By Jim Ash, Palm Beach Post Staff Writer
Tuesday, January 20, 2004

TALLAHASSEE -- Florida's experiment to privatize the legal process that ushers condemned killers from Death Row to the execution chamber -- or freedom -- may be showing early signs of saving taxpayers money.

Relying on private attorneys to defend some of Florida's Death Row inmates instead of using public defenders will save more than $2 million this year, state officials project.

"This is what the figures are showing," said Roger Maas, executive director of the Commission on Capital Cases.

But critics say there hasn't been enough time to evaluate the success of what is supposed to be a three-year experiment.

"I think part of the problem you have with that is it's really something that is going to be hard to project," said Neal Dupree, a capital collateral regional attorney who faced the possible elimination of his job one year ago, when Gov. Jeb Bush released a bare-bones budget that proposed saving $9.3 million by eliminating the state's three Offices of Capital Collateral Regional Counsels.

"You haven't lived until the day you wake up and see a big zero next to your agency's budget," Dupree said.

The offices, begun in 1985 to hasten the death row appeals process, are made up of 50 full-time attorneys paid by the state to represent death row inmates in their post-conviction appeals.

Instead, Bush wanted to use defense lawyers from a list of private attorneys who are willing to accept a cap of $84,000 per case and a rate of $100 an hour.

Lawmakers, including Bush's fellow Republicans, balked.

A compromise was reached that eliminated only the North Florida region of the counsels and transferred its 64 cases to private attorneys.

The north region office was eliminated June 30, wiping out its $3.2 million budget. Two of the cases landed in the lap of another region; private attorneys picked up the rest.

In an interim report that is based on seven months of data and that has yet to be released, Maas predicts that the private attorneys in the north region will file only about $1 million in legal bills with the state. That puts the projected savings at potentially more than $2 million this year.

But Dupree, who serves in the state's southern capital collateral counsels region, says costs could grow exponentially as private attorneys take on more cases.

Plus, Dupree said, the interim report doesn't take into account the fact that judges are allowed to increase the amount of money the private attorneys are paid, regardless of the state mandates, if the lawyers can demonstrate unusual circumstances.

He also said the simple cost accounting says nothing about the quality of the work being done on a defendant's behalf or the speed at which the private attorneys have been able to do their jobs.

"It's nice to say there is a projected savings, but what has happened to these cases? If you're getting no movement in them, where's the bang for your buck?"

The Capital Commission acknowledges it has not compared how quickly private attorneys are doing the work compared to their regional counsels brethren.

But some state legislators said they were encouraged by the Capital Commission's projections.

"I'm pleasantly surprised. While I was hopeful, quite frankly, I was skeptical," said Sen. Victor Crist, R-Tampa, who helped negotiate the compromise.

Others remain skeptical of the privatization effort.

It's "dumbing down the appellate process," said Rep. Dan Gelber, D-Miami Beach, a former federal prosecutor who supports the death penalty but is an ardent foe of dismantling the Capital Collateral Regional Counsels network.

Collateral reviews of death row cases, considered the most complex area of criminal law, begin only after a defendant has exhausted his direct appeals. Post-conviction petitions are usually based on the narrow grounds of new evidence, ineffective trial counsel, misconduct by prosecutors, faulty or recanted eyewitness accounts or a defendant's retardation or other mental incapacity.

Collateral reviews amount to starting the criminal case all over again, often requiring thousands of hours to review tens of thousands of pages of court documents and re-interview crucial witnesses.

The state registry, which now includes 147 private attorneys, was originally created to give judges a place to go when a Capital Collateral Regional Counsels office became overloaded or had to turn down a defendant because of a potential conflict of interest.

To qualify for the state registry, attorneys need only minimal experience, including a continuing education course on capital cases and a record of having tried at least five felony cases. In comparison, most Capital Collateral Regional Counsels attorneys have been trying these complicated cases for years.

"If they make mistakes," Gelber said of the private attorneys, "we have to reload and start from scratch. It's a relatively small amount of money to save when you risk so much in the long term."

Critics of the death penalty also are not impressed by the early returns.

"It becomes a question of what lawyers are willing to do the work and at what cost. Some will do it because it's close to their heart," said Abraham Bonowitz, director of the Jupiter-based Floridians for Alternatives to the Death Penalty. "Others will do enough work to satisfy the bill that the state is willing to pay."

The latter will ultimately lead to increased mistakes in the death row appeals process and the eventual execution of innocent defendants, Bonowitz said. Since the death penalty was reinstated in Florida in 1979, 24 Death Row inmates have been exonerated.

Bonowitz called the privatization experiment "bogus" when compared with a calculation made by The Palm Beach Post in 2000 that eliminating the death penalty altogether and substituting life in prison without parole would save the state $51 million a year.

"If they really want to save money, they will eliminate the death penalty," he said. "What they are doing is putting innocent lives at risk and they are putting the reputation of the state at risk, and what have they accomplished?"

Bush is expected to introduce his budget for 2004 today, and it remains to be seen whether he will again push to eliminate the remaining regional counsels. A spokesman did not respond to requests for an interview.

But even Crist, a Bush supporter, said he would not go along with speeding up the experiment.

"There just hasn't been enough time to decide," Crist said.

jim_ash@pbpost.com