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](/archive/calbar/images/CBJ/2004/Millman-Michael-b.jpg) |
(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](/archive/calbar/images/CBJ/2004/Rosenthal-Murray-b.jpg) |
(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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