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Death Row Appeals
Capital calamity
Miami lawyer’s representation of condemned man gives ammunition to critics of governor’s plan
By Julie Kay
April 30, 2003
Miami attorney Louis Casuso didn’t like convicted murderer Jose Jimenez from the minute he first spoke with his client in 1998.
“He was cursing at me and yelling at me,” said Casuso of that first telephone conversation with the death row inmate. “He’s an angry guy. I don’t like what he did. He murdered an old lady.”
But whether he liked him or not, Casuso was Jimenez’s court-appointed appellate lawyer. He was selected by Miami-Dade Circuit Judge Leslie Rothenberg from the state’s registry of private attorneys available to represent indigent death row inmates in the post-conviction process.
Casuso was the last advocate standing between Jimenez and a syringe full of lethal poison. He was appointed by Judge Rothenberg in August 1998 to represent Jimenez. Before being replaced by the judge in 2002, Casuso ran up $67,900 in legal fees, which the state has paid.
But Jimenez’s newly appointed appellate lawyer contends that Casuso never met with Jimenez, botched his representation and virtually exhausted the limited pot of money available to fund Jimenez’s effort to overturn his capital conviction.
Gov. Jeb Bush and Republican legislative leaders are close to carrying out their goal of eliminating the state death penalty appellate defender’s office and outsourcing the appeals work to private attorneys like Casuso who are listed on a state-run registry. But critics of the GOP proposal say the Jimenez case is a prime example of what can go wrong with the registry model, both in terms of the quality of representation and the lack of oversight over attorney billing.
Jimenez’s new lawyer, Martin McClain, a veteran appellate defender in capital cases, has asked the court’s permission to essentially start the post-conviction petition process anew. In a new petition for a writ of habeas corpus filed with the Florida Supreme Court in December, McClain, of Tallahassee, argued that Casuso never met his client in person and barely investigated the case or interviewed witnesses.
Yet, Casuso filed for and received $67,900 in legal fees — leaving only $1,100 left for any future appeals on Jimenez’s behalf because the state caps publicly funded appellate costs in individual cases at $69,000. Casuso’s main appeal was a mere eight pages, McClain said. A post-conviction motion to vacate can run 250 pages.
“Mr. Jimenez would have been better off with no counsel,” McClain, who has handled 159 post-conviction appeals in capital cases and gotten three death row inmates exonerated, told the Daily Business Review. “What’s really sad is there are startling issues of potential innocence here.”
Casuso, who had handled one post-conviction appeal before Jimenez’s, insists that his representation was adequate and that the $67,900 he billed the state — based on an allowable rate of $100 per hour — was fair. “You don’t have to visit [the client] in jail,” he said. “That doesn’t make me a bad guy.” Casuso said he believes Jimenez is guilty and received a fair trial.
Casuso chided McClain for making “personal attacks” on him. “Are you supposed to raise bogus stuff?” Casuso said. “Do you want to drag out a case?”
Casuso is listed on the state registry of private lawyers who are available to handle such petitions for death row inmates when attorneys who work for the state Capital Collateral Regional Counsel have more cases than they can handle. Lawyers listed on the registry are not required to have capital appellate experience — just five felony cases total. There currently are 137 lawyers on the list statewide.
In post-conviction petitions, appellate attorneys for inmates seek to overturn convictions based on habeas corpus grounds such as new evidence of innocence, ineffective representation, prosecutorial misconduct, faulty eyewitness identification, racial inequities and mental retardation. The attorneys must mount an intensive investigation to establish a client’s innocence or eligibility for a lesser sentence — in effect, starting the entire law enforcement investigation from scratch. It’s widely considered the most complex area of criminal defense law.
In 1985, the Florida Legislature created the CCRC to improve the state’s deficient capital appellate defense system. In the mid-1990s, the Florida Supreme Court halted executions because the defense system was so inadequate. In 1997, a commission recommended the creation of the three regional counsel offices that now handle death row appeals, along with a registry of private lawyers to handle conflicts and any overflow.
The CCRC, which has nearly 50 lawyers in offices in Fort Lauderdale, Tampa, and Tallahassee, has been credited with winning the exoneration of four death row inmates in the last three years. Several states, including Texas and Georgia, have modeled their programs after Florida’s.
Gov. Bush first proposed eliminating the CCRC as part of his 2003-2004 budget in February. Under his proposal, the state would lay off the CCRC lawyers and staff and close the agency, which has an annual budget of $9.3 million. Private lawyers on the state registry already handle about one-quarter of post-conviction appeals for death row inmates.
The House budget approved earlier this month would eliminate the CCRC, while the Senate budget maintains it. The fate of the agency will be decided by a House-Senate conference committee in the next few weeks.
The case
Jimenez was convicted in Miami-Dade Circuit Court in 1994 of first-degree murder and burglary in the fatal stabbing of an elderly woman at the Miami building where he lived.
His fingerprint was found inside the woman’s apartment; a neighbor testified that he saw Jimenez jumping from the balcony. Jimenez also made a statement to another neighbor that police wanted to question him “in connection with a stabbing,” though police said they only asked to question him about a burglary.
In August 1998, Judge Rothenberg appointed Casuso to represent Jimenez in his post-conviction appeal.
Casuso’s only previous post-conviction death penalty case involved representation of Anibal Jarimillo, a Colombian national convicted of first-degree murder in the 1980 gangland-style shooting deaths of two Miami residents. Police said they found Jarimillo’s fingerprints inside the house. But in 1982, Casuso got the conviction overturned. The Florida Supreme Court ruled that Jarimillo had a reasonable explanation for why his fingerprints were in the house.
Long distance
According to McClain’s habeas petition, Casuso did not inform Jimenez he was his court-appointed lawyer until January 1999 — five months after he was appointed. Jimenez wrote back to Casuso, requesting a meeting.
Casuso agreed to visit him at the Union Correctional Institution in Raiford, about 70 miles from Miami. But the visit never happened. Casuso said he took an immediate dislike to Jimenez, especially after listening to Jimenez complain over the phone about his trial defense attorneys.
“He came in with a history about his lawyers,” Casuso said. “I considered them pretty good lawyers. He got an attitude with me.”
Casuso said he decided to work on the case long distance. “I told [Jimenez] to write everything down on a piece of paper and mail it to me,” he said.
In November 1999, Casuso filed a motion to withdraw from the case, writing that he “found it difficult to find the time as well as the finances to travel to personally see Mr. Jimenez.” He asked Judge Rothenberg to appoint another attorney.
Another Miami-Dade Circuit judge mistakenly granted this request in December, according to McClain. But when Rothenberg found out, she vacated that order and kept Casuso on the case. In December 1999, Rothenberg ordered Casuso to file the motion for post-conviction relief.
According to court papers, Casuso wrote to Jimenez that “since you have more time than I do … tell me by Jan. 31 in writing what it is that you need to raise on the motion.”
In January 2000, Casuso filed his eight-page motion to vacate Jimenez’s conviction. The next month, Casuso appeared at a status hearing before Rothenberg, requesting additional time to review the public records in the case. Later that month, he told the judge that he had changed his mind and did not need to see the public records.
“Is there any reason why you need to review these records?” Judge Rothenberg asked, according to McClain’s subsequent habeas corpus petition.
“Not really. I mean we tried the case,” Casuso replied.
After that, the circuit court ordered the clerk of the court to destroy certain evidence without notifying Jimenez.
In April 2000, the state of Florida rejected Casuso’s motion to vacate Jimenez’s sentence. Casuso then filed an appeal to the Florida Supreme Court raising just one issue. But Casuso did not consult with Jimenez about his decision to raise only one issue, according to McClain’s December 2002 habeas petition. In a letter to Jimenez after the appeal was filed, Casuso wrote that “the brief that’s filed is a winner, we need not file anything else.” That appeal failed.
By that time, Jimenez believed Casuso was not representing him well and asked the court if he could represent himself.
“I have absolutely no idea of what is going on in my case because of the improper way Mr. Casuso has been handling my case,” he wrote to the Florida Supreme Court, according to McClain’s December petition for habeas corpus. “His actions are that of a person who doesn’t care about me and by his lack of communication and very poor handling of my case that should be obvious to everyone. I believe Mr. Casuso is only going to do me more harm than good.”
Two months later, Jimenez, who had heard of McClain’s successful work on death penalty appeals, contacted McClain and asked him to represent him on federal matters.
Judge Rothenberg subsequently named McClain to take over Jimenez’s state post-conviction representation as well.
“There was breakdown in their relationship,” Rothenberg said in an interview. “There was no trust there. If [Jimenez] was more comfortable with Mr. McClain, what’s the difference?”
Eye-to-eye essential
McClain and other capital collateral experts are critical of Casuso’s work. They say meeting with a client is a basic first step for a capital appellate attorney in establishing trust. Face-to-face meetings also are important because inmates fear prison officials will read their correspondence with attorneys, McClain said. CCRC lawyers meet their clients in person six times annually.
“You have to meet them eye-to-eye. It’s essential to establishing rapport,” said Raag Singhal, a Fort Lauderdale criminal defense lawyer who has represented 18 defendants on death row. “It’s the only way they’re going to trust you enough to let you meet with their family and friends.”
In his December petition for habeas corpus, McClain also blasted Casuso for raising only one habeas issue in his appeal when most post-conviction lawyers cite at least 20.
Among other deficiencies in Casuso’s work, McClain said, he never moved for an evidentiary hearing, and he never obtained the public records, including police reports, of the case until after his appeal was filed.
McClain and other capital appellate attorneys say it’s typical for defense lawyers to start from scratch on a case. They usually pore through the entire investigation, reinterview witnesses, review police reports and read the entire trial transcript.
But Casuso said he did read the trial transcript and reinterviewed some witnesses. He added that he trusted the work done by Jimenez’s trial attorneys.
Casuso acknowledged, however, that he was convinced from the start that Jimenez was guilty. “His fingerprint was found in the house and he made a statement to officers,” Casuso said. “The question you have to ask is if he got a fair trial. He did.”
McClain disagreed, writing in his 53-page appeal that his client may be innocent. McClain noted that a taxi driver reported seeing a blood-spattered man who wasn’t Jimenez leaving the building at around the time of the murder.
In his filing, McClain said Casuso either didn’t know about or missed the one-year deadline for filing a habeas corpus petition in federal court. That blocks Jimenez from ever filing a federal appeal; the only avenue open to him is state court.
McClain complains that despite the flawed work, Casuso billed the state of Florida $67,900 for a total of 24 pages of written work. Casuso claimed he put in 679 hours of work — about 17 40-hour weeks — on the case.
In contrast, McClain recently billed the state $22,000 for the 100-page brief he submitted on behalf of convicted murderer Brian Jennings, along with a 35-page reply brief and a court appearance for oral arguments.
Judge Rothenberg told the Review that she had no concerns about the quality of Casuso’s work. According to state records, she signed off on orders for payment of attorney fees in 2000, 2001 and 2002 authorizing the state comptroller to pay Casuso the $67,900. He was paid in full. But Rothenberg told the Review she never signed the payment orders. “The county attorneys handle that,” she said. “We don’t do that any more.”
Chip Thurber, assistant general counsel in the Florida comptroller’s office, said registry lawyers must get a court order from the judge who assigned them the case before the comptroller will pay a bill.
The fact that Casuso already has collected almost $68,000 creates a huge problem for Jimenez and McClain. That’s because the state caps spending on appellate representation of individual death row convicts by private lawyers at $69,000.
A study by the Spangenberg Group, a Massachusetts-based justice research and consulting firm, found that it requires 2,700 to 3,300 hours to properly represent a death row inmate in a post-conviction habeas corpus case.
Experts say the Jimenez case also shows how little oversight there is of private attorneys on the state’s registry. In registry cases, the same trial judge who appoints a private post-conviction attorney also signs off on the bills and forwards them to the state comptrollers office for payment.
“No one’s checking the comptroller,” said Neal Dupree, capital collateral regional counsel for the southern district of Florida. “There is no oversight of these cases.”
Gov. Bush and Republican leaders want registry lawyers to handle all death penalty appeals. They argue that the quality would be at least as good as the representation provided by the CCRC, the appeals process would be swifter and the state would save $3.7 million annually.
“The governor’s goal is that capital cases be resolved within five years after sentence is imposed,” Brad Thomas, Bush’s public safety coordinator and his death penalty adviser, said last month. “We don’t believe closing the offices will harm the process and it could expedite it. Private attorneys have very promptly moved their cases while providing ethical, competent and zealous representation.”
Roger Maas, executive director of the Commission on Capital Cases, which oversees both the CCRC and Registry lawyers, said he thinks the Registry system is generally working fine. “I trust the trial lawyers,” he said. He declined to comment on the record about the Jimenez case.
But CCRC attorneys said Casuso’s work in representing Jimenez is exactly what they’re worried about if the registry replaces their agency. They cite a statement Thomas made to the St. Petersburg Times in 2000 as evidence of what they believe the governor’s goal is. “What I hope is that we become like Texas,” the Times quoted Thomas as saying. “Bring in the witnesses, put [the condemned] on a gurney and let’s rock ’n’ roll.”
Casuso defended his work on the Jimenez case. “I think if you have the death penalty, you either enforce it or get it off the books,” he said. “You either have a death penalty or you don’t.”
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