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WASHINGTON � Capital defense lawyers from around the country successfully urged the Department of Justice recently to delay final action on proposed regulations for certifying qualified states to use fast-track federal court review of their death penalty cases. Although they and other organizations cited the need for additional time to inform clients and to weigh the implications of the proposed regulations, a number made clear that the regulations as drafted fall short of ensuring that states certified for the fast-track procedures have a system in place � as required by federal law � to provide competent counsel to indigent capital defendants in state post-conviction proceedings. “The Department of Justice has a real opportunity here to play a meaningful role in this process and it seems not interested,” said Matt Stiegler of the American Civil Liberties Union’s Capital Punishment Project. The department agreed to extend the 60-day public comment period an additional 45 days even though, it said, the justifications for an extension, offered by defense lawyers and, among others, the Judicial Conference of the United States, were “marginal at best.” Down to six months The department’s regulations are intended to carry out the mandate of Congress, which amended the PATRIOT Act more than a year ago to take away certification decisions from federal appellate courts and to transfer those decisions to the Attorney General, with review by the U.S. Circuit Court of Appeals for the District of Columbia. Congress acted at the behest of some lawmakers, particularly Senator Jon Kyle, R-Ariz., who were angry that the appellate courts had yet to find any states qualified for the fast-track federal habeas procedures. The fast-track procedures cut to six months, instead of a year, the time that death row inmates have to file their habeas appeals once their cases are final in state courts. They also impose strict time limits on federal courts for deciding habeas petitions: 450 days for district courts and 120 days for appellate courts. Those procedures are “really going to accelerate the process,” said veteran capital litigator George Kendall, senior counsel in Holland & Knight. Whereas prosecutors generally have “one hand-off” of their case, usually to the state attorney general, there often are many “hand-offs” on the defense side: trial lawyers who don’t do direct appeals, direct appeal lawyers who don’t do post-conviction work and on up, he said. “We know under the one-year rule, the baton gets dropped all the time for death row inmates,” said Kendall. “A lot of people are being represented now by federal public defenders who can’t go into state court. No one looked at the whole state function here.” The Judicial Conference, the federal judiciary’s policymaking body, did file substantive comments, urging the department to revise the proposed regulations because they lacked any definitions of “standards of competency,” “competent counsel,” “compensation of appointed counsel,” and “reasonable litigation expenses,” the requirements set out in the PATRIOT Act amendment. Opening the door The absence of specific competency standards could open the door to certification in cases “where a state has not in fact provided counsel services that are sufficient to enable federal court litigation to proceed fairly within the expedited time period,” wrote James C. Duff, director of the Administrative Office of the U.S. Courts, on behalf of the Judicial Conference. Kent Scheidegger of the Criminal Justice Legal Foundation � credited by Kyle with the idea behind the PATRIOT Act amendment � criticized the department on his blog for “dragging its feet” for taking 15 months to propose regulations as well as for extending the “more than generous” comment period. “But the capital habeas crowd did what they do best � call for more delay � and DOJ caved,” he wrote. The department said it had consulted extensively with representatives of all interests in capital litigation in developing its proposed regulations. But some groups that offered input said it was not reflected in the published regulations and expressed cynicism about any final regulations. “I’ll eat my hat if one word of those regulations is changed,” said one organization’s representative.

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