Thirteen years ago, Edward Patrick Morgan asked the California Supreme Court for a lawyer to investigate and challenge his 1996 death sentence for a murder in Orange County. The court has yet to find Morgan an attorney.
The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state’s criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges.
This “critical shortage,” as the state high court describes it, has persisted for years, despite lawyer gluts. The average wait for these attorneys is 10 to 12 years.
Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction.
“There are myriad reasons why dozens of lawyers who used to do these cases decide they can’t afford it,” said UC Berkeley law professor Elisabeth Semel. “I am talking about not going broke because you are trying to do the right thing for your client.”
Prosecutors and death penalty supporters blame the culture of criminal defense work or, as Kent Scheidegger, legal director Criminal Justice Legal Foundation, put it, the zeal “to turn over every rock in the world.”
“The idea that you have to pull out every stop in every case is excessive,” said Scheidegger, whose group favors capital punishment. “There is a lot of pressure, but that doesn’t mean the state has to or should pay for it.”
Lynne Coffin, 61, a criminal defense lawyer who does death penalty cases almost exclusively, said fewer young lawyers are willing to take on the work. She said even she is uncertain whether she would have become a capital defender “knowing what I know now.”
“It’s a big toll on people to have clients on death row,” Coffin said. “Even if they are nowhere near execution, they are very needy. Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything.... Emotionally it is very taxing.”
Financially, the rewards also are elusive, she said. Most lawyers put their own money into prison accounts for their destitute clients for extra food and other expenses, she said.
“I know people think they are eating bonbons, but it is so far from the truth,” she said.
As a capital defender, Coffin has had to witness two executions, which she said disturbed her long after they were over. “And I am not going to any more.”
Chief Assistant Atty. Gen. Dane Gillette, who has been pushing for more frequent executions, questioned whether criminal defense lawyers deliberately boycott capital cases to slow the pace of executions.
Defense attorneys scoff at the notion, but some individual lawyers do refuse to participate for ideological reasons.
“Their view is they don’t want to grease the skids, they don’t want to make it easier to execute somebody, and by representing someone, you are bringing them that much closer to the Grim Reaper,” said Cliff Gardner, a Berkeley-based criminal defense lawyer who represents death row inmates.
Gardner is one of the few lawyers who have won death penalty cases before the California Supreme Court. His death row clients include Scott Peterson, convicted of killing his pregnant wife and unborn son on Christmas Eve in 2002.
“The idea that you are saving someone who is condemned under appointment by the court seems be the highest calling any criminal lawyer can have,” Gardner said. “Standing between the death chamber and your client is why we went to law school.”
California has more than 700 inmates on death row, the largest number in any state in the country.
“We are dealing with numbers the system can’t handle,” said Michael Laurence, executive director of the Habeas Corpus Resource Center, a state agency that represents death row inmates in post-conviction challenges.
Some experts believe the shortage will be met only when the state expands such centers, where lawyers are on salary and have access to paid investigators and paralegals.
Each death row inmate is entitled by law to an automatic appeal to the California Supreme Court. These appeals are based on what happened at trial. They often include allegations that a judge gave improper jury instructions, a prosecutor made improper remarks during closing arguments or that evidence was impermissibly barred or admitted.
After an automatic appeal, a death row inmate may file a habeas corpus petition, which asks that the prisoner be taken to court to determine whether he or she is being held unlawfully.
A habeas or post-conviction challenge is based on evidence that was not presented at trial.
For instance, a defendant may argue that a prosecution witness obtained favors for testifying, a fact not disclosed during trial. If persuasive evidence is provided, the state high court will order a hearing before a trial judge.
A lawyer who takes a habeas is required by the California Supreme Court to have experience both in trial court and in appeals.
Chief Justice Ronald M. George said many lawyers lack the qualifications to take post-conviction challenges.
“I want to distinguish what we do in California from what they do in other states, where almost any warm body will qualify,” George said.
The George court has upheld 90% of the death cases it has reviewed, the highest rate of any state court, according to Santa Clara University law professor Gerald Uelmen. George attributes the rate to the relatively high quality of defense the state provides at trial.
But criminal defense lawyers maintain that many capital defendants receive inadequate counsel at trial. They note that federal courts overturn more than half the California death penalty cases they review.
UC Berkeley’s Semel said the state fails to meet American Bar Assn. standards for death penalty litigation. The quality of defense counsel varies from county to county, and the state increasingly pays a flat fee for capital cases, which the ABA opposes on the grounds it encourages lawyers to skimp on their duties to the client.
Semel said an investigation for post-conviction challenge costs about $250,000, which includes pay for expert witnesses and travel. The state high court two years ago doubled the investigation budget to $50,000 for an inmate.
Beth Jay, principal attorney to the chief justice and a 31-year veteran of the court, said the court pays a lawyer $200,000 to $300,000 on average for a post-conviction challenge, which can take years. Several law firms that take such cases cover the unreimbursed costs.
Earlier this year, the California Supreme Court accepted a cursory post-conviction challenge from Morgan, the death row inmate who has been waiting more than 13 years for a habeas lawyer. The court permitted Morgan’s petition to be a mere place holder until an attorney could be found to file a proper one.
By accepting it, the court spared Morgan from missing a key legal deadline while still giving him the opportunity to challenge his sentence later on.
Atty. Gen. Jerry Brown had urged the court to reject Morgan’s “shell petition,” arguing that the court’s practice of permitting them has delayed the resolution of capital cases.
But Justice Joyce L. Kennard, writing for the court, said it would be “grossly unfair” to require “an indigent death row inmate who is untrained in the law” to prepare his own post-conviction challenge.
“What is causing the delay…,” Kennard wrote, “is not that practice but this court’s inability so far to recruit qualified habeas corpus counsel for each of the hundreds of death row inmates.”