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Process takes ‘too long’

Attorney General Tom Horne.  (Photo by Evan Wyloge/Arizona Capitol Times)

Attorney General Tom Horne (Photo by Evan Wyloge/Arizona Capitol Times)

Horne considers legal action in attempt to speed up death penalty cases

The 11 convicted killers Arizona has executed since 2010 spent an average of 22 years on death row.
Attorney General Tom Horne thinks that is too long.

He also thinks suing the federal government will speed up the process, but others say that a successful lawsuit would bring few or no gains because Arizona lacks criminal defense attorneys who are qualified to do proceedings known as capital post-conviction relief and are willing to do it for $100 an hour, the rate set in statute.

That has historically left the Arizona Supreme Court scrambling to find enough attorneys to handle the constant stream of death cases.

The result, at times, has been the appointment of unqualified lawyers.

The median hourly rate for an Arizona attorney is $250 and the average is $280, according the State Bar of Arizona’s 2013 Economics of Law Practice survey.

“Every time I spend an hour on a case like that I lose a considerable amount of money and so does my law firm,” said Jim Belanger, a veteran criminal defense attorney who has represented 20 defendants facing the death penalty and had only one end up on death row.

Belanger said the state is relying on attorneys who will compromise their rates or work pro bono to subsidize death penalty defense cases.

“Let me put it like this: If you had a Maricopa County Superior Court judge — I don’t know what they get paid — but ask them to do that job for $22,000 a year and see who you would get,” Belanger said.

Horne was preparing to file suit Aug. 1 to force the U.S. Department of Justice to give Arizona a special status that would allow for speedier habeas corpus procedures in federal court. Those are proceedings that review state court actions.

“As a general matter, the average length of time from judgment to execution in capital cases in the 9th Circuit is 18 years and that’s just too long,” Horne said. “The families of victims need justice done in a reasonable time. There are studies done that show that it helps in their healing, but if they are victimized by the federal system holding things up endlessly, then that adds to their suffering.”
To obtain the status for faster federal proceedings, Arizona would have to show it has a system of appointing qualified, well-compensated counsel in state post-conviction proceedings.

Post-conviction proceedings come after the state Supreme Court and U.S. Supreme Court have upheld the first-degree murder conviction and death sentence. They are held for the purpose of raising issues that weren’t part of the record at trial, such as whether the defense attorney did his job correctly, or newly found evidence. The vast majority of post-conviction proceedings address ineffective assistance of counsel. The proceedings are supposed to be done in four months, but generally take 18 months.

Dale Baich, who manages the Capital Habeas unit in the Federal Public Defender’s Office, said it is critical that the post-conviction relief attorney is competent and does his job correctly. The issue of an ineffective post-conviction attorney could not be raised in federal court until the U.S. Supreme Court said it could in a 2012 ruling.

Waiting list eliminated
The Arizona Supreme Court is in charge of appointing attorneys to represent defendants in post conviction, but there has historically been a waiting list of five to 15 defendants at a time.

Ron Reinstein, who oversees the Arizona Capital Case Oversight Committee, formed in 2007 to address a massive influx of death-penalty cases in Maricopa County, said the Supreme Court has eliminated the waiting list, mostly through recruitment and the help of a few pro bono attorneys from large Eastern law firms. But he cautioned that another backlog could grow if there is another influx of cases.

Reinstein said more attorneys have been willing to apply for appointment lately, but money is the biggest obstacle.

“Our pay could be a lot better,” he said.

Qualifications lacking
The Supreme Court has also made a practice of appointing attorneys who fall short of stringent qualifications established in court rules. The qualifications for post-conviction relief attorneys include having experience in at least one death penalty appeal or post-conviction relief or several felonies that include homicides. They also must have recent training in capital defense and criminal defense.

Court rules allow the court to grant a waiver for an attorney who doesn’t fully meet the qualifications.
For instance, Tucson attorney Emily Skinner, who works for the Arizona Capital Representation Project, a nonprofit that represents death-row defendants, got her law license in 2008 and acknowledged in a letter to the court that she lacks trial and non-capital experience.

The nonprofit’s director, Amy Armstrong, also lacks the same qualifications as Skinner, but both have been appointed to defend men on death row.

Reinstein, who vets the applicants, said attorneys who don’t technically meet the qualifications agree to “associate” with an attorney who does.

“As long as they have the backup of somebody who’s experienced,” Reinstein said.

He said two out-of-state attorneys who recently applied stated they would associate with a qualified attorney, but they were so lacking in qualifications they were denied.

Baich said there is no oversight of the attorneys who associate with the unqualified attorneys, which has been a problem. In one case, the lead attorney was woefully incompetent and the associate refused to help her, according to legal documents filed in the defense of death- row inmate Gregory Dickens.

Even choosing attorneys who meet the qualifications can turn into a disaster and an embarrassment to the Supreme Court.

One veteran attorney, who died in May, was lacking training in capital defense that is supposed to be completed within a year of appointment and promised the court he would get it.

His written petition for post-conviction relief, which he had months to complete, was so poorly done that Judge Douglas Rayes of Maricopa County Superior Court threw him off of the case and reported him to the State Bar of Arizona.

The written petition, which raised the issue of ineffective assistance of counsel, hurled insults at the trial attorney who represented Christopher Hargrave, who was convicted in a triple murder at a Mesa fast-food restaurant.

“The only possibilities that arise in this circumstance are (1) that the attorney was insane (2) that he was unable to read English sufficiently well . . . or that he was incandescently incompetent and provided glaringly inadequate counsel for a man charged with three capital murders,” the attorney wrote.
Ineffective assistance of counsel defenses typically are opportunities to respectfully point out the constitutional errors of the trial attorney.

Rayes, the former criminal presiding judge, and his successor, Judge Joseph Welty, question attorneys on their qualifications in their first court appearance after appointment to make sure they can do the job.

Welty, who has been the presiding judge for six months, manages all of the post-conviction relief cases in Maricopa County until they are ready to be ruled upon, which is typically 18 months. He said he double checks their qualifications and asks them about their professional resources and their trial schedule. He also requires the parties to meet every 60 days.

“I have not seen any deficiencies amongst the lawyers who are practicing in front of me in capital PCR matters,” Welty said.

By the numbers
Current Maricopa County death cases
Pending trial: 69
Pending Post Conviction Relief: 45
Pending in AZ Supreme Court: 14
October 2008 to September 2012
Cases: 100
Death sentences: 29


Qualifications for Post Conviction Relief Attorneys:

State Bar member at least five years.

Three years criminal defense.

Demonstrated “necessary proficiency and commitment” to quality representation.

Lead counsel in an appeal or PCR proceeding in a death case and lead counsel in at least three appeals of a felony conviction and at least one PCR evidentiary hearing; or lead counsel in appeals of at least six felony convictions, two of which were first-degree or second- degree murder, and lead counsel in one PCR evidentiary hearing.

Attended and successfully completed at least six hours of training in capital defense within one year of appointment.

Familiarity with and guided by the American Bar Association performance standards for the appointment of death-penalty attorneys.

Exceptional circumstances: attorneys who don’t meet the qualifications can receive a waiver if the attorney’s “experience, stature and record enable the Court to conclude the attorney’s ability significantly exceeds” standards and the attorney associates with an attorney who does meet the qualifications.

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