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No state in the nation has adopted the almost year-old American Bar Association (ABA) guidelines aimed at substantially raising the quality of defense counsel in death penalty cases. Critics of the guidelines point to the financial expense of carrying them out. Proponents speak in terms of fundamental fairness. While the number of death sentences imposed has declined about 50% over the past five years, that doesn’t mean defendants received fair trials or that they will get adequate appellate review, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “There continues to be problems with the quality of representation,” he said. Revisions The 2002 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases are revisions of guidelines promulgated in 1989. Those older, less stringent guidelines were adopted before federal laws, enacted in 1996, both severely curtailed post-conviction review and eliminated financial support for state capital resource centers, which caused many to close. “We hope to reform a system that is desperately broken,” said Robin Maher, the director of the ABA Death Penalty Representation Project. “Ours is an adversary system that requires equally competent attorneys on both sides for it to work effectively and to ensure justice.” The guidelines are not merely a wish list, asserted Eric M. Freedman, a professor at Hofstra University School of Law and the reporter whose job was to synthesize the thinking of the advisory committee members and finalize the guidelines. ‘The current consensus’ “They are a mandate,” Freedman said. “They embody the current consensus regarding the minimum requirements to provide effective defense representation in capital cases.” Ninety-six percent of ABA delegates approved the guidelines. The ABA takes no position on the death penalty other than to oppose execution of the mentally retarded and those under the age of 18 when they committed the crimes. In 1997, the ABA adopted a resolution calling for a moratorium on executions until attorney-competency and other substantive and procedural due process requirements were met. The guidelines delineate the responsibilities of counsel and of states and the federal government to individuals from the moment of arrest through, if necessary, clemency proceedings. They would apply in the 38 states that have a death penalty, as well federally, which includes the military. The guidelines call on the states and the federal government to develop legal representation plans that a court could enforce if the plan was not followed. Attorney competence and attorney independence are key elements of the guidelines, but no more so than the establishment of an independent appointing authority that is comprised of defense lawyers with capital expertise, rather than of local judges or elected officials as is the case in most jurisdictions. The authority would also be responsible for monitoring attorney effectiveness, removing attorneys from the qualified list when necessary and even recommending that an attorney not performing competently be removed from an ongoing case. The authority would make sure an attorney’s workload allowed for quality representation. The guidelines call for a team of at least two highly skilled attorneys who have a demonstrated commitment to capital cases, an investigator and a mitigation specialist, as well as experts as needed. The guidelines set out training and continuing education requirements that attorneys would have to fulfill in order to be placed or to remain on an authority’s list. Specific duties of defense counsel are set out for each stage of the proceedings. The guidelines forbid flat fees and caps on compensation, and call for reasonable compensation-with defenders’ organization salaries commensurate to that of prosecutors and with appointed counsel being paid the same as retained counsel in that community. No one disputes that following the guidelines would be expensive. Death penalty opponents say a price is paid when someone who is innocent is executed, or when a guilty person is denied an adequate opportunity to explain why he or she does not deserve to be executed. Many capital defense litigators fear that some states will pick and choose which of the guidelines to enact. “It’s tempting to say some change is better than none, but it’s like trying to fix a broken-down car with new tires,” Maher said. “It would not bring about the overhaul of the capital defense system that is urgently needed.” ‘Bucket loads of money’ The National District Attorneys Association does not dispute the need for qualified attorneys. “It’s in everyone’s best interest to have qualified defense counsel,” said Joshua Marquis, Clatsop County, Ore., district attorney and chairman of the organization’s capital litigation committee. “No one wants to retry a case because of inadequacy of counsel.” His organization does take issue with the guidelines being a mandate. He said that states should be free to modify them. “In many states in this country, if you’re charged with capital murder, you already get a million-dollar defense, and properly so,” Marquis said. “They’re good standards and a good template to shoot for, but unless whoever is mandating the guidelines is ready to send bucket loads of money to states you just can’t mandate them.” His organization also opposes having capital defense attorneys as the appointing authority. “It’s a big area of contention,” he said. Defense attorneys “have a highly ideological component that mucks things up. They’re all anti-death penalty, and they want to make it too expensive to have a death penalty.” Since 1973, 112 people in 25 states have been released from death row because of evidence of their innocence. Since the death penalty was reinstated in 1976, 885 people have been executed, according to the Death Penalty Information Center. More than 3,500 people are on death row. Since 1998, the ABA death penalty project has placed more than 100 capital post-conviction cases with private law firms across the country. The project trains and mentors its recruits when necessary, said Maher. Post’s e-mail address is [email protected].

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