EDITORS NOTE: Reporters Melissa E. Holsman and Zaimarie De Guzman have compiled an in-depth special report for TCPalm.com of local death penalty cases and issues surrounding Florida’s death row. The report, titled Treasure Coast Death Row, has an interesting piece about the cost of Florida’s death row, which is the 2nd-largest in the country. I’m reposting that article below, but the whole report is definitely worth a look and contains a huge amount of information.
As convicted killer Steven Hayward of Fort Pierce enters his fifth year on Florida’s death row — one of 16 Treasure Coast men sentenced to die for their crimes — a decades-old debate rages over whether it takes too long and costs too much to legally challenge his capital punishment before he’s executed.
With state records showing it takes on average about 14 years for death row inmates to complete their appeals, Hayward could spend another decade behind bars before he faces a lethal injection. Some legal experts say Hayward’s appellate attorneys with the Capital Collateral Regional Counsel, a state agency known as CCRC tasked with defending death penalty inmates, purposely drag out appeals like his just to keep him alive while costing taxpayers hundreds of thousands of dollars.
During a three-month investigation, Scripps Treasure Coast Newspapers reviewed the appeals and case files of death row prisoners convicted of first-degree murder in Martin, St. Lucie, Indian River and Okeechobee counties to see why it takes dozens of years for some inmates to complete their appeals and be executed — and at what cost to taxpayers.
Research shows the time it takes to present a capital case on appeal in both state and federal court is a major factor in determining how long it takes for an inmate to progress through the judicial system. How much that litigation costs can vary widely from case to case, depending on the legal matters involved.
The tab for taxpayers can exceed hundreds of thousands of dollars and housing death row inmates costs millions more.
NO ACTUAL COST
Trying to determine how much a post-conviction appeal case costs taxpayers — especially ones spanning decades — is nearly impossible to determine, Scripps found, because no state entity has ever been mandated to keep a running total of related legal expenses in a particular case.
In fact, Scripps could not determine how much the CCRC has spent appealing Hayward’s death sentence because those costs are protected under attorney-client privilege, according to the Justice Administrative Commission, the state agency that pays the regional counsel’s bills.
While the regional counsel is a state agency, Florida Supreme Court cases have held the files of their clients are exempt from public records laws, according to the Commission’s public records official Jessica Kranert.
“Their case-related costs directly relate to the representation of our clients,” Kranert wrote in an email to Scripps Treasure Coast Newspapers. “And those expenses are part of the client file.”
Kranert noted to hold otherwise, the Florida Supreme Court ruled in a 1990 case, “would subject the records of a defendant who is unable to retain private collateral counsel to public disclosure while those of a defendant represented by private counsel would be immune from such disclosure.”
The 28 years Vero Beach serial killer David Alan Gore was housed on death row cost taxpayers an estimated $664,300 while he pursued appeals before his execution April 12, court records show. The bill for Gore’s appellate challenges, which include 10 court hearings and a second sentencing proceeding in 1992, cost taxpayers in excess of $210,000, according to figures compiled by state and county officials.
Still, these amounts represent a portion of the actual cost of Gore’s post-conviction appeals, and don’t include figures impossible to calculate in a case so old, such as the salaries for dozens of judicial personnel, court security, state prosecutors and Florida Attorney General staff.
Legal challenges to Florida’s death penalty throughout the last 25 years resulted in lengthy delays, but many of those issues have been settled, so appeals move quicker now than in years past.
Still, staunch critics of the CCRC, including Chief Assistant State Attorney Tom Bakkedahl with the 19th Judicial Circuit, contend these specialized — and often maligned — defense attorneys act as obstructionists, and willfully “game the system” to stall executions.
Their ultimate aim, Bakkedahl insisted, is to do away with capital punishment.
“The way they see doing that is by infuriating the public by No. 1, putting the boogeyman out there — that we’re executing innocent people, which there is not a single documented case in the history of this country where an innocent person has been put to death,” Bakkedahl said. “Yet they raise the specter of that, and of course we’re all terrified of that; nobody wants that.
“The driving goal here is to frustrate everybody in the system, the prosecutors, the judges, the public so that we just give up,” he added. “They want us to give up, and I ain’t crying ‘uncle.’ ”
Anne Holsinger with the Death Penalty Information Center in Washington, D.C., said no one who has been put to death nationwide since 1976, when the Supreme Court reinstated capital punishment, has been exonerated by a legal authority after execution.
George R. “Bob” Dekle Sr., a legal skills professor at the University of Florida agreed with Bakkedahl. The 29-year former state prosecutor said some defense lawyers specializing in death row appeals “feel their duty to their client trumps their duty” to the system.
“If the client is guilty and deserving of death, then the last thing they want is for the system to work properly,” he said. “The more monkey wrenches that can be thrown into the system, the longer the client lives.”
Regional counsel officials though, flatly reject positions like Dekle’s and Bakkedahl’s. They insist by vigorously pursuing death row appeals, they’re fulfilling a statutory duty: to represent clients facing execution in a dauntingly complex area of law.
Neal Dupree, director of the state’s southern CCRC office in Fort Lauderdale, which represents inmates from Monroe County to Indian River County, called the familiar criticism “absolutely unfounded.”
“If you take a look at the cases that are going on currently, and we generally run from 68 to 78 cases, our cases are timely processed,” he said. “And we’ve been very successful in what we do; we move cases.”
He said where the attorneys in his office stand on the death penalty isn’t a driving force behind their work.
“There are people in the office that are philosophically opposed to the death penalty. I know one of the old criticisms … was that people would lay down in front of a bus for their clients, and they were called obstructionists,” Dupree said. “In the 14 years I’ve been running this office, I have not seen that … from our point of view, we’re doing what is required by the law.”
A 2007 state Auditor General’s report, the most recent report available analyzing regional counsel operations, found the 15 lawyers in Dupree’s office spend about 355 hours per year on a case, with average expenditures of $40,000 per case. The report found private attorneys selected from a registry paid at public expense to represent death row appeals spend an annual average of 196 hours on a case, at a cost of about $25,000 a year. The higher costs for the regional counsel, the report noted, are in part attributable to administrative expenses, compared to registry attorneys, who are expected to cover their operating costs from a $100-per-hour fee paid to them.
After a defendant is convicted of first-degree murder and sentenced to death, an appeal is filed directly to the Florida Supreme Court, which takes about three years to complete. Records show another seven years is spent litigating post-conviction, or collateral appeals in state court, and a case can spend an average of 4 1/2 years in federal court.
The job regional counsel attorneys do is crucial, Dupree said, especially because Florida leads the nation in the number of death row inmates who have been exonerated after being convicted and sentenced to death. Under his supervision, Dupree said his office has seen 25 inmates, including four from the Treasure Coast, removed from death row through successful appeals.
State records show 12 Treasure Coast men once sentenced to death are serving life in prison as a result of appeals.
“People need to know that just because someone has been convicted does not mean they are guilty,” he said. “There’s a number of occasions when I think you can get good lawyers and you can get bad lawyers.”
Opponents to Florida’s death penalty say the state’s process for carrying out capital punishment is so dysfunctional the only way to fix it is to abolish executions.
Mark Elliott, executive director of Floridians to Alternatives to the Death Penalty, said the state’s 23 exonerated defendants spent an average of eight years on death row.
“Some awaited execution for almost 20 years before being exonerated and freed. Further limiting or shortening the appeals process virtually guarantees that innocent people will be executed,” Elliott said. “As long as innocent men continue to be discovered on our death row, Florida desperately needs more qualified, better funded post-conviction attorneys.”
Larry Spalding, a retired attorney who in 1985 was the first Capital Collateral Representative in the state-funded office which preceded the regional counsel agency, said ending capital punishment is the only way to correct Florida’s “broken” death penalty system. He said the leading causes of wrongful convictions include perjury, flawed eyewitness identification and prosecutorial misconduct.
“The most important thing we know about false convictions is that they happen and on a regular basis,” Spalding said in an email to Scripps Treasure Coast Newspapers. “(Regional counsel) attorneys … are trying to exonerate the innocent, and to prevent a wrongful execution. They should be admired, not excoriated.”
Post-conviction appeals generally attack the performance of an inmate’s trial attorneys, which requires appellate lawyers to reinvestigate the criminal case seeking errors committed that support granting a new trial, a new sentencing phase or both. Federal courts get involved when an appeal challenges a conviction and death sentence on constitutional grounds. New Supreme Court decisions also can spark additional appeals. If all legal challenges fail, the final recourse is to seek clemency from the governor.
In decades-old death row cases still on appeal, Dupree said they’ve uncovered shoddy legal work often seen during the 1980s and 90s that resulted in improper death sentences.
“A lot of times these attorneys were simply ineffective in what they were doing,” he said. “And the courts have come to realize that.”
He knows some people hold the “shortsighted view” that a convicted murderer deserves only one appeal before being executed.
“If that were true there would be a lot of people we’ve since discovered who didn’t belong on death row, or who were innocent,” he said, “and they’d be dead.”
Spalding said criticism of regional counsel lawyers hasn’t changed much since lawmakers created the agency in the 1980s.
“Prosecutors complained then, as now, that (regional counsel) attorneys were the cause of delays, that they filed frivolous appeals and that they were more committed to opposing the death penalty than defending their clients,” he said. “The problem for prosecutors is that many of those ‘frivolous appeals’ have been won in the courts by (regional counsel) lawyers.”
Republican state Sen. Joe Negron, a civil attorney in Stuart, suggested that, based on what he’s heard from the agency during budget talks, regional counsel attorneys use their office to advance an anti-death penalty agenda.
“You know, legislators believe in due process and a fair trial and so when we start asking about these cases going on for 10, 15 and 20 years, they’ve told us that their goal is that the death penalty in that particular case will never be carried out, and whatever means are necessary to achieve that goal, that’s what they’re going to do,” said Negron, who is running for re-election. “Speaking as a lawyer, that goes way beyond the legal process. We shouldn’t be using the appellate process to make a political statement.”
About three months after being released from prison for a 1988 homicide, Hayward killed Daniel DeStefano, a St. Lucie News Tribune newspaper carrier working in Fort Pierce on Feb. 1, 2005. After being convicted of murder in 2007, Circuit Judge James McCann sentenced him to death.
In 2009, the Florida Supreme Court upheld his conviction and death sentence, and since then Hayward’s regional counsel attorneys have been pursuing post-conviction appeals on his behalf.
Litigating against Hayward’s collateral appeal has cost the State Attorney’s Office $3,927. That figure, according to state records, is part of the $78,129 the office has spent between 2004 and 2011 litigating death row appeals filed by 15 defendants.
Fort Pierce killers J.B. “Pig” Parker and Alfonso Cave hold the area’s record on death row with 29 years and 30 years, respectively. Both men and two others were convicted in the high-profile April 27, 1982 murder of Frances Julia Slater, 18, a Stuart convenience store clerk and step-granddaughter of outboard motor magnate Ralph Evinrude and singer Frances Langford.
Co-defendant John Earl Bush was executed in 1996, about a decade after filing his last appeal. Co-defendant Terry Wayne “Bo Gator” Johnson is serving life in prison.
Since being condemned to death in 1983, Cave has undergone two additional sentencing proceedings won on appeal. Parker was granted a sentencing do-over in 2000. Cave has no appeal currently pending and in June, Parker filed a federal appeal seeking to overturn his conviction and death sentence. It could be 2014 before a ruling is issued.
An in-depth review of court papers in the men’s appeals — filling 20 boxes — show taxpayers have spent more than $348,000 in Cave’s case, and Parker’s tab exceeds $296,000. And that doesn’t include salaries for judges, prosecutors and clerks handling the cases. At around $65 a day, housing both men on death row has cost an estimate $1.4 million, according to state officials.
Since 1987, Parker has had a court-appointed private lawyer, and has been defended for free by New York attorney Francis Landrey. He said he agreed to represent Parker after being contacted in the 1980s by the NAACP Legal Defense Fund and American Bar Association seeking attorneys to represent indigent Florida death row inmates who lacked attorneys.
Nearly 30 years later, Landrey is still on the case, fighting to get Parker off death row.
“It is certainly remarkable,” he said. “When I started on this representation never did I expect it would last this long.”
MERIT OR MISLEADING
Bakkedahl said he gets frustrated by the litigation methods he sees used by regional counsel lawyers, which he claimed are designed to drive up costs while dragging a case out.
“They spend money on useless, meaningless and misleading tests and theories,” he said. “If you subject your client to endless testing by addictionologists and psychiatrists and psychologists … and every imaginable test, what does that also do? It delays the case and it keeps the guy alive … ultimately these are mere fishing expeditions, the majority of them.”
Dupree however, said such criticism unfairly dismisses the fact that many death row inmates suffered devastating abuse during lives marked by neglect, poverty, hunger, mental health disabilities and chronic substance abuse.
“If we have somebody who might have organic brain damage, you’re going to have an expert for that, you’re going to have a (positron emission tomography) scan done, you’re going to have a (computed tomography) scan done,” Dupree said, referring to the nuclear medicine and X-ray imaging techniques. “All these tests are done obviously because you want to show that your client should not have gotten the death penalty — that there were mitigating factors to cause him to do what he did.”
Negron, who supports capital punishment, said it’s been a goal of legislators for years to tighten up death penalty appeals so they are fully litigated within five years.
Florida, he stressed, has a vigorous system in place to protect the rights of inmates and has strong provisions in place for death row prisoners to make a claim of innocence.
“The majority of these cases that go on for two decades or more, there is no allegation of actual innocence,” Negron insisted. “The appeals seem more designed for delay and to make a political statement. So there should be one direct appeal to the Supreme Court and obviously, people are entitled to a federal appeal. And that should be the extent of it.”
Landrey, however, questioned the effectiveness of such an approach.
“You can’t have one-size fits all,” he said. “The idea that you could force things within a five-year time frame … is just not in my mind, dealing with reality.”