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Florida High Court Raises Standard for Death Row Case Lawyers Carol Marbin Miller Miami Daily Business Review November 5, 1999 As the U.S. Supreme Court decides whether Florida's electric chair is cruel and unusual punishment, the state's highest court is taking steps to ensure that convicted killers are not sentenced to death without adequate legal counsel. The Florida Supreme Court last week adopted new rules of criminal procedure that set minimum standards for attorneys who try cases in which an accused killer faces death, or capital cases. The standards are the result of a two-year study by a committee appointed by the Legislature. The standards are to become effective July 1, 2000, giving interested lawyers the time they need to prepare and complete continuing legal education courses. In the meantime, however, Gov. Jeb Bush halted all executions earlier this month while the U.S. Supreme Court rules on whether the electric chair is cruel and unusual punishment, in light of evolving standards of decency. Among the 40 states that allow death sentences, Florida is the largest of 19 states that had not yet approved standards or guidelines for lawyer competency. Two years ago, the Supreme Court adopted rules to ensure the qualifications of judges who preside over death cases. The American Bar Association drafted model standards in 1989, and encouraged the states to adopt them. Lawyers and judges who are experienced at death cases consider the ABA standards more stringent than any of the rules adopted by the states. Among other provisions, the new Florida rules require that lead attorneys in death cases have at least five years trial experience in criminal law, including at least nine jury trials of serious or complex cases. At least two of the nine must be cases in which prosecutors sought the death penalty. The new standards only apply in cases where private counsel must be appointed to represent a defendant who cannot be represented by a public defender. The Supreme Court also is soliciting comment on a proposal to extend the standards to assistant public defenders, a step that already has drawn criticism within some public defender offices. "Competent counsel to represent defendants in cases where the death penalty may be imposed is essential to assure that the death penalty is imposed fairly and without undue delay," the Commission on Legislative Reform of Judicial Administration, the study group, declared in its final report. Said the Supreme Court: "Under our procedural and adversarial system of justice, the quality of lawyering is critical. For that reason, trial judges responsible for the appointment of counsel in cases where the very life of the defendant is at risk must take care to appoint well-qualified lawyers." "This court has an inherent and fundamental obligation to ensure that lawyers are appointed to represent indigent capital defendants who possess the experience and training necessary to handle the complex and difficult issues inherent in death penalty cases." The standards, and the opinions of Supreme Court justices that accompany them, are likely to include elements that appeal to both prosecutors and defense attorneys. Defense attorneys can take comfort in the Supreme Court's recommendation that men and women facing death be represented by two experienced attorneys. Acceding to the wishes of prosecutors and cash-strapped counties, the high court did not make the recommendation mandatory. Defense attorneys also could take note that when similar standards were approved in Indiana, prosecutors in that state pursued the death penalty in fewer cases than before - possibly in an effort to save taxpayers' money. For prosecutors, the standards hold the promise of reducing the number of successful appeals by condemned killers who say they received ineffective assistance of counsel during trial or appeal. In the Supreme Court's opinion, written by Justice Harry Lee Anstead, the justices bristled at the number of appeals they consider each year by condemned inmates who claim ineffective or incompetent counsel thwarted their right to a fair trial. "This Court, over the years, has reviewed countless ineffective assistance of counsel claims alleging incompetence of counsel at both the trial and appellate levels," the justices wrote. But Penny H. Brill, an assistant state attorney in Miami who is part of a committee that reviews murder cases to determine whether the death penalty is appropriate, said she is not convinced the new standards will reduce the number of such claims. "I have reviewed enough claims where the defendant had two attorneys, and had attorneys who meet the requirements the Supreme Court set forth," Brill said. "You can have five experienced attorneys, and that does not insulate you against that claim." Clearly, the most controversial proposal before the high court involved the number of attorneys appointed in death cases. Several members of the study group favored requiring the appointment of two attorneys for each defendant in a capital case. Many county officials strongly opposed the requirement. The state Supreme Court has consistently ruled that an accused killer's right to a fair trial is not compromised simply by having only one lawyer, said Jason Bloch, an assistant county attorney for Miami-Dade. "Our position, as the representative of taxpayers, was that you shouldn't have a rule that requires two attorneys," Bloch said. "In some cases you do not need two attorneys. It can be a very expensive proposition." Copyright ©1999 NLP IP Company -- American Lawyer Media. All rights reserved. |
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