REPRESENTING REPRESENTING THE INDIGENT

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1 BY KENT E. CATTANI AND MONICA B. KLAPPER I n Spears v. Stewart, 1 the Ninth Circuit held that Arizona now qualifies to opt in to an accelerated federal review process in death penalty cases under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Arizona has opted in by enacting procedures for appointing qualified, experienced attorneys to represent indigent death-row inmates in state post-conviction relief (PCR) proceedings. Ultimately, the Ninth Circuit declined to apply the accelerated review provisions to the Spears case because there was a lengthy delay in appointing that defendant s PCR attorney. But the case is significant because it is the first in which a federal circuit court has approved a state s efforts to opt in under the AEDPA. How will opting in will affect the death penalty appeals process in Arizona? What is the validity of concerns about the rules and legislation underlying the opt-in process? 2 This article discusses how opting in will affect the death penalty appeals process in Arizona and provides the Arizona Attorney General s Office s perspective on concerns that have been raised regarding the rules and legislation under- REPRESENTING REPRESENTING THE INDIGENT 36 ARIZONA ATTORNEY FEBRUARY

2 lying the opt-in process. The opt-in provisions under the AEDPA affect how the defendant s federal habeas corpus case is handled after the state court review process is completed. Federal habeas corpus review provides an opportunity for a defendant to raise federal constitutional issues that the defendant believes were not resolved properly by the state courts. In the past, the federal process has averaged approximately nine years, with some cases languishing in federal court for more than 15 years. Under the opt-in provisions of the AEDPA, the federal review process is expected to be shortened to approximately three years, with accelerated briefing schedules for the parties and a requirement that the federal courts rule on the claims raised within specified periods of time. The rationale underlying the opt-in provisions is that when more experienced attorneys represent death row inmates throughout the state court process, there is less of a need for a lengthy federal review. Arizona s Appointment Procedures After the AEDPA was enacted, the Arizona Legislature and Arizona Supreme Court began amending Arizona s system for appointing and compensating PCR counsel to meet the requirements of the AEDPA, which include: 1. an offer of PCR counsel to all indigent capital defendants 2. mandatory standards of competency for PCR counsel 3. provisions to adequately compensate PCR counsel and provide reimbursement for reasonable expenses SPEARS V. STEWART IN CAPITAL CASES FEBRUARY 2002 ARIZONA ATTORNEY 37

3 Arizona previously provided PCR counsel to all indigent capital defendants and, under the amended system, that provision remains. A.R.S (D) and Rule 32.4(c), ARIZ.R.CRIM.PRO. The Arizona Legislature amended A.R.S , and the Arizona Supreme Court amended Arizona Rule of Criminal Procedure 6.8 to provide mandatory competency standards for attorneys who apply to be placed on a list of available counsel for capital PCR proceedings. The statute and rule include objective competency requirements, focusing on bar status, experience and legal education, as well as a subjective requirement that the attorney have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases. In exceptional cases, an attorney who does not meet the objective standards may be appointed if the attorney s experience, stature and record enable the Court to conclude that the attorney s ability significantly exceeds the standards and the attorney agrees to associate with an attorney who does meet the standards. The Compensation Controversy The primary controversy over Arizona s amended system arose from a concern that the newly enacted compensation provisions did not provide for reasonable fees based on the amount of work necessary to handle a death penalty PCR proceeding. 3 That controversy, however, appears to have abated. Initially, the legislature provided a flat fee of $7,500, regardless whether a PCR petition was filed, and upon a showing of good cause, it authorized an additional amount at a reasonable hourly rate. 4 Many in the defense bar perceived this as insufficient and declined to seek appointment on capital PCR cases. Some argued that it would be unethical to handle a PCR case given the uncertainty over how much would be paid for work necessary to handle such a proceeding. 5 In 1998, the legislature amended the compensation provisions in A.R.S to their present form, providing that PCR counsel will be compensated at an hourly rate of up to $100 for 200 hours regardless whether a PCR petition is filed. The statute also requires compensation for additional hours upon a showing of good cause, which can be shown by demonstrating that the attorney spent over two hundred hours representing the defendant in the proceedings. The statute also requires the trial court to authorize expenditures for reasonable expert fees, investigative fees and litigation costs. 6 Finally, the statute provides a mechanism for special action review by the Arizona Supreme Court of any trial court decision denying compensation. Prior to the 1998 amendments, the Arizona Supreme Court s list of qualified PCR attorneys consisted of only six individuals. During that time, a backlog formed of about 15 capital defendants who were ready to pursue PCR proceedings and awaiting appointment of qualified PCR counsel. In those cases (including Spears) it took one to two years to appoint counsel. When more experienced attorneys represent death row inmates... there is less of a need for lengthy federal review. After the amendments, more attorneys sought qualification, and there are now 18 attorneys on the list. Thirty-six cases have proceeded under the amended appointment system. As of December 15, 2001, the backlog consists of only three cases. Effects of the Amended System Statistics from Maricopa and Pima county cases suggest that there should no longer be a concern regarding whether capital PCR counsel will be compensated adequately. Of the 36 cases that have proceeded under the new system, 25 originated in Maricopa or Pima county. To date, 13 of those cases have completed the state PCR process, 7 and another six have progressed at least to the stage of the filing of the PCR petition. These cases provide an objective means of evaluating the amended system. In every case in which PCR counsel has been appointed to date, the Arizona Supreme Court has set a compensation rate of $100 per hour. Based on figures provided by the Maricopa County Office of Court Appointed Counsel and the Pima County Indigent Defense Service, the median number of attorney hours billed in the 13 cases that have proceeded to conclusion under the new system is The highest number of hours is well above the rest, at 554, in a case that involved complex neuropsychological issues and expert witnesses. 9 In the six cases in which a PCR petition has been filed, the median number of hours billed is 251. In that group of cases, the highest number of hours is also well above the rest at 991, in a case that involved unique conflict issues and two evidentiary hearings. 10 Perhaps the most significant statistic that has emerged from the 36 cases in which PCR counsel has been appointed relates to the appeal mechanism for challenging a denial of a request for attorney s fees. Only one special action petition has been filed challenging a trial court s order disallowing compensation. That case 38 ARIZONA ATTORNEY FEBRUARY

4 involved the unique circumstance of an attorney withdrawing after being elected county attorney. 11 Most of the 19 cases generated expert witness, investigative and paralegal fees. The expert witness fees range from $27,992 to zero, the investigative fees range from $14,884 to zero, and the paralegal fees and other costs range from $12,535 to zero. Based on these statistics, the compensation and reimbursement provisions in the amended system appear to be working. Trial courts have not treated the 200-hour statutory amount as a bar to additional compensation, and it appears that the attorneys handling these cases are being paid adequately. Likewise, trial courts appear to be authorizing investigators, experts and other expenses as requested by counsel. A New Controversy Following Spears, several defense attorneys raised a new concern that they could not ethically represent a client if their representation would preclude meaningful federal habeas review. Several attorneys appointed in PCR proceedings have moved to withdraw on the basis that the time they would need to handle the state post-conviction proceeding would negatively affect the time available to pursue a federal appeal under the expedited procedures. Thus far, the Arizona Supreme Court has denied each request. Defense counsel s concern arises from the shortened statute of limitations in optin cases. The statute of limitations is 180 days, in contrast to the one-year limitations period in non opt-in cases. 12 The shortened limitations period creates concerns focusing on the commencement, satisfaction and tolling of the limitations period. 1. Commencement of the limitations period The 180-day period begins to run upon the final State court affirmance of the continued on p FEBRUARY 2002 ARIZONA ATTORNEY 39

5 Attorney General Janet Napolitano formed the Arizona Capital Case Commission in the summer of The Commission was charged with examining key issues relating to the death penalty process and with making recommendations to try to ensure that the system is fair to defendants and victims. The commission includes prosecutors, defense attorneys, trial and appellate judges, victims rights advocates and members of the Arizona legislature. A Data/Research Subcommittee was the first of four subcommittees formed: Working with the Center for Urban Inquiry, College of Public Programs at Arizona State University, the Data/Research Subcommittee collected and summarized empirical information from the 230 cases in which the death penalty has been imposed between 1973 and July 1, The subcommittee also collected data for a comparative analysis between non-capital first-degree murder cases and capital cases between 1995 and 1999 in Maricopa, Pima, Coconino and Mohave counties. Finally, the subcommittee has been asked to study the incremental costs of prosecuting, defending and appealing a capital murder case compared to a non-capital murder case. A Pre-Trial Issues Subcommittee, Trial Issues Subcommittee and a Direct Appeal/PCR Subcommittee each analyzed issues relevant to the various stages of the death penalty process. In October 2000, the Commission received preliminary reports from the subcommittees and began the work of deliberating and taking action on their recommendations. In July 2001, the Commission issued an interim report, making the recommendations described here. A final report is anticipated in ARIZONA ATTORNEY FEBRUARY

6 Capital case commission interim report summary consensus recommendations Capital Litigation Resources Legislation: The Direct Appeal/PCR and Trial Subcommittees drafted legislation to create a statewide capital public defender office to represent capital defendants in PCR proceedings. The proposed legislation also included funding for a trial defender office for rural Arizona counties. A bill passed the State Senate and the Judiciary Committee of the House, but was not heard in the Appropriations Subcommittee of the House. The Attorney General intends to re-introduce the proposed legislation in Notice of Intent to Seek the Death Penalty Under Criminal Rule 15.1: The Commission recommended amending Rule 15.1(g), ARIZ.R.CRIM.PRO., to extend the time for filing the notice of intent to seek the death penalty from 30 to 60 days after arraignment. Jury Deliberations in Capital Cases: At the Commission s request, the Attorney General s Office submitted comments opposing a pending Petition to Amend Rule 19.4, ARIZ.R.CRIM.PRO., to allow juries in criminal cases to deliberate before jury instructions are given. Proposed Amendment of Aggravating Factor Relating to Murder of a Peace Officer: The Commission recommended legislation, to be submitted during the 2002 legislative session, to extend the current aggravating factor of murder of a peace officer to include an off-duty peace officer if the murder was motivated by the peace officer s status. Criteria for Identifying Cases for Which the Death Penalty Will Be Sought: The Commission recommended that all prosecutors develop a written policy regarding the identification of cases in which to seek the death penalty, including a provision to solicit or accept defense input prior to deciding whether to seek the death penalty. Aggravation/Mitigation and Sentencing Hearings: At the Commission s request, the Attorney General s Office drafted a proposed amendment to the Rules of Criminal Procedure to ensure that a sentence is not imposed until seven days have passed after presentation of victim information and a defendant s allocution comments. Use of Mitigation Specialists: At the Commission s request, the Attorney General s Office submitted a proposed amendment to the Rules of Criminal Procedure to provide for the appointment of investigators and expert witnesses for indigent defendants, as authorized in A.R.S (B). Audio and Video Recording of Interviews: The Commission recommended that law enforcement agencies be encouraged to develop a protocol for the recording of all advice of rights, waiver of rights and questioning of suspects, when feasible. The Attorney General is developing such a protocol in collaboration with Arizona s law enforcement agencies. non-consensus recommendations Mental Retardation: A majority of Commission members recommended that Arizona enact a statute to ensure that mentally retarded defendants are not eligible for the death penalty. (The minority view was that mental retardation was already being considered as part of the court s assessment of mitigating factors.) The Arizona Legislature enacted legislation exempting the mentally retarded from the death penalty and requiring prescreening for mental retardation before trial, SB 1551, Laws 2001 Ch. 260 Competence to be Executed: The Commission recommended that Arizona law be changed to commute a death sentence to the maximum sentence less than death upon a finding that the defendant has become incompetent to be executed. (The minority view was that Arizona s current law which prohibits execution unless a death row inmate has been restored to competency is preferable.) Minimum Age for Capital Punishment: A majority of Commission members recommended that Arizona not apply capital punishment to defendants who were under the age of 18 at the time of the crime. (The minority view favored current law, which sets the minimum age at 16 and allows the trial court to consider the defendant s age as a mitigating factor.) Kent E. Cattani and Monica B. Klapper FEBRUARY 2002 ARIZONA ATTORNEY 41

7 continued from p. 39 conviction and sentence on direct review. Several years ago, in a case in which several death row inmates prematurely challenged these expedited procedures, the district court for the District of Arizona determined that final State court affirmance in Arizona means issuance of the mandate by the Arizona Supreme Court. 13 The Attorney General s Office agrees with the district court s decision. In Arizona, the mandate is typically issued in capital cases after the defendant has sought certiorari review by the U.S. Supreme Court or the time for seeking such review expires. 14 Because of the initial shortage of available PCR counsel, the Arizona Supreme Court has been delaying the issuance of the mandate until a qualified PCR attorney is available. Once counsel becomes available, the Supreme Court issues the mandate, appoints PCR counsel and files the automatic notice of post-conviction relief. Presumably, the Court will continue to do so until there is no longer a backlog of cases awaiting appointment of PCR counsel. 2. Satisfaction of the limitations period The federal statute is clear: Any application under this chapter for habeas corpus relief must be filed not later than 180 days. The application for habeas relief is not the actual amended petition for habeas relief. Under 28 U.S.C.A. 2242, the application for relief starts with a document that invokes the jurisdiction of the federal court and has minimal requirements. It must: 1. be in writing 2. be signed and verified by the prisoner or a person acting on his behalf 3. allege the facts concerning the prisoner s detention 4. set forth the name and authority of the custodian Under the local rules, the district court has provided forms for prisoners to initiate habeas proceedings, demonstrate indigence, request the appointment of federal counsel and stay the execution warrant. 15 Once a timely application is filed, the 180- day statutory period is satisfied. The federal court then appoints federal habeas counsel, and there is an additional six-month period within which the parties brief the issues and the court rules on the petition. 3. Tolling of limitations period Three periods toll the 180-day statute of limitations. The first, which tolls the statute for certiorari review, is inapplicable in Arizona because the mandate is not issued and thus the 180-day period does not begin until after certiorari proceedings have concluded or the time has expired. The second provision tolls the statute during the state post-conviction proceedings, and the third tolls the time for an additional 30 days upon a showing of good cause made to the district court. The second provision concerning the PCR proceedings is the most relevant provision for state PCR practitioners. Tolling begins on the date on which the first petition for post-conviction review or other collateral relief is filed and ends with the final State court disposition of such petition. Thus, the Attorney General s Office s position is that the 180- day period is tolled from the date the PCR petition is filed until the Arizona Supreme Court issues its order denying review and denies any subsequent motion for reconsideration. To comply with the 180-day statute of limitations, PCR counsel must file the PCR petition and leave a sufficient amount of the 180-day period for the filing of the application for habeas relief after the final ruling from the Arizona Supreme Court. Assuming PCR counsel leaves 30 days for future habeas counsel to file the application, state PCR counsel would have to file the petition within 150 days (about five months) of the issuance of the mandate and appointment. Defense counsel s concern that this amount of time is insufficient appears to be unfounded. Under the Arizona Rules of Criminal Procedure, PCR counsel has 120 days to prepare and file a petition, with extensions of time for good cause. 16 The petition cannot exceed 40 pages, 17 and the claims are limited to those set forth in Rule 32.1, ARIZ.R.CRIM.PRO. There has been significant speculation about the number of hours required for PCR counsel to review the record, investigate factual issues, research legal issues and draft the petition. The cases that have proceeded under the system provide a good gauge of how much time should be expected in the average capital PCR proceeding. For the 13 completed cases, the process took from 226 to 243 billable hours (which is about 28 to 31 eight-hour days). Acknowledging that investigating, researching and drafting the PCR petition may take the vast majority of that time and that an investigation may need to span several months 150 days appears to be a sufficient amount of time within which to file a PCR petition. In the few cases in which there is an evidentiary hearing, more hours may be required of counsel, but the limitations period already will have been tolled with the filing of the PCR petition. Furthermore, there are additional safeguards for the unusual case that requires more time. Under the Arizona Rules of Criminal Procedure, a PCR petition may be amended upon a showing of good cause. 18 Thus, if there is a claim that requires additional time for investigation or research, defense counsel may be permitted to file a PCR petition that otherwise complies with the procedural rules and tolls the statutory period and then request leave to complete the investigation and amend the petition. Likewise, PCR counsel may petition the district court that will have jurisdiction over the subsequent habeas proceeding for the additional 30- day tolling period. Conclusion The cases that have proceeded thus far under Arizona s new provisions for appointing counsel in death penalty PCR proceedings suggest that the system is working as intended. Counsel are well 42 ARIZONA ATTORNEY FEBRUARY

8 qualified, generously compensated and adequately equipped with expert and investigative assistance. The process allows adequate time for counsel to file a PCR petition, and it preserves a defendant s right to pursue subsequent federal review of the case. Thus, neither the amended system nor the opt-in provisions should present state PCR counsel with ethical concerns about handling such cases. Kent E. Cattani is Chief Counsel of the Capital Litigation Section at the Arizona Attorney General s Office and Monica B. Klapper is the Unit Chief of that section. endnotes F.3d 1026 (9th Cir. 2001) (petitions for rehearing and hearing en banc by both parties currently pending). 2. See John A. Stookey and Larry A. Hammond, Arizona s Crisis in Indigent Capital Representation, ARIZ. ATTORNEY, March 1998, at Id. at Former A.R.S (F), (G). 5. Stookey & Hammond, supra note 2, at A.R.S (J) and (B). 7. This includes cases that have proceeded into federal court on habeas review and cases that are pending the Arizona Supreme Court s final ruling in the PCR proceedings. 8. These are based on figures provided to the Attorney General s Office as having been paid as of November Any amounts that PCR counsel have not yet submitted for payment or that are pending payment are not included in these figures. 9. State v. Jackson, Pima County Superior Court No. CR State v. Soto-Fong, Pima County Superior Court No. CR State v. Laird, Maricopa County Superior Court No. CR (a) Any application under this chapter for habeas relief under section 2254 must be filed in the appropriate district court not later than 180 days after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review. (b) The time requirements in subsection (a) shall be tolled (1) from the date that a petition for certio rari is filed until the date of final disposition of the petition...; (2) from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition; and (3) during an additional period not to exceed 30 days, if (A) a motion for extension of time is filed in the Federal district court... ; and (B) a showing of good cause is made for the failure to file the habeas corpus application within the time period established by this section. 13. Hedlund v. Stewart, CIV PHX SMM (consolidated), order dated 9/19/97, at Rule 31.23(b)(1), ARIZ.R.CRIM.PRO. 15. Rule of Practice 3.2(a), U.S. District Court for the District of Arizona. 16. Rule 32.4(c), ARIZ.R.CRIM.PRO. 17. Rule 32.5, ARIZ.R.CRIM.PRO. 18. Rule 32.6(d), ARIZ.R.CRIM.PRO. FEBRUARY 2002 ARIZONA ATTORNEY 43