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State's death-row lawyers in turmoil, under attack

Here are some of the kinder things Bobby Joe Long says about his lawyer: He's an unethical slimeball, a duplicitous snake, a Nazi moron.

Long's lawyer, John W. Moser III, thinks his client is a crude bully.

Long, 45, a notorious killer, is on Florida's death row.

Moser, 44, was hired by the governor to resolve Long's 14-year-old homicide cases _ to get him strapped into Old Sparky quickly or back to the Pasco County courthouse for a new trial.

Instead, it's John Moser who is on trial.

The state office of death-row lawyers, which Moser helps direct, is under attack _ facing money woes, a growing logjam of final execution appeals and complaints of deceit and incompetence that threaten to bring Florida's capital-punishment system to a screeching halt.

"The system is very near collapse," says Stephen Hanlon, a lawyer who oversees the pro bono division of Holland & Knight, the state's richest law firm.

And nowhere is the turmoil greater than in the Tampa-based middle district, which Moser heads. That district has the most death-row cases, the biggest staff, the largest budget _ and, it seems, the most problems.

Holland & Knight has asked the Florida Supreme Court to suspend executions until the Legislature beefs up funding so death-row lawyers can adequately represent their clients.

"What they're getting now," Hanlon says, "is just the illusion of a lawyer."

Moser and his political allies say his staff provides a competent defense for 87 condemned killers. They blame Moser's troubles on disgruntled ex-employees, meddling lawyers, lying inmates and a biased judge. The judge threw Moser's office off a case for lying to a client.

"Are we perfect? No. Do we make mistakes? Granted. But I think we have an office that's doing a very good job," says Moser, adding that he inherited many of the problems.

Rep. Victor Crist, R-Temple Terrace, says anti-death penalty zealots are falsely crying poverty and mucking things up for Moser to delay executions.

"John Moser is the model death-row lawyer," Crist says. "He's managing his money. He's ethically representing his clients.What in the Constitution says convicted murderers are entitled to a dream team of lawyers for life?"

Last-line defense

Like Florida, many cash-strapped states are struggling to provide an adequate last-line defense for growing death-row populations.

For capital-punishment foes, the fear is that, if it hasn't happened already, an innocent person will be executed without a competent lawyer.

For capital-punishment supporters, the worry is killers will flood courts with so many claims of lousy lawyers that the lag time between sentencing and execution, now averaging 14 years, will rise steadily and eventually gridlock the system.

"Confusion always helps the inmates," says Roger Maas, director of a state oversight commission that plans to look into the complaints.

If people think the Florida system is a mess, Moser, an energetic former prosecutor who sometimes works 20-hour days, points to places where things are even worse.

In Texas, for example, poorly paid lawyers under crisis conditions dash into court, essentially unprepared, to plead before unsympathetic judges who have heard it all before.

In the early 1980s, Florida's death row overflowed with convicted murderers without any counsel at all. Finally, in 1985, the system broke down completely in a case against a Tampa con named James "Pop" Agan.

With his execution days away, his counsel chair remained empty on the day his case came before the Florida Supreme Court. Squeamish about sending a man to death without a lawyer, the court stayed his execution. Agan later got a sentence reduction to life after new evidence surfaced.

Fearing courts would stop executions altogether, Florida became the first state in the nation to provide lawyers for death-row inmates. It created the Office of Capital Collateral Representative in 1985, making inmates eligible if their first round of appeals to the U.S. Supreme Court failed. The agency's director was appointed by the governor, the same person who signs death warrants, with input from public defenders around the state.

But the Legislature never provided enough money for CCR lawyers to do their jobs competently, according to the Spangenberg Group, a Massachusetts-based legal defense consultant hired by Holland & Knight.

Even so, says Martin McClain, a former CCR lawyer, the agency amassed a remarkable record.

"We exposed flaws in the justice system and won as many cases as we lost," says McClain. Of 52 cases resolved since CCR's founding, 25 ended in execution; 27 condemned inmates had their convictions overturned or their sentences reversed.

By the late '80s, relatives of murder victims were furious over CCR's success, decrying hardball tactics and execution delays. A state commission accused the agency's lawyers of throwing sand in the legal gears, violating court rules, filing bogus appeals, slandering victims and coaching defendants to lie.

Hoping to rein in the lawyers, the Legislature in 1997 split CCR into three regional offices and gave the Senate power to approve each region's director.

Then, in a move that further carved up the agency, the Legislature created a statewide registry of lawyers available to take death cases. It agreed to pay them $64,000 per case, plus $20,000 for investigative services and other expenses.

Lots of lawyers jumped in, and the state began channeling business to them.

But big pro-bono law firms like Holland & Knight objected, saying post-conviction cases often cost more than $100,000, plus many more hundreds of thousands in uncompensated hours. The big firms worried that work would go to inexperienced lawyers willing to take cases on the cheap.

"Florida took an office with some degree of independence and turned it into a pretzel _ wholly subservient to the will of certain political powers," says Elisabeth Semel, director of the American Bar Association's death penalty representation project.

Skipping over experienced death-row lawyers, then-Gov. Lawton Chiles named Moser and two other outsiders to the $90,000-a-year region director jobs. None had ever handled a death penalty appeal, which Semel calls the "brain surgery" of the legal profession.

"It was a challenge'

Rep. Crist, who wrote the CCR reform law and chairs the House Justice Council, recommended John Moser for the middle region post. But like a lot of others, Crist wondered why a prosecutor who ran unsuccessfully for Hillsborough County state attorney in 1996 would want a job fighting to save murderers.

Replies Moser: "It was a challenge."

An Army veteran who doubles as a military intelligence analyst in the Army Reserve, Moser promptly went to work changing the office culture. He vowed to end frivolous claims and promised to provide an adequate defense without "wasting tax dollars."

His counterparts in the other CCR regions, meantime, ran into the same money problems as their predecessors.

Gregory C. Smith, the former prosecutor in charge of the northern region, said he couldn't even pay his rent. Peter Warren Kenny, director of the southern region, quit in frustration after less than a year.

Holland & Knight hired Robert Spangenberg, a Massachusetts lawyer, to review the situation. "What I found was shocking," Spangenberg said in an affidavit.

To address the "alarming unprecedented" backlog of capital-punishment cases, Spangenberg figured it would cost $25-million a year. For its three CCR offices, the Legislature budgeted a yearly sum of just $6-million.

When Holland & Knight's Hanlon stepped in and sued, Smith and Kenny joined him. Moser refused to be a party to the lawsuit.

Several seasoned lawyers on Moser's staff, who shared a passion for fighting death sentences, quit. They said Moser was shortcutting defenses and sidestepping ethical duties to fit his budget.

Moser, who denied the charge, replaced some of the crusading, in-your-face lawyers with former prosecutors. Some of his new hires did not meet American Bar Association standards for postconviction work, however.

As his top assistant, Moser hired Michael P. Reiter, 51, a former prosecutor with an accounting degree who once managed Hogtown Bar-B-Q restaurants. When Moser hired three of Reiter's relatives for staff jobs, incredulous staffers dubbed the office "the law firm of Reiter, Reiter and Reiter."

As Joanne Moore found out, other Moser hires weren't exactly Clarence Darrow either. Her death-row pen pal of 11 years is Robert Peede, who murdered his estranged wife. When Peede told her late last year about his new legal team, Moore, a Virginia grandmother, checked them out.

One of Peede's new lawyers, Chris DeBock, was a former Broward County prosecutor who allegedly had been offered $10,000 to fix a drug case. He refused the bribe but lost his job in 1984 when he didn't report it. Thirteen years later, he was forced to quit the Hillsborough County Public Defender's Office after a boss complained about DeBock's "philosophy to move the meat."

DeBock says that the first episode in Broward has "absolutely no relevance" to his work as a death-row defense lawyer. In the public defender's office, he says, he was the victim of a "slanted" supervisor who "besmirched my reputation." He says years of trial experience qualify him for death-row work.

Another member of Peede's new legal team, Syed Ahmed, never finished a trial of any kind. In fact, when Ahmed recently pleaded Peede's case before the Florida Supreme Court, it was the first time he had argued a motion as a lawyer.

In April, Moser's office took another hit when another new hire, Mark Reinhold, was accused of starting a death pool. Two witnesses told Florida Bar investigators that Reinhold, a former assistant public defender in Hillsborough, appeared one day with a yellow legal pad and jokingly asked $5 bets on whether four inmates would live or die during a string of recent executions.

Reinhold denies starting a pool or asking anyone to place bets on executions. He says he never treated any case lightly. Two investigations found no evidence of wrongdoing, but Moser acknowledges that the episode heightened "ill will," both in and out of the office.

His assistants, he says, are all talented people with extensive trial backgrounds. But despite an aggressive effort, he acknowledges he had trouble recruiting experienced staff _ not only because of the low salaries (lawyers make from the mid-20s to the mid-50s) but also because of his image as a "100 percent" prosecutor.

"Some people," he says, "didn't want to work for me."

Unresolved legal tangles

When word of the death pool reached death row, inmates began papering courts and watchdog groups with letters, accusing Moser and his staff of ignoring or sabotaging their cases.

Joanne Moore filed a seven-page complaint with the Florida Supreme Court. It detailed a litany of problems in Peede's case _ defenders acting like prosecutors, a young lawyer writing an incomplete court brief, a staffer ordered to pressure Peede not to investigate his lawyers.

Moore begged the court to make sure he had a qualified lawyer.

Moser says his people are doing their best. But in some cases, they find themselves in unresolved legal tangles.

In Derrick Tyrone Smith's case, for example, they want to fire the inmate, and the inmate wants to fire them.

"They're doing everything possible to screw up my case and get me killed as quickly and cheaply as possible," Smith said in an interview on death row.

In handwritten letters last month to Pinellas-Pasco Circuit Judge Brandt C. Downey III, Smith accused Moser and assistant counsel Jack Crooks of filing a motion in his case without checking facts.

What's more, the inmate, who was convicted of murdering a St. Petersburg cab driver 15 years ago, said Moser had to be "mentally or morally incompetent" to hire Crooks. Crooks quit the Hillsborough County attorney's office in 1991 after sheriff's deputies caught him fondling himself in a Tampa adult bookstore. He pleaded no contest to a misdemeanor.

Crooks says that episode from his past is "absolutely irrelevant" and calls Smith's "poison pen letters" false. In a motion filed a few weeks ago, the miffed lawyer asked to get off the case, calling his client "loud, boisterous, threatening and uncooperative."

Smith's letters were mild, compared to Bobby Joe Long's. The confessed serial rapist says Moser is a political punk who stacked his office with nitwits.

"If those lawyers ever come up to see me, they're gonna leave on a stretcher," he told a reporter.

Long, who has admitted killing a number of Tampa prostitutes and exotic dancers, complained to the Florida Bar and a federal court that, without asking him, Moser showed his confidential legal mail to a Hillsborough judge hearing his case.

Moser denies he violated attorney-client privilege. He says he had a right to reveal Long's letters because, among other reasons, they contained a barrage of crude, foul threats directed at CCR.

Long didn't make a very sympathetic case, and the Florida Bar ruled against him.

In other cases, though, the American Bar Association, university professors and sometimes even staunch defenders of capital punishment have questioned Moser's decisions.

For example, Assistant Attorney General Kenneth Nunnelley was beside himself when he learned that Stacy R. Costner, a Moser assistant who spoke at a Lake County hearing for condemned killer Richard Henyard, wasn't even licensed to practice law.

Moser says that Costner, who's undergoing a background licensing investigation, was performing administrative duties, not making a legal argument. He adds that the presiding judge didn't mind.

All of the bickering over hiring and legal strategy came to a head a few months ago when Jeffry A. Muehleman, 33, appeared before Pinellas-Pasco Circuit Judge Crockett Farnell.

A prison-educated convict with a long history of manic depression, he studied the law for weeks, then came to court in handcuffs. He wanted to go alone, he told the judge.

He argued that the "new way of doing business" at CCR was for lawyers to twist things around, lie and hammer the client _ "to make themselves look good."

Muehleman, who pleaded guilty to beating and choking to death a 97-year-old St. Petersburg man, also accused Moser of firing lawyers who wouldn't "play the game" and hiring new ones who lied to him about the progress of his case.

"It's been a shell game," the inmate said. "These guys could get me killed quicker than I could get myself killed."

Moser defended his office, denying any evil motive and blaming problems on earlier CCR lawyers. "We are providing good and adequate representation," he told Farnell. "We wish we could convince Mr. Muehleman."

But Moser couldn't even convince the judge. Farnell tossed him off the case. In a blistering opinion, the judge hinted that Moser had been so busy defending himself, he violated a duty of loyalty to his client.

"Me think he doth protest too much," Farnell said in an interview.

Moser says people with a vendetta are "trying to undermine all of the good things we're doing here."

But the man who once described himself as a "blue-collar, lunch-bucket, everyday Joe" trying to do a good job also acknowledges that he worries about a snowballing number of complaints.

"If they continue, we're going to wind up having to get off so many cases that there'll be hardly anyone to represent," he says. "And then the Legislature may well close our doors completely."

_ Times researcher Kitty Bennett contributed to this report.

Florida's death row, by the numbers

Number of prisoners on Florida's death row: 367

Number of executions since state resumed capital punishment in 1979: 43

Average time spent on death row before execution: 13.98 years

Longest time on death row: 24 years.

Average yearly cost to house a death-row inmate: $20,002

Average number of appeals filed by inmates executed in Florida: 10

Number of prisoners released from death row because of evidence of innocence: 19

SOURCES: Florida House Justice Council 1998 Post-Session Resource Book; National Conference on Wrongful Convictions and the Death Penalty

Comparison of Capital Collateral Regional Counsel:

Number of Staff

Northern Region (Tallahassee): 28

Middle Region (Tampa): 36

Southern Region (Miami): 30

(Number includes lawyers, investigators and support staff)

SOURCE: Florida Justice Administrative Commission

Budget

Northern Region: $1.4-million

Middle Region: $2.2-million

Southern Region: $1.6-million

SOURCE: Justice Administrative Commission

Cases:

Northern Region: 57

Middle Region: 87

Southern Region: 57

SOURCE: Commission on Administration of Justice in Capital Cases

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