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Hoping to improve the quality of representation in death penalty cases, the Florida Supreme Court has extended minimum competency standards to all defense attorneys at the trial level and for first appeals — but not at the post-conviction petition stage. The justices voted unanimously to apply the same competency standards it established in 2000 for court-appointed defense lawyers to include attorneys privately hired by defendants and those in public defender offices throughout the state. “By adopting minimum standards that apply to all attorneys who represent defendants in trial and appellate-level capital proceedings, we hope to further improve our capital punishment system by ensuring adequate representation in these all-important ‘first-level’ proceedings, thereby decreasing the number of claims of ineffective assistance in post-conviction proceedings,” wrote Justice Harry Lee Anstead, who authored the opinion released last month. Justice Major B. Harding dissented in part, objecting to the standards being applied to private attorneys hired by capital defendants. “While it is a worthy goal to seek that all counsel representing capital defendants be qualified by education and experience, I find it troubling that this court can deprive a defendant of the right to retain counsel of his or her choice,” he wrote. The new standard, which goes into effect July 1, requires attorneys to be “reasonably skilled in the specialized practice of capital representation.” Among other things, the minimum competency standards require that: � The lead defense counsel must have at least five years’ litigation experience. � The lead defense counsel must have been first chair in at least three cases in which the charge was murder, or been first chair in one murder trial and five felony jury trials. � The lead counsel must have attended a continuing education program in the last two years that was specifically devoted to capital defense cases. � Co-counsel must have been first or second chair in at least two murder trials. MANY YEARS IN THE MAKING The standards have been many years in the making. In 1989, the American Bar Association promulgated minimum standards for counsel in death penalty cases and urged states to adopt similar rules. In 1997, the Florida Supreme Court established the Committee on Minimum Standards for Attorneys in Capital Cases to study and recommend baseline standards for court-appointed counsel. The committee proposed standards which, in 1998, the court declined to adopt in order for the Legislature to study the issue. After the Legislature recommended that the high court go ahead and craft standards for capital defense attorneys, the court adopted the previous committee’s proposed standards in 1999; they took effect in 2000 — and applied only to court-appointed attorneys. When it adopted the standards, the justices noted that Florida was “the largest state without any rule or legislation imposing standards on counsel appointed to represent defendants in death penalty cases.” The high court, which was sharply criticized by Florida Republicans in 2000 for overturning legislation to speed up the death penalty appeals process, suggested that the new standards would address the concerns about delays in the post-conviction phase. “One of our goals in adopting these standards is to minimize the post-conviction problems and delay at the back end of the process by focusing on the quality of the trial and direct appeal proceedings at the front end,” Anstead wrote. Florida House Speaker Tom Feeney, R-Oviedo, an attorney who favored the Legislature’s 2000 move to truncate death penalty appeals, criticized the decision, saying, “I do not believe lawyers should be required to have higher competency levels in death penalty cases because the presumption of innocence and the evidence code are the same for capital cases and for crimes of a lesser degree.” NOT FOR POST-CONVICTION LAWYERS The justices declined to apply these standards to attorneys who represent defendants at the highly complex post-conviction petition phase. During that phase, defendants bring claims such as new evidence of innocence, ineffective assistance of counsel, prosecutorial misconduct and judicial bias. The decision was applauded by Michael P. Reider, director of the Capital Collateral Regional Counsel in Tallahassee, Fla., who had presented arguments to the Florida Supreme Court against applying the minimum standards to CCRC attorneys. Reider argued that post-conviction petition attorneys already are subject to a minimum competency standard in Chapter 27 of the Florida Statutes. In contrast, he argued, attorneys in public defender offices previously had no baseline standards. Moreover, Reider argued, if the standards were applied to attorneys handling post-conviction petitions, the CCRC would no longer be able to bring in inexperienced attorneys and train them. “All we do are death penalty cases, so under the new rules an attorney we hired right out of law school would never be able to get the necessary experience to be a first- or second-chair attorney,” Reider explained. Post-conviction work is typically handled by the three Capital Collateral Regional Counsel offices around the state. The public defender’s offices across the state handle trial and direct appeal legal representation. But the high court’s refusal to apply the standard to lawyers doing post-conviction petition work drew criticism from some attorneys involved in death penalty work. “This decision is disappointing,” says Michael Mello, a professor at the Vermont Law School who has argued many cases before the Florida Supreme Court and who was a charter attorney in Florida’s first capital collateral office, opened in 1985. “The real problem in Florida has been at the post-conviction level, and yet the court does not require minimum competency for attorneys there.” FIXING A BROKEN SYSTEM? The decision by the high court, over a year in the making, comes on the heels of a widely publicized national study out of Columbia Law School, which found that, from 1973 through 1995, 75 percent of the death sentences imposed in Florida were reversed by state or federal courts. That exhaustive report, “A Broken System,” was a follow-up to a study in 2000 that recommended, among other things, improving the quality of defense counsel in capital cases across the country. Over the past decade there have been infamous examples of poor legal representation of defendants accused of capital crimes. In Texas, a defense attorney named Joe Frank Cannon slept soundly during three separate trials, Mello says. In one case that Cannon slept through, his client, Carl Johnson, was later executed. In Florida, there also have been serious lapses in defense work. Florida has put 22 people on death row who were later released due to exculpatory evidence — far more than any other state in the union. The ruling has been welcomed by some attorneys involved in the death penalty field. Former Florida Supreme Court Chief Justice Gerald Kogan, who previously served as co-chairman of the National Committee to Prevent Wrongful Executions, says minimum criteria are needed. “Capital defense work is not ordinary litigation,” Kogan says. “There is no question it is a specialized skill. A highly experienced personal injury attorney is not necessarily qualified to do capital defense. There should always be a minimum standard.” Stephen F. Hanlon, who heads the pro bono unit at Holland & Knight in Tallahassee, says that “the court has exercised real leadership here. Very few states currently have minimum competency standards.” Still, Hanlon agrees with Mello that the court’s refusal to include post-conviction attorneys is troubling. “That is a real concern,” Hanlon says.

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