Lawyers Asked to Volunteer in Appeals of Capital Cases

Chief Justice Malcolm M. Lucas urged the state’s lawyers Sunday to volunteer to take low-paying assignments representing defendants in the growing number of death-penalty appeals in California.

In his first annual State of the Judiciary address, Lucas told members of the State Bar meeting in Los Angeles that they should not overlook such public service efforts “in the rush to accumulate billable hours.”

“I recognize that the $60 per hour counsel receive (as court-appointed lawyers in capital cases) is far below an attorney’s usual hourly rate, but such volunteer service benefits not only the courts and those who practice before them but also the entire community,” he said. “I urge lawyers from across the state to participate.”

Lucas noted that the number of capital appeals has “increased dramatically” in the last few years and that now “there is a gap that needs to be filled” by members of the state’s legal profession.

The chief justice issued his plea amid intensifying efforts by the state Supreme Court and other legal authorities to reduce the backlog of cases and streamline procedures in handling capital appeals.

Since capital punishment was restored in California in 1977, the state high court has issued decisions in 70 cases. The justices have reversed the death penalty in all but five of those cases, which now await further appellate proceedings in state and federal courts. Meanwhile, more than 170 capital cases are pending before the justices awaiting a decision.

A special committee of judges and lawyers has been appointed by Lucas to consider new ways to process those cases, along with the nearly 4,000 other civil and criminal disputes that go before the justices each year.

Four years ago, the Bar and the court established a special program called the California Appellate Project to recruit and assist lawyers in capital cases in the wake of substantial cutbacks in the staff of the state public defender’s office.

Recently, however, leaders of the project say that while thus far they have been able to find enough attorneys, they are increasingly concerned about meeting needs for counsel as death verdicts continue to go to the court on automatic appeal at the rate of about 30 a year. The already long process of preparing cases for review by the justices could be further extended by delays in recruiting attorneys to represent defendants, attorneys say.

The chief justice noted in his address that good lawyers without specific experience handling capital cases still can handle death-penalty appeals with the assistance of staff attorneys of the California Appellate Project.

Similar efforts have been mounted in other states, particularly in the South, where executions have already begun. Civil rights lawyers say many lawyers in that region have been unwilling to take capital appeals because of the time and costs required--and that those who do take such cases often lack experience and skill.

Earlier Sunday, in a speech before the California Judges Assn., Lucas praised recently passed state legislation that provides for pilot projects in Fresno and Santa Cruz counties that will shift the questioning of prospective jurors from lawyers to judges.

The current state system allows lawyers to question jurors in some detail, leading to criticism that the process unnecessarily lengthened trials. A shift in questioning to judges has been supported by Gov. George Deukmejian and opposed by defense attorneys.

Lucas, himself a former federal judge, noted that under the federal system judges pose questions to jurors and may choose whether to ask questions requested by attorneys. “I felt that the system resulted in fair juries and conserved a great deal of court time,” he told the judges.

In his speech before the Bar, Lucas, elevated by Deukmejian to head the state judiciary after the defeat of former Chief Justice Rose Elizabeth Bird by the voters last Nov. 4, drew wide applause as he reported that he was “feeling very well and am happy to be back at work” at the court after surgery for colon cancer. In his speech, the chief justice also:

- Pledged that he will maintain an open-door policy with Bar leaders in the hope that the judiciary and the legal profession can work together to reduce delay and congestion in the courts.

“Any transformation in our legal system must necessarily be a gradual one, but the task ahead is well-defined and there is no doubt that the winds of change are blowing,” Lucas said. Lucas told the lawyers that they may be able to “still much of the criticism” of the Bar from the general public by helping to speed the resolution of cases.

- Wryly observed that the three new appointees to the court--former appellate justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--have “adapted well to the extraordinary workload of the court . . . and only once or twice a week can be heard asking why they left the Court of Appeal.”

- Said he experiences a recurring nightmare of “being buried under a paper sea” at the court. Lucas noted that the number of Superior Court and appellate court judgeships has more than tripled in 20 years and that the number of attorneys in the state has grown from 17,851 to 106,643 in the last 30 years. “I note parenthetically that since 1879 the Supreme Court has consisted of seven justices,” he said as the audience laughed.