January 6, 2000

Honorable R. Lanier Anderson, III

Chief Judge
Eleventh Circuit Court of Appeals
P.O. Box 977
Macon, Georgia 31202

RE: State Capital Cases Symposium

Dear Judge Anderson:

I write to express my concern that the Court's State Capital

Cases Symposium to be held at the Chateau Elan Luxury Resort
lacks balance and fails to satisfy the appearance of impartiality
both in the subjects to be covered and the speakers who will
address them. The conference seems at odds with the notions of
federalism espoused by many members of the Court, but, beyond
that, the Court appears to be sending a very partisan message.
The program appears to be geared almost exclusively to restrict-
ing and expediting capital cases while ignoring some of the more
fundamental and important problems of the way in which death is
imposed and reviewed in the circuit.

The main topics of the symposium appear to be technical

preclusion issues -- procedural bars, state court fact finding,
statutes of limitations, and "non-retroactivity" (as opposed to
retroactivity) of decisions -- and administrative matters, such
as tracking mechanisms and communication between courts. Thus,
the central focus appears to be on avoiding the merits of claims
and expediting the consideration of cases. Two sessions are led
by Judges Carnes and Jones, who have been particularly outspoken
and strident proponents of capital punishment and restrictions on
habeas corpus. While there is a 45-minute plenary on problems
from the
"defense perspective," there are four plenaries that address the
issues from the perspective of those who seek to expedite and
limit federal review of capital cases. One is a discussion among
state attorneys general, another is of executive branch represen-
tatives, and another is about problems from "the prosecution's
perspective." This is a great deal of prosecution perspective
and very little perspective from the standpoint of those who
represent petitioners or from neutral observers, such as law
school professors or bar leaders.

I.
Most disturbing is that the program provides as an example
only one of the 38 states that has capital punishment, Texas, and
on only one other circuit, the Fifth. Any objective observer
would say that Texas is the last place to look for achieving
justice in capital cases. At the very least, one would look at
one or two other states and circuits where courts have not been
as cavalier in their handling of capital cases.

The Texas "model," which has brought about almost 200

executions in the last 20 years, is relatively simple: provide
the accused with a really bad lawyer at trial -- even lawyers who
sleep through trial are good enough to pass muster in the Texas
Court of Criminal Appeals and the Fifth Circuit1 -- and then
provide as bad or worse lawyer to handle post-conviction repre-
sentation. Few if any issues will be raised and there will be
nothing to review. Since the elimination of the Texas Resource
Center, which was staffed by lawyers who knew something about
capital punishment and habeas corpus, the Texas courts have
appointed many lawyers with no experience in post-conviction
matters, some of whom have failed to file the post-conviction
petitions on time or failed to raise any issues. Needless to
say, this expedites the process. I enclose an article, Death in
Texas, which describes the assembly line approach of the Texas
Court of Criminal Appeals in handling death cases in greater
detail.

1. See enclosed article, describing three such cases and

providing citations.
 The Fifth Circuit has long handled capital cases with such
dispatch that it has raised serious questions of the thoroughness
of the review. Before and after the Supreme Court held its
practice of deciding cases on applications for a stay of execu-
tion was "tolerable" but should not be "accepted as the norm or
as the preferred practice," in Barefoot v. Estelle, 463 U.S. 880,
892 (1983), the Fifth Circuit has reviewed capital cases in as
little time as one day and sent people to their deaths. Last
year, for example, Supreme Court Justices Souter, Stevens,
Ginsburg and Breyer expressing concern over the Fifth Circuit's
review a petitioner's first federal habeas petition "in less than
a day's time".2

The plenary on Texas is to be led by Judge Jones, who has

lectured for the Federalist Society about the need to expedite
death cases, met with state attorneys general and offered strate-
gies for expediting state post-conviction review in Texas, once
complained during a telephone oral argument over a stay that it
was delaying her from attending a birthday party, and accused a
lawyer providing pro bono services whose representation annoyed
her of tearing the "veil of civility" in the same way as the
petitioner who robbed, raped and murdered.3

2. See, e.g., Gosch v. Johnson, 119 S. Ct. 1072 (1998)

(Statement of Souter, J., regarding denial of certiorari).

3. Bell v. Lynaugh, 858 F.2d 978, 985 (5th Cir. 1988)

(Jones, J., specially concurring). The two other members of the
panel did not join in Judge Jones's characterization and refused
to sanction the lawyer.
 That session will also include Judge Mike McCormick of the
Texas Court of Criminal Appeals, who has written that Gideon v.
Wainwright was wrongly decided4 and presided over that court's
disastrous handling of the appointment of state post-conviction
counsel in capital cases.5 A representative of the Texas Attor-
ney General's office, which has led the charge for putting
expedition over fairness, will also participate in describing the
Texas experience. There is no balance in the session. It does
not include any of a number of Texas lawyers who might point out
some of the considerable shortcomings in the Texas system, such
as former Court of Criminal Appeals Judge Morris Overstreet, who
called the Court's review of one case a "farce," a "travesty" and
a "charade,"6 or former Judge Charles Baird who counseled his
colleagues in repeated dissents that speed should not be the
court's only concern in reviewing capital cases,7 or some of the
law professors who have written about the handling of capital
cases in Texas.

There are also a number of lawyers who represented petition-

ers in capital habeas cases who could provide a much different
perspective on what happens in Texas than Judges Jones and
McCormick and the Texas Attorney General's office. And far
better examples of handling capital cases could be provided by
representatives of other states, such as New York, which is
making an effort to ensure adequate representation in capital
cases by creating a Capital Defender Office, and spending $9
million a year on the provision of counsel for the defense of far
fewer cases than are pending in any state in the Eleventh Cir-
cuit, or Colorado, which has a state-wide defender system and a
capital trial unit, or other states. And the approaches of the
Third, Sixth, Ninth and Tenth Circuits would provide interesting
and enlightening contrasts to the practices of the Fifth Circuit.

II.

4. Ex parte Jordan, 879 S.W.2d 61, 64 (Tex. Crim. App. 1994

(McCormick, P.J., dissenting) (lamenting that Texas "lost its
sovereignty in `right to counsel' matters for indigent defen-
dants" the day Gideon was decided). Judge McCormick reaffirmed
this view at a conference in Baltimore last March.

5. See Death in Texas enclosed.

6. Ex parte Kerr, 977 S.W.2d 585, 585 (Tex. Crim. App.

1998) (Overstreet, J., dissenting).

7. See, e.g.,Ex parte Smith, 977 S.W.2d 610, 613 (Tex.

Crim. App. 1998) (Baird, J., dissenting), as well as other cases
cited in the enclosed article.
 Although the agenda includes an "overview" of "funding and
representation," it appears that little attention will be paid to
the most fundamental problem regarding the integrity of the
process, the quality of legal representation provided by court-
appointed lawyers to those accused of capital crimes at trial.
The reason for the widespread application of procedural bars to
avoid review of issues is the failure of court-appointed lawyers,
who are often ignorant of the law, to preserve issues. The
grossly deficient representation that those accused receive
simply because of their poverty is far more fundamental to
concepts of justice than procedural bars, which just sweep
constitutional issues under the rug.

Thirty-seven years after Gideon v. Wainwright, neither

Alabama nor Georgia has a public defender system, and Florida has
failed to maintain sufficient funding for its system. Alabama
just raised its payment for out-of-court time from $20 to $30 an
hour. Some Georgia counties pay similar rates, although practic-
es vary widely from one Georgia county to the next. Regardless
of the amounts paid, no legal work is more demanding and pays
less than handling a capital case. As a result, lawyers have no
incentive to learn capital punishment law and develop skills in
defending death cases. On any day, over 100 capital cases are
pending trial in Georgia and even more are pending in Alabama.
The meager compensation and the high volume of capital cases
insures that most cases will be handled by lawyers who cannot
find other work, or that even the most conscientious lawyer
assigned a case will be unable to spend the time necessary to
represent the client properly. Essential investigative and
expert assistance is routinely denied court-appointed lawyers,
often because lawyers, knowing the local judges will not order
the payment of funds, do not even ask for them. Other lawyers
fail to make a sufficient proffer to obtain them.
A gathering of judges, executives, attorneys general, and
lawyers provides an opportunity to address the fairness of
providing defendants with a undercompensated, unskilled lawyer
and then punishing the defendant for the lawyer's ineptness, the
stubborn refusal of legislatures to fund adequate representation,
and the failure of state courts to order it. The Supreme Court
has said that the kind of justice one receives cannot depend on
the amount of money one has.8 But we all know that it does. The
motto "equal justice under law" is inscribed on the Supreme Court
building, but we know that it is aspirational, not a reality, and
today we seem to be retreating even from that aspiration.

III.

8Griffin v. Illinois, 351 U.S. 12 (1956).

 There are a few other topics that are more fundamental to a
fair and just system than the technical preclusion issues and
administrative matters that are the focus of the symposium. For
example:

1. The lack of lawyers for many of the condemned in state

post-conviction proceedings and the independence and integrity of
mechanisms for providing counsel. The statute of limitations
that is on the agenda for this session is relevant only because
so many people in the Eleventh Circuit states are without counsel
and, as a result, some will miss either the state or federal
statutes of limitation. Alabama pays only $1,000 -- recently
raised from $600 -- to a lawyer for handling a capital case in
state post-conviction proceedings. Georgia pays nothing.
Florida's Capital Collateral Representative office has been torn
into three parts. The governor, who signs the death warrants,
also appoints the directors of those offices and, in recent
appointments, the governor passed over those with experience in
representing death-sentenced inmates and appointed lawyers
without experience in representing those facing the death penal-
ty. Since that time, serious questions have been raised about
the quality of representation provided in those cases.

Recently, a man with an IQ measured on various tests as

between 76 and 82, was forced to "represent" himself at his first
state post-conviction proceeding in Georgia. Ensuring that
people are adequately represented in post-conviction proceedings
is far more crucial to the administration of justice than the
enforcement of statutes of limitation against them when they miss
it because they do not have lawyers.

2. The pervasive influence of racial prejudice. Racial

bias, conscious and unconscious, influences every aspect of
capital cases. One reason is the continuing gross under-
representation of African Americans and other racial minorities
as judges, prosecutors, defense counsel, and jurors in capital
cases. Justice Leah Ward Sears of the Georgia Supreme Court has
observed that, "[w]hen it comes to grappling with racial issues
in the criminal justice system today, often white Americans find
one reality while African-Americans see another."9 It is hard to
imagine what subject could be more important than exploring these
different perspectives and their impact on the administration of
capital cases.

3. The political pressures on elected state court judges.

Elected judges must, as Justice John Paul Stevens has repeatedly
pointed out, "constantly profess their fealty to the death

9. Lingo v. State, 437 S.E.2d 463, 468 (Ga. 1993) (Sears,

J., dissenting).
penalty." Harris v. Alabama, 513 S. Ct. 504, 519 (1995). It has
been proven repeatedly that an elected judge may be voted out of
office for an unpopular decision in a capital case, no matter how
correct that ruling may be as a matter of law.10 How to insulate
state court judges from such pressures so that they can enforce
the law without fear of being removed from office is a topic of
fundamental importance to the rule of law and the integrity of
the system.

4. The widespread practice of state court judges delegat-

ing preparation of orders to the state attorney general's office.
Final orders in almost all of the capital cases that I have seen
in the last 17 years have been prepared not by the judge, but by
the assistant attorney general representing the state in the
case. The assistants take full advantage of this blank check to
cram in as many zeros as possible, making findings, as Judge
Carnes often did during his days as a litigator, of even double
and triple procedural defaults, and making extremely one-sided
finding of fact in favor of the state.

10. I enclose an article, Can Judicial Independence be At-

tained in the South?, which explores this subject at greater
length. It is also discussed in two other articles, Judges and
the Politics of Death: Deciding Between the Bill of Rights and
the Next Election in Capital Cases, 75 BOSTON U. L. REV. 759
(1995), and Political Attacks on the Judiciary: Can Justice Be
Done Amid Efforts to Intimidate and Remove Judges From Office for
Unpopular Decisions? 72 NYU L. REV. 308 (1997).
 The Court has repeatedly criticized the practice. For
example, in one recent case the Court observed the "utter lack of
an appearance of impartiality in the text of the proposed orders"
and suggested the case be reassigned to another judge.11 However,
criticism alone has not been enough to stop it. It is too
valuable a tool for the attorneys general, who might lose cases
on appeal or in federal review if there were more neutral and
objective findings and rulings. Thus, state court judges contin-
ue to adopt verbatim orders drafted by state attorney generals
without even changing a comma. Often the "state court fact
findings" to which the federal courts defer come right out of the
attorney's general's brief and have the same "utter lack of an
appearance of impartiality" that the Court observed in Chudasama.

The failure of state trial court judges to prepare their own

orders and the signing of orders that are actually the brief of
one side reveal just how little attention some judges pay to
these most serious cases. (In one Georgia case, for example, the
state judge signed an order saying that he did not credit a
witness who did not even appear in the case. The attorney
general had mistakenly put a finding regarding the credibility of
a witness from another case in the order.) State courts are
being given greater responsibility under the emerging notions of
federalism and state's rights. It would be worthwhile to explore
how that responsibility could be exercised more responsibly.
There should be more to judging than conducting a hearing and
signing the attorney general's brief.

The overall tenor of the symposium has the appearance of an

effort to turn the state courts and the Eleventh Circuit into the
kind of death mills that the state and federal courts in Texas
have become. Such an appearance is unfortunate. If such a
course is adopted, it would be even more unfortunate. The
treatment of cases involving human life as "routine" and the
increasing indifference to injustice in capital cases by many
courts, including the Texas Court of Criminal Appeals and the
Fifth Circuit, has not only resulted in wrongful and unconstitu-
tional executions being carried out, but it has diminished those
courts and our society's reverence for life. Increasingly,
courts are doing what Justice Brennan feared, treating "members
of the human race as nonhumans, as objects to be toyed with and
discarded."12 The greatest challenges to the courts are to
maintain, despite the ever increasing volume of capital cases,

11Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1373 n. 46 (11th

Cir. 1997)

12Gregg v. Georgia, 428 U.S. 153, 230 (1976), quoting Furman v.

Georgia, 408 U.S. 238, 273 (1972) (Brennan, J., concurring).
some sense of the awesome magnitude of the cases, as recognized
in earlier Supreme Court cases, and to resist the temptation to
give up on the goal of equal justice.

I would respectfully urge the Court to cancel its capital

cases symposium.

Sincerely,

Stephen B. Bright
Director

cc: Judges, Eleventh Circuit

Justices, Alabama Supreme Court
Justices, Florida Supreme Court
Justices, Georgia Supreme Court
Judge Edith Jones
Judge Michael J. McCormick
Norman Zoller, Circuit Executive
Bill Pryor, Attorney General of Alabama
Robert A. Butterworth, Attorney General of Florida
Thurbert E. Baker, Attorney General of Georgia