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November 27, 2010

Noting California's difficulties with getting representation for its condemned

The Los Angeles Times has this lengthy article noting the lawyering problems serving to clog up California's death row.  The piece is headlined "Lack of funding builds death row logjam; Convicted killers have a hard time finding lawyers to handle their final appeals, which can be both expensive and gut-wrenching."  Here is an excerpt:

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."

November 27, 2010 at 10:53 PM | Permalink


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Kent, I would like to suggest a capital catch-22. We don't want the lawyer who doesn't care what happens to their client representing someone on death row, and to place a lawyer who does care what happens to their client in a position where if they don't "turn over every rock" the client dies, exacts a huge emotional and physical toll on the lawyer.

Just out of curiosity, Kent, have you ever tried a capital case, either for the state or the defense?

I have one more post-conviction death case I am working on and that is going to be my last one.


Posted by: bruce cunningham | Nov 28, 2010 8:01:57 AM

Scheidegger is a moron - his comments should surprise no-one.

Posted by: jsmith | Nov 28, 2010 11:50:01 AM

"Kent is a moron." Translation, Kent forcefully makes arguments that you don't like.

Kent's right--the state shouldn't have to pay for expert after expert etc. for penalty phase appeals. Issues of innocence, a completely different matter.

And I fail to understand why capital representation is so emotionally taxing. A killer is executed. Not that big a deal in the grand scheme of things. I would think that representing a truly innocent person would be far more emotionally taxing, particularly if that person got convicted.

Posted by: federalist | Nov 28, 2010 1:11:35 PM

federalist, rarely is the question in a capital murder trial innocence. Usually it is level of culpability, first degree, second degree, manslaughter etc. or more often the issue is punishment. Fortunately, more often than not the police catch the right person.

from your last paragraph I would assume you have never been involved in a capital trial.


Posted by: bruce cunningham | Nov 28, 2010 1:23:11 PM

Went to a party in LA, with members of the death penalty appellate defense bar. They were as slick, intelligent, and cool, calm and collected as any white collar defense from Harvard Law. They were also winning a lot in California. I saw no distress, nor personal toll. They were on salary, and did not feel pressured. None could utter the V word.

The above article is likely just another example of left wingers getting into the papers to try to embarrass the government into increasing the budget. It is just left wing government workers running their con.

Posted by: Supremacy Claus | Nov 28, 2010 1:36:56 PM

"They were also winning a lot in California."

When was this party, 1978?

Posted by: Cheqster | Nov 28, 2010 2:29:31 PM

Federalist -

Mr. Scheidegger is advocating lawyers doing a shoddy job in a case in which someone's life is at stake. That's not a forceful argument, that's a complete abdication of his humanity. It goes against everything I've been taught to do anything less than the best I possibly can in any matter, whatever the stakes. To suggest that you should do anything less than is humanly possible in a death penalty case is abhorrent in terms of both professional ethics and basic morality.

Posted by: jsmith | Nov 28, 2010 5:32:43 PM

I don't see where Mr. Scheidegger is advocating a shoddy job. I think he's just saying that the state shouldn't have to fund a scorched earth litigation strategy.

"It goes against everything I've been taught to do anything less than the best I possibly can in any matter, whatever the stakes."

Wow, it must be nice to be so perfect.

Bruce, so what? First of all, I am well aware that most of the guy, the defendant is guilty, so I didn't need the little lecture. But more to the point, I reject this idea that a capital defense lawyer has to think that representing some murderer is some really really important thing that is life-changing. If it is, then you need to have your head examined. The representation of truly innocent person, even for petty misdemeanor, is far more of a weighty thing than the death/no death representation. Yeah, I haven't represented a capital murderer. So what? Do you think that only capital defense attorneys are qualified to speak on what should be done in the course of those representations?

Posted by: federalist | Nov 28, 2010 6:27:54 PM

JSmith: You advocate excellence in all endeavors, for example, the Hutu eradication of Tutsi neighbors, the eradication of Anne Frank. The lawyer had no real comment on those endeavors. This is a ridiculous inconsistency. It is explained by the rent seeking theory. Our death penalty generates $billions in legal jobs and fees. The killing of millions elsewhere results in no lawyer fees, and no one cares. You need to embrace your inner rent seeker to avoid looking like a hypocrite.

The LA party was in 2007.

Posted by: Supremacy Claus | Nov 28, 2010 6:29:33 PM

I'd like to meet these lawyers you met at that "LA party." I suspect they were putting you on. The affirmance rate in death penalty cases in the California Supreme Court is north of 90%, so maybe they have a different idea of what "winning a lot" means.

Posted by: Cheqster | Nov 28, 2010 6:49:43 PM


Firstly, if the state wants to kill people they better damn well pay for it. Secondly, I read Mr. Sscheidegger's comments as advocating that lawyers on capital cases do less than 'turn over every rock'. He describes it as 'excessive', he suggests that the State shouldn't pay for it. Not only is this against professional ethics, it's also said in ignorance (or maybe in spite of) a well documented indigent defense crises across the country. There are lawyers working on capital cases who are incapable of representing a shoplifter, to encourage them to do less than the very little they are already doing is irresponsible and immoral.

Supremacy Claus--

what on earth are you blathering about? I've never worked on a death penalty case anything other than pro bono. My reference to a 'matter' is meant to be to a legal matter. Maybe it wasn't as clear as it could be, but even so, how you managed to segway from that comment to genocide is beyond me.

Posted by: jsmith | Nov 28, 2010 7:07:52 PM

California's is a self-created problem. Virginia gets it done in one-third the time. There is no reason in principle other states cannot do the same.

Posted by: Bill Otis | Nov 28, 2010 8:23:24 PM

comparing California with Virginia is like apples and oranges. There are several factors such as population, how many cases are selected by the state to seek the DP, and of course the difference between the 9th and 4th circuits is significant. The amount of death row inmates in CA surely means that their statute must be easier to get a death sentence than others. I agree that Virginia has a good system in place and has a desire to carry out justice. Only Texas is more aggressive.

But like I have posted before, California has a dsyfunctional system dating back to the 1970's thanks to their newly elected Governor coming back for more, Jerry Brown. With Brown and Kamala Harris pulling the strings, we will see if they keep their word and carry out the DP.

Posted by: DaveP | Nov 28, 2010 9:14:18 PM

jsmith--huh? Are you capable of reading and reacting coherently? What the state is required to pay for and what you think is morally required may not be the same thing. Have you ever considered that possibility? Additionally, look at some of the drivel that is served up in order to procure a stay--e.g., Cal Coburn Brown. Was all of that morally required?

And as for this: "Firstly, if the state wants to kill people they better damn well pay for it." The state DOES pay for it. You apparently think that a murderer facing death should get a blank check. Well, um, no. We live in a world of scarcity. It's bad enough that even if a defendant doesn't cooperate with his mitigation defense that the state would have to spend extra money for the lawyers to work around the defendant, but you want no stone left unturned. Sorry, that's not the standard. You shouldn't be able to spend capital punishment into the ground. I know that's your goal. Dressing that disdain for the democratic process as "moral" is a bit hard to swallow.

Posted by: federalist | Nov 28, 2010 9:42:05 PM

Bill, I have to agree with DaveP. Is it really fair that Cali death sentences have to run the Ninth Circuit gauntlet?

Posted by: federalist | Nov 28, 2010 9:43:06 PM

DaveP and federalist --

My only point, which perhaps I ought to have made clearer, is that there is nothing about the death penalty in principle that requires 20 years of review. As ever in life, where there's a will, there's a way.

Posted by: Bill Otis | Nov 28, 2010 10:26:52 PM

Federalist - your post was incomprehensible. Sorry, but I just had another look and I only knew what you meant because you told me.

Most decent death penalty lawyers are not in it for the money, contrary to your bizarre 'rent-seeking' comment. They will do work that they are not paid for, sometimes far, far more work than they are paid for. That's because they operate according to the 'no stone unturned' standard which you seek to denigrate.

The idea that well-paid defense lawyers are unjustly forcing the state to pay them is a complete myth. The reality is one of capped or slashed bills and offices which barely have enough to make ends meet. That doesn't change the fact that you should 'leave no stone unturned' when working on a capital case. Scheidegger (and you) think this is wrong - you're actually trying, in your utter arrogance, to dictate the amount of work that others should feel comfortable doing when defending someone facing the death penalty.

Oh and I do indeed think that a defendant, presumed innocent until proven guilty, should be given all the resources they need at trial.

Posted by: jsmith | Nov 29, 2010 12:10:21 AM


Several states don't have the will. All it takes is someone high up on the ladder to thwart the will of the people. In Florida, while Charlie Crist was running for US Senate and Bill McCollum for Governor, the DP stopped. I don't know whether they both thought it would bring bad publicity or not. But it was a disgrace that 2 "Republican" politicians with pro DP positions would not carry it out.

If a solid majority of CA voters approve the DP, I am at a loss to understand why Kamala Harris was elected Atty General. Maybe she will prove me wrong and follow the law.

Posted by: DaveP | Nov 29, 2010 11:54:27 AM

Kamala Harris was elected AG because the majority of voters have no idea what her stance on the DP is and vote party-line anyway.

Of course she's going to "follow the law." What do you think she's going to do, refuse to represent the state in DP appeals? Come on.

Posted by: SRS | Nov 29, 2010 1:31:21 PM

Funny, I always hear from DPIC about the expense of the death penalty. I wonder what the lion's share of the expense is?

Posted by: federalist | Nov 29, 2010 5:49:00 PM

davep: "If a solid majority of CA voters approve the DP, I am at a loss to understand why Kamala Harris was elected Atty General"

me: i would suspect that the percentage of people who would vote for or against someone based on their position on the death penalty to be very small - and of course, would be split between the pro and anti sides - and given the religious aspects of death penalty opposition may even favor the anti side. while i generally disagree with federalist, he is essentially right that the death penalty really is not that important of an issue - at least as a matter of electoral politics. srs may be right that people did not know her position, but it is even more likely that people knew and simply did not care enough either way to sway their votes.

i oppose the death penalty largely due to my religious beliefs, but there are so many more important issues to worry about in an election than capital punishment. i strongly suspect that anyone who voted against harris because she was opposed to the death penalty would have voted against her anyway. i also strongly suspect that anyone who voted for harris because she was opposed to the death penalty would have voted for her anyway.

ginny :)

Posted by: virginia | Nov 29, 2010 7:02:15 PM

Since 1989, 261 prisoners nationwide have been exonerated on the basis of DNA evidence. Of those, 17 prisoners had been on death row. These are only cases with DNA evidence. Imagine all those condemned to death without DNA evidence and only on the basis of eyewitness testimony which is completely unreliable. I have worked on many capital cases, several of which I involved innocent persons, and they were executed even though I did a good job and presented evidence which should have resulted in some kind of relief. Instead, they execute them with unpublished opinions. There is no rule of law when it comes to the death penalty. It is all politics. A misdemeanant gets a better quality of justice than someone charged with a capital crime. That is why I would never take on another capital case. The whole system is corrupt, including the California Supremes, who should be over-turning the capital cases, rather than leaving it to the feds.

Posted by: V. C. Lindsay | Dec 13, 2010 1:48:23 AM

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