The Florida Supreme Court soon will take up a challenge to that state's system for assigning private attorneys to capital post-conviction cases

-- a system which, according to the challengers, creates only the "illusion of a lawyer."

The lawsuit, brought by veteran capital defense litigator, Mark E.

Olive of

Tallahassee, may be a harbinger of suits to come, some say, as states that contend they provide competent and adequately-funded post-conviction counsel to indigent death row inmates await final federal rules allowing them to seek fast-track federal habeas review of their death cases. A hearing is scheduled for Sept. 20.

Olive and a 2006 statewide study sponsored by the American Bar Association contend that the Florida system falls far short of ensuring adequate post-conviction representation. Maas v. Olive, No. SC06-835.

A Florida statute prohibiting courts from awarding attorney fees in excess of statutory caps to so-called registry attorneys in capital collateral cases, and authorizing sanctions against those attorneys who seek fees in excess of the caps -- regardless of justification -- unconstitutionally interferes with the court's inherent authority to ensure adequate representation and violates separation of powers, said Olive.

"The hidden secret here is there are probably at least five but no more than 10 lawyers in private practice in all of Florida who have the competence and willingness to do these cases," said Olive's counsel, Stephen Hanlon, a partner at Holland & Knight. "There are about 380 people on death row.

The

state is not willing to pay for [competent representation]. That's what this is all about."

The "grossly incompetent" representation by a significant number of registry attorneys, said Hanlon, requires, as a response, that the Florida Supreme Court recognize a state constitutional right to effective assistance of counsel in capital post-conviction cases.

"The system doesn't work and can't work until there is a constitutional right and the courts can determine the qualifications of counsel," said Hanlon.

End of the line

But the Florida Supreme Court, as recently as five years ago, declined to recognize a constitutional right to post-conviction counsel in capital cases, as has the U.S. Supreme Court, said Hanlon's opposing counsel, Jeremiah Hawkes, representing the state's Commission on Capital Cases.

"The question is: Where is the end of the line?" he said. "If you have a constitutional right to counsel, you have a right to effective assistance of counsel and you get endless ineffective assistance of counsel claims and you keep going down that road."

The court has said the statutory right, enacted by the Legislature, ensures meaningful access to the courts, according to Hawkes. Olive, he argues, has presented "a host of imaginary ills."

The Registry Act, creating the statewide registry of private attorneys who contract to handle the collateral cases, contains a fee cap of $84,000 (or 840 hours at $100/hour), which must cover fees of lead counsel as well as any attorney designated by lead counsel to assist him or her. The Spangenberg Group, a research firm specializing in improving justice systems, estimates an average of 3,300 attorney hours are required to take a case from denial of U.S. Supreme Court review through state post-conviction proceedings.

Olive won a 2002 ruling from the Florida Supreme Court that the statutory cap may be exceeded in "extraordinary or unusual cases." But shortly afterwards, the Florida Legislature passed the statute now at issue, prohibiting the use of state funds for payments exceeding the caps and dropping attorneys from the registry if they seek fees above the caps.

The ABA report criticized the caps. It also said that registry attorneys are not adequately monitored, and called statutory qualifications for them insufficient to ensure qualified counsel. Registry attorneys in at least

12

separate cases filed clients' post-conviction motions or federal habeas petitions from two months to three years after filing deadlines.

The report noted that Florida Supreme Court Justice Raoul Cantero had

testified that the representation provided by registry attorneys is "[s]ome of the worst lawyering" he has ever seen. In a fee decision last year, Cantero said the caps are "frequently unrealistic and amount to little more than token representation."

Only Alaska and Mississippi reportedly recognize a state constitutional right to post-conviction counsel.

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