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Habeas center needs help for death row inmates

Despite new federal statistics showing a decline in the number of death sentences imposed nationally, 146 inmates on California’s death row are not represented by counsel in habeas corpus proceedings. In 38 of these cases, appellate briefs have been submitted to the California Supreme Court.

Michael Laurence, executive director of the Habeas Corpus Resource Center, an arm of the court, calls the situation a crisis because he believes many cases will go to the federal habeas level without key claims having been presented in state court. “If those claims are not raised in a state habeas proceeding, it’s very difficult to get them into federal habeas,” Laurence explained.

Last spring, the center launched an initiative aimed at encouraging large California law firms to help with habeas petitions. Although representatives of 19 firms showed up at a kickoff meeting with Chief Justice Ronald George, only two firms have signed up so far.

Part of the problem, Laurence explains, is the short timeframe for handling habeas cases — only two years between appointment as counsel and the deadline for filing a petition. “Traditional defense lawyers are not eager to take (habeas cases) given such a short time frame,” he said.

Finding attorneys to represent death row inmates has never been an easy task, but the current shortage began in 1998, when the legislature created the Habeas Corpus Resource Center and split representation between direct appeals and habeas proceedings. The center wound up with many more direct appeal lawyers, an area that offers more certainty about the kind of work that needs to be done.

In a habeas proceeding, however, attorneys try to sniff out information that was not in the record, such as the withholding of material evidence, ineffective representation by counsel or a client’s mental retardation. “The specialty is a little more difficult to find,” Laurence said.

Before undertaking the effort to recruit large firms, Laurence interviewed lawyers at firms that handled habeas cases in the 1980s and early 1990s to determine what problems they encountered. He found three: The cases took upwards of 10 years to complete. The firms lacked the resources, such as experts and investigators, of the criminal defense bar. And they did not have adequate training and expectations, and as a result “ended up spinning their wheels” on work that could have been done more efficiently.

In response, the habeas center has imposed a two-year limit on the commitment it asks law firms to make.

It also created better training by enrolling participants in a shortened version of its Habeas College. Attorneys enroll in groups of four, use their assigned case as a model, brainstorm issues and create a timeline. They return to the “college” every few months as the case progresses, getting advice on issues such as prioritizing the investigation, finding experts and writing the petition.

The habeas center assigns a lawyer to serve as a liaison and attorneys also receive support from the California Appellate Project, which provides day-to-day assistance to all lawyers handling death row appeals.

Laurence said the center works with the law firm to set up case teams of two to four associates and a couple of paralegals, headed by someone with superior organizational skills to insure the team works as efficiently as possible. In addition, the center provides a support system for participating law firms that includes adapting its litigation support system through the firm’s technology department.

The pay scale for habeas cases is set by the Supreme Court as either a fixed fee or an hourly rate; most participants prefer a fixed fee because it does not require billing. The fee categories range up to $200,000 in fees plus $25,000 for expenses.

Law firms interested in signing up for the habeas program are encouraged to contact Laurence at 415-348-3800.

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