Death Penalty
Michael Terribile
The irrepressible Mike Terribile is the co–chair of AACJ's Indigent and Capital Representation Committee. He has long been a champion of the rights of the indigent accused. The opinions he expresses are his own.
Jul 28, 2007
And so it goes...
Back in January we were able to report that things were looking up in the court appointed counsel system in Maricopa County. The news then was that capital cases were being funded at levels never before seen and long needed. But in life we know that for every two steps forward we sometimes take a step back.
Having provided more reasonable compensation to capital defenders, the county failed to contract with enough defenders to ensure that all capital defendants were being represented by qualified lead counsel. This was no big secret. For years, representatives of AACJ had been trying to meet with the Chief Presiding Judges of Maricopa County to discuss the crisis in their system of appointing counsel. Judges Myers and Campbell refused repeated requests to meet with us.
When Judge Mundell became the Chief Presiding Judge we tried again. To our surprise we were able to schedule a meeting late last summer. We reported to her that there were a number of capital defendants in custody and awaiting trial without any lead counsel appointed to represent them. We told her the practice of paying flat fees of less than $1000 per case for other felonies was drastically inadequate and that indigent defendants in Maricopa County were being denied their basic constitutional right to the effective assistance of counsel.
She seemed surprised to hear the news. She directed Judge Keppel to look into some of the background issues and he was to meet with us again. Sadly, that never happened. Apparently the meeting was really theater, just a way to put us off.
In any case, some months later the court claimed to be surprised by the fact that there were some 15 capital defendants in custody, awaiting trial, without any lead counsel appointed to represent them. It seems that at the meeting the summer before the judge was not listening to what we were telling her. Apparently this shocking bit of news didn't reach the judges until appointed second chair counsel started filing motions to stay proceedings in capital cases on the grounds that no lead counsel were appointed on their cases. "Gambling? In Casablana? Shocking, just shocking."
That led to more theater. Andrew Thomas, the Maricopa County Attorney, whose prosecutorial policy has resulted in ten times as many capital defendants awaiting trial as in Los Angeles County, couldn't resist throwing mud into the waters. He filed a response claiming that the real problem was defense counsel's "leisurely caseloads." With much fanfare Judge Keppel set a hearing in the matter, responsible parties were ordered to appear to explain what happened, testimony was going to be taken, a record was going to be made, and damn it, something was going to be done about this new and shocking development.
The fact that this was but more theater was clear from the start. None of the judges who were responsible for the systems failures were included on the list of witnesses ordered to appear and testify. The county hired outside counsel, at rates expected to be much greater than the rate paid to capital defenders, to make sure the truth didn't get a full airing out. Phone calls were made, strings were pulled and miraculously the problem was solved. The hearings were canceled. Within weeks all capital defendants had qualified lead counsel appointed to their cases. "Problem? What problem??"
A new Criminal Justice czar was hired. He was going to be responsible for making the system functional. And surprise, surprise, he was well on his way to doing it. He visited with all the players in the indigent defense system; he visited with AACJ and members of private criminal defense bar. He got a feel for the lay of the land. He made some management decisions that were long overdue. He refused to back down on the issue of having court appointed lawyers in IA court.
But please remember, this is Maricopa County, for every two steps forward, we are compelled to take a step back. It's rumored that the new czar was too effective. He wasn't the lap dog the county is usually more comfortable with. And so when he actually started to make a difference, when he refused to be intimidated by the gasbags that are more interested in their inflated opinions of themselves and their agendas, he was shuffled off the stage and into the background.
What happens next is anyone's guess.
Jan 25, 2006
We won, and no one told us
For some years now AACJ had been fighting to make the indigent defense in Maricopa County live up to the promise of the effective assistance of counsel. For years judges and bean counters employed by the county have done their very best to withhold funding necessary to provide indigents with effective representation. Capital cases were funded at the rate of $10,000 on appointment and capped at an additional $10,000 if the case went to trial. This, despite case law which required the court to pay a fair hourly rate based on many factors, including the complexity of the case, the reputation of the lawyer, and the local rates paid private counsel.
A few years ago, in a capital case, Judge Baca threatened to jail court appointed counsel who refused to proceed until she ordered adequate funding for the defense. Judge Ballinger did order court appointed counsel (in a non-capital case) taken into custody for the same reason. Judge Reinstein, when presiding over a Motion to Determine Counsel (brought by AACJ members who had been contacted by capital indigent defendants with verifiable claims of inadequate assistance of counsel) issued a minute entry, which contained personal attacks on the motives of AACJ members who argued the Motion. When it was pointed out that there was nothing in the record, which even addressed, let alone supported, the issue of motives, Judge Reinstein refused to vacate the minute entry or even let the lawyers be heard.
Such was the hostility to change.
Recently we learned that without fanfare or public notice the county has been paying court appointed counsel in capital cases $25,000 on appointment, an additional $25,000 upon the selection of the jury, and upon completion of the case, a further adjustment based on the number of hours expended in providing counsel.
We won, and no one told us.
The next fight is to get the other (non capital cases) properly funded. As it is now these cases are compensated at a flat rate which encourages the quick and early disposition of all these cases.