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Alarmed at the growing number of unrepresented inmates on California’s death row, legislators and court officials crafted a plan four years ago to enlist more lawyers to the cause. The centerpiece of the plan was the creation of the Habeas Corpus Resource Center. Rather than trying to find private attorneys willing to chase both tails of post-conviction work — the habeas petition and the direct appeal — the new center would recruit and train attorneys to handle the former while private attorneys and the state public defender’s office focused on the latter. So far, though, the efforts have had little effect on the bottom line — there are still 157 inmates on death row without any lawyer, compared with 151 four years ago. Meanwhile, the split representation approach has created a new phenomenon: 72 inmates have a lawyer for their direct appeal but no habeas counsel. “We’re treading water with regard to appeals, but we’re falling behind on finding separate habeas corpus counsel,” said Robert Reichman, the staff attorney with the California Supreme Court who monitors automatic appeals. Some death penalty lawyers further worry that with the separate appointments, appellate counsel and habeas counsel could end up working at cross-purposes. Overall, the percentage of California death row inmates without any counsel at all has fallen from 32 percent in July 1997 to 26 percent today. But because many of the new appointments were for the direct appeal only, an additional 13 percent of California’s condemned are still waiting for counsel to pursue habeas claims. Still, court officials say, it’s a start. California Supreme Court Chief Justice Ronald George said the assignment of appellate counsel is better than no counsel at all, and noted that the number of inmates without any counsel has stabilized. “It may seem like minimal progress, but I was seeing an increase in the backlog of defendants without counsel for years,” George said. “This whole problem with the capital case delays is like turning an oil tanker around in high seas.” MORE LAWYERS STILL NEEDED The key to the split appointment system, George and others say, is that it appeals to attorneys. George said many attorneys who are “total whizzes at appellate work” are not necessarily as enthusiastic about doing habeas work, with its investigative and triallike aspects. Others who are “hotshots” in front of a jury may freeze up before an appellate panel or when writing an appellate brief. “If you require attorneys to assume both functions, you find a lot of people happy to do the appeal won’t take it,” he said. Officially part of the state judiciary, the HCRC was created as part of a 1997 law aimed at moving capital cases through the state system more efficiently. It was spurred by a federal law that created incentives for states to upgrade their death penalty systems. The state law, SB 513, hiked the hourly compensation rate from $98 an hour to $125 and raised the starting investigative fee to $25,000. It gave the state public defender’s office 15 more lawyers and scaled back its role in capital cases to direct appeals only. And it created the Habeas Corpus Resource Center, which was to be the public law office of last resort on state habeas and a clearinghouse for private attorneys to train for appointments and share information about how to handle such post-conviction work. Last year, the resource center had an $8 million budget to pay for lawyers, paralegals, investigators and training programs. Director Michael Laurence said the center is currently appointed to 23 state habeas cases. He expects to hire four more lawyers before summer’s end, bringing the office up to its full complement of 30 lawyers. In the meantime, the number of direct appeals assigned by the California Supreme Court has grown as the shortfall in habeas comparatively has risen. “One of the major issues that’s going to have to be addressed is finding more lawyers to do the habeas petitions,” Laurence said, noting that the state continues to lead the nation in death judgments each year. California currently has 595 people on death row — more than any other state in the nation including Texas, where 453 inmates are awaiting execution. “Even with 30 lawyers in this office, we simply don’t have the resources to do all the habeas petitions. Recruiting private attorneys [to take appointments] and demystifying habeas is what we need to do.” State public defenders say they have been working closely with the center and praise Laurence for establishing an office they expect to cut into the backlog in the long run. But for now, said Assistant State Public Defender Barry Helft, “they’re dancing as fast as they can, and the record keeps spinning faster and faster.” George has said he’s “very satisfied” with the center’s progress to date. And alluding to Lynne Coffin’s appointment as state public defender 15 months ago, he said, “the office of the public defender has improved as well. I’m also convinced we have not yet seen the full benefits of the changes.” SPLIT SYSTEM HAS CRITICS Not everyone sees the division of labor as the key to reducing the number of unrepresented inmates. “Eventually, the state public defender should get back into the business of doing habeas,” said Timothy Foley, a San Francisco solo and board member of California Attorneys for Criminal Justice. “Having them do just the appeals is short-sighted and it doesn’t serve the client’s interest,” he said. Coffin, the new public defender, calls the current approach well-intentioned, but said it may be time to reconsider it. “I think the system the way it is, with the emphasis on the private bar, is not ultimately going to be the solution,” Coffin said. “The backlog is too much, the cases too complicated.” But George said he has confidence in the bifurcated system. He prefers to stay the course and focus on the public defender’s primary responsibility of getting the direct appeals on track “before letting them expand their charge.” Some post-conviction lawyers also say a delay between appellate and habeas appointments can work against a client’s interests. The two post-conviction proceedings are often interrelated and overlapping, private attorney Foley said. Foley noted that many states wait for the appeal to be complete before habeas counsel gets assigned. “And there’s nothing wrong with that,” Foley said. “The problem in California now is that years and years pass before we’re getting counsel for just the appeal, and then more years pass before habeas starts.” And as more time passes, evidence and witnesses crucial to the habeas investigation can be lost. Helft noted one appeal assigned to his case as an example. The inmate told appellate counsel that there are witnesses who haven’t been interviewed and suggested that his grandmother has much information. But he said the woman lives in Florida and is in poor health. “We’ve got a serious decision to make here about whether we should go talk to her,” Helft said. It would be best for habeas counsel to do it because appellate counsel generally sticks to the trial record. “But there is no habeas counsel right now.” The bifurcated appointment also has presented procedural questions the state has yet to settle. In one case currently pending before the California Supreme Court, the justices will decide whether separately appointed habeas corpus counsel are entitled to participate in correcting, augmenting and settling the record on appeal in a capital case. Dane Gillette, senior assistant attorney general and capital case coordinator for the office, opposed the participation of habeas counsel on grounds that it would constitute a “substantial duplication of effort.” He said the record should be completed and certified once. At oral argument in Marks v. Superior Court, S085224, the justices indicated they would hope habeas and appellate counsel would work to at least coordinate efforts and interests in a case. A ruling is expected before Sept. 6. APPEALS MOVING FASTER Gillette said that whether there’s one attorney or two on post-conviction work makes little difference to his office, which still handles both ends. But he noted that in terms of moving the direct appeals along, the new system appears more effective than in the past. “I know we’ve been very busy lately handling appeals. We are seeing more appellate opening briefs on cases from the state public defender and private lawyers,” Gillette said. “Certainly the actual appeals seem to be moving along on some older cases.” Other lawyers add to the positive picture. Clifford Gardner, a San Francisco solo who handles both, said in a perfect world we’d see habeas counsel getting appointed simultaneously. “The system would be great — the two would be moving forward on parallel tracks. It would move much faster, you’d have two pairs of eyes,” he said. But he echoes George’s sentiment — that “the split representation is attractive to many post-conviction lawyers who come from the appellate ranks and that’s what they’re comfortable with.” Mark Cutler said he can read the record, research the case law and write the brief in an automatic appeal from his home office in the rural California city of Cool. “Habeas work is a lot more like trial work. It’s difficult to do all by yourself and from a remote area,” he said. Gary Wells, a Fresno, Calif.-based habeas attorney, said having separate appellate counsel to work with is better. “Two pairs of eyes are better than one,” he said. “I can see a problem in that there’s a significant delay now in getting habeas counsel appointed, but it’s a trade-off. It’s better to have at least direct appeal counsel.” Veteran San Francisco trial lawyer Michael Mendelson signed up for his first habeas case two years ago. He was interested in the particular issues behind the case and he has the time to pursue it. “The pay’s not the greatest, so you have to be committed to the idea of the criminal justice system working the way it’s supposed to,” he said. “People are not falling over themselves to handle these cases. They’re time-consuming. They’re aggravating because the stakes are the highest they can be. What you do really will have life-and-death implications and a lot of people don’t want to bother,” he said. “The clients are probably not the nicest guys around. It’s tough enough to just be practicing law.”

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