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Capital cases panel to appeal judge’s ruling

first_imgCapital cases panel to appeal judge’s ruling Judge says lawyers handling death penalty appeals can ask a judge for more compensation Capital cases panel to appeal judge’s ruling Private attorneys handling collateral appeals for death row inmates can ask a judge for more compensation than allowed in state statute and cannot be banned from seeking future cases because they sought the higher pay, a Second Circuit judge has ruled.But the legislature’s Commission on Capital Cases has voted to appeal that March ruling by Judge Terry Lewis, although members said that decision could change if state lawmakers approve pending legislation.On March 21, Lewis ruled on a case brought by Tallahassee attorney Mark Evan Olive challenging the state statute that caps payment to registry attorneys. Registry attorneys are private lawyers who have signed up to handle capital collateral appeals. Those lawyers handle overflow and conflict cases in the southern and middle parts of the state and under a pilot program all of the collateral appeals in the northern part of the state.F.S. §27.7002 provides that registry attorneys may not seek compensation above caps set in state law and that the executive director of the Commission on Capital Cases “is authorized to permanently remove from the registry list” any attorney who requests higher compensation.Olive raised three points in his suit: The law violates Article V by precluding trial judges from ensuring that adequate representation is provided by awarding compensation above the caps when necessary; it violates the separation of powers by interfering with trial courts’ authority; and it infringes on the Florida constitutional right to effective assistance to counsel for death row inmates.Judge Lewis ruled for Olive on the first point, saying the law had to be interpreted in light of several court decisions which give trial judges the authority to control compensation to ensure adequate representation. He also noted that the state has regularly issued payment above the caps when approved by a judge.He ruled for the state on the other two counts, finding as long as the statute is interpreted as not undermining trial judges’ authority there is no separation of powers issue and that in Florida there is no constitutional right to effective assistance of counsel in post-conviction proceedings.At the Commission on Capital Cases, members debated what effect an appeal would have, before voting 5-1 to appeal Lewis’ ruling to the First District Court of Appeal.Commission member Sen. Victor Crist, R-Tampa, said he was happy with the system when there were three CCRC offices and registry attorneys only handled overflow and conflict cases. He noted the privatizing of the northern CCRC cases was sought by the governor’s office and is currently in a three-year pilot program of using only registry attorneys. If fee caps aren’t upheld, it’s possible that it won’t be cheaper using registry counsel than the former CCRC office, he said.“We had a system that wasn’t broke and was functioning well before we went into this private counsel,” Crist said. “If we can’t get this functioning well, maybe we need to go back to the three regional counsels.”Commission member Rep. Dan Gelber, D-Miami, noted that he and commission Chair Sen. Skip Campbell, D-Tamarac, have bills in the legislature addressing capital collateral appeals, including the fee caps issue.“We’re trying to focus on a procedure that focuses on efficiency but allows attorneys to be paid fairly when things are extraordinary,” Gelber said. “Ultimately, going back to the old system with whatever we’ve learned through this process will be the thing to do.”Commission member Fourth District Court of Appeal Judge Leslie D. Rothenberg cast the only vote against the appeal.“I don’t think it’s an excess fee if the court grants it,” she said. “I think this is a ruling that simply holds that an attorney cannot be permanently barred from the registry merely for requesting extra fees.”Rothenberg added that it does not affect attorneys who try to abuse the system and get unjustified fees or costs. April 30, 2006 Regular Newslast_img read more