State Appellate Review Proceedings: Length and CostState Appellate Review Proceedings: Length and Cost. The effort and cost required to pursue death penalty appeals has increased dramatically during the past nineteen years, particularly after the 1991 U.S. Supreme Court McClesky decision and the 1996 passage of the federal Antiterrorism and Effective Death Penalty Act. For example, state appellate capital case briefs averaged 50 pages ten years ago, but now number 250 pages. Defense attorneys, who traditionally keep time records for billing purposes, reported 1,167 attorney hours for the Lord personal restraint petition, and over 3,000 hours for both the Gentry and Brett personal restraint petitions- or over 75 weeks of attorney time. County prosecutors prepare with equal intensity. Prosecutor costs in the 1980s and 1990s are hard to quantify because they are paid by individual counties rather than by the state, but counties report that one or more experienced higher-level deputy prosecutors often spend many, many months largely concentrating on a single death penalty appellate case. State-paid indigent defense attorney fees are better documented. Defense attorney fees in personal restraint petitions have increased from an average of $15,619 for cases begun and completed in the 1980s to $65,615 for personal restraint petition actions completed in the 1990s. Defense fees have reached over $172,000 in three recent state appellate cases.
Judicial costs are also high. Washington State Supreme Court death penalty cases involve enormous records, often numbering ten thousand pages or more. Death penalty appeals are frequently assigned four hours for oral argument, four times the norm for criminal appeals. The justices and their staffs spend numerous hours reading lengthy briefs and other documents filed. Due to the nature of the sentence, every minute detail of every assertion, request, piece of evidence, or conclusion is analyzed with punctilious care.
In addition, Washington State Supreme Court review not infrequently results in additional trial level hearings in the county where the case originated. If necessary to evaluate a capital defendant's appellate claims, the Court orders a trial court reference hearing. These evidentiary hearings last from one to several days. Recent examples are a November 1998 reference hearing in Clark County in the In re Brett case and a November 1999 Pierce County reference hearing in State v. Marshall. Because a reference hearing is part of the appellate case, the state pays for defense attorney costs and the county pays for prosecutorial costs. A second kind of trial court proceeding often occurs after the reversal of a death sentence by the Washington State Supreme Court, when the sentencing issue is remanded to the trial court for resentencing. For example, in May 1999 the Court reversed C. Finch's death sentence, remanding the case for resentencing proceedings that are presently underway in Snohomish County.
Since 1981, Washington's initial state review process has been completed in 14 cases, and has taken between 2 and 12 years per defendant. Completion of the case by state review (prior to the filing of any federal district court petitions) has resulted in the execution of two defendants, the reversal of the death sentence of two defendants, and the filing of federal review in the remaining 10 cases, and has taken an average of 5.5 years. Presently there are 10 capital defendants undergoing state review in the Washington State Supreme Court.
In comparison, appeals from aggravated murder cases not involving a death sentence are much less costly and are usually of much shorter duration. The defendant is entitled to one appeal of right. The average duration of 21 non-death penalty aggravated murder appeals heard by the Court of Appeals in 1997, 1998, and 1999 was 34 months. Appellate defense counsel were paid an average of $6,779 to represent the defendant, and prosecutors were paid by the respective counties in an unknown amount. One aggravated murder appeal was decided by the Supreme Court during that time period; it took 51 months to resolve and the defense attorneys were paid $18,089. An aggravated murder defendant in a case not involving the death penalty is not entitled to court appointed counsel in pursuing a personal restraint petition in the state courts, nor in a federal habeas corpus petition, but must petition the court and show good cause before counsel will be appointed by the respective courts.
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