COR - Senate Jud and House Jud

Senator Ken Cheuvront Representative Ben Miranda

Senator John Huppenthal, Co-Chairman Representative Anna Tovar

PRESENTATION:

Martin Lieberman, Director, Office of the State Capital Post Conviction Public Defender, reviewed the objective and purpose in establishing the agency (Attachment 1). He related that the State Capital Post Conviction Defender was created about three-and-one-half years ago by SB1376, capital case litigation; public defender, Chapter 369, Laws of 2006, to represent inmates sentenced to death in post conviction proceedings. The Office was established by the Legislature to address the lack of qualified attorneys in private practice willing to represent indigent inmates convicted of first-degree murder and to reduce the time required to adjudicate the cases. If the conviction and sentence are affirmed on appeal, the case enters the post conviction proceedings stage and that is when the Office gets involved.

Mr. Lieberman stated that the Office was instituted in response to the federal Streamline Procedures Act sponsored by Senator Jon Kyl. The Act was designed to expedite federal review of state death penalty cases. To meet the mandates of that legislation, the state must have the ability to timely appoint specialized and competent counsel in state post conviction proceedings. The inability to attract qualified counsel has resulted in a backlog in the system, which has led to a two-year wait for the appointment of counsel. In an effort to prevent this from getting worse, the Office of the State Capital Post Conviction Public Defender was created. As a result of budget reductions, the Office is down to one team to take on these capital cases. He advised that his Office is working with the Arizona Supreme Court to reduce the number of outstanding cases; currently, 25 appeals are pending.

The Office of the State Capital Post Conviction Public Defender is committed to providing high-quality legal representation to as many death row inmates as practical in post conviction proceedings and to litigate the cases quickly and efficiently. Additionally, the agency is committed to fulfilling the Legislature’s intent in creating the Office and to represent those clients who are assigned to them to ensure that their constitutional rights are honored. He indicated that providing additional funding to the agency will result in the agency being able to attract qualified attorneys to handle these highly complex death penalty cases.

DISCUSSION AND RECOMMENDATIONS:

Senator Gray questioned whether the length of time to assign counsel has been reduced since the agency was established. Mr. Lieberman replied that since the Office was established, the backlog has been reduced by just a handful because of an increase in cases and other variables. Senator Gray again inquired about the reduction percentage within the last year. Mr. Lieberman said he does not have that figure. He advised that inmates are still waiting for assignment of counsel and that the time is still taking about two years due to a lack of qualified attorneys. Senator Gray commented that he is trying to determine if the system is working.

Senator Pearce disclosed that he wants to know about the success of the program. He expressed concern about the two-year delay and said he is not convinced the program is necessary.
Mr. Lieberman noted that the Arizona Supreme Court is required to appoint qualified counsel. One hindrance is the low pay of $100 per hour paid to attorneys to defend capital cases.
Senator Pearce asserted that the process needs to be expedited. He spoke of the need to shorten the timeline and stated that delays are an injustice for victims as well as for inmates.

In response to Senator Gray, Mr. Lieberman advised that the current annual budget is $635,600. In addition, the State Capital Post Conviction Public Defender Fund was created in June, 2010 and is expected to generate about $14,000 a month; however, the monies in the Fund cannot be used unless appropriated by the Legislature.

Co-Chairman Ash queried whether attorneys are mandated to accept an appointment by the Arizona Supreme Court. Mr. Lieberman answered that he does not know whether it is a mandate and stated that attorneys have to show cause why they cannot represent these inmates. Co-Chairman Ash asked whether the courts can take disciplinary action if a person refuses an appointment. Senator Pearce commented that the Supreme Court has the ability to order an attorney to take a case. He again questioned the success of the program.

Senator Miranda expressed concern about compelling lawyers to take on these cases.
Mr. Lieberman said he does not believe that compelling lawyers to take on these cases would be viewed favorably by the federal government.

Senator Pearce mentioned that Arizona has one of the worst records in the nation in this process. He insisted that the timeline needs to be shortened. He stated that he wants to have a good system to help victims and to ensure that justice has meaning. He opined that the present system is unacceptable. If he sees improvements, he will support sustaining the program.

Representative Driggs inquired whether other states have a statutory limitation of $100 per hour. Mr. Lieberman said he does not know what the statutory amounts are in other states.

Mr. Lieberman provided statistics of post conviction cases in California. Senator Gray wondered why statistics are available for California but not for Arizona.

In response to Co-Chairman Ash’s question whether the backlog of cases will increase if the Office is terminated, Mr. Lieberman replied in the affirmative. He reiterated that the agency is not funded sufficiently to take on all these cases.

Co-Chairman Ash asked for verification that an inmate cannot be executed without appointment of counsel. Mr. Lieberman replied that is correct.

Co-Chairman Ash questioned whether the agency has coordinated with the Justice Department at Arizona State University. Mr. Lieberman answered that is being discussed by the Capital Case Commission.

Jerry Landau, Government Affairs Director, Arizona Supreme Court, testified that the reason for establishing this Office was to have competent representation for death row inmates. He said he does not know of anything that mandates an attorney to take on death penalty cases. If an attorney is interested in taking on these types of cases, he needs to be qualified and can sign up on a list at the Arizona Supreme Court; qualified attorneys are selected from that list. He maintained that if there was more than just the one team, the process can be expedited. He submitted that the court wants these cases resolved; it wants finality for the victims and their families.

Senator Gray said he is concerned about the lack of statistics for Arizona and contended that there should be statistics to show progress. He related that before the agency was established there was a two-year wait and there still is a two-year wait. He questioned why the state is spending money if it is not helping the process. He said he prefers a one-year continuation for the agency and recommended that the Director return next year with statistics that Members can review.

Co-Chairman Ash agreed that it might be appropriate to have a one-year extension.

Senator Gray moved that of the Office of the State Capital Post Conviction Public Defender be continued for one year.

Senator Miranda commented that he is disappointed that more information is not available; however, he is not sure that one year is adequate.

Question was called on the motion that the Office of the State Capital Post Conviction Public Defender be continued for one year. The motion carried by a voice vote of five ayes and one nay.

Without objection, the meeting adjourned at 10:55 a.m.

______________________________

Joanne Bell, Committee Secretary

November 17, 2010

(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)

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COR – SENATE JUD AND

HOUSE JUD

November 16, 2010

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Members Present

Members Absent