The Next Time Someone Says the Death Penalty Costs More Than Life in Prison, Show Them This Article

Criminal Law & Procedure Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

Gary D. Beatty

The day after the Timothy McVeigh jury recommended a death sentence, CNN broadcasted a debate on the death penalty on "Larry King Live". The opponents expressed the usual objections, most dubious of which is that imposing the death penalty costs more than a sentence of life without parole. If true at all (and the cost figures upon which those claims rely are suspect), that argument is disingenuous. Experience in Florida has clearly demonstrated the high cost of executions results directly from opposition to the death penalty.

Florida death sentences receive automatic direct review of both the guilt and penalty phases by the Florida Supreme Court, and is usually completed within three years. The appellate division of the Public Defender's Office provides experienced counsel for the indigent on direct appeal. After affirmance on direct review, and resolution of any Federal appeals thereupon, the condemned can initiate collateral proceedings in the original trial Court, with appeals taken to the State Supreme Court. Upon final resolution of collateral appeals in State courts, Federal collateral proceedings commence. Interminable collateral appeals are the goal of death-penalty opponents. Collateral issues are limited only by their imaginations, but focus in three areas: Frivolous claims of newly discovered evidence; insipid allegations of ineffective trial and direct appeal counsel; and false allegations of government misconduct.

To facilitate the expeditious resolution of collateral appeals, the Florida legislature created the Office of Capital Collateral Representative (CCR), in 1985, as a State agency. Attorney's were employed to represent those on death-row in State and Federal collateral proceedings. In creating CCR, the legislature expressed its intent that,

"... collateral legal proceedings...may be commenced in a timely manner...so that the judgments of the courts...may be regarded with the finality to which they are entitled...". (Emphasis added) Section 27.7001, Florida Statutes.

Prior to CCR, most collateral appeals were pursued by pro bono counsel privately co-ordinated through anti-death penalty organizations. Each execution was stalled for over a decade, in part due to eleventh hour claims that collateral appellate counsel was inexperienced, or lacked resources, and was therefore ineffective. In theory, creating CCR was supposed to remedy those problems. In reality, creating CCR institutionalized death-penalty opposition as a tax-supported government agency. The consequences should have been predictable.

Timeliness and finality were objectives to which CCR never even gave lip-service, except at budget time. Their foot dragging became so flagrant that in 1994 the Florida Supreme Court imposed time constraints on collateral proceedings. Nothing changed. By 1996 the citizens, legislature, and Governor were fed up with the delays. The McDonald commission was created, chaired by a retired Florida Chief Justice, to study CCR.

The McDonald Commission's report (prepared in February 1997)1 exposed CCR for what they were - fiscally irresponsible, unethical zealots out to dismantle the death penalty. The most revealing of the Commission's findings was that even though funding for CCR had been substantially increased concomitantly with the time constraints imposed two years earlier, productivity of CCR had actually decreased.

Fiscal mismanagement by CCR reached its zenith in 1997. The Governor signed a Death Warrant for the 1983 conviction of confessed serial killer Gerald Stano. CCR launched the usual flurry of last minute appeals, then claimed that they were unable to effectively represent Stano because their budget was exhausted. An emergency audit revealed sufficient funds remaining in the CCR budget, and they were ordered to litigate the latest appeals. Forced to acknowledge they had money in their budget, CCR then that claimed those funds were allocated to appeals in other cases for which there was not yet a death warrant. As of now, Stano's execution is on hold, pending the new fiscal year. CCR has been ordered to prioritize their resources.

In May 1997, the Florida Supreme Court reluctantly stayed collateral proceedings in another case because CCR claimed inadequate funding.2 The Court found that the funding shortfall, if it existed (another audit was in progress), resulted from irresponsible management by CCR. For example, the Court noted that CCR had obligated itself to pay one expert witness $6,000 for ONE court appearance. The Stano and Hoffman cases are egregious examples of how the inflated costs of executions are caused by death-penalty opponents. There are others which regularly reoccur.

One recurring cost results from CCR's misuse of Florida's Public Records law3, which empowers any citizen to require a government agency to make available copies of agency records. CCR cares little for what the records contain, though they claim to be looking for exculpatory evidence withheld by police or prosecutors. Their real objective is to generate delays by claiming non-compliance with records requests. To discourage such claims, agencies disclose every document not expressly exempted by statute, even if the document contains information already disclosed in the original trial, or which is unrelated to any appellate issue. Researching and copying these records, consumes agency and CCR resources. A copying charge of several hundred dollars for such a request is not unusual.

CCR makes records requests of every agency involved in a murder case, without regard to duplication. For example, a request to the State Attorney's Office produces a complete record, including police and medical examiner reports. After having received those records (and churning as much litigation about the records as it can get away with), CCR will then make a records request to the investigating police agency . Most, if not all, of the police agency records were already disclosed through the State Attorney's office, yet CCR makes no effort to minimize the cost by limiting its request to those records not already disclosed. There will be a request to the Court Clerk, for their documents, all of which are already contained in the record on direct appeal which CCR got when they took over the case. Next will be the Attorney General's office (that handled the direct appeal) even though their files contain only what is in the appellate record which CCR already received. The failure of any agency to respond to CCR's satisfaction results in more hearings. CCR always claims that something is being withheld, usually without any evidence to support such claims.4 The costs escalate.

While the fiscal hijinks of CCR undermine the claim that the death penalty costs more than life in prison, the tactics employed in pursuing appeals are equally troubling. The Commission found ample evidence of ethical lapses by CCR attorneys. Because of the abundance of evidence of fiscal and ethical irresponsibility by CCR, the Commission determined "...that based upon CCR's lack of institutional integrity, Florida should consider other models of postconviction representation."

Incredibly, death-penalty opponents cited the Commission report as a reason to abolish the death penalty. The public responded by calling for the abolition of CCR, which exposes the fallacy of the argument that when citizens are educated about costs, they opt for life sentences. The result was a legislative restructuring of CCR. Whether the changes will make a difference remains to be seen.

Currently CCR works from one office from whence their attorneys travel throughout the State, descending (like a biblical plague of locusts) upon local agencies to devour resources, and otherwise wreak havoc. One CCR delaying tactic is to have a different attorney appear for each stage of an appeal, each then asking for a continuance on the grounds of being new to the case and thus unprepared. Rotating attorneys also enables them to make deliberate misrepresentations, in court, without having to worry about reappearing before a Judge after the misrepresentation is discovered.

In response to the the fiscal and ethical problems, the legislature dismembered CCR into regional offices, each separately budgeted, and staffed. Under the new scheme, the budget in one office could not be expended on an appeal from another region, thus diminishing CCR's ability to manipulate delays by shifting funds among cases. CCR attorneys employed in each region would practice exclusively within that locale, so that their individual reputations would become known to Judges before whom they would have to repeatedly appear.5 The State Supreme Court has proposed a new procedure to expedite and standardize Public Records demands.6

There is a significant change in the appointment of the head of the CCR. Under the prior statute, (s)he was appointed by the Governor, from among three candidates nominated by the elected Public Defenders.7 That assured two things: First, that no death-penalty supporter would be appointed. Second, the opportunity of collusion with local public defenders when raising collateral claims of ineffective assistance of defense counsel was blatant, particularly if the trial and/or direct appeal were handled by public defenders. The new statute has the head of CCR still appointed by the Governor, however the three candidates are nominated by the State Judicial Nominating Commission. The Public Defenders are now (officially at least) out of the loop.

The overwhelming majority of citizens of Florida, as in the rest of the nation, support the death penalty. To claim (as did one opponent on "Larry King Live") that when citizens are educated about the high fiscal cost of administering the death penalty they always opt for life imprisonment, is intellectually dishonest (if true at all). If the multiple layers of appeal are pursued in an ethical, and fiscally responsible manner , execution is less costly than warehousing a murderer for life.8 Any increased cost is caused by death-penalty opponents.

* Gary Beatty has a Juris Doctor degree from Florida State University, is Board Certified in Criminal Trials by the Florida Bar, and is solely responsible for the opinions expressed herein. When not tending bar at a fish camp on the St Johns River, he practices law. He wishes to thank Messrs. Holmes and White for their suggestions during preparation of this article.

----

   1. A copy of the report of the Commission for the Review of Post-Conviction Representation can be obtained from the McDonald Commission, c/o House Judicial Counsel, 310 House Office Building, Tallahassee, FL 32399-1300.
   2. Hoffman v Haddock 22 FLW S303 (May 30, 1997).
   3. Chapter 119, Florida Statutes. The statute exempts some records from disclosure, such as records which could compromise ongoing criminal investigations, or which are protected by privacy laws.
   4. There have been instances where CCR has quoted from documents which it claims not to have ever seen. In others, CCR has denied receiving documents for which an agency has a signed receipt from CCR.
   5. For years prosecutors, statewide, have lamented the lack of sanctions imposed, by Judges at all levels, for blatant unethical conduct by CCR attorneys. The new statutory scheme will do little to cure the problems if the Courts are unwilling to enforce ethical standards among CCR attorneys. Actions by the ABA seem to encourage, rather than discourage, such ethical lapses.
   6. As of this writing, this proposal has been published for comment, but not yet adopted.
   7. Each of Florida's 20 Judicial Circuits has an elected State Attorney and Public Defender.
   8. 8. Evidence suggests that if the death penalty were abolished, death-penalty opponents would next claim that life without arole is cruel and unusual punishment, and demand parole eligibility for murderers!