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Sunday, February  2
Accent | Business | Local News
Main News | Opinion | Sports

If state kills, state must pay lawyers

By Randy Schultz, Palm Beach Post Editor of the Editorial Page
Sunday, February 2, 2003

If Jeb Bush and Charlie Crist had their way, Florida would kill innocent people. Their opinions wouldn't matter if they were two guys at the end of the bar. Unfortunately, they are Florida's governor and attorney general.

Now, let's be clear. Gov. Bush and Mr. Crist wouldn't allow the state knowingly to execute innocent people. But given the state's dysfunctional history of capital punishment over the past 24 years, the "reforms" they want for the system invariably would cause the state to commit murder. They're just too busy pandering to admit that.

Last month, Rudolph Holton left Death Row. He had been there for 16 years. He got out because his attorneys discovered that key evidence in his favor had been withheld from the defense team during Holton's trial. After more evidence unraveled, the prosecution said it could not retry the case.

In 2000, when Gov. Bush and legislative leaders tried to speed up death-penalty appeals, their goal was to have executions take place no more than 10 years from conviction. They wanted efficiency and said that was plenty of time to review any case.

Yet if that standard had been in place since Florida resumed capital punishment in 1979, six men would have gone wrongly to their death. Does efficiency justify murder?

Returning Florida to a failed system

And now, Gov. Bush wants to eliminate the state office that supplies lawyers for Death Row inmates. Admittedly, the agency operates on an odd-sounding concept. The public pays for the death-penalty system and for lawyers who try to thwart that system. History explains this seeming paradox.

For the first few years after executions resumed, Death Row inmates got legal representation only when small advocacy groups begged private firms to donate their time. Recruiting was very hard. As Death Row got more crowded, executions actually slowed because appellate courts ruled that the condemned had not received adequate counsel.

So in 1985, then-Attorney General Jim Smith went to the Legislature and asked for creation of something called the Office of the Capital Collateral Representative, which today employs 50 lawyers in three regional offices to represent Death Row inmates. He didn't pitch it with the idea that state-financed lawyers might prevent execution of the innocent. He said it would speed up executions. On that basis, the Legislature went along.

But legislators always have tried to undercut the agency. Because of conflicts, OCCR sometimes can't represent an inmate, so the state must hire private counsel. In 1998, the Legislature limited to about 800 the number of hours that private attorneys can spend on a case. Nationwide, the standard for death-penalty appeals is more like 3,000 hours. What happens when a lawyer asks for more money? Last year, the Legislature voted to take any such lawyer off the list.

State would save millions? Wrong

Gov. Bush says cutting OCCR would save $4 million a year. Almost certainly, he's wrong. Courts can't drop the constitutional requirement for adequate counsel. The state will have to find lawyers somewhere, and pay them.

Mr. Crist believes executions should be "carried out in a timely fashion." But what is "timely?" He says, "You always have to have a focus on justice and fairness; Florida will never sacrifice that." Where has he been? With 24, this state leads the nation in releases from Death Row.

Gov. Bush, typically making the issue all about him, said after Holton's release, "If the question is, are innocent people being executed under my tenure as governor? I can honestly tell you that's not the case." In fact, he can't say that honestly, not with Florida's system having all the credibility of pro wrestling. After each release, the governor says it proves "that the system works." Let him spend 16 years on Death Row for a crime he didn't commit and say "the system works."

It doesn't matter that some of the men released from Death Row were guilty of other crimes, some of them serious. Retaining all respect for murder victims' families, the state cannot tolerate a system with inadequate safeguards against wrongful execution. If Gov. Bush and Mr. Crist want to save money and prevent wrongful executions, they can have it both ways: Abolish the death penalty.

schultz@pbpost.com


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