IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENT TO FLORIDA CASE NO. 92,026 RULE OF CRIMINAL PROCEDURE CAPITAL POSTCONVICTION PUBLIC RECORDS PRODUCTION -- RULE / IN RE: RULE OF CRIMINAL CASE NO. 82,322 PROCEDURE (COLLATERAL RELIEF AFTER DEATH SENTENCE HAS BEEN IMPOSED) AND RULE (MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE) / PETITION SEEKING TO INVOKE THIS COURT'S ALL-WRITS JURISDICTION Petitioners Capital Collateral Representative-Northern Region ("CCRC-North"), and Capital Collateral Representative- Southern Region ("CCRC-South") file this petition for relief pursuant to this Court's all-writs jurisdiction. INTRODUCTION 1. The Promise Made Twenty-five years ago this Court upheld the constitutionality of Florida's new death penalty statute on the ground that death sentence discretion "can be controlled and channelled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all." State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973).

2 This Court promised: Review by this Court guarantees that the reasons present in one case [for imposing the death penalty] will reach a similar result to that reached in similar circumstances in another case. Id. To effectuate that guarantee, this Court exercised its practice and procedure power under Article V, section 2(a), Florida Constitution, to require that trial courts support in writing findings for life imprisonment as opposed to death. Id. at 8. In reliance on that promise, the United States Supreme Court also upheld Florida's death penalty statute: Those reasons [for the death penalty] and the evidence supporting them, are consistently reviewed by [the Florida Supreme Court], which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality in the evenhanded operation of this state law. Proffitt v. Florida, 428 U.S. 242, (1976). Notwithstanding predictions by some that "the effort to eliminate arbitrariness while preserving fairness in the infliction of [death] is so plainly doomed to failure that it -- and the death penalty -- must be abandoned altogether," Callins v. Collins, 510 U.S (1994) (Blackmun, J., dissenting), this 2

3 Court has been diligent in its efforts to provide consistency, fairness, and reliability in Florida's capital punishment scheme. 2. The Promise Bolstered Twelve years after Dixon this Court, and even the Attorney General, faced a crisis in their ability to provide consistency, fairness, and reliability in the imposition of the death penalty. The crisis was spawned by a shortage of lawyers who would provide volunteer services to capital defendants, particularly during post-conviction proceedings. Then Attorney General Jim Smith testified "I can see capital punishment in Florida coming to a grinding halt." Unofficial Transcript of Proceedings Before Florida Senate Judiciary Committee (Criminal Commission ) on SB 616 (Apr. 24, 1985) (as cited in Mello, Facing Death Alone: The Post-Conviction Crisis on Death Row, 37 Am.U.L.Rev. 513, (1988)("Unofficial Transcript"). While he could not guarantee that providing lawyers would speed up executions, he warned that without lawyers administration of capital sentences would slow down. Id. In response to this crisis, the Florida Legislature established the statutory right to counsel in capital postconviction proceedings in 1985 when it created the Office of Capital Collateral Representative ("CCR"), and reaffirmed the 3

4 right in 1997 by establishing the three Capital Collateral Regional Counsels ("CCRC"), to represent all death row inmates in state and federal post-conviction proceedings , Fla. Stat. (1996 Supp.). In establishing CCR and the CCRCs, the Legislature recognized that lawyers are necessary to ensure effective presentation of capital post-conviction challenges, and "also to avoid the attendant problems of determining the need to appoint counsel and the utilization of volunteer counsel, including the resulting delays in the process." Spalding v. Dugger, 526 So. 2d 71, 72 (1988). Notably, Attorney General Smith testified in support of CCR: I think clearly that this representation provided that claims will be advanced much sooner, there will be no excuse that we can't find lawyers, and frankly, it's been rather embarrassing to me at clemency hearings for the last six and a half years to have legal work lawyers (sic) coming down here and have them defend people on death row in Florida. You know, we're a big state. The people in this state want capital punishment and I think we ought to provide the resources to make it happen. As a lawyer and as Attorney General it has been embarrassing that we've had these volunteers coming down here always making snide remarks about the legal processes in our state like we're trying to rush these people to judgment, that kind of thing which is clearly not true. But, I...am standing here to say we need to spend this money to make it happen. Unofficial Transcript. 4

5 Lawyers at CCR and CCRC have attempted to assist this Court in keeping its promise to ensure fairness and reliability in the imposition of the death penalty by arguing, often successfully, post-conviction challenges to capital sentences based on errors at trial. Indeed, this Court has recognized the crucial role capital post-conviction counsel play: It is true that we have imposed upon ourselves the duty to independently examine each death penalty case. However, we will be the first to agree that our judicially neutral review of so many death cases, many with records running to the thousands of pages, is no substitute for the careful, partisan scrutiny of a zealous advocate. It is the unique role of that advocate to discover and highlight possible error and to present it to the court, both in writing and orally, in such a manner designed to persuade the court of the gravity of the alleged deviations from due process. Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla. 1985). 3. Can the Promise Be Kept? Despite judicial and legislative recognition of the crucial role of capital post-conviction counsel, CCR and CCRC's ability to provide effective representation has been severely compromised by a lack of funding. This historic failure of the Legislature to adequately fund these agencies has culminated in a postconviction representation crisis that undermines the efficacy of this Court's efforts to provide consistency, fairness, and reliability in our capital punishment system. 5

6 Petitioners recently filed documents in this case outlining their dire financial circumstances. At oral argument in this case in January, each CCRC was asked by the Chief Justice if he was able to provide effective assistance of counsel to his clients. Each CCRC answered "No." Petitioners ask this Court to enable Petitioners to provide effective assistance of counsel as required by state law, this Court's precedent, and their ethical obligations, by imposing a moratorium on executions until the Legislature allocates sufficient funding to the CCRCs pursuant to a caseload formula. 1 Petitioners also ask the Court to find that under the Declaration of Rights of the Florida Constitution there exists a right to counsel in capital post-conviction proceedings. These actions will enable the Court to keep its promise to ensure fairness and reliability in the imposition of the death penalty. 2 1 See, Resolution Approved by the American Bar Association ("ABA") House of Delegates, February 3, 1997 (Exhibit "A") (calling upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with long standing ABA policies, including the provision of competent counsel who are "provided with the time and funding necessary for proper investigations, expert witnesses and other support services."). 2 The federal habeas corpus reversal rates demonstrate an alarming degree of unreliability in death sentences. As of mid 1990, lawyers representing clients in federal habeas cases have 6

7 I. JURISDICTION This petition presents substantial questions concerning the administration of capital punishment in Florida consistent with Florida statutes, this Court's precedent, and the Florida Constitution, as well as the fundamental constitutional rights of capital defendants. The issues are of the type classically considered by this Court pursuant to its all-writs jurisdiction, particularly when they involve capital cases. See, Art. V, 3(b)(1) and (7), Fla. Const. (Court has exclusive appellate jurisdiction over all capital cases and the ability to issue "all writs necessary to the complete exercise of its jurisdiction"). The Florida Constitution empowers this Court with the exclusive authority to regulate the administration of justice in this state. Art. V, 2(a), Fla. Const; State v. Dixon, 283 So.2d 1, 8 (Fla. 1973). Pursuant to that authority and the Court's exclusive appellate jurisdiction over "final judgments of trial courts imposing the death penalty," Art. V, 3(b)(1), Fla. exposed constitutional violations in just over forty percent of all reported capital habeas cases. This forty percent rate compares to a less than five percent constitutional error rate in comparable non-capital cases. Notably, the Eleventh Circuit, which has the most experience handling capital cases, found constitutional violations in fifty percent of capital cases. James S. Liebman, Report to Senate Judiciary Committee, July 15, Exhibit B; See Liebman and Hertz, Federal Habeas Corpus Practice and Procedure, Vol. 1, s. 2.3, p.17 (2d Ed. 1994). 7

8 Const., this Court, on its own initiative, has undertaken the oversight, regulation and administration of Florida's capital post-conviction system. See, Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985)(Court has duty to independently examine death penalty cases). In recent decisions, this Court has read its constitutional jurisdiction over capital litigation expansively, covering not only direct appeals but all types of review in capital cases. In State v. Fourth District Court of Appeal, 697 So.2d 70, 71 (1997), this Court held that "in addition to our appellate jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases." See Orange County v. Williams, 702 So.2d 1245 (Fla.1997)(transfer of appeal of costs order from Fifth District Court of Appeal to Florida Supreme Court "based upon [Court's] plenary jurisdiction over death penalty cases") (internal citations omitted). The Court's exercise of plenary jurisdiction in capital cases should be viewed as an effort to ensure consistency and fairness in capital post-conviction proceedings. See, 1996 Comment on Rule 3.850, Fla. R. Crim. p ; In re Amendment to Fla. Rules of Crim. Pro.-Capital Post- Conviction Records Production, 683 So. 2d 475 (Fla. 1996). 8

9 This Court also should exercise its inherent authority to hear a petition that involves the adequate representation of criminal defendants. Makemson v. Martin Co., 491 So. 2d 1109, 1112 (Fla. 1986). The rights of the criminal defendant are "a sensitive area of judicial concern." Id. See, also, Rose v. Palm Beach County, 361 So. 2d 135, 137 (Fla. 1978)("Where the fundamental rights of individuals are concerned the judiciary may not abdicate its responsibility and defer to legislative or administrative arrangements... Every court has inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction...") Spalding v. Dugger, 526 So.2d 71 (Fla. 1988), is inapposite to a determination of all-writs jurisdiction. In Spalding, this Court rejected CCR's writs of prohibition and mandamus that asserted that inadequate funding prevented CCR from providing effective assistance of counsel to five death row inmates under warrant, and sought stays of execution for these clients. The Court concluded that it did not have mandamus or prohibition jurisdiction without an appeal or habeas corpus petition pending before it. In contrast, Petitioners here invoke this Court's all-writs jurisdiction over capital cases, and request that the Court 9

10 impose a general moratorium on the imposition of the death penalty until the CCRCs are adequately funded pursuant to a caseload methodology. Moreover, Spalding did not prevent this Court from issuing, since 1995, at least six different acrossthe-board orders extending or staying time limits at the request of CCR or the CCRCs because of inadequate funding. 3 As this petition will demonstrate, the current crisis in Florida capital post-conviction representation provides a compelling basis for this Court to exercise its all-writs jurisdiction. Perhaps Justice Wells stated it best: I do not accept the position that this Court has no immediate role in solving the postconviction representation problem or that our involvement would constitute "micromanaging" the three CCRC agencies. I believe that we not only have a role in 3 See, e.g., Order on CCR's Motion for Relief, In re: Rule of Criminal Procedure and Rule 3.850, No. 82,322 (Fla. June 23, 1995); Order on CCR's Emergency Motion for Extension of Time, No. 87,688 (Fla. November 26, 1996) (tolling time periods of certain sections of Rule for all CCR cases); Order on CCR's Emergency Motion to Suspend Operation of Rule 3.852, No. 87,688 (Fla. May 14, 1997) (tolling time limits of Rule for fortyseven (47) CCR cases until September 1, 1997); Order on CCRCs' Motions to Tolls Time under Rule 3.852, 700 So. 2d 680 (Fla. October 20, 1997) (extending tolling of time limits until January 15, 1998); Order on CCRC Inventories, No. 92,026 (Fla. January 15, 1998) (granting a "blanket tolling" of Rule time limits for cases listed in inventories); Order on Motions for Extension of Time in Which to File Motions under Rule 3.851, No. 82,322 (Fla. January 15, 1998) (tolling time limits of Rule for forty-two (42) clients of the three CCRCs). 10

11 postconviction proceedings but that at present we have no more important or immediate responsibility. Not dealing with the representation issue is a prescription for capital postconviction cases to continue as in the past and for them to drag on for another twenty years." Amendments to Florida Rules of Criminal Procedure - Capital Postconviction Public Records Production (Time Tolling), Case No. 92,026 January 15, 1998 (Wells, J., dissenting). II. THE CRISIS IN FLORIDA'S CAPITAL POST-CONVICTION REPRESENTATION As this Court is well aware, Florida's capital postconviction representation system has suffered crisis after crisis after crisis, first because of lack of volunteer counsel, and then because of lack of resources for statutorily-provided counsel. These crises, which have been two decades in the making, have seriously impeded this Court's ability to keep its promise under Dixon. The Legislature and various Court and Florida Bar committees have attempted to address these crises. Such efforts include the 1984 Special Committee on Representation of Death Sentenced 11

12 Inmates in Collateral Proceedings, 4 the creation of CCR in 1985, the Overton Committee in 1993, 5 and the 1997 Shevin study. 6 4 The Florida Bar appointed this Committee at the behest of the Florida State-Federal Judicial Council, led by Eleventh Circuit Chief Judge John Godbold, which had concluded that the basic problem in the capital post-conviction process was the inadequate number of volunteer lawyers. The Committee, chaired by James C. Rinaman, Jr., developed a plan to recruit volunteer lawyers from large civil law firms which could better absorb the huge costs associated with such litigation. Henry, Representation of Death Sentenced Inmates, 59 Fla. Bar J. 53, (Dec. 1985). Although the Committee successfully recruited civil lawyers, the number of volunteers was sufficient only to just keep pace with death warrants. Interim Report from James C. Rinaman, Jr. to Officers and Board of Governors of the Florida Bar (May 23, 1985). Notably, Rinaman stated that the better the Committee performed its job, the less likely the Legislature would provide a long-term solution in the form of a state funded agency. Henry, 59 Fla. Bar J. at In 1993 this Court created the Supreme Court Committee on Postconviction Relief in Capital Cases, "because of the inability of the capital collateral representative to properly represent all death penalty inmates in postconviction relief cases...." Fla. R. Crim. P (Court Commentary to 1993 Adoption). The Committee, chaired by Justice Overton, reported that "it is essential that there be adequate funding of the capital collateral representative." Id. The Committee also recognized that to make the post-conviction process work properly, each death row inmate should have counsel available within 30 days after the death sentence becomes final to provide representation. Id. 6 After the promulgation of Rule in 1994, CCR was again forced to seek an extension of time in which to designate counsel and file post-conviction relief motions. This Court then appointed former Attorney General Robert L. Shevin to conduct a study of CCR. Mr. Shevin concluded that the "facts and circumstances," including CCR's inadequate funding and staffing and case overload constituted "good cause" for an extension of time under Rule 3.851(b)(4), Fla. Rules of Crim. Proc. Letter of 12

13 The alarming history of these crises, including details of the current CCRC crisis which has now reached epic proportions, are set forth in the affidavit of Robert Spangenberg of The Spangenberg Group, nationally known expert in the analysis of systemic deficiencies in indigent capital systems. See, Spangenberg Affidavit 1, Exhibit "C." See, generally, Spangenberg Affidavit 2, Exhibit "D" (describing The Spangenberg Group's extensive experience). Mr. Spangenberg is not a newcomer to the Florida capital post-conviction representation crises. In CCR's first two years of existence, CCR lawyers realized that their budget and staffing were grossly inadequate. At CCR's request, in 1987 the ABA Standing Committee on Legal Aid and Indigent Defendants retained The Spangenberg Group to develop a caseload formula based on time and expenses incurred in capital post-conviction representation that would provide reliable baseline data to the Florida Legislature for use in allocating CCR's budget. As set forth in the Spangenberg Affidavit 2, 57 (Exhibit "D"), relying on the 1987 Spangenberg Report, CCR requested Robert L. Shevin "Re: Study of the Capital Collateral Representative" to Chief Justice Stephen H. Grimes at 12 n. 10 (Feb. 26, 1997). 13

14 approximately $2.9 million in funding from the Legislature. This sum did not include amounts necessary for expert witnesses and management staff. The Legislature responded with an appropriation of $854,000. See, Spangenberg Affidavit 2, 60 (Exhibit "D"). Periodically thereafter, as its caseload continued to increase dramatically, CCR sought increases in its funding and attorney positions utilizing the 1987 Spangenberg caseload formula. Each time, with the exception of two years ( ), the Legislature responded by arbitrarily appropriating significantly less than the amounts requested. Several budget requests also asked the Legislature to retain The Spangenberg Group to update the formula to account for the substantial changes in Florida capital post-conviction litigation (e.g. extensive public records litigation, changes to Rule 3.851, and continuing warrants). The Legislature did not do so. The discrepancy in the amount of funding and number of positions requested, and the actual funding and positions appropriated, is particularly dramatic in the years , and provides the background for the current crisis. In 1995 CCR requested $5,223,750 and a total of 78 attorney positions. The Legislature appropriated $3,119,437 and 52 positions. In 1996, 14

15 CCR requested $9,232,041 and 121 attorney positions. The Legislature appropriated $4,470,520 and 77 positions. See Affidavit of Carla Georgieff and attached spreadsheet, Exhibit "E". Last year, when the Legislature abolished CCR and replaced it with the three CCRCs, it once again failed to adopt a caseload formula to provide realistic budget projections for the three agencies. Faced with a request for $12,041,947 and 166 attorney positions, the Legislature appropriated $4,588,276 and 77 positions for the three CCRCs to share. This amount is woefully insufficient for Petitioners to provide effective assistance of counsel. Indeed, according to The Spangenberg Group, the CCRCs cannot effectively represent their over 200 clients without "substantial additional resources." See, Spangenberg Affidavit 1, Exhibit "C". The Florida Legislature has had ten years to "examine and address...the contention that more funding is needed before rule can be implemented," Amendments to Florida Rules of Criminal Procedure - Capital Postconviction Public Records Production (Time Tolling), Case No. 92,026, January 15,

16 The Legislature has not done so. This Court must address this current crisis before an innocent person dies. 7 III. THE CURRENT FUNDING CRISIS PREVENTS PETITIONERS FROM PROVIDING EFFECTIVE ASSISTANCE AND DECREASES THE RELIABILITY OF CAPITAL SENTENCING The Florida Legislature established the right to counsel in capital post-conviction proceedings when it created CCR in 1985, and reaffirmed the right in 1997 when it established the three CCRCs. Florida law requires the three CCRCs to provide representation to all death row inmates, and to bear the costs of retaining experts and obtaining discovery, public records, and other evidence necessary to litigate capital post-conviction cases. See, , Fla. Stat. (1996 Supp.). This Court has held that CCRC clients are entitled to competent, effective assistance of their statutorily mandated counsel. Spalding v. Dugger, 526 So. 2d 71, 72 (Fla. 1988); Spaziano v. State, 660 So. 2d 1363, 1370 (Fla. 1995). This right 7 A recent publication of the Death Penalty Information Center reported that 69 people have been released from death row since 1973 after the discovery of evidence of their innocence. The report concludes that the execution of innocent people is inevitable, given the shrinking resources for defense, expansion in the number of death cases, and current emphasis on faster executions. Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent, July Exhibit "F." 16

17 includes a requirement that CCRC be adequately funded. Hoffman v. Haddock, 695 So. 2d 682 (Fla. 1997)(Wells, J. concurring). Although the Legislature has conferred the right to counsel, it has never provided the funding necessary for CCR, and now Petitioners, to satisfy the right to effective assistance of counsel recognized by this Court in Spalding v. Dugger. Without adequate funding, Petitioners are currently unable and will continue to be unable to provide effective assistance to their clients. 8 See, Spangenberg Affidavit 1, Exhibit "C." Moreover, without adequate funding of CCRC, there can be no assurance that a death sentence is not imposed in an arbitrary 8 The failure to adequately fund the CCRCs also has profound ethical implications for the CCRC lawyers under the Florida Rules of Professional Conduct. Without adequate funding CCRC cannot fulfill its fundamental duty to each one of its clients to "zealously assert the client's position under the rules of the adversary system" (Preamble, Chapter 4); to provide competent representation to a client(rule 4-1.1);(notably, competence is determined in substantial part by "what is at stake," Comment to Rule 4-1.1, and there is no litigation in which more is at stake than the defense of a death-sentenced individual); to conduct adequate preparation for each case he undertakes (Rule 4-1.1); and to never allow one client's interests to be subordinated to those of other clients. (Rule 4-1.7(6). Moreover, loyalty to a client prohibits undertaking or continuing representation directly adverse to that client's or another client's interests. (Comment to Rule 4-1.7) Therefore, when a lawyer is forced to choose which of his clients' cases will be pursued according to the severity of his client's situation, a conflict of interest is inevitably created. In Re: Order on Prosecution of Criminal Appeals By the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1135 (Fla. 1990). 17

18 and capricious fashion in violation of Article 1, section 17 of the Florida Constitution, and the Eighth Amendment of the United States Constitution. 9 Resource deprivation inevitably results in a variation in the quality of representation provided to different CCRC clients, as CCRC lawyers must choose which clients will benefit from the limited resources available. See In re Order on Criminal Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1135 (Fla. 9 The challenges asserted for the first time at postconviction are not "technicalities"; rather they go to the heart of the fair, non-arbitrary imposition of the death penalty. See, e.g., State v. Spaziano, 692 So. 2d 174 (Fla. 1997)(key witness recanted); Hildwin v. Dugger, 654 So. 2d 107, 110 (Fla. 1995)(ineffective assistance of counsel); Card v. State, 652 So. 2d 344 (Fla. 1995)(claim of denial of right to independent weighing of aggravating and mitigating circumstances); Garcia v. State, 622 So. 2d 1325 (Fla. 1993)(Brady violation); Johnson v. State, 593 So. 2d 206, 208 (Fla. 1992)(evidence that court may have been mistaken about jury's penalty phase vote; Jones v. State, 591 So. 2d 911 (Fla. 1991)(newly discovered evidence of innocence); Burr v. State, 576 So. 2d 278 (Fla. 1991)(invalid underlying conviction); Eutzy v. State, 541 So. 2d 1143, 1146 (Fla. 1989)(claim predicated on Johnson v. Mississippi, 486 U.S. 578 (1988)); Mason v. State, 489 So. 2d 734 (Fla. 1986)(incompetent to stand trial); Kennedy v. Wainwright, 483 So. 2d 424 (Fla. 1986)(post-conviction recognizes fundamental error); Witt v. State, 387 So. 2d 922 (Fla. 1980)(fundamental change in law). See, Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995)(judicial bias). Moreover, such claims must be raised at this first opportunity or they are procedurally barred. Porter v. State, 653 So. 2d 374, 378 (Fla. 1995). See, Jones v. State, 591 So. 2d 911, 913 (Fla. 1991), citing, Francis v. Barton, 581 So. 2d 583 (Fla.) (cannot raise collateral challenges piecemeal), cert. denied, 501 U.S (1991). 18

19 1990)(conflict inevitably created when lawyers must triage clients). Such inconsistent quality of representation reduces the reliability of capital sentences, contrary to this Court's promise in Dixon. See, Durocher v. Singletary, 623 So. 2d 482, 486 (Fla. 1993)(Barkett, J. dissenting)("the state has responsibility to ensure that society's ultimate penalty is not imposed except in appropriate cases and the sentence is not arbitrary or the result of a mistake"); Johnson v. State, 536 So. 2d 1009, 1012 (Fla. 1988)("Our entire system of capital jurisprudence rests on the concept that death is different and must be imposed reliably, consistently and proportionately") (Barkett, J. dissenting)). The United States Supreme Court has stated repeatedly that the Eighth Amendment requires a heightened degree of reliability in capital cases: [T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from live imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). This special degree of reliability is necessary to ensure that capital 19

20 punishment is not imposed in an arbitrary and capricious matter, Gregg v. Georgia, 428 U.S. 153, 189 (1976), and to ensure that no one who is innocent or who has been unconstitutionally convicted is executed. IV. A MORATORIUM IS THE APPROPRIATE REMEDY PENDING UTILIZATION OF THE CASELOAD METHOD FOR CCRC FUNDING Petitioners ask this Court to impose a moratorium on all executions under Florida's death penalty statute until such time as the Legislature adequately and rationally funds the CCRCs. 10 Adequate and rational funding can only be assured by utilizing a caseload methodology. See, Spangenberg Affidavit 1, Exhibit "C." To assist the Court and the Legislature, Petitioners' counsel, Holland & Knight, has retained at its own expense The Spangenberg Group, the national expert in analysis of indigent defense systems, to develop a caseload methodology and prepare a report based on actual data gathered from CCRC-North and CCRC- South. The Report will show that when properly funded and 10 This Court previously acknowledged its responsibility to ensure that CCRC receive adequate funding. See, Fla. R. Crim. P (Court Commentary to 1993 Adoption)("In the event the capital collateral representative is not fully funded and available to provide proper representation for all death penalty defendants, the reduction in the time period would not be justified and would necessarily have to be repealed, and this Court will forthwith entertain a petition for the repeal of the rule."). 20

21 staffed by qualified lawyers, the CCRCs are the most costeffective and efficient method of providing competent capital post-conviction representation. This is not the first time this Court has been confronted with a difficult decision with respect to conflicts between the treasury and the rights of individuals in the criminal justice system. In In Re: Order on Prosecution of Criminal Appeal By the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990), woefully inadequate funding of the Public Defender's offices resulted in unacceptable backlogs and appeals. 11 In addressing the conflict between fundamental rights and the treasury, this Court acknowledged that it could not order the Legislature to appropriate sufficient funds for the public defenders. The Court advised the Legislature, however, that if sufficient funding were not appropriated within 60 days of the 11 The lawyers in the Public Defender's offices were confronted with the same ethical problems that the CCR lawyers in this case face. The Second District Court of Appeal noted that because of the inability of the Public Defender to timely process appeals, he is being required to choose which of his appellants' appeals will be pursued according to the severity of their sentences. When an attorney representing indigent defendants is required to make choices between the rights of various defendants, a conflict of interest is inevitably created... Id. at

22 filing of its opinion, and counsel hired and appearances filed within 120 days, the courts of this state with appropriate jurisdiction would entertain motions for writs of habeas corpus from those indigent appellants whose appellate briefs were delinquent 60 days or more, and upon finding merit to those petitions, would order the immediate release pending appeal of indigent convicted felons who were otherwise bondable The Court specifically cited Rose v. Palm Beach County, 361 So. 2d 135, 137 (Fla. 1978) as authority for its action: Where the fundamental rights of individuals are concerned, the judiciary may not abdicate its responsibility and defer to legislative or administrative arrangements...every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions. The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by the executive and legislative branches of government has developed as a way of responding to inaction or inadequate action that amounts to a threat to the courts' ability to make effective their jurisdiction. The doctrine exists because it is crucial to the survival of the judiciary as an independent, functioning, and co-equal branch of government. The invocation of the doctrine is most compelling when the judicial function at issue is the safeguarding of fundamental rights. 22

23 The remedy requested in this case, a moratorium on executions under Florida's death penalty statute until the Legislature adequately funds the CCRCs utilizing a caseload formula, is a remedy similar to the Court's 1990 remedy that resolved the crisis in public defender appeals. It acknowledges that although the Court cannot order the Legislature to appropriate funds, it has jurisdiction to suspend implementation of capital sentences until such time as the CCRCs are adequately funded to provide effective assistance of counsel under , Florida Statutes. 13 V. THE CURRENT CRISIS COMPELS RECOGNITION OF A CONSTITUTIONAL RIGHT TO CAPITAL POST-CONVICTION COUNSEL Although Florida law currently provides a statutory right to capital post-conviction counsel, this statute can be repealed at any time. This Court should further address the capital postconviction crisis by holding that under Article 1, section While utilization of often inexperienced contract attorneys and volunteers may have been the appropriate remedy in In Re: Order on Prosecution of Criminal App., exclusive reliance on such a remedy would be a disaster for post-conviction work. See Spangenberg Affidavit 1, Exhibit "C." 23

24 (right to counsel), Article 1, section 9 (due process), Article 1, section 2 (equal protection), Article 1, section 13 (habeas corpus) 14 and Article 1, section 17 (cruel and unusual punishment) of the Declaration of Rights of the Florida Constitution there exists a right to capital post-conviction counsel in this State. A right as crucial as capital postconviction counsel should be grounded in the Florida Constitution The right to post-conviction counsel also implicates Art. I, s. 13 of the Florida Constitution, which guarantees that "the right to relief through the writ of habeas corpus must be "grantable of right, freely and without cost." Rule 3.850, Florida Rules Criminal Procedure is the "procedural vehicle" for the collateral remedy available through the writ of habeas corpus. State v. Bolyea, 520 So. 2d 562, 563 (Fla. 1988). Courts addressing Rule issues "must be mindful that the right to habeas relief protected by article I, section 13 of the Florida Constitution is implicated." Haag v. State, 591 So. 2d 614, 616 (Fla. 1992). 15 Because this Court has recognized that "[s]ince the state of Florida enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases," White v. Bd. of Co. Comm. of Pinellas Co., 537 So. 2d 1376, 1379 (Fla. 1989), and that "all capital cases by their very nature can be considered extraordinary and unusual, Id. at 1378, it may distinguish capital post-conviction representation rights from non-capital cases. See, Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring): [S]o far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases, the law is especially sensitive to demands for... procedural fairness... I do not concede 24

25 In asking this Court to resolve this question under the Florida Constitution, and not the United States Constitution, we take our direction from this Court, which when deciding issues of fundamental rights, must give primacy to our state Constitution. Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992). See, Michigan v. Long, 463 U.S. 1032, 1054 (1983)(state court decision rests on adequate and independent state grounds if it "indicates clearly and expressly that it is alternatively based on bona fide, separate, adequate and independent grounds"). Petitioners recognize that this Court declined to find a constitutional right to post-conviction counsel nineteen years ago in Graham v. State, 372 So.2d 1363, 1366 (Fla. 1979). At the time, the Court noted that "simple procedures to seek postconviction relief" were available to the twelve men then on death row, all of whom had volunteer counsel. Graham, 372 So.2d at Ten years later, the United States Supreme Court in Murray v. Giarratano, 492 U.S. 1 (1989), similarly rejected such a right. Justice Kennedy, joined by Justice O'Connor, the two of that whatever process is "due" an offender faced with a fine or prison sentence necessarily satisfies distinction is by no means novel... nor is it negligible, being literally that between life and death. 25

26 them providing the critical swing votes in Giarratano, specifically found that on the record before the Court each of the death-sentenced respondents had volunteer counsel. Giarratano, 492 U.S. at 14 (Kennedy, J., concurring). The historical crises in Florida's capital post-conviction representation, some twenty years since Graham and ten years since Giarratano, has taught us three things. First, there will never be sufficient volunteer counsel to represent each of the over 200 death row inmates in Florida. Second, the statutory right to counsel is vulnerable to the whims of the Legislature. Finally, as this Court knows, during the past nineteen years capital post-conviction litigation has evolved into one of the most complex forms of litigation that exists today. Murray v. Giarratano, 492 U.S. 1, 14 (1989)(Kennedy, J., concurring). It is impossible for death row inmates to identify, let alone effectively investigate and present, their post-conviction challenges without the assistance of a lawyer. Id. This Court must revisit Graham and interpret the Florida Constitution more expansively than the United States Constitution because the current state of capital post-conviction representation in Florida is vastly different from the facts before the Graham and Giarratano Courts. The repeated calls to 26

27 undermine or eviscerate this right with inadequate funding create pressures on CCRC and on this Court that are incompatible with the administration of justice in Florida's capital punishment system. 16 CONCLUSION This Court has a historical, institutional commitment to fairness in the imposition of the death penalty. Its jurisprudence is replete with instances of judicial insistence on effective assistance of counsel as the linchpin of that commitment. It may well be that this commitment will become this Court's principal legacy. This institutional commitment began with the promise of Dixon, and has continued to the present day. History teaches us that every great institutional commitment is eventually tested. Today, public attacks on this institution, our profession, and even the "great writ" test this Court's promise in Dixon. But history also teaches us that when great institutions stand their 16 A holding that there is a right to capital postconviction counsel in the Declaration of Rights of the Florida Constitution need not undermine the legitimate interests of the State in the finality of its judgments. This Court should, as a matter of judicial administration, hold that a claim of ineffective assistance of capital post-conviction counsel must be timely asserted, just as it is being asserted in this petition, before the representation is concluded, not after. 27

28 ground in such times of peril the principles which undergird great promises emerge strengthened for the benefit of the generations who will follow us. We urge this Court to reaffirm its Dixon commitment to fairness in the imposition of the death penalty and impose the moratorium requested in this petition until adequate and rational funding is provided for the lawyers who represent death row inmates in post-conviction proceedings. 17 Respectfully submitted, 17 As Justice Blackmun eloquently stated: It is my hope and belief that this Nation soon will come to realize that capital punishment cannot morally or constitutionally be imposed. Until that time, however, we must have the courage to recognize the failings of our present system of capital representation and the conviction to do what is necessary to improve it. McFarland v. Scott, 114 S.Ct. 2785, 2790 (1994) (Blackmun, J. dissenting). 28

29 STEPHEN F. HANLON Florida Bar No NINA M. ZOLLO Florida Bar No HOLLAND & KNIGHT LLP Suite 600, Barnett Bank Building 315 South Calhoun Street Tallahassee, Florida (850) (850) (fax) JAMES K. GREEN Florida Bar No JAMES K. GREEN, P.A. Suite 1602, One Clearlake Centre 250 Australian Avenue South West Palm Beach, Florida (561) (561) (fax) ATTORNEYS FOR PETITIONERS 29

30 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this the 17th day of March, 1998 a true and correct copy of the foregoing was furnished via hand delivery to RICHARD B. MARTELL, Assistant Attorney General, Department of Legal Affairs, Room 366-E, Collins Building, 107 West Gaines Street, Tallahassee, Florida Attorney TAL