By Gary Blankenship
A Florida House panel has heard testimony suggesting private attorneys handling death penalty appeals are not doing a poor job as claimed recently by two Supreme Court justices. And Rep. Bruce Kyle, R-Ft. Myers, chair of the House Justice Council, said he may ask the court why it hasn’t taken action against the lawyers who have done a poor job.
The March 9 meeting came after Justice Raoul Cantero told the legislature’s Commission on Capital Cases last month that private attorneys on the state’s registry list to handle collateral death penalty appeals performed “some of the worst lawyering I have seen.” He also said they wrote some of the “worst briefs I have read.”
Registry attorneys were originally set up to handle conflicts and overflow from the state’s three capital collateral regional counsel offices, which represent indigent death row inmates on their collateral appeals. In 2003, at the urging of the governor’s office, the legislature abolished the northern CCRC office and turned all the cases over to registry attorneys to see if that could save money.
That led to Cantero’s report to the Commission on Capital Cases on how the registry attorneys had been performing. While some did excellent work, he said many turned in poor briefs, raised the wrong issues, raised too many issues while missing the important ones, and were unprepared for oral argument, including being unfamiliar with the record.
In a follow-up letter to the commission, Chief Justice Barbara Pariente wrote that while quality from the CCRC offices has improved in the past several years, “[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 minimum levels of competence.”
At the March 9 meeting, Justice Council members heard Cantero’s recorded comments, and then testimony from two assistant state attorneys, Lawrence Mirman of the 19th Circuit and Sean Daly from the Seventh Circuit.
Mirman said he’s handled appeals involving three registry counsel and all were experienced lawyers who did good jobs. He also said they were more focused on their approach.
“My experience has been I think CCRC has had more of a shotgun approach, but that said I don’t want to say anything they do is unethical. They have to represent their clients,” Mirman said. “Their position is ‘we have to uncover every rock’ and our position is at some point it becomes a fishing expedition.”
Daly said CCRC lawyers have used “cookie cutter” motions to cover as much as possible, frequently making 50 allegations but without specifics.
“What they wanted was delay,” he said. “When you drop that kind of pleading on a trial judge’s desk, you get delay, you get a continuance until someone can figure out what is going on.”
He said innocent death row inmates want their cases heard, not delayed, so they can get out of prison. Daly conceded that CCRC lawyers have improved in recent years, including dropping a habit of refusing to acknowledge controlling precedent when it went against a point they wanted to make.
He said the threat of the registry attorneys taking over has made the CCRCs act more responsibly. Daly also questioned rules that prevent experienced prosecutors who have prosecuted death penalty cases from joining the registry to defend one when they go into private practice.
Caroline Snurkowski, an assistant deputy attorney general who oversees handling death appeals for the state, said there is a difference in quality between CCRC and registry attorneys but didn’t elaborate. “That comes in from the time limitations and the type of issues being raised,” she said.
Asked about seeking public records as a way to delay appeals, Snurkowski said she considered that a problem with CCRCs in the past, but the problem is less serious now. She also said that registry counsel have not been “free of sin” in seeking records, but added that such records can be valuable for registry attorneys taking over a case. “It’s a good tool for them to secure information on finding out what has happened in the past,” Snurkowski said.
Roger Maas, executive director of the Commission on Capital Cases, told the council that he surveyed registry attorneys and while on average they have more experience as lawyers than CCRC counsel, most of their work has been in trials, not appeals.
“You’ve had assistant state attorneys come and tell you how good they [registry counsel] are at the trial level, but this is the appellate level, and that’s the difference,” Maas said. “. . . . They might be extremely competent at trial, but not on appeal.”
He said registry attorneys, when they get a case, are given a book of available resources to help them, and that the capital commission is working on seminars to improve their education. He also said the commission is pursuing a contract with Florida A&M University to prepare an online tutorial for registry attorneys.
Maas said registry attorneys have been lawyers for an average of 21 years, while Kyle said he knows that the average experience for CCRC attorneys is nine to 10 years. He also said only four of the 15 attorneys in the CCRC South District office have trial experience, although that number is better in the Middle District.
Rep. Marcelo Llorente, R-Miami, asked Kyle if the Supreme Court could remove lawyers from the registry list.
“I think the Supreme Court has not the statutory authority to do that. There are ethical rules that attorneys should not take on cases they are not competent to handle, so I think the Supreme Court is ultimately responsible,” Kyle said. He later added, “I take the position they are in charge of the rules of the Bar, and if they see these people, they should bring them forward and sanction them, and once sanctioned they would be removed from the list.”
Kyle also said he might send a letter to Pariente and Cantero asking what the court had done about the poorly performing registry attorneys and whether they had referred them to The Florida Bar for disciplinary investigations.
Cantero may have addressed that question when he appeared before the Commission on Capital Cases and was asked if the court could remove the attorneys. “I’ve thought about it,” he replied. “I’m not sure we can. We have thought about whether this person should be a registry counsel at all. I think we are reluctant to go to that drastic step.”
Neal Dupree, head of the CCRC south office, attended the March 9 Justice Council meeting, but did not speak. Afterward he noted that virtually all of the criticisms of the CCRC offices were from several years ago and no longer apply. He said no one has complained to him since he was hired in 1998 that lawyers in his office have sought unjustified delays or abused public records requests.
He also warned that the Supreme Court getting involved in removing ineffective collateral counsel could have unintended consequences. Currently, Dupree said, there is no statutory or legal precedent that collateral attorneys must provide competent representation.
If the Supreme Court removed a collateral counsel for doing a poor job, it could create a new area of law that death row inmates have the right to competent legal representation in the collateral appeals, which in turn could lead to more post conviction litigation, Dupree said.