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Analysis and Findings

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In general, the high cost of providing representation in federal death penalty cases is a result of the heavy demands these cases place on the time and skill of counsel and the growing number of federal criminal cases in which the defendant faces a potential sentence of death. The cost of representation in each federal death penalty case depends upon several elements: the number of hours each attorney must work to discharge his or her ethical obligation to the client; the hourly rate at which the attorney is compensated; and the nature, type, and cost of investigative and expert services reasonably required. To understand why federal death penalty cases cost so much, and how these costs may be controlled consistent with constitutional and statutory mandates, requires first and foremost an understanding of the characteristics of federal death penalty cases and the special responsibilities of defense counsel appointed to such cases.

A. Number and Overall Cost of Federal Death Penalty Cases.

The total cost of providing representation in federal death penalty cases depends upon the number of such cases, as well as the cost of representation in each case. As described more fully below, special standards affecting the cost of representation apply to all federal criminal cases in which an offense charged is punishable by death, whether or not the prosecution ultimately decides to seek the death penalty.(6) Although many factors affect the cost of representation, two particularly significant ones are the prosecution's decisions whether to seek the death penalty and whether to accept a plea agreement to a sentence less than death.(7)

  • 1. The Decision to Prosecute in Federal Court.

The total number of federal death penalty cases depends, in the first instance, on the decision to prosecute an offense in federal rather than in state court.(8) The number of federal prosecutions including an offense punishable by death has increased dramatically, particularly since the enactment of the Federal Death Penalty Act as part of the 1994 crime bill. No exact count of federal death penalty cases filed nationwide by United States Attorney's offices since 1988 is available; a reasonable estimate,

Federal Death Penalty Cases By Year of Indicment 

however, is 560 cases(9) over the period 1991 to 1997, increasing from 12 cases in 1991, to 118 in 1995, 159 in 1996, and 153 in 1997.(10)

The average total cost per federal death penalty representation in a sample of cases prosecuted from 1990 to 1997 (including cases in which the prosecution ultimately declined to seek the death penalty) was $142,000.(11) However, the prosecution's decision to seek the death penalty -- as would be expected -- makes a substantial difference in the cost of representation, so

that this overall average is not useful in assessing the resources required for a case in which the prosecution does decide to seek the death penalty.

  • 2. The Decision to Authorize the Death Penalty.

The cost of representation in a federal death penalty case depends heavily upon whether the prosecution does or does not seek the death penalty. (See Charts C-4, C-5, and C-6, comparing the total costs and elements of total cost of cases in which death penalty authorization was granted with those in which it was denied.) While the decision to charge an offense punishable by death is made by a local U.S. Attorney, no federal prosecutor may actually seek the death penalty unless specifically authorized to do so by the Attorney General of the United States.

Authorized Cases by Calendar Year Decision

The Attorney General has authorized seeking the death penalty in a total of 111 cases between 1988 and December 1997.(12) The average total cost (for counsel and related services) of authorized cases in the Subcommittee's sample was $218,112, as compared to $55,772 for cases in which the death penalty was never authorized; the average total cost of cases in which the prosecution was authorized to seek the death penalty, but later formally withdrew its request before trial was $145,806. The number of cases in which the Attorney General authorized seeking the death penalty rose from two cases in 1990 to 31 cases in 1997. Twenty-two cases in which the prosecution has been authorized to seek the death penalty were pending as of December 1997.

Number of Federal Death Penalty Trials and Defendants Tried by Calendar Year

  • 3. The Decision to Go to Trial.

The third prosecutorial decision affecting the cost of representation is the decision whether to enter into a guilty plea agreement with the defendant or to try the case. (See Table C-7 and Chart C-8.) Of the 111 defendants against whom the Attorney General has sought the death penalty, the total number of defendants tried on capital

charges in federal court was 41 through December 1997. The average total cost for authorized cases ending in capital trials was $269,139,(13) as compared to $192,333 for authorized cases

resolved by a guilty plea. To date, nineteen defendants have been sentenced to death; one death sentence was later overturned on appeal and the case remanded for resentencing.

B. Factors Affecting the Scope and Cost of Defense Representation.

  • 1. Death Penalty Cases Involve Two Trials.

mine whether the prosecution has proven, beyond a reasonable doubt, that the defendant has committed a crime punishable by death. If a conviction is returned on a capital count, then in the second part, the penalty phase, the jury must first determine whether the prosecution has proven additional facts (aggravating circumstances) in order to satisfy threshold requirements for imposing the death penalty. If so, the jury considers evidence offered by the prosecution to justify the death penalty, including aggravating circumstances in addition to those required for the threshold finding, and evidence the defense offers as a reason not to sentence the defendant to death (mitigating circumstances).

Lawyers in a death penalty case must prepare for both trials, and must develop an overall strategy that takes the penalty phase into account even in the guilt phase. This means that the way the defense proceeds differs from a non-capital case in important ways beginning with jury selection. For example, facts that make no difference in the determination of guilt or innocence may become very important to the jury's assessment of the defendant's culpability in the penalty phase. Lawyers interviewed by the Subcommittee, for instance, described cases in which both the prosecution and the defense invested substantial resources in obtaining expert opinions concerning the precise manner of the victim's death, even though this would not affect the guilt phase verdict, because of the importance of this information to the determination of the appropriate penalty.

  • 2. Complexity of the Guilt Phase.

Federal death penalty cases generally are highly complex criminal prosecutions, even without taking the penalty phase into account. As a representative of the Department of Justice remarked at a meeting with Subcommittee staff to discuss compilation of cost data, federal death penalty cases have more in common with complex drug conspiracy cases than with non-capital federal homicide cases,(15) many of which are comparatively simple cases brought in federal court only because they occurred on federal land. (See Table C-7.)

Most cases in which the prosecution has sought a death sentence have invoked the "drug kingpin" provision of the 1988 Anti-Drug Abuse Act, 21 U.S.C. § 848(e). This statute authorizes the death penalty for intentional killings in furtherance of a "continuing criminal enterprise" (CCE), or serious drug offense, and for intentional killings of law enforcement officers to avoid prosecution for a drug offense. CCE cases, together with prosecutions of drug organizations under the RICO death penalty provision added in 1994, comprised approximately 62 percent of the authorized federal death penalty cases through December 1997.(16) CCE and RICO cases typically involve investigations stretching over years, and encompassing numerous acts of violence. They often include several homicide charges, many witnesses, and evidence in the guilt phase derived from wiretaps, video surveillance, informants, and experts. The magnitude of some of these cases is illustrated by a judge's estimate that the prosecution listed 500 potential witnesses in one case, and another judge's estimate that the prosecution disclosed 30,000 pages of documents in discovery.

Another reason drug conspiracy cases are so complex is that they often involve many defendants joined in a single indictment. Multi-defendant cases generally tend to cost more to defend, per defendant, than single defendant cases.(17) This effect may be magnified in a case in which some defendants face the death penalty and other defendants face only non-capital charges, as the difference in the potential penalty may produce significant differences in strategy both before and during trial.

In most cases, judges have severed defendants facing capital charges from those facing only non-capital charges,(18) with the expectation that this will, among other things, reduce the overall cost of representation. Severance practices with regard to defendants facing capital charges have varied. Some judges have followed the more common state practice and tried each defendant separately. Others have severed only the penalty phase trials, so that the same jury determined the penalty for each defendant, but in separate hearings. Others have conducted joint penalty phase trials.

Drug conspiracy cases (including both CCE and RICO prosecutions) are the most expensive federal death penalty cases to defend. The total cost of representation in drug conspiracy cases in which the prosecution authorized seeking the death penalty averaged $244,185,(19) or nearly 12 percent more than the average total cost of all authorized cases. (See Table C-7 and Chart C-8.)

  • 3. Scope of the Penalty Phase.

Evidence in the penalty phase of a federal death penalty trial typically includes a wide range of information about the defendant, the victim, and the nature of the offense that is not admissible in the guilt phase. Defense counsel in a federal death penalty case must investigate and prepare to respond to information offered by the prosecution to justify a death sentence. Federal law allows prosecutors to offer reliable information in the penalty phase, even if it does not satisfy the normal rules of evidence.(20) Although the prosecution must prove certain aggravating circumstances spelled out by statute, it is not limited to proving these factors. Defense counsel must therefore investigate and prepare to meet potential "non-statutory aggravating circumstances," such as an allegation that the defendant will be dangerous in the future. The penalty phase of a federal death penalty case therefore may include yet another "trial" in which the jury is required to determine whether the defendant is responsible for crimes in addition to those charged in the indictment. In one federal death penalty case, for example, the government attempted to prove the defendant committed another murder in the penalty phase, even though charges against him for that crime had been dismissed in a state court proceeding. Mini-trials of other criminal charges can be costly in terms of time and resources to prosecute and defend. 

In addition to defending against the prosecution's case for a death sentence, counsel must also plan and present a case for a lesser sentence. In order to effectuate the defendant's constitutional right to present any information in mitigation of sentence, counsel must conduct a broad investigation of the defendant's life history. "Although it makes no express demands on counsel, the [right to offer mitigating evidence] does nothing to fulfill its purpose unless it is understood to presuppose the defense lawyer will unearth, develop, present and insist on consideration of those 'compassionate or mitigating factors stemming from the diverse frailties of humankind.'"(21) Indeed, one of the most frequent grounds for setting aside state death penalty verdicts is counsel's failure to investigate and present available mitigating information.(22) The broad range of information that may be relevant to the penalty phase requires defense counsel to cast a wide net in the investigation of any capital case.(23)

  • 4. Special Obligations of Counsel in a Death Penalty Case.

The nature of a criminal prosecution in which the defendant's life is at stake transforms counsel's role from start to finish. The quality of defense counsel's work must always remain in accord with the gravity of the proceeding. The special obligations of counsel appointed to a federal death penalty case are reflected in a comparison of hours billed in capital as compared to non-capital homicide cases.(24) The average number of hours billed in non-capital homicide cases from FY 1992 to FY 1997 was 117, as compared to 962 in a sample of federal death penalty cases (including cases never authorized). The average number of hours billed in authorized cases was 1,464. While representation in a federal death penalty case differs from representation in a non-capital federal criminal case in many ways, there are several particularly notable differences. 

Average Number of Attorney Hours Billed in Capital and Non-Capital Homicide Cases
Case Type In Court Hours Out of Court Hours Avg. Total Attorney Hours
Per Representation
Non-Capital Homicides 18 100 117
Capital Auth. Denied 38 391 429
Auth. Granted 231 1,233 1,464
Capital Trial 409 1,480 1,889
Plea 61 1,201 1,262
Drug Cases 277 1,343 1,619

a. Consultation with the client. An important element of death penalty representation is the establishment of a professional relationship with the client.(25) Although it is important in every case, lawyers emphasized that consultation with the client is vastly more time consuming and demanding in a death penalty case for several reasons. First, the nature of the penalty phase inquiry requires a relationship which encourages the client to disclose his or her most closely guarded life history with the lawyer. Experiences of mental illness, substance abuse, emotional and physical abuse, social and academic failure, and other "family secrets" must be revealed, researched and analyzed for the insight they may provide into the underlying causes of the client's alleged conduct. The establishment of trust and confidence is also vitally important if the lawyer is to convince the defendant to consider an offer to plead guilty, especially because what is offered is likely to be life imprisonment without the possibility of parole. Accepting such a "deal" requires tremendous faith in counsel. Another reason the attorney-client relationship is particularly time-consuming stems from the enormous stress that the risk of a death sentence imposes on both the client and the lawyer; special care must be taken in order to avoid a rupture of the professional relationship that would force counsel to withdraw, delaying the trial.

b. Motions Litigation. The relative novelty of the federal death penalty laws, particularly those enacted in the 1994 crime bill, means that many legal issues concerning the interpretation and constitutionality of those statutes have not been authoritatively resolved. To date, the circuit courts of appeals have decided only a handful of federal death penalty cases. Lawyers and judges agree that these issues are time-consuming to litigate. Several judges commented that they, or their law clerks, devoted months of preparation to a federal death penalty case. Defense lawyers have an ethical obligation to raise challenges to the manner in which both the guilt and penalty phases of the trial are conducted, because if an issue is not raised at trial, the defendant generally cannot benefit, even if a ruling by a higher court subsequently favors the defense position.(26) Consequently, newer statutes tend to produce more constitutional and interpretive issues than statutes that have already been the subject of extensive appellate and Supreme Court consideration. Many issues may arise in a single case. In one multi-defendant case, for example, a judge estimated that 2,800 legal pleadings had been filed by the parties.

c. Jury Selection. The lawyer in a death penalty case also has additional responsibilities in jury selection. Because the same jury will generally decide the penalty phase as a well as the guilt phase, the court must determine whether jurors should be disqualified because their views about the imposition of the death penalty, for or against, would make them unable to follow the law governing penalty phase deliberations. Typically the "death qualification" inquiry is conducted on an individual basis. The usual voir dire in a federal criminal case is conducted by the judge, with limited participation by counsel. In death penalty cases, however, the lawyers generally participate in drafting questionnaires for prospective jurors, and take part in questioning the venire. Jury selection takes much longer in federal death penalty cases than in non-capital federal criminal cases both because the total number of jurors questioned is larger to allow for those who may be excused due to the death qualification inquiry, pretrial publicity or other factors related to the nature of the case, and because of the more extensive questioning of each individual prospective juror. For example, one judge who ordinarily selects a jury for a criminal case in an afternoon reported that it took three weeks to complete jury selection in a federal death penalty case.

As part of its recent study of the Defender Services program, Coopers & Lybrand reviewed records of federal death penalty cases (including cases that were not authorized and cases resolved by guilty plea) from FY 1995 to FY 1997, and found a similar distribution of attorney hours for each year.(27) In-court hearings, including trials, comprised 14%. The largest components were legal research (20%) and reviewing documents (16%). Legal research and writing is of great importance in federal capital cases because the federal death penalty statutes have not been definitively construed.(28) Judges as well as lawyers reported they had to devote extraordinary amounts of time to the analysis of legal issues in federal death penalty cases. Conferences with the client comprised 9% of attorney hours, reflecting the time required to establish and sustain a professional relationship in a federal death penalty case.(29) Another element, not directly captured in the available payment data, is the additional in- and out-of- court attorney time associated with jury selection in a death penalty case.

  • 5. Effect of Prosecution Resources.

Coopers & Lybrand found that "[t]he prosecution's resources are a key driver of capital representation costs."(30) Interviews with lawyers and judges confirmed this. Judges generally reported that prosecution resources in death penalty cases seemed unlimited. Typically, at least two and often three lawyers appeared for the prosecution in federal death penalty cases, who were assisted in court by one or more "case agents" assigned by a law enforcement agency. Investigative work and the preparation of prosecution exhibits for trial, including charts, video and audiotapes, is generally performed by law enforcement personnel. Law enforcement agencies also performed scientific examinations and provided expert witnesses at no direct cost to the prosecution. In some cases, which arose from joint state and federal investigations, state law enforcement agencies contributed resources to the prosecution effort.

At the request of the Subcommittee, the Department of Justice gathered cost information concerning 21 of 24 completed federal death penalty prosecutions in which the Attorney General had decided to seek the death penalty after January 1995.(31) Some of these prosecutions involved more than one defendant. The set of cases included some cases that were resolved by guilty pleas and some cases that went to trial. The Department of Justice reported an average total cost per prosecution of $365,296, but this figure does not include the cost of investigation or the cost of scientific testing and expert evaluations performed by law enforcement personnel.(32) The average cost of payments to private retained experts (such as psychiatrists or other experts not employed by a government agency) was $30,269 per prosecution.

  • 6. Effect of the Authorization Process.

Another obligation unique to federal capital cases is advocacy on behalf of the client in the Justice Department death penalty authorization process. In January 1995 the Department promulgated a formal "protocol" describing the manner in which the Attorney General would review federal death penalty cases to determine whether to file a notice of an intention to seek the death penalty.(33) Initially, the local United States Attorney reviews the case and makes a non-binding recommendation to the Justice Department about whether the death penalty should be sought. Generally, the Attorney General has followed recommendations against seeking the death penalty, but has overriden such recommendations in at least two cases. All cases are reviewed by a committee of senior Department of Justice officials, who submit their views to the Attorney General, who then makes the final decision. The Death Penalty Review Committee offers defense counsel the opportunity to present information in writing and in a face-to-face meeting in Washington, D.C.(34)

The Department of Justice authorization process has two important implications for the cost of defense representation in federal capital cases. First, because any case involving an offense punishable by death remains a potential death penalty case until a final decision is made by the Attorney General, a longer authorization process increases the length of time that the defendant remains statutorily entitled to at least two lawyers who are compensated at a higher hourly rate. (See Section C.5, infra.) A number of judges reported "riding herd" on the authorization process by requiring reports from the prosecution or setting deadlines to expedite a final decision. All other things being equal, including the number of capital prosecutions ultimately approved, a shorter authorization review process would mean lower defense costs.

The second cost implication of the authorization process is that it creates another forum in which defense counsel must advocate on behalf of the client facing a possible death sentence.(35) One of defense counsel's most important functions is to present information first to the local United States Attorney and then to the Justice Department that would justify a lesser sentence. Effective advocacy requires counsel to explore all of the issues that are likely to enter into the Attorney General's decision whether to authorize a federal death penalty prosecution, including the nature and strength of the federal interest, the evidence of guilt, and the aggravating and mitigating factors. Although the written and oral presentations made to the Death Penalty Review Committee are not as detailed or comprehensive as a penalty phase presentation to a jury, counsel must conduct a wide-ranging preliminary investigation of facts relevant to sentencing before the Justice Department makes the decision whether to file a notice seeking the death penalty, if it is to have an effect on the authorization process.

It was impossible to quantify the effect of defense participation on the death penalty review process in terms of outcome and cost. Department of Justice officials said they view the participation by defense counsel as valuable, and that they encourage oral and written presentations. Defense lawyers offered divergent opinions about the value of participating in the central Department of Justice review, but the majority made presentations and would do so in future cases.

Because development of mitigating information early in the case may convince the prosecution that the death penalty should not be authorized, delaying preparation for the penalty phase is likely to increase the number of cases authorized, and therefore increase total costs. In a small number of instances, judges were reluctant to approve expenditures related to the penalty phase until an authorization decision was made. However, if the result of such a decision is that cases are authorized which should not be, this approach may cost more money than it saves, for cases that are never authorized cost much less than cases that are authorized, even if a guilty plea to a sentence less than death eventually is negotiated. This is illustrated by a comparison of the average total cost of cases in which the prosecution declines to seek the death penalty in the first instance ($55,772), as compared to the average total cost of cases in which the prosecution grants authorization, and then withdraws it ($145,806), and the average total cost of cases ending in guilty pleas ($192,333). (See also Recommendation 5, "The Death Penalty Authorization Process," in Part II of this report.)

  • 7. Importance of Experts and their Cost.

Another factor affecting the cost and complexity of capital cases is the importance of expert testimony in both the guilt and penalty phases. Payments to experts are a substantial component of defense costs in federal death penalty cases. Coopers & Lybrand found that about 19% of payments for representation in federal capital cases for FY 1997 went to services other than counsel: primarily experts and investigators.(36) This figure may understate the total spending on these services, because some of these costs are included as reimbursable expenses on attorney vouchers, rather than in separate vouchers submitted by the expert or investigator.

As with attorney compensation, there were significant differences between cases in which the Attorney General authorized seeking the death penalty, and those in which the death penalty was not authorized. (See Chart C-10.) The average amount spent on non-attorney compensation in cases in which authorization was denied was $10,094, as compared with $51,889 in cases in which authorization to seek the death penalty was granted.

Average Amount of Non-Attorney Compensation in Capital and Non-Capital Homicide Cases
Case Type Avg. Amount of
Non-Attorney Comp.
Avg. Total Cost
of Representation (Attorney and Non-Attorney)
Non-Capital Homicides $ 1,515 $ 9,159
Capital Auth. Denied $10,094 $ 55,773
Auth. Granted $51,889 $218,113
Capital Trial $53,143 $269,139
Plea $51,028 $192,333
Drug Cases $52,218 $244,186

In general, both the prosecution and the defense rely more extensively on experts in death penalty cases than in other federal criminal cases. Although prosecution forensic science experts typically are salaried employees of law enforcement agencies, the defense generally must hire experts who charge an hourly rate for their services. In the guilt phase, the prosecution is likely to call experts to testify about scientific analyses, such as DNA profiling, ballistics comparisons, or hair, fiber, or metallurgical evidence that may connect the defendant to a crime. Other types of experts common in large drug conspiracy cases include experts in the interpretation or authentication of audiotapes, and experts in the structure of drug organizations. To assure the reliability of this evidence and the manner in which it is presented to the jury, defense lawyers must consult with experts in these fields as well.

The defense depends on experts to develop information relevant to sentencing, even before the prosecution makes a final decision about whether to seek the death penalty.

"Because the first job of the defense is to convince the Department of Justice not to certify the case as a capital case, mitigation expenses, including the use of increasingly specialized experts, are increasing and are occurring early in the process."(37) Both the prosecution and the defense also typically hire experts to evaluate the defendant's mental condition in order to develop evidence related to culpability and future dangerousness relevant to the penalty phase. (See Charts C-11 and C-12, comparing expert and investigative costs in federal death penalty cases and non-capital federal homicide cases.)

Two important categories of expert services frequently used in federal death penalty cases but not in non-capital federal criminal cases are mitigation specialists and jury consultants. Mitigation specialists typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive training and experience in the defense of capital cases. They are generally hired to coordinate an investigation of the defendant's life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary materials for them to review. Although most often they assist counsel in assembling and interpreting the information needed in the penalty phase of a capital case, in some cases mitigation specialists are also called to testify about their findings.

Without exception, the lawyers interviewed by the Subcommittee stressed the importance of a mitigation specialist to high quality investigation and preparation of the penalty phase. Judges generally agreed with the importance of a thorough penalty phase investigation, even when they were unconvinced about the persuasiveness of particular mitigating evidence offered on behalf of an individual defendant. The work performed by mitigation specialists is work which otherwise would have to be done by a lawyer, rather than an investigator or a paralegal. Because the hourly rates approved for mitigation specialists are substantially lower than those authorized for attorneys,(38) the appointment of a mitigation specialist or penalty phase investigator generally produces a substantial reduction in the overall costs of representation.

Jury consultants provide a range of services in federal death penalty cases. They assist in drafting questionnaires for prospective jurors to aid in the jury selection process. The use of questionnaires has become standard in federal capital cases as a way to streamline and expedite the process of jury selection. In addition, in some cases jury consultants are retained to organize and interpret the results of jury questionnaires, advise attorneys about follow-up questions to be asked during the in court voir dire, and to advise the attorneys about whether or not to strike a particular juror. Jury consultants are routinely retained in high stakes civil litigation, and have been engaged by the prosecution in federal death penalty cases. Most of the attorneys interviewed by the Subcommittee were emphatic about the value of jury consultants, and regarded the availability of a jury expert as a top priority. However, some lawyers were willing to forego a jury consultant in order to assure judicial approval of other needed services. Judges generally indicated greater willingness to approve jury consultants when the prosecution retained a jury consultant than when the prosecution did not. (See also Recommendation 7, "Experts," in Part II of this report.)

C. Factors Affecting the Availability, Cost and Quality of Counsel.

  • 1. Importance of "Learned" Counsel.

Since the first Judiciary Act in 1789, federal law has required the appointment of "learned" counsel in a capital case. Currently, 18 U.S.C. § 3005 explicitly requires the appointment of two lawyers, at least one of whom is learned in the law related to capital punishment. An American Bar Association study several years ago summarized the special demands on counsel in a capital case:

Counsel must not only be able to deal with the most serious crime--homicide-- in the most difficult circumstances, but must also be thoroughly knowledgeable about a complex body of constitutional law and unusual procedures that do not apply in other criminal cases. Bifurcated capital cases involve two trials with two different sets of issues. Investigation must often be conducted in several states, and, in some cases, in foreign countries. And penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history.(39)

In interviews, judges and lawyers attested to the importance of the statutory "learned counsel" requirement. A number of judges, particularly those with experience reviewing state death penalty trials in federal habeas corpus proceedings underscored the importance of "doing it right the first time," i.e., minimizing time-consuming post-conviction proceedings by assuring high quality representation in federal death penalty cases at the trial level.(40) Similarly, a former Florida Attorney General testified before an American Bar Association Task Force studying representation in state death penalty cases that, "[b]eyond peradventure, better representation at trial and on appeal will benefit all concerned."(41)

Federal death penalty cases require knowledge of the extensive and complex body of law governing capital punishment and the intricacies of federal criminal practice and procedure. Neither one alone is sufficient to assure high quality representation. Lawyers and judges recounted cases in which seasoned federal criminal lawyers who lacked death penalty experience missed important issues. For example, one judge described a situation in which experienced and highly esteemed felony trial lawyers who had no capital experience simply did not know how to pursue the mitigation investigation required by the case. After many months had been invested, the court appointed an experienced capital litigator from outside the jurisdiction as "learned counsel." A series of mental health tests arranged by this attorney resulted in a decision by the Justice Department to withdraw the request for the death penalty on the eve of trial. The judge credited the "learned counsel" with obtaining that result, which the judge believed could have been achieved much earlier. On the other hand, differences between state and federal practice place a lawyer who may have prior capital experience but no prior federal criminal trial experience at a disadvantage. The federal sentencing guidelines, speedy trial act, rules of evidence and procedure, and the specifics of the federal death penalty law play an important role in representation. Also, because federal death penalty cases frequently involve complex drug conspiracies, familiarity with this specialized area of practice is often desirable. When lawyers with experience in both the federal trial and death penalty arenas cannot be found, some courts have attempted to combine strengths by appointing a team which includes an experienced federal criminal practitioner and an experienced state court capital litigator.

Judges praised the quality of the representation provided by the lawyers they appointed as higher than the ordinary standard of practice in federal criminal cases. Judges familiar with state death penalty trials found that the quality of representation in federal death penalty cases was superior to the norm in state death penalty cases as well. In a few cases, judges expressed disappointment with the quality of representation, but in these instances they generally had replaced the lawyers whose performance they considered deficient.

After having handled their first federal death penalty case, a number of learned counsel have accepted subsequent appointments to such cases. This is a significant trend and one which the judiciary should seek to perpetuate. Judges and lawyers agreed that counsel with federal death penalty experience were more efficient than lawyers without such experience. The availability of these highly skillful and knowledgeable lawyers has been an important resource, particularly in districts that lack attorneys with death penalty trial experience. (See Section C.4.b, infra.) In contrast, in federal capital habeas corpus cases, very few lawyers have been willing to accept repeat appointments, so that the learning curve remains steep (and therefore time-consuming and costly) in almost every new case. The continued willingness of these learned counsel to accept appointments in federal death penalty cases is an important element of any strategy for managing the costs of representation while maintaining quality.(42) (See also Recommendation 1, "Qualifications for Appointment," in Part II of this report.)

  • 2. Federal Death Penalty Resource Counsel Project.

The federal defender program has no systemic counterpart to the Criminal Division of the Department of Justice, which centrally supports the work of federal prosecutors nationwide. While a U.S. Attorney's Office bringing a federal death penalty prosecution can obtain training, advice, legal research and brief-writing assistance, sample pleadings and supplemental staffing from the Justice Department,(43) the private panel attorneys defending federal death penalty cases are, for the most part, sole practitioners or partners in small law firms comprised of fewer than half a dozen attorneys. Furthermore, although federal defender organizations are centrally funded, the representation they provide is entirely de-centralized. In order to improve the quality of representation and the cost effectiveness of defense services, in FY 1992 the judiciary established the Federal Death Penalty Resource Counsel Project (RCP). The RCP currently consists of three experienced capital litigators who support the work of appointed counsel and provide advice to the Administrative Office of the U.S. Courts on a part-time basis.(44) The Resource Counsel Project has become essential to the delivery of high quality, cost-effective representation in federal death penalty cases.

Dividing the work regionally, Resource Counsel are available to provide assistance to defense counsel in every federal death penalty case. Judges, defense counsel, Administrative Office staff and Department of Justice death penalty policy makers praised their efforts and effectiveness. Resource Counsel's legal advice and pleadings have prevented lawyers from having to "reinvent the wheel" in every case. They have provided substantial assistance to courts and counsel in developing and implementing case budgeting procedures. They have assisted the Administrative Office and federal public defenders in discharging their statutory responsibilities to recommend qualified counsel for appointment. They have provided training opportunities for counsel. In addition, by monitoring prosecution decisions and following developments in this important area, they have provided critical statistical information and policy advice to the Administrative Office. (See also Recommendations 6, 8 and 9 ("Federal Death Penalty Resource Counsel," "Training," and "Case Budgeting") in Part II of this report.)

  • 3. Consultation Prior to Appointment of Counsel.

Since 1995, federal law has required the court, before appointing counsel in a federal death penalty case, to consult with the federal public defender for the district, or, if there is no federal public defender (or the defender has a conflict), with the Administrative Office of the United States Courts. This statutory requirement has generally, although not universally, been honored. In a very few cases, judges have appointed counsel without formally consulting either the federal public defender or the Administrative Office. For the most part, judges have taken a case-by-case approach to seeking advice about the appointment of counsel, although in one district the court directed the federal public defender to provide a list of lawyers qualified to handle federal death penalty cases instead of consulting as each case arose. In districts not served by a federal public defender, judges have consulted with the Administrative Office, which generally refers the court to one of the three Federal Death Penalty Resource Counsel, who provide training and support to lawyers handling federal death penalty cases nationwide.(45)The consultation process assists judges in identifying qualified lawyers to appoint to federal death penalty cases. (See also Recommendation 2, "Consultation with Federal Defender Organizations or the Administrative Office," in Part II of this report.)

  • 4. Availability and Recruitment of Qualified Lawyers.

A defendant charged with an offense punishable by death is entitled to two lawyers by statute. (18 U.S.C. § 3005). A judge assigned a federal death penalty case may appoint private lawyers compensated on an hourly basis ("panel" attorneys) or, in a district served by a federal defender organization,(46) the court may appoint a lawyer employed by the FDO together with a panel attorney.(47) For the reasons discussed below, panel attorneys have been appointed in the vast majority of federal death penalty cases.

a. Federal Defender Organizations. Federal defender organizations are not currently able to provide representation in a large proportion of federal death penalty cases.(48) A few federal defender offices employ lawyers with prior death penalty experience gained in state court, but most do not. Indeed, lawyers in federal defender offices may also lack significant experience trying homicide cases, because few such cases are brought in the federal courts. Even federal defenders with extensive federal criminal experience feel themselves unqualified to provide representation without the participation of a "learned" counsel with capital case experience. Trial experience in non-capital cases is no substitute for the training required to prepare for the penalty phase of a capital case and to develop an overall trial strategy that integrates both phases. In almost all instances in which a judge has appointed a federal defender organization as counsel, the FDO has been joined by a panel attorney with death penalty experience.

Another obstacle to relying on federal defender organizations to provide representation in a larger proportion of federal death penalty cases is the effect of an appointment on the defender office as a whole. Death penalty cases consume resources: the time of experienced lawyers and supervisors, investigators, and support staff; and budgetary allocations for experts. Defenders reported to the Subcommittee that the time commitment involved in handling a death penalty case was disruptive, especially in districts in which it was difficult for the federal defender organization to compensate for the appointment in the death penalty case by reducing the number of non-capital cases assigned to the office. Lawyers assigned to federal death penalty cases generally transferred their existing cases to other attorneys and reduced or eliminated their intake of new cases. Especially in smaller offices, where the added caseload had to be divided among fewer lawyers, death penalty cases interfered with the office's ability to fulfill its obligations to other clients. 

b. Panel Attorneys. To date, courts generally have been able to locate and recruit a sufficient number of qualified lawyers to meet the need for representation. In some areas of the country, particularly those with state death penalty statutes, a substantial number of lawyers have developed experience defending capital cases. Not all of these lawyers, however, are fully qualified to provide representation in federal death penalty cases, because of unfamiliarity with important aspects of federal criminal practice. In other areas, especially those in which there is not a state death penalty statute, courts have been unable to recruit qualified lawyers from within the district, and have appointed lawyers with death penalty experience from other states. The Subcommittee found that judges who appointed counsel from outside their districts in order to meet qualification standards experienced a very high degree of satisfaction with the representation provided in their cases.(49) Typically, these judges had appointed one of the small (but growing) number of litigators who have provided representation in two or more federal death penalty cases. Both the appointing judges and the local counsel reported a range of resulting benefits, including the on-the job training of the local co-counsel.(50) (See also Recommendation 4, "Appointment of the Federal Defender Organization," in Part II of this report.)

  • 5. Adequacy of Compensation to Attract Qualified Counsel.

Current federal law authorizes an attorney in a federal death penalty case to be paid up to $125 per hour.(51) At present, this maximum hourly rate appears adequate. Several years ago, the Judicial Conference reported that, "[w]hile many courts find the quality of panel attorneys [in non-capital cases] to be very high, serious funding difficulties and inadequate compensation hamper many courts in their ability to recruit and retain experienced attorneys as members of the CJA panel."(52) If the "real" (inflation-adjusted) hourly rate were to decline substantially, as it has for non-capital federal criminal representation, fulfillment of the judiciary's statutory and constitutional obligations to appoint qualified counsel might be jeopardized.(53)

Panel attorneys who are qualified for appointment to a federal death penalty case are generally among the most experienced and respected criminal practitioners. Consequently, many of them command high fees for retained criminal work and, in some instances, for civil litigation. Without exception, lawyers appointed in federal death penalty cases reported earning hourly rates from private clients that are much higher than (and often double) the maximum rate that may be paid for their representation in a federal capital case. Although the hourly rates of compensation in federal capital cases are higher than those paid in non-capital federal criminal cases,(54) they are quite low in comparison to hourly rates for lawyers generally, and to the imputed hourly cost of office overhead.(55) Most of the lawyers interviewed said they would not be willing to accept appointment to federal death penalty cases at the hourly rates which are authorized for non-capital representation.

One of the reasons it is sometimes difficult to recruit qualified counsel for a federal death penalty case is that lawyers in federal death penalty cases have to decline work they would otherwise accept while the capital case is pending. A single death penalty case can preclude a lawyer from accepting any other clients for a significant period.(56) Especially in the months preceding trial, defending a death penalty case often consumes all of an attorney's time. A lawyer's unavailability can significantly damage the network of referrals and name recognition vital to sustaining a small practice. One judge in a district with a very active criminal defense bar found that several lawyers declined appointment to a capital case because of the anticipated length of the trial and the effect the case would have on their retained practice.

A number of lawyers recounted the detrimental effect of a single capital case on their practices. "You do lose business. People know you're busy and don't call," said one attorney who was interviewed. Another lawyer described the effect of a lengthy death penalty case involving a drug conspiracy on his practice as "devastating." Some lawyers also feel they lose potentially lucrative white-collar business once they become categorized as death-penalty lawyers. Lawyers also believe they lose future clients because of lack of exposure. One lawyer who had been devoting all of his professional time to a large, multi-defendant case recounted running into a journalist who said he had thought the lawyer must have left town because he had not seen him at the state courthouse for so long.

Another factor discouraging lawyers with active practices from accepting appointment to a federal death penalty case is a reluctance to become economically dependent on the timely payment of vouchers. Although generally lawyers did not complain about the timeliness of payments, in more than one case a long delay in the approval of vouchers forced lawyers to borrow money to pay office expenses. (See Recommendation 1(e), "Hourly Rate of Compensation for Counsel," in Part II of this report.)

  • 6. Number of Counsel.

Since the First Judiciary Act in 1789, federal law has provided for the appointment of a minimum of two lawyers per defendant in a capital case. Judges have generally appointed two lawyers in federal death penalty cases, although there have been rare instances in which the court has not done so until after the prosecution has filed notice of its intention to seek the death penalty, effectively delaying defense preparation. In a few cases, a judge has formally appointed more than two lawyers. This usually has occurred because the judge was dissatisfied with one or more of the lawyers originally appointed, but felt the overall ability of the defense team to meet statutory time limits and to provide an effective defense would be better accomplished by adding a new lawyer with needed skills rather than by replacing the lawyer originally appointed.

The defense team in federal capital cases may include paralegals, investigators and less experienced lawyers, generally billing at an hourly rate substantially below that of lead counsel. The additional lawyers who work on the case generally are not formally appointed, but rather are authorized by the court to work on limited and discrete tasks. When these assistant counsel are used effectively, total costs of attorney compensation are reduced, because the average hourly rate is reduced. For example, one appointed lawyer, who was authorized by the court to receive the statutory maximum of $125 per hour, hired a less experienced lawyer at $45 per hour to listen to thousands of hours of wiretap tapes and identify the important parts, thus achieving substantial savings.(57) (See Recommendation 3, "Appointment of More than Two Lawyers," in Part II of this report.)

D. Efforts to Control the Cost of Representation.

Judges presiding over federal capital cases have been mindful of the need to closely monitor and control costs, and have pursued several strategies to this end. Probably the paramount concern has been to appoint responsible, trustworthy and experienced lawyers who will themselves exercise judgment about the reasonableness of costs. After closely reviewing vouchers, the judges interviewed indicated their satisfaction with the integrity of the lawyers they had appointed. In a very few instances, judges removed the lawyers who had first been appointed to the case, sometimes by a different judicial officer. The most common reason for removal was lack of death penalty experience evidenced in the lawyers' failure to identify and focus on the more promising lines of investigation, thus wasting resources.

Judges have used a variety of techniques to control costs. Many judges, particularly those presiding over cases filed in the last two years, have established budgets for the cost of defense representation. In one complex multi-defendant case, a judge directed the clerk of court to develop a computer program to assist in the tracking of expenditures. Other judges recounted denying or reducing requests for experts, and asking counsel to determine whether a qualified expert could be found at a lower rate or to persuade the expert to reduce the requested fee.

Judges also authorized the hiring of paralegals to reduce the costs of coordinating and distributing materials among defense counsel in multi-defendant cases.

Interviews with lawyers also revealed a reassuring degree of restraint. A number of lawyers recounted decisions not to request funds for certain experts or services, and almost all of them negotiated reduced rates or obtained some services from experts on a pro bono basis, recognizing that by reducing costs whenever possible, it would be easier to obtain judicial approval for other needed services. In multi-defendant cases, lawyers, both on their own and with judicial prompting, coordinated discovery and motions practice, thereby reducing the

potential for duplicative work. (See Recommendations 9 and 10 ("Case Budgeting" and "Case Management") in Part II of this report.)