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Death row case lawyers ponder effect of change

Florida has had more inmates removed from death row than any other state. Some say that's because the state lawyers who file appeals for condemned killers do a good job.

But the state closed one of its three death row legal offices last week. Lawmakers left the other two in business _ for now.

Gov. Jeb Bush proposed privatizing all three offices earlier this year. The Legislature agreed to close just the northern office, based in Tallahassee, starting July 1, to determine whether hiring private attorneys for death row inmates saves the state money.

The private attorneys will make $100 an hour _ substantially more than the state lawyers _ but will be expected to get the job done much more quickly.

"This will be the test," said Roger Maas, executive director of the Commission on Capital Cases, a board that monitors the state offices and administers the roster of private attorneys available to represent death row inmates.

When Florida resumed capital punishment three decades ago, it relied entirely on private attorneys to donate their time to represent condemned killers.

But many inmates didn't have attorneys. Appeals _ and executions _ were getting delayed.

So in 1985, Florida created a state agency of lawyers to file appeals for death row inmates. Lawmakers divided it into three independent regional agencies six years ago.

"Your job is to represent the unpopular person and to challenge the people who put him on death row," said Martin McClain, a lawyer who has represented hundreds of Florida death row inmates. "It's a job that requires you to make everybody mad."

Maas said he's "pretty well convinced" that the latest configuration will save the state money.

But Larry Spalding, a Tallahassee attorney who ran the single statewide office when it opened, thinks the newest development is a mistake. "Florida stands as having released more innocent people from death row than any other state and a lot of the credit goes to that agency as it has existed over the last 18 years," he said.

When Rudolph Holton walked off death row in January, he was the 24th Florida death row inmate to be freed in the last 30 years. After his conviction was overturned last year, prosecutors said they didn't have enough evidence to retry him in the 1986 murder of a Tampa teen.

The state offices won 21 new sentencing hearings, six new trials and 17 other appeals in a three-year period ending in June 2002, according to an analysis by the Office of Program Policy Analysis and Government Accountability. Five inmates were released from death row.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the state lawyers in Florida have done an excellent job of zealously representing their clients, as is their ethical duty.

Bush has said Florida could save about $4-million a year by hiring private attorneys to handle all the cases now assigned to the three offices, which had a combined budget of $9.4-million in the fiscal year just ended.

But Dieter said he thinks a state agency of full-time lawyers is better than hiring private attorneys _ and may be cheaper.

An attorney representing a death row inmate has to keep up with a lot of law. The Florida Supreme Court hands down rulings in capital appeals virtually every week, and a lawyer representing a condemned person has to stay on top of those decisions as well as legal issues settled in other courts in capital and noncapital cases.

"It is a difficult and changing area of the law," Dieter said. "Not everybody has time for that if they have real estate clients and divorces that they're handling."

It was hard work creating the state agency in 1985, according to Jim Smith, who was attorney general at the time and persuaded lawmakers to set it up.

He saw how the system was bogging down when inmates didn't have lawyers. And he said it was the right thing to do. "I was and still am an advocate of the death penalty," Smith said. "But it's unrealistic to think these people can represent themselves."

However, Smith became "very disappointed, very disenchanted" with the way the office worked.

"I think they went to the absolute extreme fringe in doing their job," he said.

State Sen. Victor Crist said he thinks the statewide agency, called the Office of the Capital Collateral Representative, lost its focus.

"The original CCR became nothing more than an advocacy group of abolitionists fighting the death penalty," said Crist, a Tampa Republican.

But he added that over the last few years, the state offices have been "massaged into a pretty well-running organization."