[NYTr] Death Penalty: The monster is eating itself up, costs spiral

[All the News That Doesn't Fit]

The New York Times -Nov 3, 2007
http://www.nytimes.com/2007/11/04/us/04penalty.html


Capital Cases Stalling as Costs Grow Daunting

By SHAILA DEWAN and BRENDA GOODMAN

ATLANTA, Nov. 3 — When Hilton M. Fuller Jr., a semiretired judge of the
silver-haired, Southern-gentleman variety, agreed to preside over the
trial in a notorious courthouse shooting here, he took a job no one
else wanted — the legal community was still in shock over the death of
a judge, a court reporter, a sheriff’s deputy and a federal agent.

But now, two years later, the truly thankless nature of Judge Fuller’s
task has become evident. The legislature has threatened to impeach him.
Columnists have taken him to task. On Friday, the district attorney
sued him in State Supreme Court. Even fellow judges have abandoned
their usual reticence. On a recent afternoon, he received a copy of an
e-mail message from a colleague calling him a “debacle,” an
“embarrassment” and a “fool.” And the trial has yet to begin.

The anger directed at Judge Fuller revolves around an issue more and
more states are being forced to confront — the rising cost of an
adequate defense in death-penalty cases. Even as an examination of
lethal injection by the Supreme Court has seemingly suspended the
practice across the country, many experts predict that the cost issue
will have far broader implications for the future of the death penalty.

States unwilling to pay the huge costs of defending people charged in
capital cases may be unable to conduct executions.

For Brian Nichols, accused of killing four in the courthouse shooting
in March 2005, the costs have already reached $1.2 million. That,
together with legislative cuts, has left the state public defender
system with no money. Until the bills are paid, the judge has delayed
the trial, saying that it is unconstitutional not to pay the defense
and thus pointless to proceed. In turn, lawmakers have accused him of
conspiring to end the death penalty in Georgia.

The state could avoid the multimillion-dollar trial by dropping the
death penalty option. Mr. Nichols has offered to plead guilty in
exchange for a sentence of life without parole, but the district
attorney, Paul L. Howard Jr., has declined.

Judge Fuller is not the only jurist to try to force states to pay for a
defense that will pass muster with higher courts. Last month, the New
Mexico Supreme Court suspended the prosecution of two prison inmates
accused of killing a guard, saying their lawyers’ pay was so low it was
unlikely they could be effective. In Utah, a judge has asked if he can
force a lawyer to represent a convicted killer on appeal because, at
fees amounting to less than $10 an hour, no one wants the job.

In California, a federal judge complained in May that death row inmates
were waiting more than three years to get a lawyer because the state
would not raise the hourly rate. Arizona, Texas and Louisiana are
having similar troubles.

“I don’t think there’s any question that lethal injection is going to
be allowed, it’s just a question of how,” said Stephen B. Bright, a
capital defense lawyer and president of the Southern Center for Human
Rights in Atlanta. “But the right to counsel is as fundamental as it
gets — every other right depends on it.”

Defense costs are just one factor in the steep price states are
beginning to consider. A 2005 study by New Jersey Policy Perspective, a
liberal research group, estimated that capital punishment had cost the
state $256 million since 1983, including $60 million for defense, and
the state has not executed a single inmate in that time. A bill to
abolish the death penalty is given a fair chance of passing.

But the issue has come into sharpest relief here, thanks to the
scrutiny of the courthouse case, arguably the most complicated murder
case in state history.

State Senator Preston W. Smith, the Republican chairman of the
Judiciary Committee, has complained that Mr. Nichols is receiving a
“high-end, O.J.-style defense” that most taxpayers could not afford.
But while the price sounds high, especially for a man whose guilt no
one doubts, the cost of even a minimal capital defense has been driven
up by technology and the increasing sophistication of law enforcement.

Mr. Nichols faces a 54-count indictment, a team of five prosecutors,
and 400 potential prosecution witnesses. Prosecutors gave the defense
team 32,000 pages of documents and 400 hours of taped telephone calls.
The defense team has an obligation to review all of the information and
investigate each witness. To the irritation of lawmakers, Judge Fuller
has kept budget requests sealed to keep the defense strategy from
becoming public.

Judge Fuller is bound by recent Supreme Court decisions that have
underscored the importance of the defense counsel’s performance during
the sentencing phase of the trial, when juries consider mitigating and
aggravating factors in deciding whether to impose the death penalty. In
a 2003 case, the court ordered a new sentencing hearing because defense
lawyers failed to fully investigate their client’s background and
present evidence of severe childhood sexual and physical abuse. In a
2005 case, the Supreme Court again found that a more thorough review by
the defense would have unearthed information that the jury should have
heard.

In both cases, the court cited guidelines issued by the American Bar
Association in 2003, which detail the special skills capital defenders
must have and the “extraordinary efforts” they must undertake because
of the irreversible punishment. Capital defendants must have at least
two lawyers, the guidelines say, and each phase of the appeals process
should include an independent investigation.

Exonerations have also highlighted the need for a competent defense.
“We have all this new evidence being discovered 10 years later,” said
George H. Kendall, who has monitored capital defense in Georgia and now
works in the New York office of Holland & Knight. “If there was a real
defense at the time, it would have come up then.”

The Nichols defense team, which plans to argue that its client was
suffering from a mental disorder, says the anger at Judge Fuller is
misplaced. The defense budgets are first presented to the Georgia
Public Defender Standards Council, which has not objected to any of the
requests as unreasonable. It has simply said it cannot pay.

But neither the judge nor the council has been spared.

The council was established as a statewide public defense system in
2005 in response to widespread problems, including divorce lawyers
assigned to capital cases and lawyers sleeping through trials. Three
months later, the Nichols trial became the first major test of
lawmakers’ commitment to the new system. They have seized control of
the council and gutted its capital defense budget, cutting it to $4.8
million from $7 million a year.

Courts have repeatedly demanded a better defense in capital cases, but
states have repeatedly refused to pay for it. In 1996, Congress
established a “fast track” that would shorten federal deadlines in
capital cases if states agreed to provide competent representation to
death row inmates. No state has fulfilled the requirements.

Capital defense lawyers face the highest possible stakes, but in many
states the job is one of the lowest-paid in the legal system. In New
Mexico, for example, appointed capital defenders work under a contract
system that caps their fee at $24,500, a salary that amounts to an
hourly wage of just $19.50 for the average death penalty case, not
enough to cover their overhead, according to a brief filed by the New
Mexico Criminal Defense Lawyers. In contrast, private criminal defense
lawyers in New Mexico made an average of $161 per hour in 2004.

The lead lawyer in the Nichols case, Henderson Hill, is billing $175 an
hour instead of his usual $325. Another of his four lawyers has waived
her fee. None have been paid since July.

Lawmakers say Judge Fuller and the defense lawyers are deliberately
driving up the costs to make sure that the death penalty is too
expensive for the state.

And in fact, better-financed systems do reduce the number of capital
cases — coming closer, advocates say, to ensuring that the death
penalty is reserved for the worst of the worst offenders. North
Carolina, which instituted what is often pointed to as a model capital
defense system in 2001, has gone from an average of 24 capital
convictions a year to 5. It is too soon to know if the reversal rate,
extraordinarily high in death penalty cases, has also been reduced.

When Judge Fuller took on the Nichols trial, prosecutors and defense
lawyers alike praised the choice, saying he had rarely, if ever, been
overturned on appeal. But his reputation has since taken a beating.

“I’m beginning to think I am a fool for taking this case,” the judge
said, rereading the e-mail message in which a fellow judge called him
one. “I thought people would give me the benefit of the doubt. That was
naïve.”