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To James Bednar, who represents Oklahoma death row inmates, President George W. Bush’s promise last month to help lawyers who defend capital cases was bewildering. “I about fell over when I saw what Bush had said,” says Bednar, executive director of the Oklahoma Indigent Defense System. “I don’t know whether it’s just lip service or not. The defense bar will believe it when they see it.” After all, this is the George W. Bush who, as governor of Texas, signed off on 152 executions, making the state synonymous with the death penalty. But during his Feb. 2 State of the Union address, Bush uncharacteristically drew attention to the death penalty, saying that “people on trial for their lives must have competent lawyers by their side.” For many on both sides of the death penalty debate, Bush’s words were perplexing. The confusion was rooted in an apparent about-face by the administration on funding for death penalty defense — something that the White House has vigorously opposed. It also was a reflection of Bush’s record on capital punishment, particularly in Texas. Last year, the White House fought a bill that called for hundreds of millions of dollars to be sent to states to aid both prosecutors and defense lawyers in capital cases. The bill passed Congress, and because of wide bipartisan support, Bush ultimately signed it. But the administration then didn’t fund the law in its proposed 2006 budget. That legislation, tagged the Justice for All Act, calls for $375 million over five years, to be split evenly between lawyers defending and prosecuting death row cases. The president’s remarks in his State of the Union were the first hints that the White House wanted to launch its own death penalty initiative — albeit with a more modest approach. Bush’s plan would provide $50 million over three years to be shared among defense lawyers, prosecutors and judges in state capital cases. The plan calls for grants that, unlike the original legislation, don’t guarantee defenders equal access to funds. It makes some death penalty advocates wonder if the president is acting in good faith in pledging to help defense counsel — or trying to supplant legislation he doesn’t support with a watered-down version. “This is an entirely different program,” says John Terzano, head of the Justice Project’s Campaign for Criminal Justice Reform. “It just doesn’t make sense.” IN THE BEGINNING The genesis of the congressional plan to help death penalty counsel lies in a bill introduced five years ago by Sen. Patrick Leahy, D-Vt., as the Innocence Protection Act. A lightning rod for criticism from prosecutors and victims’ rights groups, the act sought to address what the bill’s proponents say are some of the worst flaws in the administration of the death penalty nationwide. Among its provisions: expansion of access to DNA testing for convicted criminals and more money for capital defense counsel. It had some bipartisan support, but languished in committee. The legislation was revamped to emphasize victims’ rights. It became palatable for a wider group of lawmakers when Bush began advocating in 2003 for more money to support DNA testing and labs, as part of an effort to process a backlog of unanalyzed DNA evidence in criminal cases. Provisions were added that allocated more than a billion dollars over five years for testing a backlog of crime scene evidence, improvement of the capacity of crime labs to conduct DNA analysis, and post-conviction DNA testing. Money for prosecutors was also added, in large part to win support from “tough on crime” politicians. “All of a sudden, this thing got turned into what’s good for the goose is good for the gander,” says George Kendall, a senior counsel at Holland & Knight in New York who devotes his time to pro bono matters. Bush signed the legislation shortly before the 2004 election, but might have done so with misgivings. For example, the law provides some grants for post-conviction counsel — the attorneys who represent death row inmates appealing their sentences in state courts and in habeas corpus hearings in federal courts. Money for post-conviction lawyers, in particular, is a charged issue. Congress eliminated federal funding in 1996 for 20 death penalty resource centers nationwide, effectively closing the offices that provided post-conviction representation to death row inmates and recruited, trained and supported volunteer lawyers in those cases. Critics of the central, state-funded offices that represented death row inmates in post-conviction proceedings say its lawyers deliberately filed motions that stymied the litigation process and delayed executions. The move left states to create and fund post-conviction defense groups. Since there is no constitutional right to a lawyer in post-conviction proceedings, each state can decide whether to appoint counsel and how much to pay. Prisoners in some states ended up representing themselves in their final appeals. Fears that the Justice for All Act would resurrect the centers prompted a provision in the final version of the bill that 75 percent of the grants had to go to trial — not post-conviction — counsel. The Bush initiative, however, would be even more restrictive, providing no money at all for post-conviction counsel. The act also calls on states to establish effective systems for appointing and qualifying lawyers for death penalty defense work. It allows for coalitions of defense attorneys, made up of private lawyers and public defenders, to do that work. Such a system, say opponents of the provision, would create a conflict of interest, allowing defenseattorneys to hire, and monitor, themselves. But because of the efforts of House Majority Leader Tom DeLay, R-Texas, the legislation now includes a provision that allows state trial court judges to appoint and monitor defense counsel, which is what happens in many states now. Death penalty defense advocates argue that trial judges — who are often elected — don’t necessarily appoint the best lawyers. Denise LeBoeuf, director of a post-conviction defense center, claims judges often opt for those lawyers who won’t file numerous motions and clog up their dockets. Sometimes, she says, those include a roster of attorneys who rely on steady work as indigent defense counsel and contribute to judges’ election campaigns. The Bush Justice Department expressed the administration’s strong opposition to much of the congressional legislation and to the issue of appointing lawyers in particular in an April 2004 letter to members of the Senate and House Judiciary committees. In the letter, Assistant Attorney General William Moschella, the DOJ’s top liaison with Capitol Hill, complained, “Beyond the Federal overreaching inherent in this scheme, its requirement that a defense entity be given full control over the capital defense system raises obvious concerns about conflict of interest and potential obstruction of capital punishment. … Likewise, the defense entity would have obvious motivation to utilize its control over defense compensation and expenses to pour limitless resources into the defense side in state capital cases.” OUT OF THE BLUE Although the administration’s initiative is seen as a counterpunch to the Justice for All Act, some conservatives are puzzled that Bush mentioned the death penalty at all in his State of the Union address. “Among the groups that supported him for re-election I don’t know anyone who is all that interested in this issue,” says Kent Scheidegger, legal director of the Sacramento, Calif.-based Criminal Justice Legal Foundation, a pro-death penalty public interest group. “It’s just not politically popular. When we get to see the actual language of it, maybe we’ll see something that will tell us why he is doing it.” And Paul Rosenzweig, a senior legal research fellow who focuses on criminal law at the Heritage Foundation, a conservative D.C. think tank, was also left guessing. “Maybe he’s doing the righteous thing,” he says. “But it’s not like he is coming out against the death penalty. This is a very modest step.” The White House says that the confusion is misplaced. “The president wants to make sure all Americans have confidence in the justice system and this is part of his plan,” says White House spokeswoman Christie Parell. “I think it’s simpler than folks are speculating.” But a Democratic Senate staffer who worked on the Justice for All Act says that the White House is trying to do an end run around a hard-won bipartisan effort. “They’re floundering around,” the staffer says. A bipartisan push on Capitol Hill to fund Congress’ plan remains as the budget moves through the appropriations process. “This is one of most important pieces of legislation passed last Congress,” says Jeff Lungren, a spokesman for GOP House Judiciary Committee Chairman F. James Sensenbrenner Jr. of Wisconsin. “It’s a landmark law that improves many aspects of the criminal justice system.” The American Bar Association is lobbying for full funding of congressional grants for capital defense counsel, enlisting more than 100 volunteer private firms. “We’re forced into this situation of begging civil lawyers to step up and do what needs to be done,” says Robin Maher, head of the ABA’s Death Penalty Representation Project. “That’s not a good answer. It would be better to set up an effective death penalty defender system, but you need resources to do a good job.” A MATTER OF RESOURCES Andre DeGruy manages the state-funded capital defense counsel office in Mississippi. He works in an office with two other lawyers, with a budget that has shrunk to $680,000 in 2005 from $720,000 in 2001, when it was founded. DeGruy and his staff, who handle trial work, can represent only about 15 capital defendants each year. And each year, about 70 new defendants in Mississippi are eligible for the death penalty under state sentencing guidelines, he says. “I’m not expecting this money to take care of the whole problem,” DeGruy says. DeGruy and his two colleagues do their best to offer advice to the county public defenders handling the remainder of the cases. Their assistance involves phone calls and visits to rural county courthouses, as well as publishing training guides and hosting occasional conferences to fill in the knowledge gaps of public defenders who have an already full caseload. It is this kind of training that the DOJ, which would oversee the Bush capital trial grants, says the initiative aims to help improve. But there are “slim materials available” on the proposal and there are as yet no explicit guidelines for the grants, says Sheila Jerusalem, a DOJ spokeswoman. In February, two weeks after the president’s address, the DOJ’s Office of Justice Programs hosted a focus group with prosecutors, defense attorneys and judges to help define the program, which will award grants on a competitive basis. Possible grant recipients include the National Legal Aid and Defenders Association, the National District Attorneys Association, the National Judicial College and state bar associations, Jerusalem says. Some prosecutors acknowledge that there is a funding shortfall for both sides in state capital cases, a shortfall they say the Justice for All Act could help alleviate. Kent Cattani, an Arizona assistant attorney general who oversees the state’s responses to death penalty appeals, has an annual budget of $1 million and a staff of 11 lawyers. Currently, 131 inmates in Arizona face execution. “There is certainly frustration at the level of funding,” says Cattani, adding that as much as he would like additional resources, money for training at the trial level would make his lawyers’ work easier, since it might ensure more complete trial records. “I’d definitely like to see money infused at the start, rather than at the tail end, so you’re not doing things like relitigating mental health issues 20 years later,” Cattani says. WAITING FOR RELIEF In Southern states with large death row populations — such as Mississippi, Florida and Louisiana — death penalty advocates remain frustrated, waiting for promised money that hasn’t come. LeBoeuf, of the Capital Post-Conviction Project of Louisiana, says it doesn’t matter whether the funds go for trial counsel or post-conviction counsel. The system, she says, is starving. “We’re not going to get into a fight over who needs money,” LeBoeuf says. Her state-funded office has a $700,000 annual budget to fund six lawyers and a handful of investigators and staff. Because of shortfalls, LeBoeuf says, 20 inmates remain unrepresented on Louisiana’s death row, home to nearly 100 prisoners. And relying on private contract attorneys hasn’t been successful, she adds: Two of the last three prisoners executed in the state had lawyers who have since been disbarred. “This community knows George W. Bush and views with great skepticism any promise of real assistance from a man who presided over so many executions,” LeBoeuf says. “We’re going to be very surprised if this doesn’t come with strings that are either unacceptable or get in the way of independent advocacy.” In Florida, where there are 382 inmates on the state’s death row, a flap has developed over the increasing use of private attorneys with little criminal law experience in capital cases, something proponents of Congress’ plan say could happen in greater numbers if the Justice for All Act isn’t funded. Florida Supreme Court Justice Raoul Cantero III, in a January speech to the state’s Commission on Capital Cases, said that a push from Gov. Jeb Bush to rely more heavily on lawyers from the private bar as a cost-cutting measure has produced some of the “the worst lawyering I’ve seen.” In 2002, Gov. Bush — the president’s brother — closed one of the three regional offices staffed by state-paid lawyers that focused on representing death row inmates, arguing that it could save the state up to $3.8 million a year. Other state Supreme Courts have spoken to poor funding for defense counsel in capital cases as well. And their concerns have gone beyond the problem of ineffective counsel. In a 2001 decision reversing and remanding a death penalty conviction to the lower court, the Arizona Supreme Court wrote, “So long as the law permits capital sentencing, Arizona’s justice system must provide adequate resources to enable indigents to defend themselves in a reasonable way.” The justices wrote that a denial of funding interfered with the “fair and orderly administration of justice,” noting that there were no funds provided for a psychological expert to testify at trial about the defendant, a common practice in criminal cases. That’s one of the reasons some critics say that Bush’s plan is admirable but inadequate. “I’m whole-heartedly in favor of training private attorneys involved in capital cases,” says Rob Warden, executive director of Northwestern University’s Center on Wrongful Convictions. “But there are threshold problems in the system, including police and prosecutorial misconduct, that occur before ineffective assistance of counsel becomes an issue.” DeGruy of Mississippi’s Office of Capital Defense Counsel says that one thing is clear: Bush’s plan is driven in part by pragmatism. “This isn’t a bunch of bleeding hearts who say we need to take care of the people on death row,” DeGruy says. “The system ain’t functioning.”

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