In 1985, only one person under a sentence of death was unrepresented. By September 1989, 34 defendants were unrepresented.
"Each year this number has grown," said Stolpman. In 1991, 63 were unrepresented and in 1994, that figure had increased to 118. By the end of February, over half (151 out of 294) of capital defendants with appeals pending were without counsel.
Stolpman said that the lack of counsel is causing "substantial delay" in these cases. "Indigent capital defendants now wait between three and five years before appellate counsel is appointed and the appeal process can begin," he said.
Such delays threaten the fundamental fairness of the judicial system, said Stolpman. "Memories fade and witnesses and evidence disappear with time," he said. "The delays detract from the public's perception of our justice system."
For attorneys like Brad Phillips of the Los Angeles firm of Munger, Tolles & Olsen, signing on as an appellate counsel has been satisfying in more ways than one.
Aided by the staff of the California Appellate Project (CAP) in San Francisco, Phillips has represented two clients in their death penalty appeal cases.
Phillips, who normally works as a civil litigator, decided to seek appointment as appellate counsel at the urging of a friend in the public defender's office in Sacramento.
There were several reasons Phillips took on the cases. First, "people who have been sentenced to die deserve the best possible legal representation and don't generally get it unless they can afford it," he said.
Secondly, Phillips is a strong opponent of the death penalty and his representation gave him a chance to exercise his principles. And lastly, he says, "It was an extraordinary opportunity for a relatively young and inexperienced attorney to get into a different area of law and an opportunity to argue before the Supreme Court -- something most people never get."
Douglas Young, of the San Francisco firm of Farella Braun & Olsen, also has received assistance from CAP and currently has two cases pending in federal court. "Clearly, in our society the responsibility lies for a lawyer to represent everyone, including those regarded with disdain by society," he said. "And the greatest challenge is in capital litigation."
Young, whose practice focuses on white collar criminal defense and civil litigation, answered an earlier call put out by the Supreme Court years ago because "in my case, I thought it was the responsible thing to do as a lawyer."
The Supreme Court's guidelines for appointed counsel generally call for:
- Active practice of law for four years;
- Attendance at three approved appellate training programs, including one program concerning the death penalty;
- Completion of seven appellate cases, one which involves a homicide; and
- Submission of two appellant's opening briefs, one of which involves a homicide, for court review.
Stolpman said the court uses flexibility in applying these guidelines. In the past, it has appointed many experienced practitioners with civil appellate/writ expertise who do not have the criminal law experience suggested.
Assistance for appointed counsel is available through CAP, which was established by the State Bar in 1983.
The Supreme Court currently pays appointed counsel $98 per allowable hour or with a fixed fee of between $87,000 and $232,000, depending on the complexity of the case. A proposal to increase the hourly fee to $125 is pending before the legislature.
Stolpman estimates that counsel should expect to spend 1,500-2,000 hours over a period of several years on the direct appeal and state habeas corpus proceedings.
"There is no question that accepting such an appointment is a very serious commitment," said Stolpman. "But it also offers the opportunity to do challenging and rewarding work and to gain valuable experience in complex litigation before the California Supreme Court."
More significantly, Stolpman said, "attorneys will be making an important and critically needed professional contribution to our justice system."
For information, contact Robert Reichman, Automatic Appeals Monitor, California Supreme Court, 415/396-9549.