIMES STAFF WRITER
This piece won the California Bar Association's Bronze Medallion Award for newspapers over 100,000 circulation, for excellence in legal reporting
Before California's death row inmates even enter the time-consuming thicket of state and federal appeals, another type of delay is quietly stretching their lives.
It is a shortage of death penalty appeals lawyers. And it has left 128 men and six women sitting on death row. Waiting.
Some convicted killers have waited up to four years without making any legal moves while the state hunts for qualified appeals attorneys willing to represent them.
The shortage further cripples an appeals process that most legal experts already view as a mockery of the swift justice that Californians had hoped to see after they voted to reinstate the death penalty nearly 18 years ago.
And it is lengthening the lives of killers like these:
With lawyers beside them, Smith, Dickey, Taylor and the rest could be plowing through complex appeals that already can add 10 years or more to the life of any California inmate who chooses to fight a death sentence.
Yet there they sit, while a single state Supreme Court recruiter pores over resumes, publishes want ads and cold-calls lawyers, looking for help.
"I am the entire staff," said Robert Reichman, appeals monitor for the Supreme Court. "The court is ultimately the appointing body."
Yet Reichman is not the bottleneck, legal observers say. Rather, the bottle itself is near-empty--and growing emptier.
Strict California laws require death row attorneys to have gained four years of criminal defense experience, attended three state-approved training programs for appellate work--including one on the death penalty--and to have completed seven appeals cases, including at least one homicide.
Yet few qualified lawyers want the long hours, low pay and high frustration of court-appointed death penalty appeals work.
California is condemning people to death faster than it can find lawyers to represent them. California judges sentence an average of three convicts to death each month. But Reichman said he is finding only about two lawyers per month for the inmates at the top of the waiting list.
California's lawyer shortage and death row delays are probably the worst in the nation, say groups ranging from the National Assn. for the Advancement of Colored People to the American Bar Assn.
But the Golden State is leading a growing trend nationwide.
Texas legal experts say their inmates need not wait long for lawyers in first-round appeals. But that's because court appointment standards are so low that nearly anyone can apply--including lawyers with little or no death penalty experience.
County judges pick the attorneys for death row appeals, often appointing the attorneys who defended an inmate at trial.
Texas' Supreme Court rejects 87% of these weak first appeals, the legal experts say. And that leaves many of the state's 414 condemned inmates languishing because few lawyers care to take on the next round of complex appeals over habeas corpus, or constitutional issues.
About half of Pennsylvania's 196 death row inmates have no lawyers, say defense advocates. And, here again, the state's standards are so low that they attract death penalty novices who often lose their first appeal. The state has appointed a divorce lawyer to one case and a recent law school graduate to another.
The wait for appeals attorneys in Florida and other states also is expected to worsen as legislators tack on the death penalty to more crimes and prosecutors seek and win more death sentences.
"We cannot have a system that goes forward and processes people for death when they have not had the opportunity to raise their claims," said Diann Rust-Tierney of the American Civil Liberties Union.
"Society's got to come to grips with this," said Rust-Tierney, director of the ACLU's Capital Punishment Project. "The death penalty is a 200-ton monster sitting on the criminal justice system."
And defense attorneys and prosecutors nationwide agree that if Congress keeps underfunding death row inmates' constitutionally guaranteed defense, then death penalty appeals will grow more lengthy and snarled.
In a move effective last Sunday, Congress gutted funding for 20 post-conviction defender organizations, which once recruited and advised pro bono death row appeals lawyers. Now, states including California must fall back on their own resources, which are thin at best.
The resulting delays in executions are killing the sense of justice Californians wanted when they voted in 1978 to reinstate the death penalty, said state Atty. Gen. Dan Lungren:
"The system in some way has to respond to the pressure put on it. Either we're going to have the death penalty in the state of California, or we're not.
"A lot of Californians think of death row as a place where people who have been condemned to death are probably going to die of old age, and that seems a particularly macabre joke on society.
"I've spoken to the parents of children who've been killed whose killers continue to live on death row. And their question is: 'How come these people are allowed to live longer on death row than my children were allowed to live on earth?' "
Yet few of California's 150,000 attorneys sign up to help ease the backlog. In fact, since 1992, fewer than 220 have applied for appointment to death row appeals.
This year, the state Supreme Court is paying about 99 attorneys a total of $5 million to handle 110 active state appeals cases.
The rest of the slack is taken up by 36 state public defenders and 19 attorneys at the nonprofit California Appellate Project--which says it only can provide appeals lawyers and legal advice on a limited basis because Congress yanked its federal funding.
Meanwhile, 134 inmates wait.
"It's a very seductive argument that we have X number of attorneys in the state, so why don't we get enough lawyers," said California State Public Defender Fern Laethem. "But when you look at how many are doing criminal law, how many are prosecutors and--of those--how many are interested in doing death work and are qualified, you get to a really small number and find that most of them are already doing it.
"It's debilitating, emotionally draining, complex work," she added.
California death row lawyers told The Times that their colleagues with trial experience in homicides or major appeals are not exactly jumping over one another to take these cases for many reasons:
"You're not going to get any accolades--except possibly from some of your peers--nor any understanding from the public," he said. "If the case becomes a high-profile one, you will be vilified in every way imaginable. It's a painful and frustrating experience."
So why should anyone want to do it?
"You can plead all you want" for lawyers to volunteer, said Esther Lardent, chief consultant for the American Bar Assn.'s Post-Conviction Death Penalty Representation Project.
"But if there isn't a sense that the people who do these cases are doing a service to society by ensuring that the death penalty is fairly applied, then I think you're always going to have trouble."
As the waiting list for lawyers swells, another type of delay is blocking the progress of most appeals: record certification.
The original murder trial judge must certify that each trial transcript is accurate before an appeal can be filed with the state Supreme Court.
But some transcripts bulge out to 10,000 pages. Each must be reviewed by the court reporter, court clerk, trial attorneys and finally the trial judge for errors of fact, transcription--even grammar. That can take up to five years.
Because of delays like these and the slow crawl of appeals cases through federal courts, only three California convicts have been executed since 1978.
Case in point: Serial killer Dean Phillip Carter, who was sentenced to death in 1989 for the 1984 murders of three west Los Angeles women, and again in 1991 for raping and killing Janette Cullins of Pacifica Beach in San Diego County.
Carter did not get his appeals lawyer until nearly 3 1/2 years later. Seven years after his first death sentence, he has not filed his first appeal. The trial record still is being certified.
His victims' families rail against the ineffectiveness of the system and against laws requiring certification of the record within 60 days that are never enforced.
"The reason [cases] are elongated this way is the fact that there's no teeth to make them perform," said George Cullins of Oceanside, Janette's father. "They say they have a tough time finding [lawyers]. It's awful hard for me to believe that when there's one attorney for every 196 people here in the state of California."
Even defense attorneys--who sometimes argue that every day of delay is another day of life for a death row inmate--agree that the wait for lawyers is unjust.
"Witnesses' memories fade, witnesses die. It's even more difficult to locate witnesses" for an appeals case after a four-year delay, said Michael Laurence, a cooperating attorney with the ACLU.
"Secondly, it is incredibly demoralizing for people on death row to be without counsel, to be without access to the outside world," said Laurence, whose three-member San Francisco law firm handles only death penalty appeals.
"The people on death row fear uncertainty more than they fear death. It is the uncertainty of the process, how it works, what to expect, as well as what the final result is going to be. And everyone--certainly everyone sentenced to death--has the right to have some hope."