Law gives death row inmates an advocate

If all death row inmates could have Marty Lieberman as their attorney, the ones claiming innocence might have a shot at freedom. During his 22 years as a criminal defense attorney, the Phoenician has gained a reputation for being a professional, yet dogged advocate for his clients.

Soon, many on death row will be able claim him as their own, thanks to a 2006 legislative action that established the state’s first Post-Capital Conviction Public Defender’s Office.

On March 1, Gov. Janet Napolitano nominated Lieberman to fill the new position. He and his staff will be responsible for representing anyone sentenced to death who can’t afford a lawyer in post-conviction relief proceedings. Pending Senate confirmation, he’ll serve a fouryear term.

The newly established office will handle questions outside a case’s direct appeal, Lieberman said, such as: Was the defendant’s trial lawyer effective? Is there new evidence that may warrant a new trial? Have new laws been passed that apply retroactively?

The new statute allows Lieberman to serve up to a year in the post before he is formally confirmed. The attorney said he hopes the Legislature will vote on his confirmation during its current session.

In legal circles, death row inmates are notorious for having subpar legal counsel. U.S. Supreme Court Justice Ruth Bader Ginsburg in a 2001 speech said she’d never seen a death penalty case in which the defendant was well-represented.

Many can’t afford good lawyers’ fees, and financiers aren’t exactly banging down their cell doors to help them.

But the Sixth Amendment to the U.S. Constitution guarantees counsel and requires that it be “reasonably effective.”

In creating the new public defender’s office, the state is strengthening the Constitution’s promise to its 124 death row inmates.

Lieberman pointed out that about eight prisoners on death row in Arizona lack representation altogether. His office will alleviate that.

The American Bar Association sparked the renewed focus on quality representation in capital cases when it modified its guidelines in 2003 for the appointment and performance of defense counsel in death penalty cases.

The Arizona Supreme Court followed suit in 2006 by dispatching attorneys to “be aware” of the ABA’s new guidelines, Lieberman said.

To fill the new post, the Arizona State University law school graduate is winding down his 17-year private practice. He’ll devote all his attention to the new job beginning in May, he said, and hopes to have the public defender’s office up and running by July.

Lieberman said the novelty of the task is exciting, but he acknowledged the challenges before him.

Resources allotted the office are minimal. Jim Belanger, a Phoenix defense attorney and head of the nominations committee, said he thought the initial allocation for the new office was no more than $500,000.

Just paying salaries for the office may be difficult. Statute allows as many as four attorneys and four support staff for the office. Lieberman’s salary should be about $111,000, said Tim Nelson, general counsel for Napolitano.

To staff a death penalty case, two attorneys are required, as well as investigators and at least one paralegal or legal secretary, Lieberman said.

“I question whether at the current levels (of funding) we’ll be able to handle the case load,” he said. He guessed that some inmates will still need to use private defense attorneys who do pro bono work.

Lieberman is also bracing himself for a new style of work.

Instead of often being in trial, he’ll spend more time investigating and working in the office. He expressed mixed emotions about the transition.

“I like trial,” he said, “but it’s stressful.”

But the importance of the new work inspires him, he said, as does the pressing need for higher quality advocacy in death penalty cases.

Lieberman was selected by a nine-member committee composed of representatives for House Speaker Jim Weiers, R-Phoenix, the Maricopa County Superior Court, the Arizona Supreme Court, the Governor’s office, a prosecutor’s association, a defense bar representative and a victim’s rights advocate.

His nomination was unanimous, according to a news release from Napolitano’s office.

Nelson said contenders for the position were subjected to a rigorous vetting. He attributed the support for Lieberman to his “lifelong commitment to justice and to criminal matters.” He said Lieberman is respected on both sides of the bar and behind the bench.

Belanger called him “the perfect person for the job.”

“I’m looking forward to seeing the high standard for the office that Marty is going to set,” Napolitano said.