A Times Editorial

Illusory defense

How can the courts let executions proceed when the state offices that defend death row inmates are understaffed, underfunded and unable to do their job?

© St. Petersburg Times, published September 11, 1999

It should be no surprise to the Legislature that two death row inmates have recently won new hearings because their state-funded lawyers failed to do a competent job. The offices that provide representation to death row inmates were set up for failure.

In 1997, the Legislature's frustration at the slow pace of executions reached a crescendo. To make the office of Capital Collateral Representative more responsive to political pressures, it was broken up into three regional offices and the Senate was given the power to approve the director for each region. Then each office was given about a third of the funding that experts say is needed to do an adequate job. John Moser, a former prosecutor with no experience defending death row inmates, was put in charge of the Tampa office. He in turn hired a staff that included former prosecutors and attorneys without much experience in capital appeals.

The combination of inexperienced attorneys taking over highly complex death row cases and a lack of funding to bring caseloads down to reasonable levels meant that something had to give. Moser's office has come under repeated fire for providing inadequate representation to its clients. Complaints from judges and clients include filing incomplete court briefs, failing to communicate with clients about their cases, violating client confidentiality and other deficits.

In recent weeks, the Florida Supreme Court has pointedly criticized attorneys in Moser's office for faulty legal work in two cases. In the case of convicted murderer Konstantinos Fotopoulos, the court noted that his attorneys raised issues during an oral argument that hadn't been previously mentioned. The court reluctantly gave Moser's office a new hearing before the circuit judge. And on Aug. 19, the court gave Robert Peede, convicted of killing his estranged wife, a new trial court hearing as well. In the order, the court was highly critical of Peede's attorney, reminding counsel of his "ethical obligation to provide coherent and competent representation."

Moser says these new rulings are the result of old problems in operations and staffing. Moser appears to be in denial. He is still unwilling to admit that he is impossibly understaffed and underfunded for the amount of work his office is expected to do.

Stephen Hanlon of the law firm Holland & Knight, an expert on capital cases, says that in order to provide death row clients with an adequate defense, no lead counsel should be responsible for more than six cases. Moser's attorneys handle between 14 and 18.

Experts say $25-million is needed to handle the number of death row appeals filed in Florida. Yet, for the 1999-2000 budget cycle, the three CCR regional offices asked for a combined budget of $15.5-million, and the Legislature appropriated only $8-million. Hanlon says that amount will allow attorneys to do no more than process the cases.

The courts are not going to allow executions to proceed if death row inmates are not being adequately represented. That could lead to extensive delays in future executions. As Hanlon notes, the Legislature set up a system that provides prisoners with "an illusion of a lawyer." It's an illusion Florida's Supreme Court sees right through.

© Copyright 1999 St. Petersburg Times. All rights reserved.