Summary

The Legislature established a pilot program effective July 1, 2003, transferring responsibilities of the Capital Collateral Regional Counsel (CCRC) representing the northern region of the State to a registry of attorneys established by the Executive Director of the Commission on Capital Cases.  Section 27.701(2), Florida Statutes^[1], requires us to conduct a performance review of the operations of the pilot program to determine the effectiveness and efficiency of using attorneys from the registry compared to the CCRCs.  A summary of our findings for the period July 1, 2003, through June 30, 2006, and selected actions through November 30, 2006, follows:

Finding No. 1:      When considering all costs of delivering capital collateral representation services, the capital collateral regional counsel system is significantly more costly than the use of the registry of attorneys. The difference in cost is a result, in part, of the administrative costs of the CCRC.  Additionally, although complete information was not obtained from the registry attorneys, it appears from the information provided by the registry attorneys that the higher cost of delivery by the CCRCs can also be attributed to significantly more time expended on a per case basis by CCRC attorneys and investigators, numbers of witnesses and experts interviewed, use of experts, and public records requests.  Based on the average costs of legal counsel provided per case and the average cost per hour for attorney, over both fiscal years, the CCRCs provided an average of 355 hours of legal counsel per case and the registry attorneys provided an average of 196 hours per case, after adjustment for hours applied above the statutory limits and denied payment. 

Finding No. 2:      Useful comparisons as to the timeliness of capital collateral representation proceedings are difficult due to the long duration and small number of cases, each subject to varying circumstances that can impact the length of time required to complete the case.  Further, such comparisons should be made in light of the fact that there are significant aspects of a capital collateral case that are not directly impacted by the efforts of the CCRC or registry attorneys assigned to the cases.  The time spent on both the CCRC middle and southern cases and the registry cases in the capital collateral representation phase represents approximately one-half of the time between sentencing of an inmate and completion of the capital collateral appeals in State and Federal court.  Additionally, only about 33 percent of the time spent on a case in the capital collateral appeal phase in State court is directly impacted by the CCRC attorney (41 percent for registry attorneys).  Registry attorneys tend to file more requests for extensions, but this has not generally resulted in increased length of the capital collateral representation process.  The overall length of time under the direct control of the CCRC and registry attorneys required for a capital case to complete the capital collateral representation process in State court is 2.0 years for CCRC cases and 2.1 years for registry cases.

Finding No. 3:      The CCRCs achieved a higher incidence of providing relief to death row inmates with 14 instances over 2 years as compared to 5 for the registry; however, due to the length of the appellate processes and limited number of cases, this statistic could vary significantly from year to year.  The court’s monitoring of the performance of counsel assigned to capital cases, required by Section 27.711(12), Florida Statutes, has not occurred.  Legislative performance measures intended to provide an indication as to quality of representation are the number of substantiated Florida Bar grievances filed and the numbers of factual issues raised by the attorneys.  The CCRCs reported no substantiated Florida Bar grievances during the audit period and the Executive Director of the Commission on Capital Cases reported one Florida Bar grievance related to a registry attorney.  As a result, substantiated Florida Bar grievances do not appear to be a significant factor in a comparison of quality of representation between CCRC and registry attorneys.  Higher average numbers per case of factual issues raised by the CCRC attorneys indicate a tendency on the part of the CCRCs to raise more factual issues than registry attorneys.  According to the Executive Director and the CCRCs for the middle and southern regions, when there is a complete change of attorneys in a capital case, the extensive case file associated with a capital case, often compiled over a period of many years, creates a burden for the new attorney in terms of becoming sufficiently familiar with the case to provide effective and timely representation.  This situation is more prevalent with registry attorneys than with CCRC attorneys. 

Finding No. 4:  The various states with significant death row populations have a variety of systems for representation of death row inmates in postconviction appeal proceedings, ranging from no State involvement to a centralized State agency providing counsel for such purpose.  Most states utilize a combination of State employed counsel and private attorneys.  There is no specific model for providing postconviction capital collateral representation that has been consistently applied in states with significant death row populations, except that the use of private attorneys is generally combined with the use of a state agency or nonprofit organization to provide counsel or to assist the private counsel.

The responses are included as Appendix C of this report.