Postconviction representation - Florida Death Penalty

b. Postconviction representation

23. An even more substantive failure to deliver on the Furman promise arises in the context of Florida=s capital postconviction representation.

The quality of Florida=s capital postconviction representation system has steadily declined over the past ten years when the federal funding for resource centers was eliminated.

The past ten years have demonstrated a consistent pattern of turmoil and chaos in the representation of capital postconviction defendants.

The state-funded agency responsible for representing postconviction defendants was overwhelmed with cases, absorbing those cases that the federally funded organization had represented, and a large number of cases in the mid-90s when death sentences spiked and rule changes caused initial motions to be filed much quicker than in previous years.

That the location of the agency was split into three regional offices but still managed under the auspices of a single agency.

The agency was then officially separated into three regional offices with the creation of the Registry system to handle conflict and overflow cases.

A few years later, the Florida Legislature eliminated one of the regional offices and sent Registry sixty-plus cases.

Under the current system, at that part of the capital process at which errors are sought to be caught and corrected, qualifications to be appointed to a capital postconviction case are minimal, oversight is non-existent, and funding is inadequate. Id. at v. Compensation is capped.

Though the Florida Supreme Court has recognized that the cap may be breached in extraordinary circumstances, the fact that the determination of whether the cap was properly breached is made after the fact. Fla. Dept.of Financial Services v. Freeman, 921 So. 2d 598 (Fla. 2006).

Certainly, requiring attorneys who find that the requisite work exceeds the statutory cap to litigate their compensation after the fact has a chilling effect.

Within the Registry system, statutorily funding is only available for 840 attorney hours for attorneys representing capital postconviction defendants on the registry when research suggests that 3,300 attorney hours are required to represent a capital postconviction defendant. ABA Report on Florida at v. This is not the only monetary limitation, funds for investigative, expert, travel and other costs is limited. Moreover, there is no provision for compensation for successor proceedings.

24. While Registry counsel are restricted in funding, the Capital Collateral Counsel (CCC) offices are not. Thus, CCC attorneys can exceed the 840 hours without the consequence of non-payment. CCC attorneys can hire experts, pay investigators and incur other costs associated with litigating a capital postconviction case without consequence of non-payment.

There is no valid basis for distinction between death row defendants represented by Registry counsel and death row defendants represented by CCC attorneys.

Undoubtedly, this disparity in funding will impact the representation and arbitrarily effect the ultimate success of capital postconviction defendants in challenging their convictions and death sentences.

25. In 1988, the Florida Supreme Court recognized that the creation of CCR extend to all Florida capital defendants the right to have effective representation in all collateral proceedings in both state and federal court. Spalding v. Dugger, 526 So. 2d 71, 72 (Fla. 1988) (Aeach defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all collateral relief proceedings.

This statutory right was established to alleviate problems in obtaining counsel to represent Florida's death-sentenced prisoners in collateral relief proceedings.@). Having recognized the statutorily created right, the Florida Supreme Court has generally found that no remedy exists for a breach of the statutorily created right to effective collateral counsel. Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996) (Aclaims of ineffective assistance of postconviction counsel do not present a valid basis for relief@).

The Florida Supreme Court did recognize an exception to the Lambrix rule where state-provided collateral counsel due to neglect failed to file a timely notice of appeal. Porter v. State, 788 So. 2d 917 (Fla. 2001).

Otherwise, state-provided collateral counsel=s failure to exercise diligence in investigating and timely presenting evidence of innocence or of a constitutional deprivation operates as a bar to a court=s consideration of the resulting claims for relief. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002).

26. Because, beyond the narrow circumstance identified in Porter v. State, a capital defendant has no remedy when state-provided counsel either through negligence or a lack of diligence fails to provide effective representation, Florida=s capital sentencing process fails to live up to the Furman promise.

As noted in the ABA Report, the performance of Registry counsel has been openly criticized, even by members of the Florida Supreme Court:

This lack of appellate experience may account for the questionable performance of some registry attorneys. For example, a number of registry attorneys have missed state post-conviction and federal habeas corpus filing deadlines possibly precluding their clients from having their claims heard.

Specifically, registry attorneys in at least twelve separate cases filed their clients= state post-conviction motions or federal habeas corpus petitions between two months to three years after the applicable filing deadline.

Performance like this has led two Florida Supreme Court Justices to publicly comment on the quality, or lack thereof, of registry attorneys. Justice Cantero stated that the representation provided by some registry attorneys is A[s]ome of the worst lawyering@ he has ever seen. Specifically, Asome of the registry counsel have little or no experience in death penalty cases.

They have not raised the right issues . . . [and] [s]ometimes they raise too many issues and still haven=t raised the right ones.@ Chief Justice Barbara Pariente reiterated the concerns of Justice Cantero by stating that A[a]s for registry counsel, we have observed deficiencies and we would definitely endorse the need for increased standards for registry counsel, as well as a continuing system of screening and monitoring to ensure minimal levels of competence.@

The questionable performance of these attorneys, as well as the lack of requisite qualifications, is particularly troublesome in light of the fact that death-sentenced inmates do not have a state of federal constitutional right to assert a claim of ineffective assistance of post-conviction counsel.

The performance of these attorneys has also led many legal experts as well as some Democratic and Republican Legislators to criticize the closure of CCRC-North Office in 2003. In fact, many legal experts, including Justice Cantero and the Executive Director of the Commission on Capital Cases, have cautioned against proposals to eliminate the two other CCRC Offices.

ABA Report on Florida at 183-84. Thus, it is well recognized by state officials in the legislative and judicial branches of government that a number of the post-conviction attorneys provided by the State are incompetent, i.e. some of the worst lawyering ever seen.

Yet, the capital defendants provided some of the worst lawyering ever seen must accept the incompetent representation without recourse.

27. An amicus brief filed in the United States Supreme Court that is noted and relied upon in the ABA Report, catalogues instances where Registry counsel simply do not know or understand capital postconviction law, and thereby waive the capital defendants= rights and avenues to obtain relief without their consent or knowledge. See ACLU=s Amicus Brief in Lawrence v. Florida, Appendix C.

28. A system that knowingly provides capital defendants with some of the worst lawyers@ that a Justice of the Florida Supreme Court has ever seen, and strips the capital defendant of the right to complain and seek redress, simply does not comport with the Furman promise that states with capital sentencing schemes must affirmatively take steps to eliminate the risk that an execution will be as random as a bolt of lightning.

Undeniably with 22 exonerations, Florida=s trial system warrants a constitutional safety net.@ Jones v. State, 709 So. 2d. at 535-36 (Shaw, J., dissenting).

Yet, it is well-recognized within the State of Florida, as the ABA Report documents, that the Asafety net@ has been stripped away.

Those capital postconviction defendants who receive some of the worst lawyering@ that a Florida Supreme Court justice has ever seen and who may have meritorious claims for relief and who in fact may be innocence, have been arbitrarily denied any real chance of obtaining relief by Florida=s knowing willingness to provide incompetent counsel.

The situation smacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring).

The outcome of the post conviction process, directly linked to whether state-appointed counsel is incompetent, is a purely arbitrary.