Attorneys threaten to refuse death row cases
By Robert Boczkiewicz
DENVER - Oklahoma attorneys who represent death row inmates are warning they will refuse to take some of those cases unless an appeals court comes to their rescue.
At issue is whether the attorneys will be compensated for representing inmates in clemency hearings and 11th-hour court proceedings, such as stays of execution, after regular appeals are exhausted.
The state of Oklahoma does not pay attorneys to represent indigent inmates awaiting execution for those types of cases. U.S. District Judge Terence Kern in Tulsa ruled last year that neither would the federal government pay.
Attorneys who specialize in death row cases say the ruling will leave inmates, many with little education, "left to beg" by themselves for why they should serve life prison terms instead of being executed.
State prosecutors would then have the process stacked in their favor, the attorneys contend in written arguments at the Denver-based 10th U.S. Circuit Court of Appeals.
If the appellate judges do not overturn the lower-court ruling, they should order the state of Oklahoma to stop executing inmates "until such time as the state adequately funds clemency representation," wrote one of the attorneys, Steven Presson of Norman.
He and his law partner, Robert Jackson, warned of consequences if the judges don't order a change.
"The private attorneys currently on the special death penalty panel will no longer accept appointments for capital habeas corpus cases anywhere in Oklahoma because of the certain substantial financial harm to their practices, harm which could force small private (law) firms into bankruptcy," Presson wrote.
In habeas corpus cases, inmates allege violations of federal constitutional rights to a fair trial after normal appeals have been exhausted.
There are 34 attorneys in the state approved by the chief federal judges in Oklahoma City, Tulsa and Muskogee to be on the panel, said Susan Otto, head public defender for the federal court in Oklahoma City. She oversees the statewide panel.
There were 54 habeas corpus cases of Oklahoma death-row inmates in the most recent fiscal year, she said.
In a "friend of the court" written argument, Otto sided with Presson, calling the appeal "a question of exceptional importance."
She said the public defenders as well as the private attorneys "will be prohibited from clemency proceedings" if the appeals court allows Kern's ruling to stand.
The appeals court is taking the rare step of having all 12 full-time judges consider the matter. Normally the court functions in three-judge panels.
"The Oklahoma Pardon and Parole Board is on record as stating that it is extremely important for both sides -- the state and the condemned inmate -- to be represented by counsel at the clemency hearings," Jackson and Presson told the appellate judges.
Prosecutors are represented by "a well-funded attorney general's office which routinely brings victims' families to the hearings to plead for the execution of the inmate," Presson wrote.
Kern's decision is contrary to federal law, which mandates federal funding, and contrary to past practices of other federal judges in Oklahoma, according to Presson and Otto.
They cite a law that says attorneys appointed to represent an inmate sentenced to death "shall represent the defendant throughout every subsequent stage of available judicial proceedings ... together with applications for stays of execution ... and proceeding for executive or other clemency."
Kern denied Presson's and Jackson's request to confirm their reappointment to represent Scott Allen Hain for his clemency hearing. They sought $12,515 for that work.
Hain, then 17, and co-defendant Robert Lambert were convicted of the October 1987 burning deaths of Tulsans Michael Houghton, 27, and Laura Lee Sanders, 22. The victims were abducted from behind a Tulsa bar and robbed, then placed in the trunk of a car and driven to Creek County, where the car was ignited.
In denying payment to Jackson and Presson, Kern concluded, "Congress never intended for the federal government to pay attorneys for a state court defendant to pursue remedies sought in state proceedings. The state ought to shoulder the burden."
Although the appellate judges in 2003 stayed Hain's execution to consider whether attorneys will be paid for clemency work, the U.S. Supreme Court allowed Hain to be executed before the judges in Denver took up the issue.
This year, the Supreme Court barred the execution of people who were under 18 when they committed the crime.
Otto said federal judges in Oklahoma have authorized taxpayer funding for attorneys to represent 47 death row inmates in clemency hearings the past 10 years.
Speaking for the other side, Assistant U.S. Attorney Kevin Danielson of Tulsa argued the context of the law shows it applies only to proceedings in federal court, not state clemency hearings.
He cited a 1994 decision by the appellate judges that said "federal courts should not be required as a routine matter to fulfill the state's obligation to provide an adequate and effective" appeal for indigent criminal defendants.
"Because Oklahoma created the right to a clemency hearing, it is Oklahoma's responsibility to fund legal representation for the inmate seeking clemency if it wishes to do so," Danielson wrote. "It is not the responsibility of the federal government."