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Appellate Project celebrates 20 years

By Kristina Horton Flaherty
Staff Writer

When a private attorney takes on the state court review of an indigent death row inmate in California, he or she faces a daunting, increasingly complex task that could span 10 years or even longer.

But from the beginning, the court-appointed attorney is paired up with a California Appellate Project (CAP) "buddy"— a legal specialist who can help brainstorm the case, review draft briefs, provide regular advice and render support.

"It's just vital that they're there helping," says Wes Van Winkle, a Berkeley solo practitioner who has had CAP assistance for nine years. "I can't imagine doing this work without them on a lot of levels."

For 20 years, CAP has trained and mentored qualified private attorneys who take on the voluminous cases of those sentenced to death in Califor-nia. These days, in light of Califor-nia's expanding death row, the non-profit organization's work has become even more vital, some say.

California's death row population has more than quadrupled to 638. At last count, 124 inmates did not have attorneys to handle their direct appeals in state court. More than 250 did not have lawyers for their habeas corpus cases. Most wait at least four years now for appointment of counsel.

It has always been difficult to recruit enough qualified attorneys for such cases, officials say. Some attorneys are deterred by the sheer magnitude of capital casework and the indefinite time commitment. Some don't like the pay ($125 an hour or a flat fee). And many fear running out of court-approved expense funds before their investigative work is complete — and being faced with tough financial questions.

"Do you go into your own pocket and, if so, how much?" Van Winkle said. "Most of us will go in for a couple of grand. . . . But we have mortgages to pay and families to raise. There are limits."

Still, with CAP's assistance, Van Winkle, for example, now handles nothing but post-conviction death penalty cases. "I myself found that this is where I belong, that I've kind of fallen in love with this work in ways that I never expected," said Van Winkle, who has six capital cases pending in state and federal court. "The personal involvement — the personal advocacy — is really what makes the work so rewarding."

Van Winkle took his first capital case in 1996. At the time, he recalls, he felt qualified to handle the direct appeal and figured he could "muddle" his way through the habeas corpus case and do a competent job. Now, however, he suspects that he would have eventually regretted taking that first, still-pending case — currently some 5,000 pages long — without CAP's help. "When I got into it," he says, "I realized you can't do it alone."

He points to CAP's broad range of specialized expertise and experience, as well as the staff commitment. Once, Van Winkle was scrambling to file a 663-page habeas corpus petition in federal court on time. CAP no longer assists in federal cases for lack of funding. However, some CAP support staff showed up early one Sunday morning to help out, Van Winkle recalls. The petition was filed the next day, with eight minutes to spare, "only because of CAP," he said.

"They didn't get paid a dime. That's just a hint of the level of commitment these people have."

San Diego appellate attorney Paul Spiegelman says he would not have taken his first death penalty case years ago without CAP's support. Nor would he continue handling such massive cases today, even with his added experience, without CAP assistance.

"It's an enormous backup," he says. "You're dealing with someone's life here, and working in a fairly isolated situation. . . . It's extremely comforting to have someone looking over your shoulder."

Spiegelman was on leave as a law professor in 1989 when he accepted his first death penalty appeal. At the time, he had experience in employment discrimination litigation and appeals, but not in death penalty casework. Still, he wound up winning a reversal in his first capital case nine years later. Now a teacher, director of skills training and moot court team coach at Thomas Jeffer-son School of Law, Spiegelman has taken on two more death penalty appeals. In all three, he has worked closely with attorney Steve Parnes, his CAP "buddy."

At a gathering held at CAP's new San Francisco offices to mark the organization's 20th year, Chief Justice Ronald M. George underscored CAP's "important service" to the court and public. "As an institution," he said, "CAP has played a critical role in ensuring that effective capital appeals and petitions for writ of habeas corpus are filed with the Supreme Court."

Currently, CAP specialists assist more than 250 court-appointed attorneys representing death row inmates in capital appeals and habeas corpus proceedings. The Office of the State Public Defender and the California Habeas Corpus Resource Center provide direct representation in a smaller number of cases.

Michael Millman
(Click to Enlarge)

CAP's beginnings span back to 1983 when drastic budget cuts at the state public defender's office threatened to create a serious shortage of representation in death penalty appeals. If private attorneys were going to pick up the slack, they would need training and specialized backup support to do so. Then-Chief Justice Rose Bird turned to the State Bar for help, and CAP was launched.

"It was to fill a gap," said Michael Millman, executive director of CAP's San Francisco office. "I don't think we knew how permanent it would be."

Millman took a leave of absence from the state public defender's office to help set up CAP and never left. Nor did four of the five original board members; then-State Bar president Anthony Murray of Los Angeles still serves as CAP's board president.

Former State Bar executive director Herb Rosenthal, who helped set up CAP while he was general counsel at the bar, recalls an initial hope that the state public defender's office would eventually be able to take back more of the load. "What's happened is that CAP has taken on a larger role," said Rosenthal, who now serves on CAP's board.

then-State Bar president Anthony Murray of Los Angeles, and former State Bar executive director Herb Rosenthal
(Click to Enlarge)

In 1986, CAP opened a second office in Los Angeles to provide similar services in certain non-capital cases in the Second District Court of Appeal. At the time, there were complaints of attorney briefs that missed issues and "just as bad, briefs that raised bad issues," says Jay Kohorn, deputy director of CAP's Los Angeles office. Since its creation, the Los Angeles office has assisted in some 40,000 cases, winning praise from the courts. Finding enough qualified attorneys for appointment in such cases has not been a problem, says CAP-LA executive director Jonathan Steiner.

From 1988 to 1995, CAP also served as a federal resource center. Such assistance ended when Congress cut funding to CAP and 19 other death penalty resource centers nationwide.

Funded by the Judicial Council, CAP currently operates on a $4.9 million budget in San Francisco with a staff of 43. CAP's Los Angeles office has an additional staff of 40 and a budget of $4.4 million. An early model for programs in other states, CAP recently added online resources tailored for court-appointed counsel as well.

CAP, however, has not been free of controversy. In the early 1990s, for example, CAP was accused of creating delays and screening out former prosecutors and those unopposed to the death penalty in recruiting counsel for capital cases. In response, Millman compiled a list of 42 former prosecutors who had represented death row inmates. CAP, he insists, is neither political nor abolitionist. "It is a state bar right-to-counsel organization," he said. "That's always been the spirit of it."

An automatic appeals monitor at the Supreme Court now handles attorney recruitment for death penalty cases, with assistance from CAP and others.

In recent years, the state Supreme Court has taken steps to ease some private counsel concerns about taking on such cases, attorneys say. The court split attorneys' fixed-fee payments into a greater number of pay-outs, for example, and extended the time period for filing a "timely" habeas corpus petition. Still, hurdles remain.

Until the late 1990s, a death row inmate's direct appeal and habeas corpus case had to be handled by the same attorney. A change in the law, however, now allows attorneys to opt for either the direct appeal or habeas corpus case alone. This has attracted more attorneys interested in handling appeals, Millman says, but fewer who are willing to take on the habeas corpus cases. And, in some instances, appeals are now reaching their conclusion in state court before an attorney has even been appointed to handle the habeas corpus case.

One of the biggest obstacles to seeking appointment in such cases, some suggest, is the $25,000 cap on investigative expenses. Attorneys simply never know what they might uncover, or what it might cost. Spiegelman, who will not take on habeas corpus matters in capital cases, points to the "inherent fear of getting into something open-ended."

In the meantime, as death judgments continue to stack up faster than the Supreme Court decisions in such cases, death row inmates themselves seek help from CAP during the long wait for an attorney. CAP staff routinely contacts their trial attorneys, works to ensure that records remain intact for future appeals, and, in urgent situations, conducts limited investigations. "They're pretty glad," Millman said, "to have somebody to consult."

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