SEATTLE POST-INTELLIGENCER REPORTER

State's chief justice calls for reform in death penalty defense system

Saturday, August 18, 2001

By LISE OLSEN

Concerned about a capital punishment system marred by bad lawyering, the chief justice of the Washington Supreme Court is recommending that the state assume more responsibility for funding death penalty defense teams and screening lawyers assigned to the high-stakes cases.

 Chief Justice Gerry Alexander said the state should pick up at least part of the tab for capital defense statewide to take pressure off rural counties and help ensure local judges appoint qualified attorneys and not cut corners on legal fees.

 "We ought to look at taking that step in Washington," Alexander said in an interview yesterday.

 Alexander said he has asked the advisory committee of the Office of Public Defense to study the feasibility of having the state hire and pay death penalty lawyers at the trial level, citing a recent Seattle Post-Intelligencer special report detailing severe inequities in capital cases.

 The P-I's three-part series, "Uncertain Justice," revealed that one out of five defendants in capital cases in Washington have been represented by attorneys who had been or were later disbarred, suspended or arrested.

 Of the 30 men sentenced to death since 1981, the sentences of 15 were overturned -- six because of defense attorney blunders. County judges contributed to the problem by frequently ignoring a list of recommended attorneys screened by a Supreme Court panel.

 Alexander said he favors making it mandatory for capital defense lawyers to be drawn from the list. At the very least, there should be an incentive for local judges to do so -- state money.

 "Whatever carrot we could put on the stick would be good, " he said.

 Joanne Moore, head of the Office of Public Defense, was out of town yesterday and could not be reached for comment.

 Harold Clarke, a retired Spokane County Superior Court judge who heads the office's advisory committee, said he expects Alexander's recommendations to be discussed at the committee's next meeting on Sept. 13.

 Rep. Edward Murray, D-Seattle, a former member of the advisory panel, said the proposed reforms have "real possibilities" of winning support in the Legislature.

 "There is a certain level of uncomfortableness about what we're doing, or not doing, to help represent people who are facing the death penalty," he said yesterday.

 The Office of Public Defense already plays a prominent role in capital cases, screening and hiring attorneys used in mandatory appeals. But Murray would like to see the state go further, establishing state-run, state-funded capital defense offices that handle both trials and appeals. New York, Colorado and Missouri have taken that step.

 Revealing and undoing mistakes made by trial attorneys in Washington has proved costly. The most expensive appeal ever involved James Leroy Brett, a physically and mentally disabled man who was convicted of aggravated murder and sentenced to death. His trial lawyer, Irving "Lee" Dane of Clark County, was facing disciplinary charges for unethical conduct at the time of his appointment. He was later disbarred, and the conviction and sentence were overturned this year due largely to Dane's blunders. The appeal cost the state more than $254,000.

 Brett was resentenced to life imprisonment. It was one of three death sentences overturned so far this year by the state Supreme Court -- the most in a single year since capital punishment was reinstated in 1981.

 Clarke believes the state might be able to save money on appeals if trial lawyers do a better job on death penalty cases the first time around.

 The Office of Public Defense is in the process of setting up a Capital Defense Assistance Center, designed to provide training and assistance for attorneys assigned to the cases. The two-year, $253,000 program was funded through a last-minute budget amendment put through by Sen. Adam Kline, D-Seattle, a longtime death penalty opponent.

 For years, Kline sought a moratorium on the death penalty, but he said he finally realized that improving the representation of people who face the possibility of execution was something people on all sides of the debate could agree on.

 Kline, chairman of the Senate Judiciary Committee, said he recognizes that setting up an assistance center is only a first step toward making sure the poor who are accused of capital crimes receive adequate representation.

The Washington State Bar Association's Board of Governors is also examining the problem of adequate defense in capital cases.

State bar leaders are frustrated that Gov. Gary Locke took no action on their recommendation last year that the state study why so many cases were being jeopardized due to poor legal work. The association is considering funding its own study this fall.