"Lack of funding builds death row logjam," is the title of Maura Dolan's Los Angeles Times report. It appeared in the November 27 edition.
Thirteen years ago, Edward Patrick Morgan asked the California Supreme Court for a lawyer to investigate and challenge his 1996 death sentence for a murder in Orange County. The court has yet to find Morgan an attorney.
The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state's criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges.
This "critical shortage," as the state high court describes it, has persisted for years, despite lawyer gluts. The average wait for these attorneys is 10 to 12 years.
Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction.
"There are myriad reasons why dozens of lawyers who used to do these cases decide they can't afford it," said UC Berkeley law professor Elisabeth Semel. "I am talking about not going broke because you are trying to do the right thing for your client."
Prosecutors and death penalty supporters blame the culture of criminal defense work or, as Kent Scheidegger, legal director Criminal Justice Legal Foundation, put it, the zeal "to turn over every rock in the world."
"The idea that you have to pull out every stop in every case is excessive," said Scheidegger, whose group favors capital punishment. "There is a lot of pressure, but that doesn't mean the state has to or should pay for it."
Lynne Coffin, 61, a criminal defense lawyer who does death penalty cases almost exclusively, said fewer young lawyers are willing to take on the work. She said even she is uncertain whether she would have become a capital defender "knowing what I know now."
And:
California has more than 700 inmates on death row, the largest number in any state in the country.
"We are dealing with numbers the system can't handle," said Michael Laurence, executive director of the Habeas Corpus Resource Center, a state agency that represents death row inmates in post-conviction challenges.
Some experts believe the shortage will be met only when the state expands such centers, where lawyers are on salary and have access to paid investigators and paralegals.
Each death row inmate is entitled by law to an automatic appeal to the California Supreme Court. These appeals are based on what happened at trial. They often include allegations that a judge gave improper jury instructions, a prosecutor made improper remarks during closing arguments or that evidence was impermissibly barred or admitted.
After an automatic appeal, a death row inmate may file a habeas corpus petition, which asks that the prisoner be taken to court to determine whether he or she is being held unlawfully.
A habeas or post-conviction challenge is based on evidence that was not presented at trial.
For instance, a defendant may argue that a prosecution witness obtained favors for testifying, a fact not disclosed during trial. If persuasive evidence is provided, the state high court will order a hearing before a trial judge.
A lawyer who takes a habeas is required by the California Supreme Court to have experience both in trial court and in appeals.
Chief Justice Ronald M. George said many lawyers lack the qualifications to take post-conviction challenges.
"I want to distinguish what we do in California from what they do in other states, where almost any warm body will qualify," George said.
The George court has upheld 90% of the death cases it has reviewed, the highest rate of any state court, according to Santa Clara University law professor Gerald Uelmen. George attributes the rate to the relatively high quality of defense the state provides at trial.
But criminal defense lawyers maintain that many capital defendants receive inadequate counsel at trial. They note that federal courts overturn more than half the California death penalty cases they review.
UC Berkeley's Semel said the state fails to meet American Bar Assn. standards for death penalty litigation. The quality of defense counsel varies from county to county, and the state increasingly pays a flat fee for capital cases, which the ABA opposes on the grounds it encourages lawyers to skimp on their duties to the client.
On an non-capital cost matter, today's Sacramento Bee carries the editorial, "Kamala Harris' idea could ease prison crowding."
In San Francisco and Los Angeles today, Kamala Harris will formally claim her razor-thin victory over Los Angeles County District Attorney Steve Cooley as California's attorney general.
In Washington, D.C., the U.S. Supreme Court will hear oral arguments in the state's challenge to a federal court order forcing California to reduce its prison population by roughly 40,000 inmates.
The two events are significant on their own. They're also related.
The high court will be reviewing a three-judge panel's order that the state relieve prison overcrowding. The judges reasoned that crowding caused inmate health care and mental health care to become so bad that conditions violate the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishment.
Harris, the San Francisco district attorney, mostly soft-pedaled the issue of prison crowding during her campaign, and until she takes office, she will be in no position to alter the way the state has pursued the case.
But in her book, "Smart on Crime," Harris forcefully decries the state's soaring prison population and cost, particularly as it relates to nonviolent offenders. This passage neatly sums up her take on the problem:
"For several decades, the passage of tough laws and long sentences has created an illusion in the public's mind that public safety is best served when we treat all offenders pretty much the same way: arrest, convict, imprison, parole. …
"What the numbers say loud and clear, however, is that most nonviolent offenders are learning the wrong lesson … are becoming better and more hardened criminals during their prison stays."
Comments