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staff reporter Mark olive believes the state of Florida handcuffs its death row lawyers. The death penalty attorney is, for the second time, challenging Florida’s cap on attorney fees for representing condemned inmates in state habeas corpus proceedings. A state law limits paid hours to 840, at $100 an hour-about one-fourth the number of hours that a research group retained by Olive’s lawyers said is required to do a competent job. “It’s not about a lawyer making money,” said Olive of the Law Offices of Mark E Olive in Tallahassee, Fla., who refuses to work under the caps. “It’s that I can’t ethically agree to represent someone on death row when I’m handcuffed.” Olive v. Maas, No. 03-CA-291 (Leon Co., Fla., Cir. Ct.). Passions run high about fee caps in Florida, as they do in most of the 38 states that have the death penalty. There is no federal constitutional right to an attorney in state post-conviction proceedings, the Supreme Court said in Pennsylvania v. Finley, 481 U.S. 551 (1987). States have created such rights in a crazy quilt of statutory schemes. Compensation ranges from none in Georgia to no caps at all, from stringent qualifications for attorneys to those needing only “a law license and a pulse,” as a Texas jurist asserted. Florida created a post-conviction public defenders’ office. It handles most of the cases-218 of 289 now moving through the system-and sends the overflow and cases raising conflicts to a panel of private lawyers. However, Governor Jeb Bush proposes to close the office, shifting the task to the private bar. The 840-hour cap is well below the 2,700 to 3,300 hours that the Spangenberg Group, a Massachusetts-based justice research and consulting firm, estimates are necessary to complete one case. Holland & Knight, which is representing Olive, commissioned the Spangenberg study in 1998 based on 188 backlogged cases. To reach its conclusion, the consultants interviewed public and private attorneys who had done post-conviction work in Florida. They also gathered data from law firms that had donated time to this work. The median number of attorney hours per case the firms spent on the 11 reported cases was 5,770. Florida caps investigative fees at $15,000. Expenses are also capped at that level, though judges can authorize more. Olive called the $15,000 cap on investigative expenses “ludicrously low, just enough to find out what is needed.” The Spangenberg study found that the nine reporting law firms doing work pro bono spent a median of $129,244 apiece. Criticism of caps Critics of caps on time and expenses in death cases include the American Bar Association (ABA) and the National Legal Aid and Defender Association. They say an enormous investment in time is needed to challenge a death sentence competently. Issues must be fresh to the case, since any that arose during trial can be decided only on direct appeal. So habeas counsel must mount an intense investigation to establish a client’s innocence or eligibility for a lesser sentence, the experts say. They search for such things as prosecutorial misconduct, faulty eyewitness identifications, false testimony, racial inequities, mental retardation and ineffectiveness of trial counsel. The process includes reviewing files and voluminous motion and trial transcripts, gaining a client’s trust and interviewing family, friends, teachers, ministers and jurors. Witnesses have to be reinterviewed and new witnesses searched out. Issues need to be briefed under strict deadlines. “The hours needed can be enormous,” said Olive, 49, “although, frankly, if you do this work all the time, know the law and the edges of it to push, that saves time. “But you can’t make assumptions. It’s hard to say how many hours it takes, because you never know. That’s the point of the suit.” Olive founded and directed Florida’s first center for habeas representation in 1985, before the state had a government-funded system. He later directed similar operations in Georgia and Virginia. “Death penalty habeas review is the brain surgery of our profession,” said Olive’s lawyer, Stephen Hanlon, the Holland & Knight partner who directs its pro bono department and a death penalty lawyer himself. Olive said that if the caps stay in place and the state office closes, habeas work for the state’s 360 condemned inmates will lie in the hands of private lawyers, many of whom aren’t up to the task. “Florida is taking a system that has taken 23 persons off death row and is doing the opposite of what that experience would teach,” he said. “Institutional representation beats private representation any time in criminal defense. If you’re looking at a systemic problem, the best people are the ones who do it around the clock. The learning curve is tremendous.” The Spangenberg study said, “Capital post-conviction work is too complex and time-consuming for an attorney without substantial experience to simply pick up the ball and run with it.” There is a “paucity of qualified attorneys in Florida and around the country.” ABA guidelines say that at least two qualified post-conviction attorneys should be assigned to a case, that they be committed to zealous advocacy on behalf of capital defendants and be possessed of substantial relevant legal knowledge. The guidelines specifically disapprove of caps on compensation. Florida pays for just one lawyer per client and doesn’t lay down any qualifications other than three years’ membership in the bar, 10 hours of continuing legal education, if available, and participation in any combination of five felony trials, appeals or post-conviction evidentiary hearings. Death penalty scholar James Liebman of Columbia University, co-author of a study of thousands of death penalty cases in 34 states, said Florida needs a strong habeas system. “Everything our studies have indicated is that Florida is one of the two states with the highest risk for serious error for capital verdicts,” Liebman said. “The thing that has prevented Florida from becoming the disaster that Illinois became is the relative care that the Florida courts have taken in reviewing these cases, so that any procedure that limits their ability to be careful is dangerous.” Under Florida’s present system, 46 lawyers, working in teams, share 200-plus cases in the state habeas office, called the Capital Collateral Regional Council. Brad Thomas, the Florida governor’s public safety policy coordinator, an attorney and Bush’s top advisor on the death penalty, said that the governor “is proposing to eliminate our state agency and outsource the whole thing, saving significant money.” The office’s budget is $9.3 million. The governor estimates that closing it will save $3.8 million and eliminate 97 jobs. Roger Maas, who as Florida’s executive director of the Commission on Capital Cases is the keeper of the 137-member registry of private lawyers, said that they average 21 years of experience. The state doesn’t ask registry applicants about their death penalty experience. Maas, who also oversees the Capital Collateral Regional Council, said that in most cases 840 hours are enough, although the office doesn’t keep records of the number of hours state lawyers work on each case. If 840 hours aren’t enough, he said, a private attorney is free to work as long as it takes, without compensation. “Any additional hours would fulfill pro bono requirements,” he said. That’s also the view of attorney Baya Harrison, a registry member who has five current collateral post-conviction cases and 20 years of experience. He thinks the cap is just fine, although he has “never left a nickel on the table” by billing less. “It’s not a cap on how much you work,” Harrison said. “It’s a cap on how much you get paid. You have pride in your work. I do work I love to do. I can pay my bills.” He later added, “I easily average 1,200 hours per case.” Thomas said the state’s 75,000-plus lawyers are more than enough to pick up the slack if the council’s offices are closed. “Theoretically,” Maas said, “we could do it with existing lawyers, but adding more is a relatively easy thing.” He said he regularly gets calls from circuit court judges wanting to appoint lawyers who aren’t on the list. “It happens all the time,” he said. “I send them an application.” He does not fear cronyism. “I trust our circuit court judges.” Thomas estimated that, on average, inmates executed since 1994 had spent more than 14 years on death row. “The governor’s goal is that capital cases be resolved within five years after sentence is imposed,” he said. “We don’t believe closing the offices will harm the process, and it could expedite it. Private attorneys have very promptly moved their cases while providing ethical, competent and zealous representation.” If Olive’s case reaches the Florida Supreme Court, it will be the second time on the same issue. In 1999, Olive challenged his exclusion from the registry after he refused to sign a contract that contained the cap. The court held that the cap was not really a cap. It concluded that an attorney could seek additional compensation from the court in cases involving “unusual or extraordinary circumstances . . . [if] given the facts and circumstances of a particular case, compensation within the statutory cap would be confiscatory of his or her time, energy, and talent” and that it would violate a trial court’s inherent power to ensure adequate representation and a defendant’s Sixth Amendment right to effective assistance of counsel. Olive v. Maas, 811 So. 2d 644 (2002). The case led to Olive’s being restored to the registry. It also prompted swift action by the Florida Legislature. Five days after the court’s ruling, David De La Paz, the criminal justice advisor to the speaker of the state House, wrote in a memorandum to his boss that the case law the Supreme Court had relied upon suggested that most death penalty cases would meet the exception and thus become the rule, which would defeat the purpose of the cap. La Paz laid out a rationale for a new statute that would negate the Supreme Court’s rulings: Since the state had no constitutional obligation to provide representation, the rights were statute-based, and therefore exclusive, meaning the court ought to stay out of it. De La Paz wrote that the statutory right “expressly precludes any right of the defendant to raise issues as to the adequacy of the post-conviction representation, and therefore could not logically generate a ‘right,’ on behalf of a defendant’s lawyer, to be paid above fee caps.” In other words, since competency can’t be challenged, caps can’t be challenged either. The Legislature promptly passed a bill instructing Maas to remove any attorney from the registry who sought compensation above 840 hours. Almost a year later, after failed negotiations, Olive filed his second attack on the caps. The state’s response to the suit for declaratory relief has thus far been a motion to dismiss, based mainly on jurisdictional and ripeness grounds. Post’s e-mail address is: <a href=”mailto:[email protected][email protected] .

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