Lack of qualified attorneys bogs down appeals process

Stringent standards, pay issues deter many lawyers from taking California cases.

By FRED LUDWIG
Californian staff writer
e-mail: fludwig@bakersfield.com

Chief Justice Ronald George

The emotional toll during a death penalty trial is heavy.

The victim's family endures days, sometimes weeks, of grueling testimony. When the final gavel pounds out a death sentence for the killer, family members may feel relieved.

But relief turns to frustration as the convicted killer and all those whose lives he touched watch the case come to a screeching halt for the next three or four years.

That's how long it typically takes for the California Supreme Court to appoint an attorney for the condemned man to represent him in an appeal.

Until there's an appellate attorney, nothing moves.

All sides suffer.

"They (victims' family) are shocked," said Kern County District Attorney Edward Jagels.

And the delay means improperly convicted inmates can't begin the process to try and win their freedom, said Pasadena capital appellate attorney David Evans.

"Leaving somebody on Death Row without representation is profoundly cruel," Evans said. "It's like dangling a mouse before a cat. It's a kind of torture."

The state has struggled to find enough qualified attorneys willing to take the difficult cases, amid low pay and reimbursement snafus.

The attorney shortfall continues despite efforts to combat it.

About a quarter, or 150, of California's Death Row inmates are waiting for attorneys to begin their appeals process.

"There are some delays that are avoidable and are quite regrettable in the system," said Supreme Court Chief Justice Ronald George.

The attorney shortage is a fairly new problem. Kern inmates generally got assigned attorneys within about a year -- often in just a month or two -- throughout the 1980s. Then the appointment delays started gradually growing, reaching the five-year mark by 1993.

Attorneys lined up in droves to take the appeals when the Supreme Court routinely scrapped death sentences under the leadership of Chief Justice Rose Bird, until her ouster from the court by California voters in 1986, George said.

Tough standards

George, who joined the court in 1991, said he could end the shortage tomorrow by lowering the court's standards for Death Row attorneys.

But the court won't do that, he said. Instead, justices pride themselves on appointing top-drawer attorneys.

The court assigns about two Death Row appeals a month -- often the most complex ones -- to the state Public Defender's Office, which has attorneys experienced in such cases, said Robert Reichman, a Supreme Court staff attorney. The court also appoints and pays private attorneys to capital cases.

Attorneys generally must have six hours of death sentence appeal training and involvement in seven felony appeals, including one murder. To demonstrate an ability in legal research and analysis, attorneys must submit samples of appellate documents they wrote involving complex legal issues.

The court then looks at strengths and weaknesses, steering attorneys to cases that suit their skills, Reichman said.

"We try to make the right decision at the very beginning, and we hope things go smoothly from there," Reichman said.

But many attorneys who would qualify under the court's strict requirements aren't interested.

"Some of the best lawyers I know are refusing to take California cases," Pasadena capital defense attorney Evans said.

Not worth the trouble

Attorneys say the pay is too low and what pay there is, is often hard to get.

"A number of lawyers in this state have been so badly burned by the California Supreme Court in fee cutting," said Elisabeth Semel, director of the University of California, Berkeley School of Law Death Penalty Clinic.

Compounding the pay issue, attorneys say, is that they have trouble getting enough money to properly investigate their cases, which adds to delays.

Kern defendant Clarence Ray Jr. received the death sentence in 1989 for shooting to death a woman in a robbery attempt outside a Bakersfield bar.

He got an appellate attorney in two years. But his appeal was then held up by a lack of funds for investigation, said his attorney Charles Bush.

The state Supreme Court twice refused to pay for investigation, finally approving a third request for funds.

It took the court about a year to rule on each request -- a key reason that one of the appeals was not filed until November 1996, five years after Bush's appointment to the case, he said.

"A lot (of the appeal) was just sort of getting to the point where we could start doing the work," Bush said.

Ray was serving a life sentence in Michigan for a murder there when he confessed to the 1984 killing of Kathy Lynn Hyde, 31.

Hyde left behind two daughters, ages 3 and 8, said Hyde's mother, Joan Chancellor.

"What this man has done -- the havoc he's wreaked on people, the pain that he's caused -- there is no logical explanation for that."

After the shooting, Hyde was on a ventilator at the hospital, unable to speak.

Knowing the end was near, she signalled for a yellow pad of paper and wrote a request for her mother to raise her children the same way Chancellor had raised Hyde.

Pictures of Hyde hang on the walls of Chancellor's home and a sense of loss still lingers. But Chancellor does not dwell on Ray. Although she believes the appeals process takes too long, the delays are not especially upsetting to her.

"Life has gone on," Chancellor said. "My house is filled with love."

As long as Ray is never released, Chancellor does not care much whether he is executed.

She has even forgiven him. Chancellor said she doesn't want her life or the lives of her family ruined by resentment and hate.

"He took my daughter; he can't have me," Chancellor said. "He can't have my other children. And he can't have Kathy's children."

Fixes not working yet

Several steps have been taken in recent years to help alleviate the lawyer shortage.

The director of a newly created cadre of court staff research attorneys will lead a recruiting effort to enlist more appellate defense attorneys to represent Death Row inmates, George said.

Better payment procedures now generally avoid the payment delays of the past, but it may take more time for word of the changes to get around and improve California's reputation among attorneys, George acknowledged.

Pay rates for Death Row appeals attorneys are now $125 an hour, by means of legislation that took effect in 1998. That is up from the old pay rate of $98 an hour, though still far below private-sector rates.

In contrast, a bankruptcy lawyer can top $400 an hour for cases that are far less challenging than a death penalty appeal, Evans said.

California's hourly fee is higher than the $100 paid in Arizona and the $75 paid in Nevada.

Changes to California's system in 1998 included creation of the Habeas Corpus Resource Center to provide up to 30 more attorneys to represent Death Row inmates and up to 30 other staffers such as paralegals and investigators. The center also trains private attorneys in handling Death Row cases.

And the state Public Defender's Office received funding for several new attorney positions, allowing it to take on more capital appeals.

After years of smaller changes, the creation of the center and pay raise marked a watershed change in the system.

Still, the efforts have not shrunk the backlog of inmates waiting for attorneys.

But the backlog has ceased to grow, George pointed out.

The new attorneys are keeping pace with the more than 30 new residents added to Death Row every year, he said.

It may take more time for the changes to really affect the system, George said.

"It used to be every month brought higher and higher numbers of unrepresented persons on Death Row," George said. "We have more or less stabilized the figure."