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With a backlog of death-row inmates lingering on appeal without counsel, the last thing the California Supreme Court wants to do is discourage qualified attorneys from signing up to take the cases. But in a rare move, the justices have ordered two attorneys to show up in court to explain why they shouldn’t be held in contempt for failing to file an opening brief. Jeffrey Garland was granted 14 extensions over six years to accommodate family illness and death, an eye condition and even severe bouts of the flu. Ruth Robinson got nine extensions over eight years to accommodate the complexity of the case as well as her mounting caseload as a civil litigator. The court issued the orders to show cause on Dec. 20. Neither attorney had coughed up a brief by Monday. The last time an OSC showed up on the docket was two years ago when William Kopeny hadn’t filed his opening brief. But at the last minute, Kopeny filed and the order was dismissed. But the court has cracked down in the past. In April 1995, the justices sentenced H. Peter Young to five days in Los Angeles County jail for failing to file an opening brief. In June 1997, they smacked Violet Grayson with a $1,000 fine. Chief Justice Ronald George’s principal attorney, Beth Jay, said she couldn’t discuss specific cases. But she noted the court prefers to see attorneys submit their briefs rather than to hold them in contempt and reassign the case to another lawyer — which would put the case back to square one. “The court needs to control the flow of work to ensure the case is handled in a timely fashion,” Jay said, adding that the defendant’s rights as well as the rights of the victim’s family are at stake. Appellate lawyers note that such cases inevitably require time and careful review. The work is not simple, and not every attorney is able to handle it. Even those who qualify for an assignment under the state’s rules often find themselves overwhelmed by the sheer volume of work — and the pressure of leaving no issue overlooked for fear of losing their client’s chances in federal court. Locally, the court contracts with the nonprofit California Appellate Project to provide consultation and some investigative services to appointed counsel. But the agency’s role is largely limited to coaching the attorneys appointed to death cases. Robinson, one of the attorneys ordered to show cause next month, explained in court documents that she met regularly with her colleague at CAP. Together they reviewed the appealable issues in her client Mark Schmeck’s case as well as looked at sample briefs from the agency’s brief bank. But in August 1999, she explained, “Despite my best efforts, in light of the magnitude of the task, it will not be possible to complete the opening brief by the end of August. “I am the sole attorney working on the Schmeck opening brief and habeas petition,” she wrote. The court granted one more extension, and the justices denied a request for another. Robinson declined to comment. While the circumstances facing a particular defender can vary, the pressures facing all attorneys who take on death penalty cases are well documented. Sarah Pattison, president of the California Appellate Defense Counsel, notes that the court tried to alleviate some of the pressure when it created the Habeas Corpus Resource Center. Under the new system, different attorneys work together on a single case — one handling habeas matters while the other focuses on the direct appeal. “These are monster cases,” Pattison said. “Attorneys need a lot of support in working through them.” For its part, the court has been willing to grant extensions — up to a point. “The court gives attorneys fair warning when it’s granting a final extension,” said Jay. “We’re not trying to ambush anybody.” Garland, the other attorney ordered to show cause, has enlisted Santa Monica criminal appellate specialist Dennis Fischer to represent him before the court. “We’re hoping to get as close to the finished product done before the Feb. 7 court date,” said Fischer. “But there’s no way to know how the court will respond.” California leads the nation with 593 inmates on death row; 159 have no attorney to represent them in their appeals. The state Supreme Court assigns attorneys to the cases, and it has earned a reputation for offering some of the most generous compensation rates for death penalty work in the country to attorneys qualified to tackle the cases. George has raised the hourly pay from $98 to $125. “But even the best-intentioned plans an attorney may have in taking a case can go awry,” Fischer said.

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