Ernest DeWayne Jones v. Robert K. Wong

Filing 109

BRIEF filed by Petitioner Ernest DeWayne Jones. Opening Brief on Claim 27 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Plunkett, Cliona)

1
2
3
4
5
6
7
8
9

Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Petitioner Ernest DeWayne Jones
UNITED STATES DISTRICT COURT

10
11
12
13

FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,
Petitioner,

16
17

DEATH PENALTY CASE

v.

14
15

Case No. CV-09-2158-CJC

KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin,
Respondent.

EXHIBITS IN SUPPORT OF
PETITIONER’S OPENING BRIEF
ON CLAIM 27
VOLUME 3

18
19
20
21
22
23
24
25
26
27
28

Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

Exhibit 9
Trent Nelson, Will Wyoming Turn To
Firing Squads For Executions?,
CBSNews.com., May 22, 2014

Exhibit 9
Page 383

Log In

CBSNews.com / CBS Evening News / CBS This Morning / 48 Hours / 60 Minutes / Sunday Morning / Face The Nation

Search

AP / May 22, 2014, 8:30 AM

Most Popular
What's behind the national
ammo shortage?
50651 views

Kidnap victim found alive 10
years later; arrest made
46132 views

The execution chamber at the Utah State Prison after an execution by firing squad June 18, 2010; the bullet holes
are visible in the wood panel behind the chair. / TRENT NELSON, AP

17 Comments / 34 Shares /

Tweets /

Stumble /

Email

More +

Pat Sajak sparks Twitter
backlash with "unpatriotic
racists" comment on climate
change
34556 views

CHEYENNE, Wyo. -- Prompted by the shortages of available drugs for lethal
injections, Wyoming lawmakers are considering changing state law to permit the
execution of condemned inmates by firing squad.

Cops: Jace confessed to killing
wife on 911 call

A Wyoming legislative committee has directed its staff to draft a firing-squad bill
for consideration ahead of next year's legislative session starting in January.

Retiree dies in police custody
after traffic stop

32235 views

27257 views

Lawmakers in Utah also may consider a return to firing squads for civilian
executions. A Republican state lawmaker there recently announced that he
intends to introduce firing-squad legislation in his state's next legislative session
in January as well.
Utah outlawed execution by firing squad in 2004 but kept it as an option for
inmates convicted before that time. It last executed an inmate by firing squad in
2010.
Bob Lampert, director of the Wyoming
Department of Corrections, told members of the
Wyoming Legislature's Joint Interim Judiciary
Committee last week in Rawlins that drugs for
lethal injection have become increasingly difficult
to obtain.
Play VIDEO

British woman's efforts
stopped supply of
execution drug to U.S.

"In the event that we had an execution scheduled
and we couldn't carry it out as a result of lack of
substances, I suggested to the Joint Judiciary that
we may want to consider having an alternate
means of execution, such as the firing squad,"
Lampert said Wednesday.

Current state law specifies Wyoming would execute condemned inmates in a gas
chamber, which the state doesn't currently have, as a backup to lethal injection
only if lethal injection were found to be unconstitutional. Existing state law
doesn't address how the state should proceed in response to a drug shortage.
Lethal injection is becoming increasingly difficult for states to perform as
pharmaceutical companies withhold drug compounds that states traditionally
have used. Some inmates have raised constitutional challenges as states have

Exhibit 9
Page 384

play VIDEO

Teen nails Michael Jackson
routine at HS talent show

Flirty Plus-Size
Outfits
zulily.com

Shop Flirty Plus-Size Outfits on Sale up
to 70% Off. Shop Now!

Weddings on the
Water
Most Shared
Pat Sajak sparks Twitter

backlash with "unpatriotic
racists" comment on climate
change

turned to untried compounds.
Wyoming has no execution drugs on hand, Lampert said.
Last month, Oklahoma inmate Clayton Lockett
died of a heart attack more than 40 minutes after
corrections officials there started trying to
administer drugs at his execution. President
Obama called the Lockett incident deeply
troubling and said he had asked his attorney
general to review the application of the death
penalty.

Play VIDEO

Okla. executions on hold
after lethal injection goes
wrong

Sen. Bruce Burns, R-Sheridan, had proposed a
bill in the state's legislative session earlier this
year to change state law to allow the use of firing
squads. He's a member of the judiciary

Is cheap food to blame for the
obesity epidemic?

What's behind the national
ammo shortage?

China calls for new security
pact with Russia, Iran

New meteor shower visible this
weekend: How to watch

committee.
Burns said Wednesday the committee intends to consider the firing-squad
approach at its next meeting in July. He floated a bill in the legislative session
early this year calling for allowing use of the firing squad, but it failed an
introductory vote.
Burns said his fellow lawmakers increasingly seem to recognize that the state
needs to act.
Burns said he believes using the firing squad would be a preferable means of
execution to lethal injection, in which inmates feel the needle and then have to
wait for drugs to take effect.
Wyoming has only one inmate on death row: Dale Wayne Eaton, 69, is pressing a
federal appeal of the state court death penalty he received in 2004 for the
murder of Lisa Marie Kimmell, 18, of Billings, Montana.
Cheyenne lawyer Terry Harris represents Eaton in his federal appeal. An attempt
to reach Harris for comment Wednesday wasn't immediately successful.
Rep. Stephen Watt, R-Rock Springs, serves on the Joint Interim Judiciary
Committee. He said he intends to sponsor a bill in the state's coming legislative
session to do away with the death penalty entirely but doesn't expect it will get
much support.

38 PHOTOS

amfAR gala at the Cannes Film
Festival

Most Discussed
Who do Americans blame for
the VA scandal?
471 COMMENTS

What will it take to fix the VA?
199 COMMENTS

Watt is a former Wyoming Highway Patrol trooper who was severely injured in a
gunfight on the job years ago.
"The biggest and probably the most important one is probably my Christian
beliefs that it's wrong for man to kill man," Watt said Wednesday of his
opposition to the death penalty. "The second one is because of technology. All the
time, we're coming up with more and more technology, and we're finding
innocent people that have been wrongly convicted and sentenced to die. It would
be a tragedy for one innocent person to die."
Watt said he doesn't consider the firing squad to be a more humane alternative
to lethal injection.
"I've been shot," he said. "And I don't care how quickly death comes from firing
squad. It still hurts and it's still terrifying. And I think it's cruel and unusual."
© 2014 The Associated Press. All Rights Reserved. This material may not be published, broadcast,
rewritten, or redistributed.

17 Comments / 34 Shares /

Tweets /

Stumble /

Email

Around the web

More +
Recommended by

Kid Goes After His Bully
During Fight and Gets…

Meet the Beautiful Girlfriends
of Soccer…

Mamas Latinas

People en Espanol

10 Greatest Goalies In NHL
History

Michelle Obama's DNA Test
Show Slave Owner as…

SportsBreak

Ancestry.com

Featured in Politics

Popular on CBS News
Cabinet shuffle: Obama

Exhibit 9
Page 385

Retiree dies in police custody
after traffic stop
243 COMMENTS

House snubs Pentagon on
defense spending bill
53 COMMENTS

Pat Sajak sparks Twitter
backlash with "unpatriotic
racists" comment on climate
change
161 COMMENTS

nominates Julian Castro as
HUD secretary
John Kerry to testify on
Benghazi
95 COMMENTS

Americans' view of
Congress: Throw 'em out
A new CBS News poll reveals the
lowest-ever percentage of Americans
who think members of Congress
deserve re-election

Chuck Hagel: New officers
must help eliminate sexual
assault
Judge allows Rep. John
Conyers to be on ballot
12 COMMENTS

GOP sues feds for right to
raise unlimited campaign cash
15 COMMENTS

Back home briefly, Obama
breakfasts with Illinois
governor
VA Secretary Eric Shinseki
begins to draw friendly fire

What will it take to fix VA
health care?
With the VA roiled by scandal and
expecting an influx of new vets from
wars winding down, it needs solutions

After controversy, IRS to revise
rule changes for tax-exempt
political groups
15 COMMENTS

17 Comments / 26 people listening

+ FOLLOW

SIGN IN

Share

POST COMMENT AS...

COMMENTING FAQS / GUIDELINES

NEWEST | OLDEST | TOP COMMENTS

SFTOMMY_012 May 22, 2014 2:2PM

Give the convicted a choice from the police drug confiscation lockers; OD on the one of
their choice.
Strap 'em down and let it go....

No costs involved.
LIKE /

REPLY

ROADKING041 May 22, 2014 2:2PM

That's what I'm talking about! Lead is cheaper than drugs, and when you see a
condemned prisoner. And for all you anti-death penalty whiners, if it was your child
that had her head partially blown off with a shotgun, then buried alive as with the
Oklahoma murderer that was recently put to death, you would be calling for his head
on a platter. As far as i'm concerned heinous murderers on death row SHOULD suffer
as much physical and mental pain that can be administered while they take their last
worthless breath on this earth. THAT is justice!
LIKE /

REPLY

ASKAGAIN May 22, 2014 1:1PM

A wiser move would be to have several execution choices which either the state or the
person on death row can choose from. That might avoid some of the frivolous appeals.
LIKE /

REPLY

GTR5 May 22, 2014 0:12PM

Exhibit 9
Page 386

Just use a rope.
LIKE /

REPLY

BETTERUSA May 22, 2014 0:12PM

For the people that spout too many innocent ones being executed; execute the the
killers that are caught committing the crime. E.g. Holmes, Loughner, the Ft. Hood
shooter, are examples of killers that should be executed immediately. I am certain there
are many on death row that were 100% guilty like these three examples. Unfortunately,
these guilty types are lawyered up and are spending millions of taxpayer dollars
fighting the system. Only the lawyers win! Those that are convicted and given death or
life without parole should be put in a 5 foot by 5 foot cubicle that is completely without
light and fed through a slot in the door. I believe most would beg to be executed instead
of living in a coffin.
LIKE /

REPLY

DJSEAVY May 22, 2014 11:11AM

The death penalty should be abolished, since they seem to manage to put innocent
people on death row. I also believe being put in solitude until your dying breath would
be better punishment. I realize a lot of people believe death is appropriate in many
cases, and I can't say that I disagree. However, the cost of incarceration pales in
comparison to the cost of appeals and everything else that goes along with a dp case.
And if they execute an innocent person, which is very likely that they have already,
then what? It's a sentence that - once carried out - is impossible to reverse.
LIKE /

REPLY

ALWAYS SURPRISED May 22, 2014 11:11AM

I wouldn't want to be in the firing squad, pretty crappy job. They say it's cheaper to
keep him in prison for life. If that's true, probably better, but who can prove that it's
cheaper?
LIKE /

REPLY

DANNYSTEELE May 22, 2014 11:11AM

Personally, I'd do away with the death penalty. I've been in a prison cell (I was there as
part of construction project). Keeping someone locked up until natural death seems to
be a harsher sentence than the death penalty.
LIKE /

REPLY

VERITAS830 May 22, 2014 11:11AM

Obviously,when the constitution was written & hanging was the most popular form of
execution it wasn't considered cruel or unusual.The biggest concen I have is do you
have the right guy.
LIKE /

REPLY

EMPIRICAL RATIONALIST May 22, 2014 11:11AM

@Veritas830 Oh I agree, we need a mechanism in the law that to convict
someone of capital murder, there is sound physical scientific evidence. Too
many people get convicted simply because they're ugly or unpopular.
LIKE /

REPLY

CBCHASE May 22, 2014 11:11AM

@Veritas830 Good point. Hangings and firing squads weren't considered
unconstitutional while the men who wrote said document were still around,
but now it's a major outrage if a guy has a panic attack or feels discomfort from
an IV while lying on a bed with a pillow under his head. What?
LIKE /

REPLY

EMPIRICAL RATIONALIST May 22, 2014 10:10AM

Simple, cheap, quick, effective, and if we are talking headshots, would be quite painless.
Throw the body in a bag, and hose down the mess into the drain. It is a great way to
execute. Though I think hanging from a rope would probably be a little cleaner, and
you can reuse the rope.
1 LIKE /

REPLY

PHILS1950 May 22, 2014 10:10AM

"And I don't care how quickly death comes from firing squad. It still hurts and it's still

Exhibit 9
Page 387

terrifying. And I think it's cruel and unusual."
And feeling that needle slip under you skin, and the warm flow of the
drug isn't terrifying? Good to see how the victims felt huh......
Jeez, being put to death isn't mean to be pleasant, just think of the deaths of the victims
of these people, personally I don't care, how they top them off, What I do care about is
getting it done in a timely manner, as I really resent supporting these POS in prisons
for a couple of decades.

3 LIKE /

REPLY

LIVINGSWORD May 22, 2014 9:9AM

The gun is the weapon of choice to execute, just ask the NRA and most politicians who
support shooting Bambi with assault rifles. Or ask any of the many stone cold
murderers who have killed innocent men, women, and children at the many fine
colleges, universities, and even grade schools where mass murder by these killing
weapons have happened. They will tell you how humane and effective it is to gun down
all these people. Ask any muslim terrorist group or any NRA peoson just how
wonderful these bullets do their job. Im sure without a doubt that a 'Firing Squard' of
maybe just two or three executioners would definately put all these bad people out of
their misery once and for all. Like in a New York minute man, or like an instant cup of
coffee. Yeah now that is not 'cruel and unusual punishment', at all dude.
1 LIKE /

REPLY

NOMORENICEGUY May 22, 2014 10:10AM

@LivingSword Or ask the victims...oops..you can't because they're DEAD.
1 LIKE /

REPLY

BOBW1212 May 22, 2014 7:7AM

...you dip a guy in brown gravy and lock him in a small room with a wolverine who's
high on angel dust.
-George Carlin on capital punishment
2 LIKE /

REPLY

MERLIN BIKE May 22, 2014 5:5AM

Wait, what?
Where are they going to get the ammo?
3 LIKE /

REPLY

Site Map

Privacy Policy

Facebook

Help

Terms of Use

Twitter

Contact Us

Mobile User Agreement

RSS

CBS Bios

About CBS

Email Newsletters

Careers

Advertise

YouTube

Internships

Closed Captioning

CBS Radio News

Development Programs

Copyright © 2014 CBS Interactive Inc.
All rights reserved.

CBS Local

Exhibit 9
Page 388

Exhibit 10
Josh Levs, Ed Payne, and Greg Botelho,
Oklahoma's Botched Lethal Injection
Marks New Front In Battle Over
Executions, CNN.com,
May 1, 2014

Exhibit 10
Page 389

http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html

Oklahoma's botched lethal injection marks new front in battle over
executions
By Josh Levs, Ed Payne, and Greg Botelho , CNN
updated 3:32 PM EDT, Thu May 1, 2014

CNN.com

(CNN) -- A botched lethal injection in Oklahoma has catapulted the issue of U.S. capital punishment back
into the international spotlight, raising new questions about the drugs being used and the constitutional
protection against cruel and unusual punishment.
"We have a fundamental standard in this country that even when the death penalty is justified, it must be
carried out humanely -- and I think everyone would recognize that this case fell short of that standard,"
White House spokesman Jay Carney said Wednesday.
What went wrong Tuesday in Oklahoma "will not only cause officials in that state to review carefully their
execution procedures and methods," said Richard W. Garnett, a former Supreme Court law clerk who now
teaches criminal and constitutional law at the University of Notre Dame, "it will also almost prompt many
Americans across the country to rethink the wisdom, and the morality, of capital punishment."
"The Constitution allows capital punishment in some cases, and so the decision whether to use it or
abandon it, and the moral responsibility for its use and misuse, are in our hands," he said.

Precisely what happened during the execution of convicted murderer and rapist Clayton Lockett remains
unclear. Witnesses described the man convulsing and writhing on the gurney, as well as struggling to
speak, before officials blocked the witnesses' view.
It was the state's first time using a new, three-drug cocktail for an execution.
Oklahoma halted the execution of another convicted murderer and rapist, Charles Warner, which was
scheduled for later in the day.
Thirty-two U.S. states have the death penalty, as does the U.S. government and the U.S. military. Since
2009, three states -- New Mexico, Connecticut, and Maryland -- have voted to abolish it.
States that have capital punishment have been forced to find new drugs to use since European-based
manufacturers banned U.S. prisons from using theirs for executions. One of those manufacturers is the
Danish company Lundbeck, maker of pentobarbital.
Carney, speaking to reporters at a daily briefing, said he had not discussed the Oklahoma case with
President Barack Obama.
"He has long said that while the evidence suggests that the death penalty does little to deter crime, he
believes there are some crimes that are so heinous that the death penalty is merited." The crimes
committed by the two men in Oklahoma "are indisputably horrific and heinous," Carney said.
'There was chaos'

Page 1 of 5

Exhibit 10
Page 390

May 23, 2014 04:33:35PM MDT

http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html

Lockett lived for 43 minutes after being administered the first drug, CNN affiliate KFOR reported. He got
out the words "Man," "I'm not," and "something's wrong," reporter Courtney Francisco of KFOR said. Then
the blinds were closed.
Other reporters, including Cary Aspinwall of the Tulsa World newspaper, also said Lockett was still alive
and lifted his head while prison officials lowered the blinds so onlookers couldn't see what was going on.
Dean Sanderford, Lockett's attorney, said his client's body "started to twitch," and then "the convulsing got
worse. It looked like his whole upper body was trying to lift off the gurney. For a minute, there was chaos."
Sanderford said guards ordered him out of the witness area, and he was never told what had happened to
Lockett, who was convicted in 2000 of first-degree murder, rape, kidnapping and robbery.
After administering the first drug, "We began pushing the second and third drugs in the protocol," said
Oklahoma Department of Corrections Director Robert Patton. "There was some concern at that time that
the drugs were not having the effect. So the doctor observed the line and determined that the line had
blown." He said that Lockett's vein had "exploded."
The execution process was halted, but Lockett died of a heart attack, Patton said.
"I notified the attorney general's office, the governor's office of my intent to stop the execution and
requested a stay for 14 days," said Patton.
Gov. Mary Fallin issued a statement saying that "execution officials said Lockett remained unconscious
after the lethal injection drugs were administered."
Another state, another botched execution
Earlier this year, a convicted murderer and rapist in Ohio, Dennis McGuire, appeared to gasp and
convulse for at least 10 minutes before dying from the drug cocktail used in his execution.
Ohio used the sedative midazolam and the painkiller hydromorphone in McGuire's January execution, the
state said.
Louisiana announced later that month that it would use the same two-drug cocktail.
Oklahoma had announced the drugs it planned to use: midazolam; vecuronium bromide to stop
respiration; and potassium chloride to stop the heart. "Two intravenous lines are inserted, one in each
arm. The drugs are injected by hand-held syringes simultaneously into the two intravenous lines. The
sequence is in the order that the drugs are listed above. Three executioners are utilized, with each one
injecting one of the drugs."
The execution was the first time Oklahoma had used midazolam as the first element in its three-drug
cocktail. The drug is generally used for children "before medical procedures or before anesthesia for
surgery to cause drowsiness, relieve anxiety, and prevent any memory of the event," the U.S. National
Library of Medicine says. "It works by slowing activity in the brain to allow relaxation and sleep."
The drug "may cause serious or life-threatening breathing problems," so a child should only receive it "in a
Exhibit 10
Page 391
Page 2 of 5
May 23, 2014 04:33:35PM MDT

http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html

hospital or doctor's office that has the equipment that is needed to monitor his or her heart and lungs and
to provide life-saving medical treatment quickly if his or her breathing slows or stops."
Cruel and unusual?
The question for courts is whether using such drugs in executions constitutes "cruel and unusual"
punishment, in violation of the Eighth Amendment to the U.S. Constitution.
After his execution, McGuire's family filed a lawsuit seeking an injunction of the execution protocol the
state used.
"The lawsuit alleges that when Mr. McGuire's Ohio execution was carried out on January 16th, he did
endure frequent episodes of air hunger and suffocation, as predicted," the office of the family's attorney
Richard Schulte said in a statement. "Following administration of the execution protocol, the decedent
experienced 'repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain,' and
'looked and sounded as though he was suffocating.' This continued for 19 minutes."
In Oklahoma, attorneys for both Lockett and Warner have been engaged in a court fight over the drugs
used in the state's executions.
They'd initially challenged the state Department of Corrections' unwillingness to divulge which drugs would
be used. The department finally disclosed the substances.
Lockett and Warner also took issue with the state's so-called secrecy provision forbidding it from
disclosing the identities of anyone involved in the execution process or suppliers of any drugs or medical
equipment. The Oklahoma Supreme Court rejected that complaint, saying such secrecy does not prevent
the prisoners from challenging their executions as unconstitutional.
After Lockett's execution, Adam Leathers, co-chairman of the Oklahoma Coalition to Abolish the Death
Penalty, accused the state of having "tortured a human being in an unconstitutional experimental act of
evil."
"Medical and legal experts from around the country had repeatedly warned Oklahoma's governor, courts
and Department of Corrections about the likelihood that the protocol intended for use ... would be highly
problematic," said Deborah Denno, death penalty expert at Fordham Law School.
"This botch was foreseeable and the state (was) ill prepared to deal with the circumstances despite
knowing that the entire world was watching. Lethal injection botches have existed for decades but never
have they been riskier or more irresponsible than they are in 2014. This outcome is a disgrace," Denno
said.
Amnesty International USA called the botched execution "one of the starkest examples yet of why the
death penalty must be abolished."w
"Last night the state of Oklahoma proved that justice can never be carried out from a death chamber,"
Executive Director Steven W. Hawkins said in a statement.
Investigation
Page 3 of 5

Exhibit 10
Page 392

May 23, 2014 04:33:35PM MDT

http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html

The Oklahoma attorney general's office is "gathering information on what happened in order to evaluate,"
said spokeswoman Dianne Clay.
Fallin ordered an independent review of the state's execution procedures and issued an executive order
granting a two-week delay in executions.
"I believe the legal process worked. I believe the death penalty is an appropriate response and
punishment to those who commit heinous crimes against their fellow men and women. However, I also
believe the state needs to be certain of its protocols and its procedures for executions and that they work,"
she told reporters Wednesday.
Fallin gave no deadline for the review, which will be led by Department of Public Safety Commissioner
Michael Thompson. If it is not done within the 14-day period, the governor said she would issue an
additional stay for Warner.
Lockett's attorney slammed the announcement and called for a "truly" independent investigation.
"The DPS is a state agency, and its Commissioner reports to the Governor. As such, the review proposed
by Governor Fallin would not be conducted by a neutral, independent entity.
"In order to understand exactly what went wrong in last night's horrific execution, and restore any
confidence in the execution process, the death of Clayton Lockett must be investigated by a truly
independent organization, not a state employee or agency," Dean Sanderford said in a statement.
Lockett was convicted in 2000 of a bevy of crimes that left Stephanie Nieman dead and two people
injured.
Nieman's parents released a statement Tuesday prior to Lockett's scheduled execution.
"God blessed us with our precious daughter, Stephanie for 19 years," it read. "She was the joy of our life.
We are thankful this day has finally arrived and justice will finally be served."
Warner, who now awaits execution, was convicted in 2003 for the first-degree rape and murder six years
earlier of his then-girlfriend's 11-month-old daughter, Adrianna Waller.
His attorney, Madeline Cohen, said further legal action can be expected given that "something went
horribly awry" in Lockett's execution Tuesday.
"Oklahoma cannot carry out further executions until there's transparency in this process," Cohen said. "...
Oklahoma needs to take a step back."
In a CNN/ORC poll earlier this year, 50% of Americans said the penalty for murder in general should be
death, while 45% said it should be a life sentence. The survey's sampling error made that a statistical tie.
Fifty-six percent of men supported the death penalty for murder in general, while 45% of women did.
A Gallup poll last year found 62% of Americans believe the death penalty is morally acceptable, while half
as many, 31%, consider it morally wrong.
Page 4 of 5

Exhibit 10
Page 393

May 23, 2014 04:33:35PM MDT

http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html

CNN's Dana Ford, Eliott C. McLaughlin and Ross Levitt contributed to this report.
© 2014 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved.

Page 5 of 5

Exhibit 10
Page 394

May 23, 2014 04:33:35PM MDT

Exhibit 11
Dana Ford and Ashley Fantz,
Controversial Execution In Ohio Uses
New Drug Combination, CNN.com,
January 17, 2014

Exhibit 11
Page 395

http://www.cnn.com/2014/01/16/justice/ohio-dennis-mcguire-execution/

Controversial execution in Ohio uses new drug combination
By Dana Ford and Ashley Fantz , CNN
updated 1:01 PM EST, Fri January 17, 2014

CNN.com

(CNN) -- Ohio inmate Dennis McGuire appeared to gasp and convulse for roughly 10 minutes before he
died Thursday by lethal injection using a new combination of drugs, reporters who witnessed it said.
McGuire was convicted in 1994 of the rape and murder of 22-year-old Joy Stewart, who was seven
months pregnant. Her relatives were at Southern Ohio Correctional Facility in Lucasville to witness his
death, according to tweets from television reporter Sheila Gray.
McGuire's "children and daughter-in-law were crying and visibly upset," Gray tweeted.

She said McGuire, before the drugs took effect, thanked Stewart's family for a letter he apparently
received.
"To my children, I'm sorry. I love you. I'm going to heaven and I'll see you there when you come," McGuire
reportedly said, according to CNN affiliate WDTN.
Columbus Dispatch reporter Alan Johnson said that the whole execution process took 24 minutes, and
that McGuire appeared to be gasping for air for 10 to 13 minutes.
"He gasped deeply. It was kind of a rattling, guttural sound. There was kind of a snorting through his nose.
A couple of times, he definitely appeared to be choking," WDTN quoted Johnson as saying.
The convicted murderer was pronounced dead at 10:53 a.m. ET.
The execution generated controversy because, like many states, Ohio has been forced to find new drug
protocols after European-based manufacturers banned U.S. prisons from using their drugs in executions
-- among them, Danish-based Lundbeck, which manufactures pentobarbital.
According to Ohio's corrections department, the state used a combination of the drugs midazolam, a
sedative; and the painkiller hydromorphone.
Both the length of time it took for McGuire to die and his gasping are not typical for an execution, said
Howard Nearman, an anesthesiologist at University Hospitals Case Medical Center in Cleveland.
"Why it took 24 minutes, I really can't tell you," he said. "It just makes you wonder -- what was given?
What was the timing, and what were the doses?"
In an opinion piece written for CNN this week, a law professor noted that McGuire's attorneys argued he
would "suffocate to death in agony and terror."
"The state disagrees. But the truth is that no one knows exactly how McGuire will die, how long it will take
or what he will experience in the process," wrote Elisabeth A. Semel, clinic professor of law and director of
the Death Penalty Clinic at U.C. Berkeley School of Law.
Exhibit 11
Page 396
Page 1 of 2
May 23, 2014 04:34:56PM MDT

http://www.cnn.com/2014/01/16/justice/ohio-dennis-mcguire-execution/

Speaking on behalf of McGuire's legal team, attorney Allen Bohnert called on the governor to impose a
moratorium on future executions because of what took place Thursday.
"At this point, it is entirely premature to consider this execution protocol to be anything other than a failed,
agonizing experiment," he said in a statement.
"The people of the State of Ohio should be appalled at what was done here today in all of our names.
Ohio, like its citizens, must follow the law. The state has failed."
CNN's Sonny Hostin said that McGuire's execution will likely spark debate over whether how inmates
react to the use of the drugs constitutes cruel and unusual punishment prohibited by the U.S. Constitution.
"Whenever there's a change in the lethal injection process clearly it's subject to legal proceedings and
perhaps we will see those," Hostin said.
Ohio ran out of pentobarbital, which is a narcotic and sedative barbiturate, in September, according to
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction.
In response to that shortage, the department amended its execution policy to allow for the use of
midazolam and hydromorphone.
Stewart's body was discovered by hikers near a creek in southwestern Ohio in February of 1989. Her
throat was cut and she had been sodomized.
Death penalty states scramble for lethal injection drugs
There are currently 138 men and one woman on death row in Ohio.
The state was set to execute death row inmate Ron Phillips using the new drug combination last year, but
Gov. John Kasich granted the convicted killer a stay of execution pending a review of a possible organ
donation to his family members.
CNN's Joe Sutton, Ross Levitt and Deborah Feyerick contributed to this report.
© 2014 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved.

Page 2 of 2

Exhibit 11
Page 397

May 23, 2014 04:34:56PM MDT

Exhibit 12
PriceWaterhouseCoopers, Cost of
Private Panel Attorney Representation in
Federal Capital Habeas Corpus Cases
from 1992 to 1998, February 9, 1999

Exhibit 12
Page 398

Cost of Private Panel Attorney Representation in Federal
Capital Habeas Corpus Cases from 1992 to 1998

February 9, 1999

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 399

TABLE OF CONTENTS
Section 1: Executive Summary
1.1 Introduction
iii

1.2 The Nine Steps of Capital Litigation
1.3 Costs of Federal Capital Habeas Corpus Cases
1.4 Regional Differences in the Costs of Federal Capital Habeas Corpus
Cases

1.5 Factors Driving Costs of Federal Capital Habeas Corpus Cases.... xvi
1.6 Factors Explaining the Cost Differential Between California and
xviii

Non-California Cases

II-1

Section II: Background to Study
ILI The Defender Services Program

II-I

11.2 The Cost of Federal Capital Habeas Corpus Review

11-2

11.3 Reason for This Study

11-4

Section III: Federal Capital Habeas Corpus Case Life Cycle

111-7

111.1 Definition of Federal Capital Habeas Corpus

111-7

111.2 Background on Federal Capital Habeas Corpus

111-7
III- 1 0

111.3 The 9 Stages of Capital Litigation

1V-28

Section IV: Methodology
IV.1 Overall Methodology

W-28

1V.2 Data Analysis Methodology

IV-29

IV.3 Survey Methodology

1V-33

IV.4 Methodology for the Case Studies

1V-3 5

Section V: CJA Panel Attorney Payment System Database Analysis

V-38

V.1 National Costs

V-38

V.2 Breakdown of Costs by Stage of Proceeding

V-39

V.3 Breakdown of Costs by Component

V-44

V.4 Breakdown of Costs by Circuit

V-46
PRICEWATERHOUsECODPERS

Exhibit 12
Page 400

V-59

V.5 Study of Ninth Circuit Cases by State

V.6 Accounting for the Cost Differential Between the Average California
and Non-California Case

V-67

Section VI: Factor Analysis

VI-81

V1.1 Attorney Opinions

V1-82

VI.2 Regression Analysis

VI-86
VII-96

Section VII: Comparative Study of Selected States

V11-96

VII.1 Habeas Petition Stage
VII.2 Evidentiary Hearing Stage

VII-101

V11.3 Appeal Stage

V11-105

V11.4 All Stages

VII-106
V111-111

Section VIII: Conclusions
VIII.1 The Costs of Capital Federal Habeas Corpus Cases

VIII-112

VIII.2 Factor Analysis

V111-115

V111.3 Case Study Analysis and Analysis of States in the Ninth Circuit
V111-117
TABLE OF FIGURES

ES Figure 1: Total Cost of Federal Capital Habeas Corpus Cases
ES Figure 2: Average Federal Capital Habeas Corpus Costs by Component

vi

ES Figure 3: Median Federal Capital Habeas Corpus Costs by Component

ix

ES Figure 4: Cost of Federal Capital Habeas Corpus Cases by Circuit

x

ES Figure 5: Cost of All Cases By Circuit

xi

ix

ES Figure 6: Average and Median Cost of Federal Capital Habeas Corpus
xii

Cases by State
ES Figure 7: Average and Median Cost Per Case By District

xiii

ES Figure 8: The Cost Difference Between the Average Case Cost in NonCalifornia Cases and the Average Case Cost in California

xiv

PRICEVVATERHO UsECCOPERS

Exhibit 12
Page 401

0

ES Figure 9: Additional 1,600 Attorney Out-of-Court Hours Spent in
California Cases Compared to Non-California Cases Broken Down by
Activity

xv

ES Figure 10: Difference Between Average Cost of Stage of Proceedings for
California and Non-California Cases

xvi

Figure 111-1: The Stages of Capital Litigation

111-1 I

Figure 111-2: Life Cycle of a Federal Capital Habeas Corpus Case

III-17

Figure V-1: Distribution of Costs and Number of Cases

V-38

Figure V-2: Distribution of Costs and Number of Open Cases

V-40

Figure V-3: Distribution of Costs and Number of Closed Cases

V-42

Figure V-4: Total Cost of Open Cases by Stage of Proceeding

V-43

Figure V-5: Total Cost of Closed Cases by Stage of Proceeding

V-44

Figure V-6: Average Cost Per Case—Attorney, Expert Costs and Expenses

V-45

Figure V-7: Median Cost Per Case—Attorney, Expert Costs, and Expenses

V-45

Figure V-8: Average and Median Cost Per Case By Circuit

V-46

Figure V-9: Average Cost of All, Open and Closed Cases by Circuit

V-47

Figure V-10: Percentage of Open Cases by Circuit

V-48

Figure V-11: Average and Median Cost By State

V-49

Figure V-12: Average and Median Cost Per Case By District

V-50

Figure V-I3: Plot of All Cases for All Circuits and California

V-51

Figure V-14: Comparison of Costs of California and Non-California Cases

V-52

Figure V-15: Out-of-Court Hours Spent by Attorney per Case per Circuit

V-53

Figure V-16: Average Out-of-Court Attorney Rate per Circuit

V-54

Figure V-17: Average Attorney Hours in the Habeas Petition Stage by Circuit
V-55
Figure V-18: Average Attorney Hours in the Evidentiary Hearing Stage by
Circuit

V-56

Figure V-19: Average Attorney Hours Spent in the Appeal Stage By Circuit V-57
Figure V-20: Average Expert Cost Per Case by Circuit

V-58

Figure V-21: Average Costs Per Case for Habeas Petition and Evidentiary
Hearing Stages

V-61
PRtaWATErmusECoaPER5

Exhibit 12
Page 402

Figure V-22: Average Out-of-Court Rate Per Case in the Ninth Circuit, By
State

V-63

Figure V-23: Average Number of Out-of-Court Hours per Case in the Ninth
Circuit

V-64

Figure V-24: Average Number of Attorneys Per Case in the Ninth Circuit, By
State

V-65

Figure V-25: Average Time Spent Per Case Per Activity

V-66

Figure V-26: The Cost Differential Between the Average Case Cost in NonCalifornia Cases and the Average Case Cost in California

V-68

Figure V-27: Percentage of the Cost Differential Between California and NonCalifornia Cases Attributable to Certain Factors

V-68

Figure V-28: Percentage of Out-of-Court Cost Attributed to Each Attorney
Activity

V-69

Figure V-29: Average Cost Per Case For Experts in All Stages

V-74

Figure V-30: Average Cost per Case by Expert Type, California Cases vs.
Non-California Cases

V-76

Figure V-31: Average and Median Cost by Stage of Proceeding for California
and Non-California Cases

V-78

Figure VH-1: Average Cost of the Habeas Petition Stage of a Case for
Selected States

V11-97

Figure V11-2: Average Cost of Investigators Per Case for Selected States

V11-99

Figure V11-3: Average Cost Per Case for Selected States of Reviewing Court
Records

V11-100

Figure V11-4: Average Cost Per Case of the Evidentiary Hearing Stage for
Selected States
Figure 1111-5: Average Cost of Experts Per Case for Selected States

VH-101
VII- 103

Figure VII-6: Average Cost Per Case of Mental Health Experts for Selected
States

VH-104

Figure VH-7: Average Cost Per Case of Consulting With Experts for Selected
States

V11-105
PWCEW4TERHOUSECOOPERS

Exhibit 12
Page 403

a

Figure VII-8: Average Cost Per Case of the Appeal Stage for Selected States
V1I-106
TABLE OF TABLES

ES Table 1: Average and Median Costs of Open and Closed Federal Capital
Habeas Corpus Cases

vi

ES Table 2: Average and Median Costs per Stage of Proceeding

viii

Table V-1: Average Cost Per Case in Ninth Circuit States

V-60

Table V-2: Number of Cases by Stage of Proceeding

V-62

Table V-3: Percentage of Cases Using Experts

V-73

Table V-4: Average Cost Per Expert by Stage of Proceeding

V-75

Table VI-I: List of Factors

V1-83

Table V1-2: Survey Results on the Percentage of Habeas Claims Per Case

V1-84

Table V1-3: Attitudes that Affect Costs

VI-85

Table VI-4-: Regression Model of All Cases

V1-94

Table V1-5-: Regression Model of Non-California Cases

VI-95

APPENDICES

Appendix A: Regression Analysis Methodology

A- I

Appendix B: Federal Capital Habeas Corpus Survey for Panel Attorneys....B-1
Appendix C: Case Study Profiles

C-1

PRICEWATERHOUsECCOPERS 0

Exhibit 12
Page 404

Section 1:

Executive Summary

1.1 Introduction
In September 1998 the Administrative Office of the United States
Courts (AOUSC) requested that PricewaterhouseCoopers (PwC)
analyze the costs of private panel attorney' representation of federal
capital habeas corpus cases from 1992 to 1998. In particular, PwC was
asked to identify regional differences in costs and potential reasons for
those differences. The following report is the result of that analysis.
Federal capital habeas corpus involves federal court review of a state
capital murder conviction and a death sentence that has already been
upheld by a state court. The petitioner—the person sentenced to
death—makes a claim that his constitutional rights were violated at
some point during the state proceedings.' Thus, the writ of habeas
corpus serves as a check on state courts and their application of federal
constitutional protections, but does not determine the prisoner's guilt
or innocence. The procedural and substantive legal rules governing
federal capital habeas corpus review are evolving and very complicated
(see 1.2. The Nine Steps of Capital Litigation below)?

Private panel attorneys are private attorneys who are compensated with public dollars to
provide representation. to those financially unable to secure adequate representation in criminal
and related proceedings. As such, they are pan of the Defender Services Program operated by
the Administrative Office of the U.S. Courts. These attorneys are often referred to as cjA
panel attorneys in reference to the Criminal Justice ACC of 1964, which provides authorization
for compensating them.
2

Claims are typically made under the 4th, 5th, 6`h, 8th, and 14th Amendments.

3

See Section 3 for a detailed discussion of the life cycle of a federal capital habeas case.

PRICEWATERHOUSECCOPERS 0

Exhibit 12
Page 405

Concern about regional differences in the costs of federal capital
habeas corpus representations by CJA panel attorneys arose, in part,
from a 1998 Coopers & Lybrand report on the costs of the Defender
Services Program. In that report, Coopers & Lybrand noted that the
Ninth Circuit, driven by the California districts, accounted for 60 to 76
percent of capital habeas representation costs, in contrast with 48 to 63
percent of the representations between 1992 and 1997. 4
Following a House Appropriations Subcommittee hearing during
which this finding was discussed, Judge John G. Heyburn II, Chair of
the Judicial Conference Budget Committee, and Leonidas Ralph
Mecham, AOUSC Director, wrote to Representative Harold Rogers,
Chairman of the House Subcommittee, outlining the judiciary's efforts
to control the cost of capital habeas cases in the Ninth Circuit and
California. These measures include mandatory case budgeting as well
- as Circuit Judicial Council review and approval of case budgets for all
pending and new capital habeas proceedings. In addition, the AOUSC
awarded PwC a contract to study the issue.
In this study, PwC used three sources of data and information to
identify the costs and regional disparities in the costs of federal capital
habeas corpus cases, as well as the possible reasons behind these costs
and regional disparities:
1. Analysis of vouchers from the CJA Panel Attorney Payment
System database, which contains information on costs incurred
and hours spent on CJA panel attorney cases;
Report on Costs and Recommendations for the Control of Costs of the Defender Services
Program, Coopers & Lybrand L.L.P, page 25.

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 406

2.

Analysis of responses to a survey distributed to a sample of CJA
panel attorneys; and

3.

Case studies of seven separate cases from six states, including
two cases from California.

None of the analyses included in this report should be taken as
representing PwC's recommendations as to what are, or should be,
appropriate costs of federal capital habeas corpus cases. In particular,

comparison of the average costs of cases by circuit, district, and state
does not, by itself, indicate whether costs are too high or too low in
any particular region.

1.2 The Nine Steps of Capital Litigation
Beginning with the state trial, a capital case may pass through nine
steps of litigation before the case is finally closed. These nine steps
are:
Step 1: State trial and sentencing;
Step 2: Direct appeal at the state level;
Step 3: Petition for certiorari review of state conviction in the U.S.
Supreme Court;
Step 4: State collateral review (post-conviction proceedings);
Step 5: Appeal of state collateral review decision at the state level;
Step 6: Petition for certiorari review of state collateral review in the
U.S. Supreme Court;
Step 7: Petition for writ of habeas corpus in federal district court;
Step 8: Appeal of federal district court decision in the federal court of
appeals; and
PRICEWATERHOUsECODPERS

Exhibit 12
Page 407

Step 9: Petition for certiorari review in U. S. Supreme Court.
The federal capital habeas corpus stage begins at Step 7 and ends at
Step 9, but the time taken for a case to pass through these steps
depends heavily on what occurs at the state level in the prior six steps.
Therefore, petitioner's counsel must familiarize himself or herself with
all that went on in the case before it reaches Step 7. The volume and
complexity of the work involved in providing representation in a
federal capital habeas corpus case can therefore be substantial.
Moreover, there are various sub-steps in the federal habeas corpus
stage. They include:
• Appointment of counsel;
• Request for stay of execution, and appeals (if relevant) of denials
of stay;
• The hearing of dispositive motions; and
• The holding of an evidentiary hearing (if needed) and oral
arguments before the judge.
These steps do not always proceed uninterrupted. At any point in the
process this sequence of sub-steps may be suspended: a case may be
sent back to the state court; an appeal may be made to the circuit court;
or procedural litigation, such as whether the time limits imposed by the
Anti-terrorism and Effective Death Penalty Act apply, may be
instigated. Each delay adds to the cost of a case as attorneys take time
to review the case again, learn new statutory and case law, renew
contact with witnesses, and so on. The life cycle is discussed more
fully in section III.
iv

PRICEVVATERHOUsECOOPERS

Exhibit 12
Page 408

a

1.3 Costs of Federal Capital Habeas Corpus Cases 5
Total Costs of Federal Capital Habeas Corpus Cases:

The total cost

of C.TA panel attorney representation in 1,009 federal capital habeas
corpus cases between 1992 and 1998 was $112.1 million. PwC
removed certain vouchers and cases (totaling $9.8 million) deemed
inappropriate for the analysis, 6 leaving $102 million in total costs for
783 cases. The analyses and figures in the rest of this report relate to
these 783 cases.
Almost 90 percent of these costs (about $90 million) were incurred in
631 open cases, while approximately 10 percent of the total costs
analyzed were incurred in the 152 closed cases! Of the open cases,
most of the costs ($85 million) were incurred in active cases , while
only a small proportion of the total costs ($5 million) were incurred in
open cases that are dormant.'

The costs analyzed in this report do not include the costs of services provided by PostConviction Defender Organizations (PCD0s) staff in Federal Defender Organizations,
assistance provided by law school interns, or the value of pro bono work performed by other
attorneys. Many of the cases in the database received assistance from one or more of these
sources, especially from the PCD0s, that were operational from 1989 to 1996.

5

A case was unsuitable for analysis if the stage of proceeding was not noted on any of the
vouchers for that case, if the case's vouchers only included experts' costs, if the case had started
within the past 6 months, or if the case was under seal.
6

Cases are considered closed if the petitioner died in prison, was executed, was granted habeas
relief and released (or received a reduced sentence as a result), or if the death sentence was
commuted and the state court reduced the sentence. Otherwise, cases are considered open.
Open cases are considered active if the attorney submitted a voucher within the last 2 years.
Otherwise open cases are considered dormant.

PRICEWATERNOUsECCOPERS

Exhibit 12
Page 409

CJA Panel Attorney Payment System Data
Open and Closed Cases by Case Disposition
All Cases
Number of Cases 783
Sum Cost : S102,293,031.13
Avg. Cost: S130,642.44
Median CostS63,256.82

Open Cases
Number of Cases: 631
Sum Cost: $89,856,704,23
Avg. Cost: $142,403.65
Median Cost S68,154.90

Active

Number of Cases: 563
Sum Cost: $85,218,988.17
Avg. Cost: 5151,365.90
Median: $72,91073

Dormant
Number of Cases: 68
Sum Cost: $4,637,716.06
Avg. Cost: S68,201.71
Median: $33,517.75

Closed Cases
Number of Cases: 152
Sum Cost: $12,436,326.90
Avg. Cost: S81,817.94
Median Cost $54,779.85

Executed

Number of Cases: 131
Sum Cost: $10,866,740.36
Avg. Cost: $82,952.22
Median: $55,616.75

Commuted/Released/Died
Number of Cases: 21
Sum Cost: S1,569,586.54
Avg. Cost: $74,742.22
Median: $53,428.87

ES Figure 1: Total Cost of Federal Capital Habeas Corpus Cases

Average and Median Costs of Federal Capital Habeas Corpus Cases:

Open cases are, on average, more costly than closed cases, and active
open cases are are more costly than dormant cases. For closed cases
there is little difference in cost by the final disposition of the case, as
shown in ES Table 1 below.
ES Table 1: Average and Median Costs of Open and Closed Federal
Capital Habeas Corpus Cases

Status of Case

Average
Cost

$130,642
$142,404
$81,818

All Cases
Open Cases
, Closed Cases

Median Cost

$63,257
$68,155
$54,780

$151,366
$68,202
$82,952
$74,742

$72,911
$33,518
$55,617
$53,429

Disposition of Case

Open Cases:

Active
Dormant
Closed Cases: Executed
Commuted/Released/Died

vi

PRICEWATERHOUsECCOPER5

Exhibit 12
Page 410

The median costs (that is, the cost of the "middle" case 9) for all
categories of case are lower than the average costs, implying that the
distribution of costs is skewed to the low end (that is, there are more
cases with below-average costs than above-average costs). As
discussed below, this is due in large part to the number of high-cost
California cases. Otherwise, the median costs show a similar pattern to
the average costs: open active cases are still the most costly, and there
is little difference in the median cost of closed cases by case
disposition.
The relatively low average cost of closed cases compared to open cases
is due largely to the impact of the large number of open and high-cost
California cases. When the costs of only non-California cases are
compared, there is little difference between the average cost of a closed
case ($81,806) compared to an open case ($66,931).
Cost of Federal Capital Habeas Corpus Cases by Stage of
Proceeding: Preparation of the habeas petition is the most costly part

of a case, most likely because not only does the bulk of investigation
and research take place at this time but arguments are developed. This
is true for both open and closed cases. For open cases, the evidentiary
hearing stage is the next most costly stage. However, for closed cases
the next most expensive stage is the appeal stage. This is shown in ES
Table 2 below.

By definition, 50 percent of the cases are more costly than the cost of the median case, and 50
percent of the cases are less costly.
9

vi i

PRICEWATERHOUSECOOPERS 0

Exhibit 12
Page 411

ES Table 2: Average and Median Costs per Stage of Proceeding"
Stage of Proceeding

Open Cases

Closed Cases

Average

Median

Average

Median

Habeas Petition Stage

$129,363

$46,614

$42,366

$27,715

Evidentiary Hearing

$54,594

$17,200

$20,060

$8,937

Dispositive Motions

$24,570

$12,398

$22,976

$8,921

Appeal Stage

$29,428

$20,713

$30,041

$21,140

Petition for Cert

$9,333

$8,025

$11,762

$8,351

Other Stages

$11,216

$11,015

$4,608

$4,836

The cost discrepancies between open and closed cases is, again,
primarily due to the impact of California cases.
Costs of Federal Capital Habeas Corpus Cases by Cost Components:

The majority of costs (over 80 percent) for both open and closed cases
can be attributed to attorney fees for time spent out of court. The next
most costly component is compensation for experts, followed by
attorney expenses. Attorney fees for in-court hours are, by
comparison, minimal. ES Figure 2 and ES Figure 3, respectively,
show the average and median costs for each of these components.

" The average cost of each stage of proceeding is calculated by dividing the total costs in the
database for that stage of proceeding by the number of cases that had that stage of proceeding.
Each case does not go through every stage (for example, not every case has an evidentiary
hearing). Therefore, the sums of the average cost by stage ($258,504 and $138,220 for open and
closed cases respectively) exceed the averages for open and closed cases given above ($142,404 and
$81,818 respectively).

viii

FIUCEVVA TERH OUSEC ERS
COP

Exhibit 12
Page 412

$120,000.00

.T. ,.

F

ifIll

$100,000.00

' ',...4:,

,

Ave rage Cost

$80,000.00

0 Avg In-Court Attorney
Fees

,i.

$60,000.00

0 Avg Out-of-Court
Attorney Fees

7 ..,..

......

v.

E Avg Attorney

1111

.;
..,

Expenses
P3 Avg Expert Costs

$40,000.00

$20,000.00

$0.00

A:
i
i0Iii•

41i

k.P.4:

,...to

..,

:...

All

Closed

Open

Case Status

ES Figure 2: Average Federal Capital Habeas Corpus Costs by
Component

$120,000.00

$100,000.00

0 Median Out-of-Court
Attorney Fees
NI Median In-Court
Attorney Fees

$80,000.00
0

0 Median Attorney
Expenses

$60,000.00

0 Median Expert Costs
$40,000.00

$20,000.00

r....A.

$0.00

:7'....,.

All

Closed

Open

Case Status

ES Figure 3: Median Federal Capital Habeas Corpus Costs by
Component
ix

PRICEWATERHOUSECODPER5

Exhibit 12
Page 413

1.4 Regional Differences in the Costs of Federal Capital
Habeas Corpus Cases
Average Cost of Cases By Circuit: The average cost of a case in the

Ninth Circuit is more than three times the average case cost in any
other circuit, as shown in ES Figure 4.
$350,000

$300,000

$250,000

Average Cost

.,

$200,000
=Mt

$150,000

Avg. Case Cast

—a— Med. Case Cost

..''

$100,000

$50,000

V

..

i

$0
03

04

05

06

07

08

09

10

11

Circuit

ES Figure 4: Cost of Federal Capital Habeas Corpus Cases by Circuit

The high average cost of a Ninth Circuit case is not simply the result of
a small number of very expensive cases. ES Figure 5 shows a curve
for all cases in each circuit that links the cost of those cases, starting
with the most costly case and ending with the least costly case.'
Curves for California and non-California Ninth Circuit cases have also
been included in the chart. Several facts are immediately apparent:

11 Although cases in the Ninth Circuit were the most costly, all circuits had at least one case
whose costs exceeded the national average and median.

PRICEVVATERHOUSECOOPER5

Exhibit 12
Page 414

ft3

District courts in the Ninth Circuit have a larger caseload than

•

district courts in other circuits, with approximately 300 cases out
of a total of 783;
The median cost of a case in the Ninth Circuit is very high relative

•

to that of other circuits; in fact 95% of the cases in these other
circuits cost less than the median cost of a case in the Ninth
Circuit; and
•

California cases drive Ninth Circuit costs.

51,000.00000
3RD CIRCUIT
—

—

Median Cost

\

5TH CIRCUIT

—

5750.00000

4TH CIRCUIT

6TH CIRCUIT

9TH CIRCUIT

—

¶0TH CIRCUIT

-

111-Fi CIRCUIT
9TH CIRCUIT WITHOUT
CA

—

\

8TH CIRCUIT

—

California's Median Cost

7TH CIRCUIT

—

—

5500.0D0 00

—

CALIFORNIA

The Ninth Circuits Median Cost

5250.000 00

$000
300

350

ES Figure 5: Cost of All Cases By Circuit

Average and Median Cost of Cases by State: Further evidence that
the high average and median cost of Ninth Circuit cases is driven by
the costs of California cases is shown in ES Figure 6 below, a
comparison of costs by state. Note that for most states, the median
cost is lower than the average cost, again indicating that in most states
low-cost cases outnumber high-cost cases. The high average costs and
xi

pRravvATERHousEccopER5

Exhibit 12
Page 415

the large number of California cases mean that California cases
account for $58 million, or 57 percent, of the total national cost of
$102 million.
$400,000

$350,000

$300,000

Avg. Co s t Pe r Case

$250,000

=Average

5200.000

—o—Median
5150.000

7,

$100,000

$50.000

0-

DE PA MD NC SC VA LA MS TX OH TN II. IN AA 1.10 NE AZ CA D IAT M/ WA CO Ci< UT AL FL GA
5 10 10 20 19 52
4 11 115 50 IS 34 6
5 2 49 4 9 3814
16 56 7 44 10613
1
6

State and Number of Cases 1992 to 1998

ES Figure 6: Average and Median Cost of Federal Capital Habeas
Corpus Cases by State

Average Cost of Cases by District:

PwC also analyzed average case

costs by district for districts with more than 10 cases in the OA Panel
Attorney Payment System database (see ES Figure 7 below). All
California districts had a very high average case cost (and median case
cost), ranging from California Eastern's $300,000 to $436,000 in
California Northern (California Southern is not shown because it only
had one case). No other district outside of California approached the
average California case cost, although many of the non-California
Ninth Circuit districts had relatively high average costs compared to
non-Ninth Circuit cases. This suggests that part, but only a small part,

xii

PRICEWATERHOusECOJPERS 0

Exhibit 12
Page 416

of California's high costs can be attributed to factors relating to the
Ninth Circuit as a whole.

$500,000.00

$450,000.00

$400,000.00

$350,000.00

is

$300,000.00
3

18

1=1Avorago

$250,000.00

Modfan

$20000.00

$150,000.00

$100,000.00

$50,000.00

$0.00
RCA RCA VAR SAW TXE 3104 31(5 TXW ORN OHS IL1.1 ARE 500 MOW
13 16

38 10

22

43 25 21 20

31

PZX CAC CAE CAN 10X NV% 000FLM

26 14 28 27 44 81 38 36 13 15 37 21

District/Number of pesos Per DIstrict

ES Figure 7: Average and Median Cost Per Case By District (Districts
With More Than 10 Cases)

Average California and Non-California Costs:

The average cost of a

case originating in California was $372,029, and the average cost of a
non-California case was $70,360. Most of the difference between
these two averages ($301,669) is due to the additional out-of-court
hours that California attorneys work, as shown by the following
breakdown of the difference in averages:
0 $170,349 is due to the additional out-of-court hours worked by
California attorneys (an average of 2,180 hours for California cases
compared to an average of 578 hours for non-California cases);

PRICEVVATERHOLSECCOPER5

Exhibit 12
Page 417

0

• $60,253 is due to the higher attorney hourly rates in California
($133.90 average per hour for California cases, compared to
$106.30 average per hour for non-California cases); 12
• $35,888 is due to higher expert costs in California cases (an
average of $39,462 in expert costs in California cases, compared to
an average of $3,574 in non-California cases);
• $31,360 is due to higher attorney expenses in California cases (an
average of $35,566 in California cases, compared to an average of
$4,205 in non-California cases); and
•

$3,831 is due to additional in-court attorney fees in California (an

average of 134 in-court hours in California cases, compared to an
average of 106 in-court hours in non-California cases).
This breakdown is shown graphically in ES Figure 8.

IIIDIlloronce In Oul-ol.Court Hours

1210311erento In Out-ol•Court Sabo
DIAlerenoe In Mornay Expenses
CIDalerence in Expert Costs
SDIllerence in In-Court Fees

1:JAvrt Non CA Case Cost

ES Figure 8: The Cost Difference Between the Average Case Cost in
Non-California Cases and the Average Case Cost in California

12

The hourly rate is now capped at $125 by statute.
xiv

PRICEWATERHOUsECCOPER5

Exhibit 12
Page 418

M

Of the $170,349 resulting from the difference in out-of-court hours,
almost half (45 percent) was due to additional time spent performing
legal research and writing, as shown below in ES Figure 9. California
attorneys spent, on average, 135 more hours reviewing the (typically
much longer) trial record than their non-California counterparts (188
hours for California cases compared to 53 hours for non-California
cases) for an additional cost of $14,377, and 89 more hours consulting
with experts (107 hours for California cases compared to 18 hours for
non-California cases) for an additional cost of $9,507.

Other
12%

Interviewing Client
3%
Witness Interviews
3%
Consulting Experts
6%
Review Record
8%

ES Figure 9: Additional 1,600 Attorney Out-of-Court Hours Spent in
California Cases Compared to Non-California Cases Broken Down by
Activity

Average California and Non-California Costs By Stage of
Proceeding: The greatest difference between the average cost of a
California case compared with a non-California case can be attributed
to the difference in costs incurred during the habeas petition stage
XV

PRICEWATERHOUsECCOPER5 0

Exhibit 12
Page 419

(approximately $330,000 for California cases, compared to $50,000 for
non-California cases).

An evidentiary hearing in California is also more costly
(approximately $113,000 for California cases compared to $20,000 for
non-California cases).
5350.000

5300,000

$250,000

• $zoomo

=Avg Nan-CA
MEI Avg CA
MedianNon-CA
Median CA

°
co

•

$150,000

$100,000

$50,000

,

$O

et

e
e

.0"

e"

coo

".

_I

ts,9

Sta ge of Proceedin g

ES Figure 10: Difference Between Average Cost of Stage of Proceedings
for California and Non-California Cases

1.5 Factors Driving Costs

of

Federal Capital Habeas

Corpus Cases
Many factors drive the costs of federal capital habeas corpus cases. 13 A
statistical analysis of the impact of nine factors on the costs of 84 non-

" The factors driving the costs of all cases may differ from the factors that explain why the costs
of California cases are greater than the costs of non-California cases.

xvi

PRICEVVATERHOUSECCOPERS

Exhibit 12
Page 420

0

California cases only accounted for only 14 percent of the total costs. 14
This supports the notion that the costs of cases are typically based on
case-specific factors, such as the complexity of the petitioner's
personal background, the particulars of the circumstances surrounding
the crime, and the idiosyncrasies of the state trial. These factors are
difficult to quantify and include in a statistical model.
PwC therefore sent out a survey to CIA panel attorneys as part of this
study. The survey results showed that the attorneys believe the
following factors are the most important in driving the costs of cases.
The factors are listed in descending order of importance:
•

The level of competency of state trial counsel: More than 80

percent of the attorneys who were surveyed raised "Ineffective
assistance of counsel" (at the state trial) as a habeas claim. A poor
defense by counsel at the initial trial often leads to
underdevelopment of the facts of the case.
•

The lack of development offacts during the state trial: At the

federal habeas corpus stage, an underdeveloped case may, in turn,
lead to more investigation, research, and development of an
argument of ineffective assistance of trial counsel. Such
investigation and research typically occurs years after the initial
trial, and can be time-consuming and costly.
•

The degree of legal research required, especially for new or
original claims: New claims (that is, claims for which a precedent

" These factors were: attorney experience; size of trial record; number of habeas corpus claims
raised; whether investigation at trial involved travel to other states; continuity of counsel from
state to federal post-conviction proceedings; number of state post-conviction proceedings; denial
of attorney requests (for experts, attorney fees, and for evidentiary hearings) at the federal postconviction proceedings; denial of a request for an evidentiary hearing at the state post-conviction
proceeding; and whether funding was provided for the state post-conviction proceeding.
xvii

PRICLWATERHOUsECOOPER5

Exhibit 12
Page 421

has not been set) typically require more hours spent in research and
writing than claims which follow precedents.
•

The complexity of the petitioner 's personal background: The
complexity of the petitioner's personal background and the
idiosyncrasies of the state trial (which may give rise to habeas
claims) also play a part in affecting costs. The degree of
complexity of these issues can differ significantly from case to
case. But these issues provide the basis for habeas petition claims
and can therefore dictate the number of hours spent in
investigating, researching and writing, and developing the case.

•

The "aggressiveness" of the state attorney general: The attitude
and tactics of the state attorney general's office can increase costs
in a number of ways. For example, decisions by the attorney
general's office to raise, rather than waive, the exhaustion defense'
can increase the amount of time spent in litigation and prolong the
entire judicial process. The strategy of the California Attorney
General's Office in litigating claims is believed to have a major
impact on the costs of cases in California, as discussed below.

1.6 Factors Explaining the Cost Differential Between
California and Non-California Cases
PwC identified several possible reasons for the regional difference in
average costs. However, in linking these reasons directly to costs,

" The exhaustion defense is an argument that petitioner's counsel did not raise all the claims
contained in the federal habeas corpus petition in the state courts, either on direct appeal or in
state post-conviction proceedings. If petitioner's counsel did not exhaust all clnims during the
state proceedings before filing in federal court, the federal court can require the petitioner to
present the claims to the state court before continuing the federal proceedings.

xviii

PRICEWATERHOUSECOOPER5 0

Exhibit 12
Page 422

PwC encountered two problems. First, while the OA Panel Attorney
Payment System Database shows the amount of time spent on specific
tasks, there is no way of knowing from the database the causes for time
being devoted to those tasks. Secondly, many of the factors identified
are related and mutually reinforcing, creating a set of interlocking
factors that create a high-cost environment. For example, a
perfunctory state post-conviction process that results in an
undeveloped case may lead to high investigation costs at the federal
level as the petitioner's counsel investigates the facts. Similarly, if the
federal court requires rigorous review of the facts of the case,
investigation costs may also be high. When these two factors are
combined—that is, when the state has a perfunctory post-conviction
process and the federal court requires rigorous review of the facts of
the case—investigation of the case at the federal level may become
very costly. In this case it is almost impossible to separate the relative
importance of the two factors. It is the combination of the two factors
that drives costs.
The two factors described above are typical of California state and
federal court processes. A state that exhibits one, but not both of these
characteristics, may have relatively low costs. For example, compared
to other states and similar to California, Texas has a relatively cursory
post-conviction review process at the state level. But when cases reach
the federal courts, Texas cases do not receive the attention afforded
California cases. This is one reason why Texas, unlike California, is a
low-cost state.

xix

PRiCEVIATERHOusECWPER5

Exhibit 12
Page 423

Despite these problems, there is anecdotal, circumstantial, and
quantifiable evidence that supports the following reasons as being key
factors that affect costs. However, the relative significance of these
reasons cannot be accurately determined.
The Litigation Strategy Employed by the California Attorney
General's Office: One factor that emerged during the case studies was

the litigation tactics used by the California Attorney General's Office. 1 6
For example, attorneys interviewed by PwC stated that the California
Attorney General's Office will rarely waive the exhaustion defense
(see footnote 15). Eighty-three percent of the California attorneys
surveyed by PwC, but only 38 percent of non-California attorneys
surveyed, stated that their cases were, at one point, pending in the
federal court while simultaneously in the state court for exhaustion
proceedings. This delays the federal proceedings while the case is in
state court, potentially increasing costs. Attorneys need time to review
the case and new statutory and case law following the state
proceedings. Attorneys also need to renew contact with witnesses and
experts.
hi addition, since the Anti-terrorism and Effective Death Penalty Act
(AEDPA) was passed in 1996, the California Attorney General's
Office has litigated the application of the AEDPA in every case—a
practice unique to California. An alternative strategy used in other
states is to litigate the issue once in a test case in federal court and use
the result as precedent, thereby limiting the number of these AEDPA-

" A new California Attorney General was elected in the 1998 elections.
XX

PRICEWATERHOUsECCOPER5

Exhibit 12
Page 424

related hearings. The attorneys interviewed for the case profiles
provided many examples of the California Attorney General Office's
litigation practices in this regard.
This type of litigation strategy is familiar to attorneys who practice in
California, but it is difficult to quantify the financial impact of such
strategies. More litigation results in more time spent out-of-court
preparing motions and undertaking legal research and writing. A
hypothetical example demonstrates how an intensive litigation strategy
could potentially increase out-of-court attorney fees and hence costs.
For example, if two attorneys each spend an additional 80 out-of-court
hours (or 2 weeks each), at a rate of $125 per hour responding to issues
raised by the California Attorney General's Office, the additional cost
to that case would be $20,000. If the response took 400 hours (or 10
weeks) each, the additional cost would be $100,000.
Judicial Practices and Jurisprudence of the California State and
Federal Courts: These factors can have a very direct impact on the

cost of cases. For example, the combination of relatively limited state
post-conviction proceedings and thorough federal post-conviction
proceedings adds to costs in a variety of ways. Differences in the
jurisprudence between the Ninth Circuit Court of Appeals and the
California federal district courts can also lead to more time being spent
by attorneys as the case goes from federal district to federal circuit
court and possibly back to the district court again. Some of the most
important jurisprudential factors that affect costs are as follows:
• Provision offunding for investigation and experts by the federal
courts. Federal capital habeas corpus attorneys in California cases
xxi

PRICEWATERHOUSECOOPER5

Exhibit 12
Page 425

spend $15,000 per case on investigators compared to $1,600 in
non-California states at the federal post-conviction level. This is in
part to make up for factual underdevelopment of the case at the
state post-conviction level. For example, according to attorneys
surveyed, requests for discovery at the state level are more often
denied in California than in other states: in California, 88 percent
of requests for discovery were denied, as opposed to 59 percent of
requests for discovery in other states.
• The granting of evidentiary hearings at the federal level because
the state courts deny evidentiary hearings at the state postconviction stage. The average cost, including costs for expert

services, of an evidentiary hearing in the federal courts in
California is $112,800 compared to $20,200 in other states.
Moreover, evidentiary hearings are more common in California
federal courts than in the federal courts in other states. Of cases
that have progressed to the appeal stage, 42 percent of the
California cases had an evidentiary hearing, compared to only 11
percent of the non-California cases. This is probably related to the
fact that requests for evidentiary hearings are routinely denied
during the state post-conviction proceedings in California. In their
responses to the PwC survey, California attorneys indicated that
requests for evidentiary hearings at the state level were denied or
sharply reduced. By contrast, non-California attorneys responded
that such requests were minimally reduced. The federal courts may
hold an evidentiary hearing to promote the complete development
of facts that in other states are revealed during the state postconviction evidentiary hearing.

PfficEWATERHousECOoPER5

Exhibit 12
Page 426

• California cases are more likely to have an interlocutory appear
than cases from other states. Of 129 cases covered in the survey,
65 percent of the California cases had an interlocutory appeal to the
circuit court, whereas only 22 percent of non-California cases had
an interlocutory appeal. Interlocutory appeals increase the amount
of time spent on a case because attorneys need to prepare and
respond to filings related to the appeal.

Note that the costs of all cases—both California and non-California
cases—are reviewed and approved by the judicial officer presiding
over the case. Judges in the Ninth Circuit are little different from
judges in other circuits with respect to the percentage of claimed
attorney fees and expenses they approve. According to the CJA Panel
Attorney Payment System database, Ninth Circuit judges approve 97
percent of claimed costs whereas judges in all other circuits combined
approve 95 percent of claimed costs. While these approval ratios are
similar, there is a large difference in the dollars approved, because
claimed costs are significantly higher in the Ninth Circuit (and
particularly in California) than in other circuits. Even though Ninth
Circuit judges have expressed concern about the high costs of this type
of case (and have taken steps to reduce costs), the high approval ratio
implies they believe that most claims for fees and expenses have
reasonable grounds in the context of current laws and judicial
procedures.

" An interlocutory appeal occurs when a federal circuit court will hear and rule on an issue
before the federal district court proceedings are complete.
PRICEVVATERHOIJSECOOPERS

Exhibit 12
Page 427

Adoption of a Rigorous Evaluation of the Petitioner's Mental
Health: In California, an examination of the petitioner's mental health

is common during the federal habeas proceeding, and the petitioner's
attorneys generally use the services of mental health experts. Direct
costs resulting from the more frequent use of experts amount to an
additional $8,000 spent on psychologists and psychiatrists in an
average California case, compared to an average non-California case.
In addition, California attorneys spend more time—and therefore more
money—consulting with such experts and performing their own
investigation in this area.
Use of Panel Attorneys from Large Corporate Law Firms:

Beginning

in the late 1980s, a shortage of panel attorneys in California led the
federal courts to ask large corporate law firms to represent federal
capital habeas corpus petitioners. This practice has since largely
stopped, but some cases in the study include costs of representation by
panel attorneys from these firms. In a limited review of the 36 most
expensive California cases, PwC asked an attorney familiar with these
cases to identify the counsel for the petitioners who worked for large,
corporate law firms. This led to a list of 33 civil attorneys who
provided representation in these cases. The total payments to these 33
attorneys contributed $88,441 to the average cost of all California
cases. In other words, removing the vouchers submitted by these civil
attorneys would lead to a drop in the average cost of a California case
from $372,029 to $283,588, a decrease of 24 percent.
Of course, this does not mean that all these costs could have been
avoided if criminal attorneys had been appointed instead of civil
xxiv

PRICEWATERHOU5ECOOPER5

Exhibit 12
Page 428

attorneys. The work performed by the civil attorneys would have been
performed by someone else. Nevertheless, it is reasonable to suppose
that some of the time billed by these attorneys, who most likely were
inexperienced in representing habeas corpus and capital cases, was for
hours spent learning the notoriously complex federal capital habeas
corpus case law. Corporate law firms are accustomed to billing for
however many attorney hours it takes to research complex legal issues,
a practice different from smaller, criminal law firms.
Moreover, on average these 33 civil attorneys spent three times as
much on non-travel expenses as criminal attorneys ($64,139 compared
to $22,534 per case). This, also, this may reflect the different billing
practices of large corporate law firms compared to smaller, criminal
law firms.
The Relatively High Cost of Living in Cahfornia:

As noted above,

the difference in the higher attorney rates in California, compared to
rates in other states accounts for approximately one-fifth, or $60,000 of
the $300,000 differential in average costs of California cases relative to
non-California cases.
Other Factors: In addition to the factors presented above, there may

be other factors, more difficult to pinpoint, that contribute to the high
average cost of a case in California. During this study, several people
commented that the legal "culture" of California contributes to the high
costs. Where possible, PwC has tried to identify the particular
elements of the culture that may add to costs, such as the strategy used
by the California Attorney General's Office, or the adoption of a
XXV

PRICEWATERHOUSECOOPERS 0

Exhibit 12
Page 429

rigorous evaluation of the mental health of the petitioner. However,
other factors related to California's legal culture may be too nebulous
to measure easily.

Further, many of the factors presented in this report are related and
mutually reinforce each other, sustaining a relatively high-cost
environment. The rest of the report considers the costs of federal
capital habeas corpus cases, and the reasons for these costs, in more
detail.

xxvi

PRICEWATERHOUSECCOPER5 0

Exhibit 12
Page 430

Section II:

Background to Study

11.1 The Defender Services Program
The Sixth Amendment of the United States Constitution guarantees an

accused person the right to counsel in criminal prosecutions. When the
Congress passed the Criminal Justice Act (CJA) of 1964, it ensured
this right to representation in federal courts by establishing, within the
judicial branch, a program to provide compensation and
reimbursement of expenses for attorneys appointed to represent
petitioners otherwise unable to afford representation in federal criminal
and related proceedings (18 U.S.C. 3006A). The Administrative
Office of the U.S. Courts (AOUSC) operates the Defender Services
Program to compensate and reimburse attorneys appointed to represent
such petitioners.

The mission of the Defender Services Program is to ensure that the
right to counsel guaranteed by the Sixth Amendment, the CJA, and
other congressional mandates is enforced on behalf of those who
cannot afford to retain counsel and necessary defense services. The
goals of the program are to:
1. Provide assigned counsel services to all eligible persons in timely
fashion;
2. Provide appointed counsel services that are consistent with the
best practices of the legal profession; and
3. Provide cost-effective services, limiting increases in costs to those
due to inflation and those necessary to respond to changes in the
PRICEWATERHOUsECOOPER5 0

Exhibit 12
Page 431

•

law or changes in prosecutorial, judicial, or law enforcement
practices.
In FY 1999, to carry out its mission and goals, the Defender Services
Program was appropriated $360 million.
In general a Federal Public Defender Organization, Community
Defender Organization, or private attorneys who serve on a panel
designated or approved by the court provide representation. These
panel attorneys submit vouchers to the court for time and expenses.
Funding for these expenditures is provided in the Defender Services
appropriation. For death penalty cases (including federal capital
habeas corpus cases), panel attorneys, who provide the majority of
representations, are compensated at a rate and in an amount determined
by the presiding judge to be reasonably necessary to obtain qualified
counsel, with a statutory limit of $125 per hour for cases beginning on
or after April 24, 1996. The presiding judge also approves the amount
of funding provided for experts and other associated expenses for each
case. In cases beginning after April 24, 1996, expenditures for
investigative and expert services are limited to a total of $7,500 unless
the district court finds that a higher sum is warranted for "unusual"
set-vices and that finding is approved by the Chief Judge of the circuit.

11.2 The Cost of Federal Capital Habeas Corpus Review
In the past few years, the House and Senate Appropriations
Subcommittees on the Departments of Commerce, Justice, and State,
the Judiciary, and related agencies have grown increasingly concerned
11-2

PRICEWATERHOLSECO3PERS

Exhibit 12
Page 432

ra

over growth in costs of the Defender Services Program. In particular,
the subcommittees were concerned about the cost per representation
and what is believed to be different rates of cost growth for specific
judicial districts and types of cases. In attempts to explain costs to
Congress, the AOUSC has produced several reports explaining why
total costs for death penalty cases were growing at a significantly faster
rate than the increase in the number of annual representations. In
1997, the Administrative Office, following discussions with
Congressional Appropriations Subcommittee staff, engaged the
services of the consulting firm Coopers & Lybrand L.L.P. (C&L) to
help develop a report entitled "The Report on Costs and
Recommendations for the Control of Costs of the Defender Services
Program." C&L made the following summary finding:
Defender Services Program costs are in line with what one
would expect from the increase in the number of
representations, the increasing proportion of capital and
capital habeas representations, and the costs incurred in a
handful of extraordinarily costly representations each year.-ls

C&L's analysis of six years of federal capital habeas corpus data also
showed that the Ninth Circuit, driven by the California districts,
accounted for 60 percent to 76 percent of federal capital habeas corpus
representation costs, but 48 percent to 63 percent of the representations

Report on Costs and Recommendations for the Control of Costs of the Defender Services
Program, Executive Summary, January 28, 1998, Coopers & Lybrand, L.L.P, p. 3.

9

11-3

PR/CEWATERHOusECCOPER5

Exhibit 12
Page 433

Ca

from FY 1992 to FY 1997 19. Because of this high proportion of costs,
California cases drive the national average cost of federal capital
habeas corpus cases.

11.3 Reason for This Study
The House and Senate Appropriations Subcommittees held their
hearings on the Judiciary's FY 1999 appropriations requests on March
4 and March 12, 1998, respectively. During the House hearing,
Chairman Rogers and Judge Heybum, Chair of the Judicial Conference
Budget Committee, discussed the finding in the recent C&L report that
"the Ninth Circuit drives the nation's capital habeas average annual
cost-per-representation as well as overall capital habeas costs." 2°
Chairman Rogers expressed concern and indicated that if the judiciary
did not address this issue, the Congress would. As a result, on March
31, 1998, Judge Heyburn and AOUSC Director Leonidas Mecham
wrote to Chairman Rogers outlining the following:
• On February 27, 1998, the Judicial Council of the Ninth Circuit
unanimously adopted a new Ninth Circuit policy that requires the
attorneys for each capital habeas petitioner to submit a case budget
at the beginning of each proceeding. This budget is then reviewed
by a judge from another district to achieve a more consistent and
proportionate use of resources. In addition, the Ninth Circuit has

" Report on Costs and Recommendations for the Control of Costs of the Defender Services
Program, IV Findings- 25 C&L, L.L.P, p. 25.
" Report on Costs and Recommendations for the Control of Costs of the Defender Services
Program, Executive Summary, January 28, 1998, Coopers & Lybrand, L.L.P, p. 12.

11-4

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 434

"established presumptive maximum rates for second attorneys and
associates, paralegals and law clerks, as well as a minimum rate of
60 pages per hour for review of case records," in addition to the
statutory cap on hourly fees paid to attorneys. Finally, the Ninth
Circuit has adopted a special process to review all state death
penalty habeas corpus cases to ensure costs are reasonable arid are
reduced wherever possible.
• Furthermore, within the Northern District of California, the Court
has adopted guidelines that require case management conferences
for complex cases, set presumptive rates for experts and expenses,
and establish requirements for seeking payments which exceed
statutory maximums. In the Central and Eastern Districts, capital
habeas representation units have been established within the federal
defender organizations to allow specially trained attorneys to
represent federal capital habeas petitioners previously represented
by large corporate law firms. It is hoped that this measure will
improve the quality and efficiency of federal capital habeas corpus
representation. These steps illustrate the commitment of the Ninth
Circuit Judicial Council to contain costs in the Ninth Circuit,
particularly in the high-cost state of California.
Subsequently, staff from the Administrative Office's Office of Finance
and Budget (OFB) met with James Kulikowski, Staff Director for the
House Appropriations Subcommittee, to discuss the letter from Judge
Heyburn and Director Mecham to Chairman Rogers. Mr. Kulikowsld
informed OFB staff that he had a plan to track costs of federal capital
habeas corpus cases by circuit to: (1) ensure that Ninth Circuit
(California) costs decrease; and (2) identify lower cost circuits to
H-5

PRI CLWATERHOUSECCOPER5

Exhibit 12
Page 435

determine why the costs are lower and whether procedures in place in
those circuits could be applied to the higher cost circuits. Although the
AOUSC can identify costs by circuit and district, only anecdotal
information is available to explain the disparity in costs.
This study was undertaken to enable the AOUSC to better understand
costs associated with private attorney representation of federal capital
habeas corpus cases and to further explain regional disparities by
linking costs to region-specific procedures, and culture. This report
provides explanations for the Ninth Circuit's, and more specifically
California's, higher average costs per case.'

21

This report does not provide an opinion on what average or median case costs for

representing a federal capital habeas corpus case should be. Rather, the report explains what
the costs are when they are incurred during a federal capital habeas corpus case, and the
regional cost disparities that exist.

11-6

PREEWATERHOUSECO3PER5

Exhibit 12
Page 436

Section III:

Federal Capital Habeas Corpus Case Life
Cycle

111.1 Definition of Federal Capital Habeas Corpus
Federal capital habeas corpus involves federal court review of a state
capital murder conviction and a death sentence upheld by a state court.
The petitioner—the person sentenced to death—makes a claim that his
constitutional rights were violated at some point during the state
proceedings." The primary function of the writ of habeas corpus is to
release the petitioner from unlawful imprisonment or an
unconstitutional death sentence. The office of the writ is not to
determine the prisoner's guilt or innocence. The only issue presented
is whether the prisoner is unlawfully restrained of his liberty.'

111,2 Background on Federal Capital Habeas Corpus
The writ of habeas corpus can be traced back to thirteenth-century
common law as a way to "challenge unlawful detention of citizens by
the executive under the English crown."' Eventually, the writ evolved
to correct injustices that occurred during criminal trials. Petitioners
pleaded for relief through both a summons and a court-issued order
that gave the court the authority to question the cause for

n Claims are typically made under the Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendments.
n Henry Campbell Black, Black's Law Dictionary, West Publishing Co., 1991, p. 491.
2+ Criminal

justice Policy Review, "The Federal Habeas Corpus Process: Unraveling the Issues."

116.

111-7

PRKEWATERHOUSEGDPERS

Exhibit 12
Page 437

imprisonment. This summons and order became known as the writ of
habeas corpus. As with any legal procedure with such longevity, the
writ has adapted to hundreds of years of progress and change.
Habeas corpus emerged in the United States with the writings of
Alexander Hamilton in the Federalist Papers. The concept was
incorporated into the Constitution, Article 1, Section 9, as a protection
for the newly defined citizen against arbitrary imprisonment by
governmental authorities. The value of the writ was challenged during
the Civil War when President Lincoln imprisoned southern
sympathizers who had settled in the North and suspended the writ as a
means of preventing their release. The importance of the writ in the
judicial process was affirmed when Lincoln's actions were overturned
by the Supreme Court in the landmark case Ex Parte Milligan. During
Reconstruction, fearing that southern states might "vengefully
incarcerate postwar northern Reconstructionists," Congress enacted
farther legislation allowing state prisoners the right to review by the
federal courts, thus "federalizing protection of the writ.' In this
century, the Supreme Court has interpreted the 1867 statute as
"providing the federal courts with broad review of federal habeas
petitions."26
As the courts continued to extend to state prisoners the right to seek
federal habeas corpus relief, and as the prison population continued to

Criminal justice Policy Review, "The Federal Habeas Corpus Process: Unraveling the Issues."

117.
Criminal justice Policy Review, "The Federal Habeas Corpus Process: Unraveling the Issues."

118

111-8

pRfavvATERHousEcoopER5

Exhibit 12
Page 438

expand, the number of prisoners seeking habeas corpus relief increased
from less than 1,000 between 1941 and 1961 to more than 12,000
between 1962 and 1992. 2' The implications of this dramatic increase
have been widely debated in the legal community. According to
Professor Robert Pursley of Buffalo State University, in recent years,
the habeas corpus debate has included four major parts:
1. The ability of habeas corpus to postpone the imposition of a
sentence;
2. Jurisprudential, constitutional, and workload issues caused by the
length of habeas corpus cases;
3. The federal courts ability to intervene over state court decisions;
and
4. Recent attempts by the Supreme Court to curtail the rights of state
prisoners who wish to seek federal review. 28
- During the 1990s, there has been a renewed interest in habeas corpus
reform and, more specifically, its application in capital cases. Current
Supreme Court Chief Justice William Rehnquist noted that "statutory
habeas corpus procedures, particularly those dealing with capital cases,
are an area where careful reform can preserve the benefits of the Great
Writ while rationalizing its application and eliminating the repetitive
and time-intensive demands on the federal courts." 29

" Criminal Justice Policy Review, "The Federal Habeas Corpus Process: Unraveling the Issues."

118.
28

Criminal Justice Policy Review, "The Federal Habeas Corpus Process: Unraveling the Issues."

120.
" "Federal Habeas Corpus Reform: The State's Perspective" by Christopher E. Smith, The
Justice System Journal, Volume 18,Number 1, p. 3.

111-9

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 439

The discussions over this issue culminated with the passage of the
1996 Anti-terrorism and Effective Death Penalty Act (AEDPA). The
AEDPA includes a requirement that a petitioner file a federal capital
habeas corpus petition within a year after the state court denies the
direct appeal. In addition, the new law:
• Greatly restricts review of same-claim successive petitions;
• Requires prisoners to obtain permission from a three-judge
appellate panel before filing new-claim successive petitions;
• Limits the issues available for federal capital habeas corpus review
in states that establish a system for appointing and compensating
competent counsel for state post-conviction proceedings in capital
cases; and
• Enacts timetables for federal courts to act on petitions brought by
death row inmates (only if the state established a system for
appointing and compensating counsel in state post-conviction
proceedings in capital cases).
The AEDPA follows a national strategy of implementing more
stringent sentencing laws, increasing law enforcement, and ultimately
limiting opportunities for federal capital habeas corpus review.
Because this law was only recently enacted, its effects on the cost of
federal capital habeas corpus cases have yet to be seen.

111.3 The 9 Stages of Capital Litigation
This section describes how a capital case typically moves through the
state and federal court system. Each step is numbered to allow for
III-10

PRICEWATERHOUSECOOPERS

Exhibit 12
Page 440

easy identification of the stages. It should be noted that the federal
capital habeas corpus stage begins at Stage 7. However, what occurs
during previous stages determines how a capital case proceeds through
federal capital habeas corpus review. For this reason, all nine stages,
as illustrated in Figure III-1, are discussed here.

Petition for Certiorari
Review in United States
Supreme Court

6
(Petition for Certiorari
Review in United States
Supreme Court

Petition for Certiorari
Review in United States
• Supreme Court

AlL

5
Appeal of State
Collateral Review
Decision

-1
(b) Life/Death
(a) Innocence/Guilt
Trial

.

State Collateral
Review

(b) Life./Death •
(a) Innocence/Guilt
Trial

Peritioafor Writ
of habeas Corpus

District.f.
Court

..This portrayal was provided by Mark Olive, capital habeas litigator and trainer for the habeas Assistance and Training Project.

Figure 111-1: The Stages of Capital Litigation

(1) State Trial and Sentencing

A state capital trial is conducted in two independent stages. First, in
the "guilt phase," the jury or judge decides whether the prosecution has
proved beyond a reasonable doubt that the defendant is indeed guilty
of a capital crime. Second is the "sentencing phase," in which the
prosecution may present evidence and argue the existence of
PRICEWATERHOUsECGOPER5 0

Exhibit 12
Page 441

"aggravating factors," circumstances such as the defendant's prior
criminal record, which may weigh in favor of a death sentence. In the
same proceeding, the defense may present evidence and argue the
existence of "mitigating factors," circumstances such as the
defendant's lack of a prior criminal record, which may weigh against
the imposition of a death sentence. The judge or jury then must
consider the aggravating and mitigating factors and decide whether or
not to impose the death penalty.' As a result of this two-step process,
a capital case is more complicated than a non-capital case, because
attorneys must not only investigate the crime and prepare for the guilt
phase, but also must prepare for the sentencing phase. To complicate
matters further, these cases often involve complex crimes and
defendants with complex histories or psychological backgrounds.
Most states have the two-step, or bifurcated system described above.
However, California has a three-step, or trifurcated system. In the first
step, the court decides whether the defendant is guilty of the crime. In
the second step, separate hearings are held to determine whether or not
the offense is a capital offense. Finally, in the third step, the court
weighs the aggravating and mitigating factors in deciding whether the
defendant should receive the death penalty. Thus, the three steps are:
1. Decision as to whether or not an act of first-degree homicide was
committed;
2. Decision on whether or not the homicide was a capital offense; and

" For most capital cases, juries must choose between the death sentence and life without the
possibility of parole.
111-12

PRICEVVATERHOUSECOOPER5

Exhibit 12
Page 442

I I s 1111 I

3. Comparison of the aggravating and mitigating factors and decision
as to whether or not to impose the death penalty.'
The added step (step 2) increases the complexity and cost of
California's state capital cases. In addition, this system partly explains
why California typically has longer trial court transcripts than other
states.
If the petitioner is found guilty and sentenced to death, he or she may
initiate a direct appeal (stage 2). Depending on state law, the trial
court may set an execution date immediately after sentencing, or no
date may be set until after the direct appeal has been completed.
(2) Direct Appeal

In some states, the defendant must appeal a conviction and a death
sentence directly to the state supreme court. In other states, the
petitioner must go through an intermediate circuit court of appeals
before reaching the state supreme court. In a direct appeal, the
petitioner's counsel can raise only those issues which appear on the
trial record. 32
This is the last stage in which representation by counsel is guaranteed
by the Constitution. As a cost-cutting and timesaving measure, state
courts often assign the same attorney who represented the petitioner

" Telephone conversation with Professor James Liebman of Columbia University Law School
on October 9, 1998.
" For example, an improper jury instruction would appear on the court record and, therefore,
could be raised in a direct appeal. However, jury misconduct that occurred out of court could
not be raised until step 4, the State Collateral Review.

rn- i 3

PRICEVVATERHOUSECCDPER5

Exhibit 12
Page 443

during the original trial to the direct appeal. If a new attorney is
appointed to the case, then he or she must quickly learn the case,
mainly by reading the trial record. In the appellate briefing, the
attorney must raise all issues that indicate that the petitioner was
incorrectly convicted or sentenced. If the direct appeal is denied by
the state's highest court, the appellant's next option is to petition for
certiorari review in the U.S. Supreme Court.
(3) Petition for Certiorari Review in U.S. Supreme Court

The petitioner may or may not choose to petition the U.S. Supreme
Court for review by writ of certiorari. The right to Supreme Court
review is not constitutionally guaranteed; the Supreme Court does not
have to hear every criminal case that petitions for review, but may, if it
so chooses, hear individual cases. In addition, at this point, legal
representation is not guaranteed. Some states compensate counsel for
preparation of a certiorari petition; in others, representation may be
provided pro bono or by a local legal aid or defender organization. If
certiorari review is granted, a briefing is prepared and an oral argument
held before the Court. The petitioner may raise only those issues
previously presented to the state courts on direct appeal. If certiorari is
denied, the appellant has the choice of pursuing state collateral review
or filing a federal capital habeas corpus petition in federal district
court.
(4) State Collateral Review (Post-Conviction Proceedings)

In addition to direct appeals, all states have post-conviction
proceedings in which issues that occurred outside of the court record
III-14

PRICEWATERHOUSECOOPER5

Exhibit 12
Page 444

may finally be introduced into state court. State post-conviction
proceedings generally do not begin until direct appeal proceedings are
completed and certiorari is denied by the U.S. Supreme Court. In
some states, however, state post-conviction proceedings may begin
while direct appeal proceedings are ongoing. To prepare the state postconviction petition, all prior proceedings must be reviewed, and all
possible claims suggested by the record and prior investigation in the
case must be investigated. This investigation includes looking into the
facts of the underlying offense, the petitioner's background, and other
issues such as ineffective assistance of counsel, the state's suppression
of exculpatory evidence, or jury exposure to extraneous information.
There is no constitutional right to counsel in state post-conviction
proceedings. While some states provide for the appointment and
compensation of competent counsel, many do not. Without a thorough
investigation by counsel, many material facts are not discovered and
- many potential claims for relief remain undeveloped.
(5) Appeal of State Collateral Review Decision

In many states, post-conviction review begins with the filing of a postconviction petition in trial court, often before the same judge who
presided over the original state trial and sentencing. The trial judge
considers the claims presented and may or may not hold an evidentiary
hearing to develop the facts prior to the court's decision. In these
states, if the petitioner is unsuccessful at the trial court level, he or she
may appeal. While this appeal ultimately goes to the state supreme
court, it often initially goes through an intermediate court. In other
states, state post-conviction review begins with filing the postIII-15

PRICEVVA TERHOtisEC PERS
OO

Exhibit 12
Page 445

conviction petition in the state supreme court. If the court decides an
evidentiary hearing is warranted, it may remand the case for a hearing
before the trial court. After the hearing the case returns to the Supreme
Court for briefing, argument, and a final ruling on the merits. Either
way, if the petitioner wishes to exhaust his claims for federal capital
habeas corpus review, he must present all claims to the state's highest
court with appellate jurisdiction. Accordingly, most capital petitioners
do so. Quite often, once state post-conviction proceedings are
complete, the state will set an execution date.
(6)Petition for Certiorari Review in U.S. Supreme Court

On completion of state post-conviction proceedings, the petitioner may
again petition for certiorari review in the U.S. Supreme Court. This
stage is similar to stage 3 in that the certiorari petition will be
constructed and delivered in the same way, but the petition may raise
only those issues arising from the state post-conviction proceedings.
This stage is not necessary to exhaust claims for presentation to the
federal courts in habeas corpus proceedings. As counsel is generally
neither provided nor compensated for filing a certiorari petition
following denial of state post-conviction relief, and because of time
pressures resulting from either an execution date or the AEDPA's
statute of limitations, many capital petitioners bypass this stage.
(7)Petition for Writ of Habeas Corpus in U.S. District Court

Once stage 6 has been completed or bypassed, the case moves from the
state to the federal court system. Stages 7 through 9 describe the
stages of a typical federal capital habeas corpus case.
111-16

PR10EWATE RipusECOOPERS

Exhibit 12
Page 446

0

Figure 111-2 tracks the possible steps of litigation of a capital habeas
case once it has reached the federal level. In federal habeas corpus
cases, the petitioner brings his or her suit against the warden of the
state penal institution in which he or she is incarcerated. The State
Attorney General's office represents the warden in court. At various
times throughout this process, the case may move up to circuit court on
an interlocutory appeal, or may be sent down to state court to satisfy
exhaustion requirements.

Lifecycle of a Federal Capital Habeas Corpus Case
Stay
'of Exeeutian
:

4,43pol of
_Dental o1i6i3+

Pbth,n for Wnt
Of CettiorarL:
to .0tireo* 6411.:
Rogiordliog 6.400 :
. .

ábeasPclitiDñ
for Dscoveoy

-.

-.

of CóuzioJ

Mott ono

kesPouse to
Summary

-)

Evidontiary

Ecaring

PtftIon for
c6itioni

Figure 111-2: Life Cycle of a Federal Capital Habeas Corpus Case

Appointment of Counsel

A federal capital habeas corpus case usually begins when a motion is
filed for the appointment of counsel to represent a petitioner who is
III-17

PRICEVVATERHOUsECOOPER5

Exhibit 12
Page 447

seeking habeas corpus relief, along with a request for a stay of
execution. The motion for counsel is filed under Section 848 of Title
21 of the United States Code. Section 848 requires the appointment of
at least one attorney (and allows for the appointment of two attorneys)
for anyone accused or convicted of a capital offense.
Section 848 also provides a statutory right to expert and investigative
assistance in federal capital habeas corpus cases. On a case's arrival in
the federal court, many potential claims have not yet been fully
investigated in any of the prior proceedings. In McFarland v. Scott,
512 U.S. 849 (1944), the Supreme Court decided that under Section
848 an indigent capital petitioner may invoke these statutory rights to
counsel and investigative assistance before the habeas petition is filed.
Hence, counsel will seek funds to investigate colorable' claims for
relief to determine if they should be included in the petition.
Once a request for counsel and experts is made, the federal court must
enter a stay of execution to allow for preparation of the petition. In
order to be compensated, attorneys must file a motion in district court
to allow a petitioner to proceed in forma pauperis (as a pauper).
Protocol for filing this request varies by district and circuit.

Stay of Execution

If the state trial judge has set an execution date, the petitioner may file
a motion for a stay of execution simultaneously with the request for
appointment of counsel. The petitioner asks the court to vacate the

A claim that appears worthy of further investigation and court review

111-18

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 448

execution date to allow time for petition preparation. If the district
court grants a stay of execution, then the execution date is postponed,
and the petitioner's counsel may take more time to prepare. Specific
petition preparation time frames are discussed below. However, the
district court may deny this motion.
Request for Stay from Circuit Court of Appeals

If the motion for a stay of execution is denied, the petitioner's counsel
may file a request for a stay in the court of appeals requesting that the
court grant a stay of execution. If the court of appeals denies the stay,
the petitioner may request one from the U.S. Supreme Court.

Request for Stay from U.S. Supreme Court

If the district and appellate courts have denied a stay, the petitioner
seeks a stay from the U.S. Supreme Court. If the Supreme Court
denies the stay, then the petitioner's counsel must complete the habeas
petition and receive a ruling before the execution date.
Petition Preparation

On appointment by the federal court, the petitioner's counsel will
begin to prepare the federal capital habeas corpus petition. Preparing
the petition can be an extraordinarily time-consuming task.
Petitioner's counsel must review the record from the state trial,
appellate, and post-conviction proceedings, conduct further
investigations and legal research to support arguments. Trial records
can range from 100 to 70,000 pages of text, all of which the counsel
III-19

PRICEWATERHOUSECOOPER5 0

Exhibit 12
Page 449

must review fully to write a thorough petition. Investigation and legal
research may also require significant amounts of time.
According to PwC's surveys, on average, between 11 and 40 habeas
claims were presented in a typical federal capital habeas corpus
petition. These claims often vary in their complexity. For example, a
claim for relief that pleads counsel's ineffectiveness for failing to
investigate a viable alibi is likely to be more time-consuming and
costly to investigate and document than a simple case of jury
misconduct. The petition for the writ of habeas corpus will likely raise
those constitutional issues that were presented to the state courts
during direct appeal and state post-conviction proceedings. Under the
Supreme Court's decision in McCleskey v. Zant, federal capital habeas
counsel is required to include all colorable claims for relief in the first
federal capital habeas corpus petition.
For example, when investigating colorable claims for relief, counsel
must thoroughly research the facts of the case and petitioner's
background to uncover evidence that should have been presented to the
jury at trial as a basis for an acquittal of the capital crime or a sentence
less than death. This often requires the use of investigators, as well as
mental health professionals and other experts. Investigation of the
client's background is difficult, because a typical federal capital habeas
corpus petitioner often has a previous criminal record or has moved
several times throughout his life, thus limiting access to various
witnesses and state records owing to the possibility of incurring
prohibitive travel costs. Once complete, the petition often includes a
lengthy appendix that references expert reports and historical records.
III-20

PRCEW4TERHO usECCOPER.5

Exhibit 12
Page 450

Because of the amount of resources necessary to complete a petition,
this is generally the most costly stage in a federal capital habeas corpus
case.
Before 1996, the length of the petition preparation stage varied from
one month to several years and was generally determined by the setting
of an execution date. However, not all states set execution dates.
Further, some states, for example, Florida, Georgia, and Texas, set
execution dates arbitrarily—one convicted felon might not receive one
until all state appellate and post-conviction proceedings were
complete. The petitioner with the set execution date, therefore, has
less time to prepare his petition than the petitioner with no set date.
Often, the setting of execution dates and the granting or denial of stays
determined the date by which a federal capital habeas corpus petition
had to be filed.
In 1996, a 1-year statute of limitations for filing a federal capital
habeas corpus petition was enacted in the Antiterrorism and Effective
Death Penalty Act (AEDPA). The interpretation of this statute of
limitations provision is still being litigated, and individual federal
courts are interpreting this time frame in slightly different ways. In
most cases where the AEDPA applies, it appears that the time for
petitioner's counsel to prepare the federal capital habeas corpus
petition will be significantly shorter than before the statute of
limitations provision was enacted. After the petition is filed, all other
time limits are contingent on the court's orders.

111-21

PRICEWATERHOusECCOPERS

Exhibit 12
Page 451

0

Petition and Discovery

Once the petition is prepared, the petitioner's counsel files the petition
and an accompanying appendix (if necessary) in court. The petition
must show that for each claim, the petitioner's constitutional rights
were violated and that either the conviction or the death sentence
should be vacated. For example, for a claim pleading the prosecutor
unconstitutionally suppressed exculpatory evidence, the petitioner
must present facts demonstrating that evidence was suppressed, that
the evidence was exculpatory, and that if the evidence had been
presented, the result of the case would have been different. A
discovery request and a motion for an evidentiary hearing may be filed
with the petition. Once the petition is filed, petitioner's counsel must
wait for the state Attorney General's reply, but in the meantime, he or
she may continue to investigate the case.
The Answer And Motions For Summary Judgment

The State Attorney General (AG), representing the warden of the state,
will typically respond to the petition with an answer as well as
opposition to any requests for discovery. In addition to, or instead of,
an answer, the AG may file a motion for summary judgment, asserting
that there are no disputes of material fact warranting an evidentiary
hearing and that the state is entitled to a judgment as a matter of law on
some or all of the claims presented in the petition.

PR/CEWATERHOUSECCOPERS

Exhibit 12
Page 452

Opposition to Summary Judgment

In an Opposition to Summary Judgment, petitioner's counsel responds
to all of the points raised by the AG. If a dispute of material facts
exists, the petitioner's counsel may choose to file a motion for an
evidentiary hearing.
At this point, the judge may hear an oral argument and rule on some or
all of the claims presented in the petition. For instance, in a case with
10 claims, the judge may rule on four claims and grant an evidentiary
hearing to develop the underlying facts prior to a decision on the other
six claims.
Evidentiary Hearing

If an evidentiary hearing is granted, the parties may introduce new
evidence and argue why it should be allowed. The judge then decides
on whether or not the evidence is credible, and on whether or not it
demonstrates that the petitioner is entitled to habeas corpus relief.
The time dedicated to preparing to present evidence and question
witnesses in a federal capital habeas corpus evidentiary hearing can be
enormous. Many experienced federal capital habeas counsel
described the preparation required for an evidentiary hearing as similar
to that required for an entire capital trial. In particular, the
coordination in serving subpoenas and working out the logistics of
getting experts in court to testify is time-consuming and costly.
Petitioner's counsel must pay experts for interview time, preparation
time, time spent waiting outside of the courtroom to testify, travel
III-23

pwcEwATERHousEccopER5

Exhibit 12
Page 453

a

expenses, and so forth. The evidentiary hearing is followed by a posthearing briefing during which petitioner's counsel must convince the
judge of the significance of the facts presented at the hearing and
demonstrate that relief is warranted.
Oral Argument

At any time during the federal capital habeas corpus process, the judge
may request an oral argument to clarify points or to receive additional
information. To prepare for the hearing, petitioner's counsel must
thoroughly review the relevant documents, the supporting case law,
and practice delivery of his or her argument. On listening to the
arguments delivered during the hearing, the judge may rule on various
issues or take new information under advisement.
Motions to Alter or Amend Judgment/ Notice of Appeal

The petitioner's counsel has 10 days after entry of the judgment in
which to file a motion in district court to alter or amend the district
court's decision under Rule 59 of the Federal Rules of Civil Procedure.
A Rule 59 motion asks the district court to reconsider its decision.
Rule 59 motions are usually denied in federal capital habeas corpus
cases. 34 However, the judge may grant the Rule 59 Motion and alter
the judgment in some material manner. For example, if the district
court initially decides to deny habeas corpus relief, it may reconsider
and decide to grant relief. If the motion is denied, then petitioner's

Discussion with Mark Olive, October 8, 1998.

111-24

PRICEWATERHOusECCOPERS

Exhibit 12
Page 454

counsel must decide whether to appeal to the circuit court of appeals.
This is another point in time when the state may set an execution date.

To appeal, petitioner's counsel must file a notice of appeal in the
district court and request a Certificate of Appealability (which used to
be called a Certificate of Probable Cause) from the district court. If
the district judge believes that there are no substantial questions
warranting further review, it can deny the petitioner's request for a
Certificate of Appealability. Petitioner may then seek a Certificate of
Appealability from the circuit court of appeals. If the Certificate of
Appealability is granted, the district court will transcribe any necessary
hearings from the proceedings. Generally, the petitioner's counsel
must designate those portions of the record which counsel would like
to be made part of the appeal within 30 days of filing for the appeal.

(8) Appeal of District Court Decision in the Circuit Court of Appeals
On certification by the district court that the transcripts have been
prepared, the circuit court of appeals will set a briefing schedule. The
petitioner's brief may raise various claims arising from the district
court proceedings. Then, the state must file an answering brief, and
petitioner's counsel can file a reply brief. At any time, the court may
ask questions or request supplemental briefs to further explain
particular issues.

Once the opening brief, answering brief, and reply brief are filed, the
case goes before a three-judge panel. The judges select an oral
argument date that is usually held 2 to 4 months after the last reply
111-25

PRICEWATERHOusECOOPER5 0

Exhibit 12
Page 455

brief has been submitted. Each side is provided with 30 minutes to
state their arguments. After the hearing, the judges may or may not
request supplemental briefing. Once the case has been fully briefed
and argued, the judges will rule on the case. The circuit court of
appeals may rule on the merits of petitioner's claims, or may remand
the case back to district court for additional consideration. For
example, if the district court failed to hold an evidentiary hearing on
one or more of petitioner's claims, the circuit court of appeals may
order the district court to hold a hearing.
If the circuit court grants habeas corpus relief, the state will likely
petition for writ of certiorari to the U.S. Supreme Court. If the circuit
court panel affirms the district court's denial of habeas corpus relief,
the petitioner can seek a rehearing from the court of appeals, suggest
that all the judges on the court of appeals rehear the case en bane, or
seek certiorari review in the U.S. Supreme Court.
(9) Petition for Certiorari Review in U.S. Supreme Court

A petition for writ of certiorari must be filed in the Supreme Court
within 90 days after the circuit court's final decision. Often, a petition
will be filed sooner, if an execution date is quickly approaching. There
is no right to appeal to the Supreme Court, and the Supreme Court
grants review in only a few federal capital habeas corpus cases each
year. If certiorari review is granted, the case is briefed and argued
before the Court. If certiorari review is denied, the proceedings on
petitioner's first federal capital habeas corpus petition are complete.

III-26

PRicEWATERHOusECCOPE R5

Exhibit 12
Page 456

Ultimately, if habeas corpus relief is granted as to the petitioner's
conviction, the case returns to the state trial court for possible retrial.
If relief is granted only as to the death sentence, the case may be
returned to the state trial court for a new sentencing trial. If habeas
corpus relief is denied, the petitioner may seek authorization from the
circuit court of appeals to file a second habeas petition in the district
court. Authorization by the U.S. Supreme Court to hear the case will
likely be denied, and the petitioner will be executed.
One of the final options available for the petitioner is an application to
the governor's office for a clemency proceeding. If the governor
grants a clemency proceeding, the petitioner may argue his case to the
governor and, after reviewing the evidence presented, the governor will
decide whether to vacate the petitioner's death sentence. If the
governor denies a clemency proceeding or grants a clemency
proceeding but denies clemency, then the death sentence remains. If
the governor vacates the petitioner's sentence, a trial court must resentence the petitioner.

111-27

PI?ICEWATE RH OUS EC R5 0
OOPE

Exhibit 12
Page 457

Section IV:

Methodology

IV.1 Overall Methodology
PwC, in cooperation with the AOUSC, developed a methodology to
examine the costs, and the factors driving the costs, of federal capital
habeas corpus cases. The methodology involved combining findings
from three data sources:
1. The C.TA Panel Attorney Payment System database, which contains
information on the costs of and hours spent on OA panel attorney
cases 35
;

2. A total of 129 responses to a survey sent out to approximately 400
panel attorneys; and
3. A case study of seven separate cases, which included interviews
with the panel attorneys who provided representation in those
cases.
Using data and information from these sources, PwC conducted three
different types of analyses:
1. Data analysis: analysis of the cost components of federal capital
habeas corpus cases using data from the CJA Panel Attorney
Payment System database;
2. Statistical analysis: data, correlation, and regression analyses using
CJA Panel Attorney Payment System and survey data; and

" The CJA Panel Attorney Payment System database contains vouchers submitted by panel
attorneys to the AOUSC to be reimbursed for attorney fees, expert costs, travel costs, and other
expenses. The vouchers include in-court, out-of-court, rate, and attorney activity information.

117-28

PRICEWATERHOUsECCOPER5

Exhibit 12
Page 458

3. Case study analysis: a comparison of the factors that drove the
costs in the seven case studies.
Together, these three sources of data and analytical methods permitted
more comprehensive analysis than would have been possible with only
a single data source.

IV.2 Data Analysis Methodology
The data analysis portion of the Defender Services study used
information in the CJA Panel Attorney Payment System database. The
data analysis followed a structured methodology to ensure the most indepth analysis possible using this data. The methodology consisted of
the following:
1. Quality control;
2. Identification of additional information; and
3. Analysis of the data.
Quality Control

The cost data used in this report were extracted from the AOUSC's
CJA Panel Attorney Payment System database. PwC's previous work
with the database gave the team an understanding of the content and of
the type of quality control needed. The data was converted to an MS
Access database and stored on a secure hard drive accessible only to
PwC team members. PwC checked to ensure that the database was
transferred correctly to the new format. Next, PwC studied the
contents of the database and identified possible data problems. The
team then cleaned the database.
IV-29

PRICEWATERNOUsECCOPER5

Exhibit 12
Page 459

0

PwC identified cases with duplicate vouchers, missing data, input
errors, and vouchers not related to federal capital habeas corpus cases.
The list of cases was presented to the AOUSC, which then provided
corrections or recommended removing cases from the analysis. The
original database contained 1,021 cases with 13,168 vouchers (or 12.9
vouchers per case). During the database cleaning, PwC removed the
following:
•

179 cases that did not list the stage of proceedine for any voucher;

• 22 cases that had no vouchers submitted for attorneys;
•

12 cases that were not federal capital habeas corpus cases; and

• Four sealed cases.
PwC also removed 24 cases that had started within the past 6 months.
For this analysis, recent cases with low costs incurred would have
skewed the results.
At the end of the cleaning, the number of cases in the database dropped
to 783 from 1,021, and the number of vouchers fell from 13,168 to
12,217 vouchers.
Identification of Additional Data
Open and Closed Status

After the database was cleaned, PwC identified the gaps between the
information available in the database and the information required for
Each voucher submitted by panel attorneys indicates to the stage to which costs should. be
attributed. The stages include habeas petition, evidentiary hearing, dispositive motion, petition
to Supreme Court for writ of certiorari, stay of execution, appeal or denial of stay, petition to
Supreme Court regarding denial of stay, or other.
IV-30

PR10EWATERHOUSECCOPER5

Exhibit 12
Page 460

thorough analysis. A key piece of missing data was case status—
whether cases were open or closed. This information was important in
analyzing costs, since it would be misleading to compare the costs of
completed cases with those that are still incurring costs. To collect
this information on case status, PwC first performed independent

research to find publicly available case status information. By
contacting non-profit organizations that collect information on death
penalty appeals, the team determined open or closed status for
approximately half the cases. For closed cases, PwC also obtained
information on case disposition. The Death Penalty Information
Center, for example, provided information on recent executions.
In addition, PwC classified two sets of cases as open:
• Cases in which at least one voucher was submitted in the last 6
months; and
•

Cases whose vouchers were only for the habeas petition stage.

PwC provided the AOUSC with a list of the remaining cases
(approximately 400 cases). The AOUSC contacted the lead attorneys
for those cases and obtained information on:
1.

Open/closed status;

2.

Final disposition of a closed case;

3.

Denial/granting of habeas petition; and

4.

Status of appeal, if any.

Active and Dormant Status for Open Cases

For open cases, PwC wanted to differentiate between those currently
incurring costs and those not incurring costs. PwC defined open cases
IV-31

PR10EWATERHOUSECODPER5

Exhibit 12
Page 461

as either active or dormant. A case was defined as active if vouchers
have been submitted in the past 2 years, or if attorneys contacted by the
AOUSC indicated that the case is still open. Otherwise, the case was
classified as dormant.
Stage of Proceeding information

The AOUSC had requested an analysis of costs by stage of proceeding.
However, there were many vouchers for which the stage of proceeding
was not identified. PwC identified stage of proceeding information for
many of these by comparing the dates of vouchers for the same
petitioner that did contain stage of proceeding information. For
example, if a voucher submitted January 1995 did not indicate the
stage of proceeding, but a voucher for the same case submitted three
months later indicated that case was in the habeas petition stage, the
January 1995 voucher was also classified as a habeas petition stage
voucher. At the end of this process, approximately 90 percent of the
vouchers contained information on the stage of proceeding.
Data Analysis

PwC first analyzed all cases to show national trends and cost drivers.
This analysis was performed for all cases, open cases, and closed cases.
As only 152 of the 783 cases under study were closed, PwC analyzed
cases by individual stage of proceeding, circumventing the problem
noted above of comparing costs of open cases with costs of closed
cases. In this way, PwC was able to integrate both open and closed
cases into the study.

IV-32

PRICEWATERNOusECOOPERS

Exhibit 12
Page 462

0

PwC conducted similar analyses by circuit and state, focusing on highcost stages. PwC also selected two groups of states to analyze further
to identify the cost disparities between California cases and cases from
other states:
I. Ninth Circuit states; and
2. The six states from which the case studies were taken.
Ninth Circuit costs were analyzed to compare the costs of states within
the high-cost circuit. The case study states were selected to examine
regional disparities in costs, particularly between California and lower
cost states. These states all had multiple cases as well as a mix of
high-, medium-, and low-cost cases. The states chosen for each
comparative analysis were:
Ninth Circuit States

Case Study States

California

California

Arizona

Texas

Washington

Pennsylvania

Nevada

Alabama

Idaho

Missouri
Illinois

IV,3 Survey Methodology
Survey Design

The CJA Panel Attorney Payment System database does not contain
data on case-specific or geographical factors that cause disparities in
IV-33

PRICEVVATERNOUSECCOPER5 0

Exhibit 12
Page 463

time or costs in different cases. For example, factors such as the
complexity of case and judicial attitudes are not documented in the
CJA Panel Attorney Payment System database or elsewhere.
Therefore, PwC designed a survey aimed at collecting information to
supplement data from the CJA Panel Attorney Payment System
database. The survey was designed through a collaborative effort
between PwC, federal capital habeas corpus litigators, and
representatives of the Defenders Services Division of the AOUSC. A
copy of the survey is provided in Appendix B.
Case Selection

Because of the time and costs involved in collecting information on all
cases in the database, PwC sent surveys to a sample of attorneys
representing 392 of the total 783 cases. The sample was selected based
upon the following criteria:
• 295 cases that had reached the appellate level;
* 47 cases with comparatively low costs; and
•

50 cases with comparatively high costs.

Of the 392 surveys sent, 129 (32 percent) were returned. On receiving
the data, PwC consolidated the data into a database. PwC then used
the survey data as the source data for a regression analysis.
Regression analysis is a method of testing the statistical importance of
various factors influencing a variable (in this instance the costs of
federal capital habeas corpus cases). A more detailed explanation of
regression analysis is provided in Appendix A.

IV-34

PRICEWATERHOUsECOOPERS

Exhibit 12
Page 464

1V.4 Methodology for the Case Studies
The case study portion of the analysis was a study of the actual
experiences of seven federal capital habeas corpus attorneys. PwC
gathered and analyzed information on seven cases from six states (the
six case study states to better understand the factors affecting the time
and money spent in different regions of the United States. The case
studies also provided the opportunity to discuss PwC's preliminary
findings with attorneys who have represented and submitted vouchers
for these types of cases. The seven case studies are described in
Appendix C.
Case Selection

With the assistance of the AOUSC, PwC chose 7 cases based on the
following criteria:
1._ Geographically, the cases were from a diversity of states;
2. The appointed counsel completed their survey;
3. The case had progressed at least to the circuit court of appeals
stage; and
4. The case had at least one district and one circuit voucher.
The final list of seven cases included:
• One case from Pennsylvania (Third Circuit);
•

One case from Texas (Fifth Circuit);

•

One case from Illinois (Seventh Circuit);

•

One case from Missouri (Eighth Circuit);

o Two cases from California (Ninth Circuit); and
o One case from Alabama (Eleventh Circuit).
1V-35

PUCEWATERHOU5ECCOPER5

Exhibit 12
Page 465

All of the cases had progressed through the appellate stage. In
addition, almost all of the original crimes were double homicides with
an accompanying felony.
The Attorney Interviews and Group Discussion

All of the attorneys who represented these cases were interviewed as
part of the study; four attorneys were interviewed in San Francisco,
California, and three in Washington, D.C. The interviews, which
lasted approximately 2 hours each, covered the history of the case and
the various factors impacting the cost of the case. In California, PwC
also conducted a focus group to discuss preliminary findings and
generate discussion of regional differences in practice and culture.
Corporate Law Firm Analysis

During the case study interviews, the California attorneys hypothesized
that the costliest cases were all represented by large corporate law
firms. By contrast, although corporate law firms represent many
capital habeas corpus petitioners pro bono in a number of states, panel
attorneys from Texas, Pennsylvania, Illinois, Missouri, and Alabama
were unaware of such firms billing the federal courts for their work in
federal capital habeas corpus cases in the states where they practiced.
To examine the hypothesis, PwC gathered information on 36 of the 37
most costly cases in the CJA Panel Attorney Payment System
database, all of which were from California. Because the C.TA Panel
Attorney Payment System database does not indicate the type of law a
panel attorney practiced when he or she represented the case, PwC
IV-36

PRICEWATERHOUsECODPER5

Exhibit 12
Page 466

asked a federal capital habeas corpus expert whether or not a large
corporate law fin-n employed the attorney providing representation in
these 36 cases.
The expert classified attorneys as "civil" attorneys, if a large corporate
law firm employed them; otherwise they were categorized as criminal
attorneys. In addition, the Martindale-Hubble Directory of attorneys
provided information on several attorneys the expert was unable to
classify. This was not a foolproof method of accurately identifying the
cases represented by large corporate law firms, and conclusions drawn
from this analysis are subject to methodological error. However, given
the limitations in time and information, this was the best possible
method for identifying attorneys who worked for large corporate law
firms while providing federal capital habeas corpus representation.

IV-37

CEVVATERH OUsECOOPERS

Exhibit 12
Page 467

Section V:

CJA Panel Attorney Payment System
Database Analysis

V.1 National Costs
PwC analyzed the cost of federal capital habeas corpus cases from the
CJA Panel Attorney Payment System database for the years FY 1992
to FY 1998, subject to removal of some cases as described in the
methodology. As depicted in Figure V-1 below, the sum costs of the
783 cases analyzed was $102,293,031. 37 The average cost per case was
approximately $130,000, and the median was approximately $63,000
per case.
CJA Panel Attorney Payment System Data
Open and Closed Cases_by Case Disposition
All Cases
Number of Cases 783
SUM Cast : $102,293,031.13
Avg. Cost: $130,642.44
Median Cost363,256,132

Closed Cases
Number of Cases: 152
Sum Cost: $12,436,326.90
Avg. Cost: $81,817.94
Median Cost; $54,779.85

Open Cases
Number of Cases: 631
Sum Cost: $89,856,704.23
Avg. Cost: $142,403.65
Median Cost: $68,154.90

Active
Number of Cases: 563
Sum Cost: 585,218,988.17
Avg. Cost: $151,365.90
Median: $72,910.73

Dormant
Number of Cases: 68
Sum Cost: $4,637,716.06
Avg. Cost: $68,201.71
Median: $33,517.75

Executed
Number of Cases: 131
Sum Cost: $10,866,740.36
Avg. Cost: $82,952.22
Median: $55,616.75

Commuted/Released/Died
Number of Cases: 21
Sum Cost: $1,569,586.54
Avg, Cost: $74,742.22
Median: $53,428.87

Figure V-1: Distribution of Costs and Number of Cases

The figures above reflect only those amounts paid to private panel attorneys to cover attorney
fees, expenses, and expert costs. However, the attorneys that PwC interviewed also cited the use
of other resources, including the defunded Resource Centers, law school students, interns, and
pro bono attorneys. The attorneys suggested that this use of additional resources is common
practice nationwide. The costs noted here understate the true value of resources provided in the
representation.

37

V-38

PRICEWATERNOISECCOPERS

Exhibit 12
Page 468

Overall, open cases incurred 88 percent of all costs ($89.9 million),
whereas closed cases incurred only 12 percent of costs ($12.4
million).38 Moreover, open cases that are active were the most costly:
• $82,952 average (and $55,617 median) cost of closed cases in
which the petitioner was executed;
• $74,742 average (and $53,429 median) cost of closed cases in
which the petitioner died in prison, was released or in which his or
her sentence was commuted;
• $151,366 average (and $72,911 median) cost of open cases that are
active; and
•

$68,202 average (and $33,518 median) cost of open cases that are
dormant (that is, nonactive).

California cases largely drive the high average cost of open cases. If
- the California cases were removed, the average cost of open cases
would drop to $66,931— a decrease of almost 50 percent. In contrast,
the average cost of non-California closed cases is $81,805, higher than
the average cost of non-California open cases. Therefore, if California
cases are removed, closed cases are more costly than open cases.

V.2 Breakdown of Costs by Stage of Proceeding
Most of the costs of open cases were incurred during the habeas
petition stage (shown in Figure V-2 below). This result is not
" The estimate for closed costs, however, may be low since many of those cases may have
incurred costs before 1992, and are not reflected in the totals in the CJA Panel Attorney
Payment System database. In 119 open cases and 51 closed cases, attorneys were appointed prior
to FY 1992.

V-39

PVCEWATERHOUsECOOPER5 0

Exhibit 12
Page 469

surprising considering that most work in a federal capital habeas
corpus case involves preparation of the petition. For all cases, the
petition stage accounted for, on average, 789.5 of the average 913.8
hours billed per case, equivalent to 86 percent of the average hours
billed per case.

CJA Panel Attorney Payment System Data
Open Cases by Stage of Proceeding

All Cases
Number of Cases: 783
Sum Cost: $102,293,031.13
Avg. Cost: $103,642.44
Median Cost:$63,256.82

Closed Cases
Number of Cases: 152
Sum Cost: $12,439,526.90
Avg. Cost: $81,838.99
Median Cost: $54,779.85

Open Cases
Number of Cases 631
Sum Cost: $89,856,704.23
Avg. Cost: $142,403.65
Median Cost: $68,154.90

Habeas Petition
Number of Cases: 551
Sum Cost: $71,278,842.25
Avg. Cost: S129,362.69
Median: $46,614.39

Evidentiary Hearing
Number of Cases: 89
Sum Cost: $4,858,859.10
Avg. Cost: $54,593.92
Median: $17,200.03

Dispositive Motions
Number of Cases: 83
Sum Cost: $2,039,349.95
Avg. Cost: $24,570.48
Median: $12,398.48

Appeal
Number of Cases: 138
Sum Cost: $4,061,133.95
Avg. Cost: $29,428.51
Median: $20,713.45

Petition for Cert
Number of Cases: 32
Sum Cost: $298,654.45
Avg. Cost: $9,332.95
Median: $8,025.44

Other Stages
Number of Cases: 40
Sum Cost: $448,626.95
Avg. Cost: $11,215.67
Median: $4,835.90

Unknown Stage
Number of Cases: 155
Sum Cost: $6,871,237.57
Avg. Cost: $44,330.56
Median: $21,398.93

Figure V-2: Distribution of Costs and Number of Open Cases

The habeas petition stage is the most costly stage and drives the total
cost of a case. The average and median costs of the habeas petition
stage for open cases ($129,363 and $46,614 respectively) are close to
the average and median costs of all cases all stages for all cases
combined ($130,642 and $63,257, respectively). As noted above,
V-40

PRICEWATERHOusECOOPERS

Exhibit 12
Page 470

0

discrepancies in costs between open and closed cases are due to the
preponderance of California cases among the open population. Open
cases also incur high costs in the evidentiary hearing and appeal stages.
These stages incur average and median costs of over $15,000.
However, because not all cases have reached these stages (and some
may never reach these stages), the total costs represented by these
stages is approximately $11 million, compared to a total of $71 million
for the petition stage.'
Similarly, for closed cases, most costs were incurred in the habeas
petition stage. However, the appeals stage also accounts for a large
proportion of the total costs of closed cases (see Figure V-3 below).
This is partly due to two reasons. First, more closed than open cases
have reached the appellate stage. Eighty-three percent of closed cases
have reached the appellate level as opposed to 26 percent of open
cases. Secondly, while the appellate stage has the same cost on
average (nearly $30,000), regardless of whether the case is open or
closed, closed cases are less costly in total, partly due to the impact of
California cases noted earlier, and partly due to the relatively age of
closed cases compared to open cases. Closed cases were, on average,
17.3 months old on October 1, 1991—the date of the first voucher in
the database—and hence had incurred more costs than open cases.
Open cases were 11.3 months old on October 1, 1991 on average.

" The unknown stage also had high costs. A voucher was assigned to the unknown stage if the
stage of proceeding was not noted on the voucher. Based on a review of voucher submission
dates, PwC believes that many vouchers assigned to the 'unknown' stage really belong in the
habeas petition stage.
V-41

PRICEWATERtpUSECOOPERS

Exhibit 12
Page 471

CJA Panel Attorney Payment System Data
Closed Cases by Stage of Proceeding

All Cases
Number of Cases 783
Sum Cost $102,293,031.13
Avg. Cost $130,642.44
Median $63,256.82

Closed Cases
Number of Cases 152
Sum Cost $12,439,526.90
Avg. Cost $81,838.99

Open Cases
Number of Cases 631
Sum Cost $89,856,704.25
Avg. Cost $142,403.65
Median 568154.90

Median $54179.85

Habeas Petition
Number of Cases 90
Sum Cost $3,812,988.05
Avg. Cost $42,366.53
Median $27,715.48

Evidentiary Hearing
Number of Cases 15
Sum Cost $300,904.90
Avg. Cost $20,060.33
Median $8,936.50

Dispositive Motions
Number of Cases 21
Sum Cost $482,501.30
Avg. Cost $22,976.25
Median $8,921.00

Appeal
Number of Cases 112
Sum Cost $3,364,621.24
Avg. Cost $30,041.26
Median $21,129.86

Petition for Cert
Number of Cases 46
Sum Cost $541,071.99
Avg. Cost $11,762.43
Median $8,351.29

Other Stages
Number of Cases 39
Sum Cost $429,591.16
Avg. Cost $11,015.16
Median $4,607.66
Unknown Stage
Number of Cases 62
Sum Cost S3,594,648.34
Avg. Cost $56,526.59
Median $35,436.85

Figure V-3: Distribution of Costs and Number of Closed Cases

In contrast, the average cost of an evidentiary hearing is almost twice
as much for an open case as for a closed case. This is largely due to
the impact of California cases. If the California cases are removed, the
average cost per case for open cases is only $20,004.
Prior to 1995, attorney vouchers did not specify stage of proceeding,
and therefore, many vouchers submitted prior to 1995 were attributed
to the "unknown" stage of proceeding. For closed cases, "unknown"
vouchers account for almost 30 percent of total dollars, as opposed to
approximately 7 percent of total costs for open cases. Since the habeas
petition and evidentiary hearing stages occur early in the life cycle of a
V-42

PRICEVVATERHOUSECOOPERS

Exhibit 12
Page 472

0

case, it is likely that most of the $3 million in the "unknown" stage is
attributable to the habeas petition or evidentiary hearing stages. This
would increase the average cost for each of these stages.
Figure V-4 and Figure V-5 below present some of the same
information in the form of pie charts. The figures show the percentage
of total costs incurred between FY 1992 and FY 1998 for open and
closed cases, broken down by stage of proceeding. Figure V-4 shows
that 80 percent of the total costs of open cases were incurred during
the habeas petition stage. Figure V-5 shows that for closed cases, the
appeal stage incurred the same percentage of total costs as the habeas
petition stage. As noted above, this may simply reflect the age of the
closed cases; older cases would have incurred costs in the petition
stage prior to the period covered in this analysis.

Stay of Execution
Appeal of Denial
0%
Petition for Cert
0%
Appeal 0%
5%

Petition for Cert,
Denial
0%

Dispositive Motions
2%
Evidentiary Hearing
5%

Habeas Petition
80%

Figure V-4: Total Cost of Open Cases by Stage of Proceeding

V 43
-

PRICEWATERHOUsECCoPERS

Exhibit 12
Page 473

M

Stay of Executio
1%
Petition forCert
4%

Unknown
28%

Appeal
27%

Dispositive Motion
4%
Evidentiary Hearin
2%

Figure V-5: Total Cost of Closed Cases by Stage of Proceeding

Because the habeas petition, evidentiary hearing, and appeal stages
account for the vast majority of costs, PwC's analysis of stages
focused on the costs of these stages of proceeding.

V.3 Breakdown of Costs by Component
A breakdown of costs by component shows that the largest component
is, by far, out-of-court attorney fees. This is followed by expert costs,
attorneys' expenses, and finally, in-court fees. This is shown in Figure
V-6 below.

V-44

PRICEWATERHOUsECODPERS

Exhibit 12
Page 474

0

$120,000.00
:3-7-333,

:.-^:?-:•,',

$100,000.00

••31
F.,-Tal

Average Cost

$80,000.00

$60,000.00

$40,000.00

,

I

—

0 Avg Out-of-Court Cost
0 Avg In-Court Cost

.7.3.,

.".fq

Pi Avg Attorney Expenses

Vs.s.:14

E1 Avg Expert Costs

--,-4;

..4,..t
3 •••.1
...

$20,000.00

$0.00

?ft
,' -;•''lie;

. - '3;:::::..'.
'. . . . t''':g.i

f!ii.f.'s
•
,'.1;. ";'''•. ',
•:"•!ii.',
.

All

',•:'

s

!
:.,', '-•..i
. '_

'. • . =,.,..

-::':'•::::';
,'•'.-

•2"..,.•
:

Closed

Open

Case Status

Figure V-6: Average Cost Per Case—Attorney, Expert Costs and
Expenses

$120,000.00

$100,000.00

Median Cost

$80,000.00
0 Median Out-of-Court Cost
El Median In-Court Cost

$60,000.00

0 Median Attorney Expenses

0 Median Expert Costs

$40,000.00

$20,000.00

ft:
:r.•:-:

$0.00
All

...1:63-.,

Closed

1-1

Open

Case Status

Figure V-7: Median Cost Per Case--Attorney, Expert Costs, and Expenses

V-45

PRICEWATERH OUSECCOPERS

Exhibit 12
Page 475

The large proportion of out-of-court costs occur because federal capital
habeas corpus cases require extensive amounts of out-of-court time for
petition preparation, client interviews, background research, and
investigation. Attorneys only spend a small amount of in-court time
for courtroom presentations such as an evidentiary hearings or
dispositive motions.

VA Breakdown of Costs by Circuit
PwC compared the average cost of cases by circuit (see Figure V-8).
$350,000

$300,000
—

Average Cost

$250,000
'...

$200,000

'
=Avg. Case Cost

4: 1\

—0-4,1e1. Case Cost

{

$150,000

\

$100,000

..3N

$50,000

i

.'

$0
03

04

05

06

07

08

09

10

11

Circuit

Figure V-8: Average and Median Cost Per Case By Circuit

Overall, Ninth Circuit cases had a significantly higher average cost
than cases in other circuits. The average cost in the Ninth Circuit was
$289,054, compared to an average of $62,483 for all other circuits.
Moreover, the Ninth Circuit accounts for the 37 most costly cases in
the CJA Panel Attorney Payment System database. If those cases are
V-46

PRICEWATERHOWECOOPERS

Exhibit 12
Page 476

removed, the national average cost drops by approximately 25 percent
to $97,556 from $130,642. The average cost per case in the Ninth
Circuit would drop by $89,000 or 30 percent, to $199,912. This
emphasizes the impact that Ninth Circuit cases have on average costs
nationwide.
The cost per open case in the Ninth Circuit is $299,318, slightly more
than the overall average cost per case in the Ninth Circuit of $289,053.
However, the average cost of closed cases in the Ninth Circuit is on par
with average costs of closed cases in other circuits. This indicates that
there are not many closed cases that push down the average cost for all
cases in the Ninth Circuit.
$350,000.00

$300,000.00

_
1

$250000.00

5200,000.00

O All
010purt

F.. -s
5150.000,00

o Closed

,r.
,

$100,00000

$50,000.00

E;- :!
..
.

—

i_it

s

iil
1.''.

$0.00
03

05

06

07

08

09

10

11

Circuit

Figure V-9: Average Cost of All, Open and Closed Cases by Circuit

In fact, closed cases account for only 5 percent of all cases in the Ninth
Circuit; the remaining 95 percent are open. This implies that it is not
V-47

PRICEWATERNOUSECOOPER5

Exhibit 12
Page 477

just the proportion of cases that leads to higher average costs, but that
specific Ninth Circuit factors associated with open cases drive costs.
120.00%

Percentage ofOpen Cases

100.00%
s--• ..
-

o

80.00%

^,,.:

•, ,

C.

-41
11_1

. .,.

60.00%

. =: ,
.,,,
•

•:

....0

40.00%

1,....-7,
.7,:g,
,:.

'-,-,44:

20.00%

,•t'

441."--7'
:

,.,

7-7,

1•:.
„'

..

:..`,;•'.

0.00%
03

04

05

06

07

08

09

10

11

Circuit

Figure V-10: Percentage of Open Cases by Circuit

When costs are compared by state, California cases have the highest
average and median costs nationwide (see Figure V-11 below).

Given the large number of California cases (20 percent of all federal
capital habeas corpus cases), it is clear that the cost of California cases
is driving the cost of all cases. California cases make up 57 percent of
the $102 million in total costs. Since 95 percent of California cases are
open, it is also clear why the average cost of open cases is much higher
than the average cost of closed cases—the 149 open California cases
drive up the average cost of all open cases.

V-48

PRCEWATERHOusEGDPERS 0

Exhibit 12
Page 478

$4 00.000

$350000

$300,000

$250,000

•

5200.000

= Avarago
Median.

0.

S150,000
c.)

▪

5100.000

$50.000

5DE PA MO NC SC VA LA I45 TX OH IN IL IN AR MO NO AZ CA 10 MT NV WA co orc LIT Al. FL OA
5 10 00 20 18 52 4 11 010 50 19 34 6
5 2 48 4 8 50 14
16 56 7 44 60 13 1
0
State and Number of Casos 1992 to 1998

Figure V-11: Average and Median Cost By State

PwC analyzed the costs of cases by district for all districts with more
than 10 cases in the database. Not surprisingly, PwC found that cases
in the California districts were much more costly than cases in any
other district in the country. California Southern only had one case, so
it was not included in the analysis, but case costs in the three other
California districts averaged at least $299,000. Several other Ninth
Circuit districts had high average costs. Idaho, Nevada, and Arizona
districts all had an average cost of approximately $1000000 per case.
This suggests that some of the high average cost in California can be
attributed to factors that relate to the Ninth Circuit as a whole.
However, California districts were the only districts with higher
average costs than the national average, indicating that much of the
additional cost is concentrated in practices that are specific to
California.
V-49

pRicEwATERHousEcoopERs

Exhibit 12
Page 479

$540,000.00

$450,000.00

$400,000.00
,i

$350000.00
:

24g

ff

5300.000.00

1=1 Avorag

-

i3

$250,000.00

Modlan

.:

5200,000.00

5150.00000

N

gi----

$100,000.00
•
.,51-----7,,r"

$50,000.00

,—

$0.00
NCE SC% 000 VAW TXE TA TOO 1X71 OHS OHS LII ARE (ATE MOW AZX CAC CAE CAN DX 7015 0500 FLM

13 16 38 10

22 43 25 21 20 31 26 14 28 27 44 81 38 36 13

15 37 21

Mani ct/N umbo r of Cosos For Dbst rid

Figure V-12: Average and Median Cost Per Case By District
(Districts with more than 10 cases)

The difference between the cost of cases in California, in the Ninth
Circuit, and in other circuits can be seen in Figure V-13. In the chart
below, the median cost of each case is connected by a line for each
circuit, and the vertical axis (y-axis) shows the cost of each case. The
costs of the cases have been ranked within each circuit to create a
smooth curve that connects the few high-cost cases with the more
numerous lower cost cases for each circuit. The Ninth Circuit has also
been divided into California and non-California cases to show the
impact that California cases have on Ninth Circuit costs.

V-50

PRICEWATERHOusECCOPERS

Exhibit 12
Page 480

S1.000,000 00
3710 CIRCUIT
—

—

\, \e Ninth
,,,._

7TH CIRCUIT

California's Median Cost

6TH CIRCUIT

—

\

6TH CIRCUfT

—

9750.000.00

4TH ciecurr

EITH cricuri

6250,000.00

Circuit's Median

Cost

9TH CIRCUIT
10TH ciricurr

—

.............
.

—
—

11TH CIRCUIT

L

—

—

9TH cncurr WfTHOUT
CA
CALIFORNIA

\i,1
.

$o w

250

0

300

350

Number of Cases

Figure V-13: Plot of All Cases for All Circuits and California

Immediately evident is that California's high costs are driving Ninth
Circuit costs and are considerably higher than the costs of cases in
other circuits. In the Ninth Circuit as a whole, average costs are just
below $290,000, whereas in California average costs are close to
$372,000. Overall, California cases account for $58.0 million of the
$67.9 million in the Ninth Circuit and the $102.3 million in the whole
of the United States. In other words, California cases alone account
for 57 percent of the total costs of the OA Panel Attorney Payment
System database and 85 percent of all Ninth Circuit costs. In addition,
of the 37 most costly cases nationally, 36 are in California.
The average cost of California cases is over $370,000, compared to
approximately $70,000 for non-California cases. The median for

V-51

PRICEWATERHOUsECCOPERS

Exhibit 12
Page 481

California cases is $307,666, and the median for non-California cases
is $48,401. This is shown in Figure V-14.4°

CJA Panel Attorney Payment System Data
coitmi.g..?rv...N.pp-california
All Cases
Number of Cases 785
Sum Cost : $102,293,031.13
Avg. Cost: S130,642.44
Median Cost:$63,256.82

1
Non-California Cases
Number of Cases: 629
Sum Cost: $44,256,527.93
Avg. Cost: $70,360.14
Median Cost: $48,401.37

California Cases
Number of Cases: 156
Sum Cost: $58,036,503.20
Avg. Cost: $372,028.87
Median Cost: $307,665.54

Open Califonia
Number of Cases: 149
Sum Cost: $57,461,909.50
Avg. Cost: $388,650.40
Median: $331,021.80

Closed California
Number of Cases: 7
Sum Cost: $574,593.70
Avg. Cost: $132,084.81
Median': 549,118.67

Open Non-California
Number of Cases: 484
Sum Cost: $32,394,794.73
Avg. Cost: $ 66,931.39
Median: $45,386.89

Closed Non-California
Number of Cases: 145
Sum Cost: $11,861,733.20
Avg. Cost: $81,805.06
Median: 555,325.00

Figure V-14: Comparison of Costs of California and Non-California
Cases

The difference in costs between circuits can be partly accounted for by
the fact that attorneys in the Ninth Circuit bill more out-of-court hours
than attorneys in other circuits, as shown in Figure V-15 below.

49

The number of California plus non-California cases in the figure above equals 785, not 783,
because two petitioners had cases in two different states. In PwC's analysis these are treated as
the same case; this does not materially affect the results of the analysis.
V-52

ftICEWATERHOUSECOOPER5

Exhibit 12
Page 482

0

1000.0
900.0
Nu m ber ofHours

800.0
700.0
All
Open
o Closed

600.0
500.0
400.0
300.0
200.0
100.0
0.0
3

4

5

6

7
Circuit

8

9

10

11

Figure V-15: Out-of-Court Hours Spent by Attorney per Case per
Circuit

On average, an attorney in the Ninth Circuit spends 861.7 out-of-court
hours per case—almost three times the average for all other circuits
(306.3 out-of-court hours per attorney per case). In contrast, the Ninth
Circuit hourly out-of-court rate ($128.45 per hour) was only slightly
higher than the average rate for other circuits ($111.46), as shown in
Figure V-16 below. This implies that it is primarily the amount of
time spent by attorneys working on California cases that drives the
high costs, not the average hourly rate.
Given that out-of-court time is the largest cost category in federal
capital habeas corpus cases, the amount of time spent per attorney per
case in the Ninth Circuit for open cases is the largest cost driver of
CIA panel attorney costs.

V-53

PRICEWATERNOUsECOOPERS 0

Exhibit 12
Page 483

$140.00

Averag e Hourly Rate

$120.00
$100.00
$80.00

M All
0 Open
0 Closed

$60.00
$40.00
$20.00
$-

3

4

5

6

7

8

9

10

11

Circuit

Figure V46: Average Out-of-Court Attorney Rate per Circuit

To discover how attorneys spend their time, PwC looked at 10
categories of attorney time in the stages of proceeding that incur the
most costs: the habeas petition stage, the evidentiary hearing stage, and
the appeal stage (Figure V-17, Figure V-18, Figure V-19). In all of
these stages, most attorney time was spent conducting legal research
and writing. Discussions with attorneys and representatives from the
AOUSC revealed that this broad category is often used as the default
category by attorneys that fill out the CIA vouchers from which the
data is drawn.
Figure V-17 shows the average amount of time spent per attorney in
the preparation of the habeas petition, by circuit. Time spent in legal
research and writing dominates other activities, costing attorneys in the
Ninth Circuit $53,053 per case on average.
V-54

PRICEWATEINOUSECO3PER5

Exhibit 12
Page 484

450.0

4000

350.0

5

Cr)

13 03
8 04

300 0

cos
13 06

250,0

81 07
0 08

t 2000

a)

og
10

to 1560
0
Imo
0)
cn
Ca
50.0

00
In Gaud
Hearings

Interview
Ghent

Witness
Interviews

Cons I
Super $

Review
Record

Review
Does

Resource
Center

LOW]
Research &
Writing

Trav IOther

Activity

Figure V-17: Average Attorney Hours in the Habeas Petition Stage by
Circuit

It is noticeable that attorneys in the Ninth Circuit spend approximately
twice as much time reviewing documents and the trial record as
attorneys in other circuits. This costs $10,789 more for reviewing
documents, and $6,513 more for reading the trial record. This is most
likely due to the large size of trial records and counsel files in
California relative to other states, as well as to the litigious nature of
defending a case in California. California attorneys who were
interviewed for the Case Study Section of this report supported this
hypothesis. Attorneys in California also spend more time interviewing
clients and witnesses, traveling, and spending time on "other

V-55

PRICLVVATERHOUSECCOPERS

Exhibit 12
Page 485

activities." 41 Section V-6 will discuss the costs associated with the
extra time California attorneys spend in these activities.

In the evidentiary hearing stage, attorneys in the Ninth Circuit spend
more time interviewing clients, consulting with the Resource Centers
(defunded in 1995), consulting with experts, and reviewing
documents.

350.0

Ave rage Hours Spent Per Activity

300.0

250.0

nos
n04

r:1 05
I:106

290.0

8 07
g CB
B eg

150.9

nio
100.0

50.0

0.0
In COUll

Heaongs

Interview
Client

Wilness
Interviews

Cons II
Experts

Review
Record

Review
Coos

Resou co
Cent r

Legal
Research &
Writing

Travel

Olhe

Activity

Figure V-18: Average Attorney Hours in the Evidentiary Hearing Stage
by Circuit

In the appeal stage, attorneys in the Ninth Circuit spend more time
conducting legal research and writing, and to a lesser extent, reviewing

The practice of spending more time reviewing the record, interviewing clients, traveling and doing
"other activities" may reflect a more general practice in California by attorneys working on any type of
case (capital, capital habeas corpus, and noncapital), not just federal capital habeas corpus.

41

V-56

PRICEVVATERHOUSECCOPERS

Exhibit 12
Page 486

0

documents. However, the differences as to how time is spent are not
as significant as for the other stages of proceeding.

300.0

250.0

i4

200.0

g 150.0
t:n
100,0

50.0

Review
Record

Review
Docs

Resource
Legal
Center Research &
Writing

Travel

Other

Activity

Figure V-19: Average Attorney Hours Spent in the Appeal Stage By
Circuit

Attorneys in the Ninth Circuit spend much more time consulting with
experts than their counterparts in other circuits. This is consistent
with the high average expert costs per case in the Ninth Circuit. As
shown in Figure V-20 below, average expert costs in the Ninth Circuit
are more than twice the average cost for experts in the other circuits. 42
Comparison of the average number of experts per case in California
and non-California cases explains this difference. In California, an

42

This average is computed for only those cases with expert vouchers, not for all cases.

V-57

PRICEVVATERHOUSVDPERS

Exhibit 12
Page 487

average case has 4.3 experts, whereas a non-California case has 0.8
experts.
$35,000.00
$30,000.00

ud

Pa
$25,000.00

-,5

0

,_k. ,
..4.

a)
)t
1: $20,000.00

a)
fo $ 15,000.00
.
a)

_

-.4
•:. 44.,

$10,000.00

i.

1

,

$5,000.00

— ,-,..

.

....::T.

,....

"2..

',,,,F

,,-N,

s

09

10

--

$0.00
03

04

05

06

07

08

11

Circuit

Figure V-20: Average Expert Cost Per Case by Circuit

This preliminary analysis leads to several findings regarding the costs
of federal capital habeas corpus cases in California and the Ninth
Circuit:
• The average and median cost of cases in the Ninth Circuit are
significantly higher than those of other circuits;
• The cost of cases in the Ninth Circuit are driven by the cost of
California cases;
• Attorneys in the Ninth Circuit spend almost three times as much
time working out-of-court as their counterparts in other circuits;
• Expert costs are, on average, over three times as high in the Ninth
Circuit as they are in other circuits.

V-58

PRICEWATERHOUsECOOPER5 0

Exhibit 12
Page 488

V.5 Study of Ninth Circuit Cases by State
The comparison of states within the Ninth Circuit focused on the
following factors:
1.

Average cost per case for each stage of proceeding;

2.

Average hourly rate per attorney per case;

3.

Average number of out-of-court hours per case;

4.

Average number of attorneys per case; and

5.

Average time spent per activity per case.

The conclusions drawn from these analyses have to be qualified due to
the low number of cases in some states. For example, Washington has
only five cases, so there is no such thing as a "representative" case in
Washington. Montana, which has only one case in the database, was
not included in this portion of the analysis. When the population size
is small, PwC indicates how many cases constitute the population in
each state.
Overall, the non-California Ninth Circuit average cost per case is
$125,204—twice the $62,483 average cost per case outside of the
Ninth Circuit. Even without California, the Ninth Circuit would still
show high costs. This extra $63,000 of costs is most likely attributable
to Ninth Circuit factors and is not a function of the special
circumstances in California. This section will highlight differences
between the states of the Ninth Circuit, and also between the Ninth
Circuit and the country. Later sections will explore differences
between California and non-California states.

V-59

PRICEWATERHOISECCOPERS 0

Exhibit 12
Page 489

Examination of Ninth Circuit cases began by analyzing the average
cost per case by state. California was clearly the most costly state.
The findings are presented in Table V-1.
Table

Average Cost Per Case in Ninth Circuit States
Average Cost Per Case
State

Arizona

$95,231

Nevada

$101,058

Idaho

$126,407

Washington

$184,396

California

$324,176

PwC next studied the costs of the major stages of proceeding (habeas
petition and evidentiary hearing) for costs incurred prior to the case
reaching the appellate level. For this analysis, appellate- level costs
were excluded.
For the habeas petition stage, the average cost of non-California Ninth
Circuit cases is $117,155, while the median cost is $46,614. In
California, the average cost of $294,400 is more than twice the
national average. Washington state also had a high average but only a
small number of cases. Figure V-21 displays these results below:

V-60

PR10EWATERHOU5ECCOPER5 0

Exhibit 12
Page 490

Average and Median Cost Per Stage For Ninth Circuit States

$550,000

Modran
6274,091

$500,000 -

Averag e Cost

$250,000

ModIan
$278,858

Modian
$192436

$200,000

$150,000 -

odian
1,603 Madan
6102.5613
Modlan
$96,216

$100,000 -

Median
669,033

Madan
641,629
F

$50,000 -

SO

Stage of Proceeding
ONetkmal

EiNinth Circuit

E Arizona

°Nevada

Oldaho

RIWashington

0 California

Figure V-21: Average Costs Per Case for Habeas Petition and
Evidentiary Hearing Stages

In the evidentiary hearing stage, comparison between the states was
not meaningful due to the small population sizes of all states except for
California (see Table V-2). For example, Arizona and Washington had
average costs for this stage of $25,197 and $36,836 respectively.
However, since they each only had two cases in this stage of
proceeding, it was difficult to draw any conclusions about average or
typical costs. Thirty-two of the 36 Ninth Circuit cases with evidentiary
hearings were in California. For the habeas and evidentiary hearing
stages, it is not surprising that California, with an average cost of
$100,357, drives the Ninth Circuit's average cost of $92,653. This is
about twice the national average of $49,614.

V-61

PRICEVVATERNOtIsECOOPERS 0

Exhibit 12
Page 491

Table V-2: Number of Cases by Stage of Proceeding

Total
Case
Pop.

Habeas
Petition
Pop.

Evidentiary
Hearing
Pop.

Arizona

44

29

2

Percentage of
Total Reaching
the Ev. Hearing
Stage
5%

Nevada

14

13

0

0%

Idaho

13

13

0

0%

Washington

5

1

2

40%

156

149

32

21%

State

California

This analysis shows California's costs in key stages of proceeding are
higher than those of other Ninth Circuit states. California has unique
factors contributing to habeas petition and evidentiary hearing costs
that are not common to the other Ninth Circuit states.
The next step was a comparison of attorney rates per case in each state.
The rates were calculated by dividing the total out-of-court attorney
fees by the total number of out-of-court hours for all cases. Out-ofcourt costs and hours were used rather than in-court costs and hours,
because out-of-court time is the primary driver of case costs.
California's out-of-court rates were somewhat higher than both the
national average and other states in the Ninth Circuit, but not high
enough to account for the large disparities in average costs per case.
Figure V-22 shows that California's average out-of-court rate was
$136.05, not significantly higher than that of other states in the Ninth
Circuit.

V-62

PRICEWATERHOUSECOOPERS

Exhibit 12
Page 492

5160,00

$140.00

$120.00

0.

5100.00

Wei;,:-1,'

,

k

cc

4itl'
,

-

E.I.A...V.,

4.

,f-'

$80.00

.•:..;. . v

a.2, Yor,
is 'k.4

74aN
,..,,,
-M'',,,
,--VT

$60.00

$40.00

s

1..t

IV,

4

r

f..

411

$20.00

lArrp
4...).
.

1

N-

1,

it

$0.00
AZ

NV

ID

WA

CA

Stato

Figure V-22: Average Out-of-Court Rate Per Case in the Ninth Circuit,
By State

• The rate is approximately 6 percent higher than the Ninth Circuit
average of $128.45, and 10 percent higher than the national average of
$123.25.
Further analysis shows that the number of out-of-court hours in
California is much higher than in any other state in the Ninth Circuit.
The average amount of out-of-court time spent on non-California
Ninth Circuit cases was 900 hours. In comparison, California averages
2,115. Figure V-23 below compares California to other Ninth Circuit
states.

V-63

PR10EWATERHOUSECODPERS

Exhibit 12
Page 493

2500.0

2000.0

e 1500.0

< 1000.0

500.0

0.0

State

Figure V-23: Average Number of Out-of-Court Hours per Case in the
Ninth Circuit

Combining the data on rates and hours shows that the hours spent on a
case are the major determinant of California's higher costs. In
addition, these results show that significantly more time is being spent
on Ninth Circuit cases compared to non-Ninth Circuit cases.

One possible factor contributing to the number of hours spent in a case
is the average number of attorneys working on a case in each state. In
California, an average of 2.14 attorneys worked on a case over its
lifetime (Figure V-24). This was not, however, the highest in the
Ninth Circuit—California's average was only the median value of the
five states. Figure V-24 shows that in both Idaho and Washington
more attorneys were assigned to cases, on average, than in California.

V-64

PRICEWATERHOUSECOOPERS

Exhibit 12
Page 494

3.00

2.50
‘.. ,. 1.4
.

"

2.00

a

,

.
-

1.50

,. „, . .„
,t
,..

.s

,...

WO

1.00

.i .

A

4

pz

i-,
'-,-.
7

. .I

'

0.50

4,•

n

...

1

0

0.00
AZ

NV

ID

WA

CA

Stab}

Figure 1-24: Average Number of Attorneys Per Case in the Ninth
Circuit, By State

The higher number of attorneys per case does not necessarily correlate
with higher average costs. However, two qualifiers should be
nientioned. First, the OA Panel Attorney Payment System database
did not allow PwC to determine accurately if two attorneys were
working at the same time, if attorneys worked successively, or both (an
attorney may have started as co-counsel and replaced the lead counsel
later). Secondly, the data used to calculate these numbers only showed
the number of attorneys who billed their time. In some cases, one
attorney may have represented a law firm, where a number of attorneys
were working on the case, but submitted a consolidated bill. These
issues are further explored in Section VII.
Since out-of-court time was the primary driver of costs, the final step
in our comparison of cases was a further breakdown of how attorneys
V-65

PRICEWATERHOusECCOPER5

Exhibit 12
Page 495

0

spend their time in each Ninth Circuit state. This analysis was
performed in the same way as the breakdown of attorney time in the
stage of proceeding and circuit analyses. PwC eliminated those cases
with no information submitted for attorney time activities. For the
remaining cases, PwC then found the average amount of time spent on
each activity per case for each state.
As shown in Figure V-25 below, California attorneys spent more time
in every category except for courtroom hearings. As in other analyses,
legal research and writing was the main cost-driver. On average,
attorneys in California spent 562.3 hours, or approximately $70,000
on legal research and writing. 43

6030

500.0

403.0
GAZ
I3 NV

13 10

300.0

OWA
I3 CA

4
g 2030

100.0

0.0
In Court
Heanngs

Internew
Mont

Witness
Internal',"

ConsuN
Experts

Aeon.,
Record

RM.', Resource

Docs

Caller

Legal
Research

Activity

Figure V-25: Average Time Spent Per Case Per Activity

The time spent on each activity are underestimated. On average, California cases consumed over
2,000 attorney out-of-court hours. OF these, 914.5 hours are not allocated to any particular activity in
the CJA Panel Attorney Payment System database. The remaining 1,200 hours are divided among
different activities as shown in Figure V-25.
43

V-66

PRICEVVATERHOUsECOOPER5

Exhibit 12
Page 496

In conclusion, several factors differentiate cases in California from
other Ninth Circuit cases with respect to costs, but primarily it is the
amount of time that attorneys spend on a case that drives the high costs
of federal capital habeas corpus cases in California.

11.6 Accounting for the Cost Differential Between the
Average California and Non-California Case
To determine the source of the difference in costs of California and
non-California cases, PwC compared an average non-California case
with an average California case by cost component, including:
1. Out-of-court hours;
2. Out-of-court rate;
3. Attorney expenses;
4. Expert costs; and
5. In-Court fees;
In addition, the costs of California and non-California cases were
compared by identifying cost differences by stage of proceeding.
The average case originating in California cost $372,029, and the
average non-California case cost $70,360. The medians were
$307,666 for California and $48,401 for non-California states—both
slightly less than the averages. The $301,669 difference in the average
costs can be divided into the five components listed above. The results
are displayed in Figure V-26 below.

V-67

pRiawATERHousECcopERs 0

Exhibit 12
Page 497

$400,000

$ss0000

5300,000

$250,000

D ag arena in Out-of-Court Hours
▪ D1Ilerence In Out-of-Court Rate

8

°
0

DDIlerance In Attorney Expenses

0200 .000

O DiflerenCe In Expert Costs
13 1Ditlorence In In-Court Foes
13 Av Non-CA Case Cost

5150,000

5100,000

$50,000

SO

Figure V-26: The Cost Differential Between the Average Case Cost in
Non-California Cases and the Average Case Cost in California

The percentage of the $301,669 difference in costs attributable to each
factor is shown in the pie chart below:

Difference in InCourt Fees
1 r/

Difference in Expert
Costs
12%

Difference in Out•ofCourt Rate

Figure V-27: Percentage of the Cost Differential Between California and
Non-California Cases Attributable to Certain Factors

V-68

PRICEWATERHOUsECCOPERS

Exhibit 12
Page 498

V.6.1.1 Out-of-Court Hours
As expected, the vast majority of the difference in average costs can be
attributed to out-of-court hours. In fact, over half the difference in the
costs between California and non-California cases can be explained by
this single factor.

To further understand the difference in costs attributable to out-ofcourt hours, PwC analyzed differences in the amount of time attorneys
spent on certain activities. The OA Panel Attorney Payment System
database contains information on nine out-of-court activities. PwC
broke down the percentage of time attorneys spent on each activity,
and compared the averages for California and non-California. Figure
V-28 below shows the results:

Other
12%

Review Record
8%

Figure V-28: Percentage of Out-of-Court Cost Attributed to Each
Attorney Activity

V 69

P?10EWATERHOUSECCOPERS

-

Exhibit 12
Page 499

Almost half the difference is attributable to legal research and writing.
However, as noted earlier in the report this is a broad category that
captures many tasks and activities, making it difficult to draw any
conclusions about what causes this difference in hours.
Part of the difference in total out-of-court hours can be explained by
the longer state trial records that California federal capital habeas
corpus attorneys must review. When attorneys broke down their time
by activities, California attorneys indicated that they spent on average
187.8 hours reviewing the trial records, compared with 52.5 hours for
attorneys from non-California cases. This excludes time they spent
reviewing other court documents. The difference of 135.2 hours
translates into $14,377 at the non-California attorney rate of $106.30
per hour. This figure is the direct cost of reading the longer California
trial records.
California attorneys also spend more time consulting with experts. On
average, attorneys in a California case spent 107.3 hours in this
activity, while outside of California attorneys spent 17.9 hours
consulting with experts. Multiplying the difference, 89.4 hours, by the
average non-California rate ($106.30 per hour), results in $9,507. This
is on top of the additional money that California attorneys spent
directly on experts, as discussed below.
Some of the additional time was spent traveling. Attorneys
representing a California case spent an average of 90.8 hours per case
traveling, compared with 30.3 hours per case for attorneys in other

V-70

RICEWATERHOUSECCOPERS

Exhibit 12
Page 500

0

states. This translates into approximately $9,655 in additional costs.
The amount of money that attorneys billed to travel is discussed below.
V.6.1.2 Out-of-Court Rate

The difference in attorney hours does not entirely explain the higher
costs in California. The second greatest factor was the difference
between average California and non-California rates that accounted for
$60,253 of the difference in costs. In part, this is because the
difference in rates was multiplied by the average number of hours
spent on a case in California (not the number of hours spent on a nonCalifornia case), so much of this $60,253 arises from the greater
number of hours billed by California attorneys. The rest is simply the
result of California attorneys billing at a rate of $133.90, 9 percent
higher than the $106.30 average for the rest of the country.
V.6.1.3 Attorney Expenses

Although attorney expenses accounts for only about 10 percent of the
difference between average California and non-California costs,
California attorneys charged an average of $35,564 in expenses, more
than eight times the average non-California attorney's expenses of
$4,204. In comparison, the total cost of a California case is, on
average, approximately five times the cost of a non-California case.
These figures show that attorney expenses compose a higher
percentage of total case costs in California than in non-California
cases. Attorney expenses are the sum of travel and "other" dollars in
the OA Panel Attorney Payment System database. When average
expenses in California are broken down by these categories, an average
V-71

PRICEVVATERHOusECOOPER.5 0

Exhibit 12
Page 501

of $3,116 was incurred for travel and the remaining $32,449 for
"other" (non-travel) expenditures. This compares with $706 worth of
expenditures for travel and $3,499 spent on "other" in the average nonCalifornia case. The CIA Panel Attorney Payment System database
does not differentiate between types of non-travel expenses.
The difference in travel accounts for only $2,410 of the additional cost
of a California case, compared to a non-California case. Combined
with the $9,655 extra cost of time spent traveling discussed above,
only $12,065 of the $301,669 cost differential can be explained by
travel. The difference in "other" expenses remains unexplained.
However, one possible source of the difference between California and
non-California costs is the use and billing practices of attorneys from
large corporate law firms. While this use could not be fully analyzed
within the limits of the study, the issue is briefly discussed below in
- Section VII.
V.6.1.4 Expert Costs

The difference between the average expert cost in California and the
average expert cost outside of California explained approximately 12
percent of the total difference in costs. However, experts in California
cost an average of $39,461 per case—eleven times the non-California
average cost of $3,574. Again, this is disproportional to the overall
cost difference—California cases are on average, five times more
costly than non-California cases. To explain the higher expert costs,
PwC examined the data and found, not surprisingly, that experts are
being used more often in California. Although the same types of
V-72

PRICEWATERHOLSECCOPERS

Exhibit 12
Page 502

0

experts are used in all states, California attorneys simply use more of
them more often. It might also be true that experts bill at higher rates
in California, but that could not be ascertained from the information in
the CJA Panel Attorney Payment System database.
In California, on average 4.3 experts work on a case, compared with
0.80 experts per case for all non-California states. In addition, when
comparing the use of experts for California and non-California cases,
experts were used in a much greater proportion of California cases than
non-California cases.
Table V-3: Percentage of Cases Using Experts
Percentage of Cases Using Experts
All
California Non-California
783
156
627
Total Cases
Investigator
30%
86%
13%
Interpreter
1%
6%
0%
9%
Psychologist
20%
64%
Psychiatrist
58%
7%
16%
Polygraph
0%
0%
0%
1%
Documents
3%
0%
2%
0%
Fingerprint
0%
Accountant
1%
0%
0%
CALR
1%
0%
0%
3%
0%
Chemist
1%
3%
1%
Ballistics
1%
Other
30%
78%
15%

The table above shows that attorneys most often employ psychiatrists,
psychologists and investigators as experts. For both California and
non-California cases, these expert costs occur most often in the habeas

V-73

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 503

petition stage, followed by the evidentiary hearing and dispositive
motions stages, as shown below in Figure V-29.

S30,000.00

S25,000.00

$20000.00

40
1

.,..,

Es S15.000.00

510,000.00

,
S5,000.00

-s%

.N
1

0 il
17:-•.,•7.-.t.,1

sHabeas
Pot:Sion

Evidonliary
Hewing

Disposihve
Motions

Preass for
Cori

rb

l'-"-I

APPosi

Appel of

g
Oihor

Unknovm

Denial, of Stay

Stage of Proceeding

- Figure V-29: Average Cost Per Case For Experts in All Stages

As shown in Table V-4, California experts have higher average costs
than non-California experts for the habeas petition and evidentiary
hearing stages. This indicates that, in California, experts are used
much more in discovery and investigation. Attorneys interviewed in
the case studies suggested that the greater use of mental health experts
in California could be a possible cause of higher costs. This
corresponds to the data in Table V-3 above, which shows that
psychiatrists and psychologists are used in over half the cases in
California.

V-74

PPJCEVVATERHOUSECOOPER5

Exhibit 12
Page 504

Interestingly, average expert costs were lower in California than in
non-California states for the dispositive motion stage. More curious is
that non-California cases used experts more in the dispositve motion
stage than in an evidentiary hearing or habeas petition stage.
Table V-4: Average Cost Per Expert by Stage of Proceeding
Stage of Proceeding
Habeas Petition
Evidentiary Hearing
Dispositive Motion
Appeal
Petition for Cert
Appeal of Denial of Stay

Other
Unknown

Non CA
$10,235
$5,939

$18,398
$957
$683
$1,991

$1,920
$8,126

CA

All

$41,429
$20,787
$2,357
$318

$25,200
$10,972
$12,382
$923
$683
$1,991

$4,731
$15,269

$2,388
$9,938

To further explore expert costs, PwC compared the amount of money
spent on mental health experts (psychologists and psychiatrists),
investigators, and all other experts in California and non-California.
As depicted in Figure V-30 below, attorneys representing California
cases spend more, on average than attorneys representing nonCalifornia cases, for all three types of experts. In fact, California
attorneys spend an average of 10 times more on each type of expert
than non-California attorneys.

V-75

PRICEVVATERHOUSECODPERS

Exhibit 12
Page 505

0

$45.030.00

$40.000.00

$35,000.00

$amocoo
S25.000.00

DAvg Menial Health Expert Cost per Case
131 Avg Cost of Other Experts per CaSe
DA Investigator Cost per Case

L $20,000.00
IJ

$15090.00

$10,000.00

$5,000.00
..:

Sass

FSi.712,i
Non CA

CA

state

Figure V-30: Average Cost per Case by Expert Type, California Cases
vs. Non-California Cases
California cases use an average of 1.54 mental health experts per case,
while the average for a non-California case is 0.26. In California,
$9,092 per case is spent on mental health experts on average,
compared to $863 in non-California cases. The use of these mental
health experts supports the theory mentioned above, that the mental
health of the petitioner is more rigorously evaluated in California than
elsewhere.
Outside of California, 0.22 investigators used per case on average,
costing $1,688. In California, attorneys use an average of 1.30
investigators costing $15,473. Thus, the average case in California
spends almost 10 times as much on investigators as the rest of the
country. This suggests that more time is spent in California cases
researching both the facts and the history of the case than in nonCalifornia cases.
V-76

PR10EWATERHOUSECCOPERS

Exhibit 12
Page 506

e

There is little difference in the mix of experts used in California and
non-California cases. The average California case has, on average,
more than five times the number of experts overall, six times the
number of mental health experts, and six times the number of
investigators compared to the average non-California case. The
experts in California are more costly partially because of a greater use
of experts, and possibly due to higher rates or to more time worked.
V.6.1.5 In-Court Attorney Fees

Finally, in-court attorney fees represented only 1 percent of the
difference in the average costs of California and non-California cases.
California attorneys charged an average of $5,006—three times the
average of $1,175 billed by non-California attorneys. In-court attorney
compensation is only a small factor in explaining California's higher
average cost per case.
V.6.1.6 Stage of Proceeding

PwC compared the costs of California and non-California cases by
stage of proceeding. The results are depicted in Figure V-31 below.

V-77

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 507

$350,000

5300.000

$250,000

5200,000

Avg Non-CA
Miff Avg CA
Median Non-CA

$150,000

- ,..-Mecllan CA

$100,000

$50,000

-,.-,--'1:-1.'iN

$o
„fp

e

e e
e

,
\oe /

4
,0

9

ge
C.P

Stage of Proceeding

Figure V-31: Average and Median Cost by Stage of Proceeding for
California and Non-California Cases

The differences between California and non-California costs were most
pronounced in the habeas petition stage. In California, the habeas
petition stage costs an average of $331,295, compared with $51,517 in
other states, a difference of almost $280,000. The bulk of the
differential between California and non-California cases therefore lies
in this stage. Part of this cost difference may be due to new discovery
and investigation at the federal level to explore issues overlooked at
the state post-conviction stage. The California attorneys interviewed
as part of the case study analysis stated that federal capital habeas
corpus cases often were not fully developed during the state postconviction proceedings, thus requiring more research and investigation
at the federal level to fully address all issues. Eighty-eight percent of
attorneys from California who were surveyed stated that their requests
for discovery at the state post-conviction proceedings were "denied or
V-78

PRICEWATERHOusECCOPERS

Exhibit 12
Page 508

sharply reduced." This compares with 59 percent of non-California
attorneys. The fact that California attorneys spent an additional
$13,785 on investigators compared to their non-California counterparts
supports the hypothesis that more investigation and research was
needed in California cases than in non-California cases (or California
attorneys perceive this to be so).
The evidentiary hearing stage also showed a substantial cost disparity
of $92,000 between California and non-California cases. In California,
the average evidentiary hearing cost $112,799 compared with $20,245
for non-California states. Part of this substantial difference is due to
additional expert costs, since $14,800 of the extra expert cost per case
in California occurs in the evidentiary hearing stage. However, most is
attributable to attorney out-of-court hours. In addition to the higher
cost of an evidentiary hearing in California, evidentiary hearings are
held more often there. The CJA Panel Attorney Payment System
database showed that, of the cases that went to the appeal stage, 42
percent of California cases had evidentiary hearings, compared to 11
percent of non-California cases. The surveys told a similar story.
Both California and non-California attorneys usually request
evidentiary hearings at the federal level (95 percent of California and
97 percent of non-California attorneys surveyed requested an
evidentiary hearing), but California attorneys are granted evidentiary
hearings more frequently. Eighty-three percent of California attorneys
were granted hearings, compared to 40 percent of non-California
attorneys.

V-79

PRICEWATERHOusECCOPER5 0

Exhibit 12
Page 509

The other stages of proceeding show minor differences between the
costs of California and non-California cases. In California, dispositive
motions cost $11,000 more than non-California cases, and appeals cost
$13,000 more. The remaining stages had minimal differences or
showed non-California cases to be slightly more costly. These stages
also had a low volume of cases, making a comparison of costs of little
value.

V-80

PRICEWATERHOUsECOOPER5

Exhibit 12
Page 510

0

Section VI:

Factor Analysis

The previous analysis shows that the costs of all cases are largely
driven by the number of hours spent out of court preparing the habeas
petition. In addition, comparison of California cases with nonCalifornia cases reveals that the higher costs in California are due to:
o More time spent by attorneys out of court in preparing the petition
(57 percent of the cost difference);
• Higher attorney compensation rates in California compared to other
states (20 percent of the cost difference);
• Higher expert costs in California (12 percent of the cost
difference); and
• Higher attorney expenses (10 percent of the cost difference).
This leads to two questions:
1. What, typically, are the factors that drive the costs of federal
capital habeas corpus cases (and hence drive the amount of time
spent preparing the petition) of all cases; and
2. What factors make California so different from the rest of the
country?
To address these questions PwC sent out a questionnaire to 392 panel
attorneys who provided representation in at least one federal capital
habeas corpus case. The questionnaire asked about the factual details
of the case and post-conviction proceedings, as well as the attorney's
opinion of the factors driving the costs of the cases in which they were
VI-81

PRICEWATERHOUSECOOPER5

Exhibit 12
Page 511

involved. A copy of the questionnaire is provided in Appendix B. The
responses were used in a variety of ways. First, PwC examined the
reasons attorneys gave for high case costs. Secondly, PwC used
regression analysis to identify factors that were strongly related to the
costs of cases." The factors that PwC used in the analysis were based
on the reasons the attorney gave for high-cost cases and on suggestions
from representatives of the Defender Services Division of the AOUSC.
Responses to particular questions that differentiated California from
non-California cases were also analyzed, to see whether those
responses supported or conflicted with cost factors suggested by the
case study analysis.

VI.1

Attorney Opinions
The surveys listed possible factors that might contribute to the costs of
federal capital habeas corpus cases. Attorneys were asked to give each
factor a score of 1 to 4. Attorneys gave a score of 1 to those factors
they believe made a high contribution to costs, and a score of 4 to
factors they believed did not contribute to costs.
PwC calculated the average response for each factor and then ranked
them in order of importance, as shown in Table VI-1 below. A score
of 2.5 is the average response, so all responses that received below 2.5
reported an above-average contribution to costs.

" A discussioji of regression analysis is included in Appendix A.

VI-82

PRCEWATERHOUSECOOPERS

Exhibit 12
Page 512

Table V1-1: List of Factors
Contribution to Costs
Possible Factors Contributing to the Costs of Federal Capital Habeas (1=High Contribution,
4410 Contribution)
Corpus Cases
CA
Non-CA
All
1.63
1.25
1.55
Competency of state trial counsel
1.57
1.75
1.53
Other
1.25
1.70
1.61
Incomplete factual development in state court
1.58
1.63
1.62
Significant legal research to support motions
1.83
1.61
2.13
Complex defendant personal background
1.85
1.88
1.84
Aggressiveness of the Attorney General
1.52
2.04
1.94
Large number of habeas claims
1.63
2.35
2.19
Large number of expert witnesses required
2.21
2.20
2.05
Competency of state post-conviction counsel
2.36
2.08
2.30
Number of motions
2.32
2.07
2.37
Court evidentiary hearings
2.36
2.29
2.37
Number of pages of trial record
2.37
3.14
2.30
Expedited briefing required because of execution date or other limitations
2.40
2.46
2.39
Geographically dispersed evidence and witnesses
2.42
2.47
2.41
Large number of capital charges or aggravating circumstances
2.52
2.22
2.60
Difficulty in locating state records
2.50
2.54
2.54
Number of pages of trial counsel files
2.67
2.78
2.88
Number of pages of appeallate counsel files
3.76
3.85
3.71
Need for translators/interpreters

This table shows that the views of attorneys in California and nonCalifornia states do not greatly differ with respect to the contribution
of various factors to total case costs. In all three categories, attorneys
believe that the most significant factor contributing to the costs of the
federal capital habeas corpus case is the competency of state trial
counsel. Incomplete factual development in the state trial proceedings
is also ranked as a high contributor to costs. These factors are related.
Ineffective counsel in the state trial will result in incomplete factual
development at the trial. "Ineffective assistance of counsel" is
commonly raised as a federal capital habeas corpus claim. Eighty-one
percent of attorneys surveyed made an "ineffective assistance of
counsel" claim for the guilt phase of the trial, and 83 percent made this
claim for the sentencing phase. A likely reason for the common use of
the ineffective assistance of counsel claim is that it can encompass
VI-83

PKEVVATERHOusECOOPERS 0

Exhibit 12
Page 513

many other claims about the weakness of a trial. Claims based on the
Fourth, Eighth, and Fourteenth Amendments are more restricted.
Several differences arose in the comparison of California attorney
responses with non-California attorney responses. First, California
attorneys gave the category "large number of habeas claims" a score of
1.52, as opposed to 2.04 for non-California attorneys. The survey
responses showed that, California attorneys raise more claims than
their non-California counterparts, as shown in Table VI-2.
Table VI-2: Survey Results on the Percentage of Habeas Claims Per
Case
Number of Habeas Claims Sought
1
2 to 5
6 to 10
11 to 20
21 to 30
31 to 40
More than 40
. Unknown Cases
Total Number of Cases

All
7%
36%
34%
16%
5%
0%
0%
3
126

CA
8%
24%
44%
20%
4%
0%
0%
1
25

Non-CA
7%
40%
33%
16%
5%
0%
0%
2
101

Secondly, California attorneys consider the number of expert witnesses
required as a more substantial contributor to costs than non-California
attorneys (see Table VI-1). This supports the prior findings on the
impact of expert witnesses on the costs of California cases. Third,
California attorneys, more than non-California attorneys, believed that
the complexity of the petitioner's personal background had a larger
impact on costs.

V1-84

PRicEWATERHOusECooPER5

Exhibit 12
Page 514

13

The survey also asked attorneys whether a number of possible
environmental factors, including the attitudes of the local community,
the judge, and the attorney general, toward both the crime and the
death penalty itself, increased the costs of the case. The factors and
responses are shown in Table VI-3 below. The table shows the
percentage of attorneys who believed that each factor increased the
costs they represent.
Table VI-3: Attitudes that Affect Costs
Factor

Local community attitudes toward the
original crime
Local community attitudes toward the
death penalty
Attitude of the judge toward the original
crime
Attitude of the judge toward the death
penalty
Attitude of the Office of the Attorney
General toward the original crime
Attitude of the Office of the Attorney
General toward the death penalty

Increased
Costs
29%
31%
34%
34%
63%
70%

Most attorneys surveyed believe that the attitude of the Office of the
Attorney General increased the costs of their case. Only one-third of
the attorneys surveyed believed the judge's attitude either towards the
original crime or toward the death penalty, increased the costs. This is
consistent with the high ranking of the aggressiveness of the Office of
the Attorney General as a cost driver in Table VI-1.

V1-85

pvaw4TERHousEccopER5

Exhibit 12
Page 515

VL2 Regression Analysis
While the views of attorneys provided useful insights into the causes of
costs of federal capital habeas corpus cases, they are subjective
measures, dependent on attorney expectations, experiences, and
beliefs, and may be limited to specific knowledge of local state and
federal court practices.
PwC used regression analysis, a type of statistical test as a means of
using objective data to test which factors affect the costs of federal
capital habeas corpus cases. This involved developing two models of
factors likely to affect costs and testing the significance of these factors
through statistical calculations. The two models were designed to
analyze:
1. The impact of various factors on the costs of 105 cases (all cases
with a fully completed survey); and
2. The impact of various factors on costs of 84 non-California cases
all non-California cases with a fully completed survey).
The reason for including the second (non-California) model was to
determine if the factors that apparently influence the costs of all
cases—based on the results of the first regression analysis—also
appear to affect the costs of non-California cases. This helped
differentiate between the factors that drive the costs of all cases and the
factors that drive the costs of non-California cases.
The factors tested in both models included:

VI-86

PRICLWATERHOUsECOOPERS

Exhibit 12
Page 516

0

• Whether travel was required for investigation to other states (at
trial);
• Whether the case originated in California;
• Whether there was continuity of counsel from state to federal postconviction proceedings;
o The number of prior capital representations by counsel;
o The number of pages of trial record;
• The number of state post-conviction proceedings;
• Whether the federal judge denied attorney requests (for experts,
attorney fees, and for evidentiary hearings) at the federal postconviction proceedings;
• Whether the state judge denied a request for an evidentiary hearing
at the state post-conviction proceeding;
• Whether the state provides funding for the state post-conviction
proceeding; and
o The number of Claims made in the federal capital habeas corpus
petition.
The second model excluded the variable as to whether the case
originated in California (as by design, they were all non-California
eases).
Summary

The combined results of the two models were inconclusive. The
results suggested that:

VI-87

PRKEWATERHOUsECCO PERS

Exhibit 12
Page 517

• Many factors drive the costs of non-California federal capital
habeas corpus cases. The factors noted above explained only 14
percent of the costs of the 84 non-California cases;
• One or more factors driving the costs of cases in California are not
captured in either model; and
• None of the factors included were robust predictors of case costs.
That is, the statistically significant factors in one model were not
statistically significant in the other model.
The results appeared to depend on the sample of cases—a different
sample of cases in the analysis would likely have yielded different
results as to which factors are significant. In addition, many factors
not included in the regression model influenced costs.
For these reasons, the regression analysis supports the notion that case
costs are based on a variety of unpredictable factors. As suggested by
attorneys, such factors might include, the complexity of the petitioner's
personal background, particulars of the crime and the circumstances
surrounding the crime, and the idiosyncrasies of the state trial.
Methodology

PwC initially reviewed the factors suggested by attorneys for high
costs of federal capital habeas corpus cases. These factors included:
D Attorney experience (number of previous capital cases and years
of experience);
> Number of murder victims;
VI-88

PR10EWATERHOUsECOOPERS 0

Exhibit 12
Page 518

D

Number of co-defendants;

D.

Judicial denial of resources at the state or federal post-conviction
stages;

D

Size of trial record;

D

Number of habeas corpus claims raised;

>

Defendant history of mental illness;

D

Length of state trial;

D. Whether investigation at trial involved travel to other states;
D

Continuity of counsel from state to federal post-conviction
proceedings;

D

Number of state post-conviction proceedings;

>

Denial of attorney requests (for experts, attorney fees, and for
evidentiary hearings) at the federal post-conviction proceedings;

> Denial of a request for an evidentiary hearing at the state postconviction proceedings; and
D

Whether funding was provided for the state post-conviction
proceedings.

From these factors, PwC removed those during initial testing did not
show an impact on case costs. PwC then developed two final
regression models to test.
The results of the two regression analyses are shown in Table VI-4 and
Table VI-5 below. The factors that showed the most significant impact
on costs are in bold and are at the top of the table. The table shows:

•

The value of the coefficient—this shows how much the costs of the

case increase if the relevant factor increases. For example, if the
VI-89

PRICEWITERtpusECW PERS 0

Exhibit 12
Page 519

number of years of attorney experience is a factor (X 1), and the
coefficient of that factor is -$1,000, then for each year of attorney
experience, on average the costs of a federal capital habeas corpus
case decrease by $1,000. If the sign of the coefficient is negative,
the factor decreases costs rather than increases costs.
•

The level of confidence in statistical significance—the factor (and

value of the coefficient) can only be considered to affect case costs
if the factor is statistically significant, which depends on the results
of statistical tests. The regression analysis only provides evidence
that the factors with a "yes" in these columns affect the costs of
cases. For columns with a "no," the value of the coefficient is not
statistically reliable.
•

The value of "i ) "—the percentage of the difference in costs

explained by the factors in the model; the "r 2" value of 0.65 means
that 65 percent of the costs of the cases are explained by the factors
in the model, and the remaining 35 percent of the costs are
unexplained (or due to other factors).
The level of confidence in the statistical significance of the variables is
shown for both a 95 percent confidence level (the generally accepted
level of confidence by statisticians) and at the 90 percent confident
level (a lower level of confidence). When a factor is statistically
significant, it is unlikely that the regression results are due simply to
sampling error (that is, picking a sample that is unrepresentative of all
cases). A factor that is statistically significant most likely affects costs,
either increasing costs or decreasing costs, depending on the sign of the
coefficient.

VI-90

PRICEWATERNOUSECOOPER5

Exhibit 12
Page 520

Results

The first table shows the results of the model that analyzed the costs of
both California and non-California cases, and the second table shows
the results of the second model that analyzed the costs of nonCalifornia cases only.
For the model that included all cases, three factors appear to be
statistically significant:
1. Whether travel to other states for investigation was required at the
trial—an indication of the need for travel at the federal postconviction stage;
2. Whether there was continuity of counsel between the state and
federal post-conviction stages—as expected, continuity of counsel
decreases the costs at the federal level (that is, the coefficient is
negative); and
3. Whether the case originated in California—not surprisingly, this
confirmed previous findings, that cases in California are
significantly more costly than non-California cases.
Neither of the first two factors was statistically significant in the
second model of non-California cases. This implies that the need for
travel and continuity of counsel had a different impact on the costs of
non-California cases compared to the impact on California cases. In
fact, no factor was statistically significant at the generally accepted 95
percent level of confidence in the non-California model. This implies
that there are other factors, not included in the list above, that affect the
cost of cases.
VI-91

PRCEWATERHOUsECOOPERS

Exhibit 12
Page 521

During the case study interviews, attorneys identified several reasons
why costs in California may differ significantly from the costs of nonCalifornia cases—such as the impact of the California's Office of the
Attorney General on increasing the hours spent in litigation. Some of
the reasons—for example, the tendency of the attorney general's office
to litigate exhaustion requirements—cannot be easily converted into
objective quantifiable data that can be analyzed using regression
analysis.

A curious result of the non-California model is that the number of
pages of the trial record is statistically significant at a 90 percent level
of confidence, but the coefficient was negative. This suggests that after
taking all the other factors in the analysis into account, the longer the
trial record, the lower—not higher—the costs. This is counterintuitive,
and at odds with the finding in the data analysis that shows that more
time is spent in California cases reviewing the trial record and
documents than in non-California cases. This is one indication that the
results of the analysis may be subject to sampling error, or that the
models fail to capture some of the most important cost drivers.

Less surprisingly, attorney experience is a statistically significant
factor at the 90 percent confidence level (the more experienced the
attorney the lower the costs), as is the number of state post-conviction
proceedings. (The more times the case enters the state courts, the lower
the costs at the federal post-conviction stage, presumably, because the
issues are dealt with effectively at the state level and require less
investigation and research at the federal level. This is inconsistent
VI-92

OOP
PRICEWATERIpU sEC ERS 0

Exhibit 12
Page 522

with an alternative hypothesis that costs increase if the case "bounces"
between state and local courts as issues as attorneys take time to
refresh their memory, familiarize themselves with new laws and case
law, renew contact with witnesses, and so on). However, to conclude
that these factors are statistically significant, PwC has to decrease the
acceptable level of confidence from the generally accepted standard of
95 percent to 90 percent. Thus, while there was evidence that suggests
these two factors are statistically significant, the evidence is not strong.
Finally, the value of? in the first model was 0.65. This means that 65
percent of the costs of these cases is explained by the factors shown in
the table. This is a substantial percentage of costs. In contrast, the
value of? in the non-California model—which excluded California
cases—was only 0.14 , or 14 percent. The reason for the difference is
the impact of the California variable in the first model. The analysis
shows—confirming the data analysis—that California cases have
higher costs. In the second model, California costs were excluded to
rule out the impact of California cases on the model results and to see
whether the analysis can determine the factors driving the costs of nonCalifornia cases. Removing the California cases and the California
variable from the model clearly changes the results, as shown below in
Table VI-4. This is the basis for concluding that the same factors
affect the costs of California and non-California in different ways.

VI-93

PRICEWATE RNOusEC
COPERS

Exhibit 12
Page 523

0

Table VI-4-: Regression Model of All Cases
Factors

Coefficients

Continuity of
Counsel from
State to
Federal PCP*
No. of Prior
Capital
Representations
by Counsel
Pages of Trial
Record (by
category)
No. of State
PCPs

YES—
Increases
Costs
YES—
Increases
Costs

YES—
Increases
Costs
YES—
Increases
Costs

-46,527.00

YES—
Decreases
Costs

YES—
Decreases
Costs

-857.22

NO

-19,339.66

NO

-17,245.36

California
Case*

Statistically
Significant at
90%
Confidence
Level?

63,167.27

Travel for
Investigation
(at trial)*

Statistically
Significant at
95%
Confidence
Level?

NO

YES—
Decreases
Costs
YES—
Decreases
Costs
YES—
Decreases
Costs

4,219.47

NO

400,739.50

-

Judge Denied
Resources at
Federal PCP*
Judge Denied
Evidentiary
Hearing at State
PCP *
Provision of
Funding for
State PCP*
Number of
Claims (Federal
PCP)
Number of
Cases
Value of r2 (rsquared)

NO
'

9,721.91

NO

NO

-12,840.08

NO

NO

436.29

NO

NO

105
0.65

VI-94

PRICEWATERHOUsECCDPER5

Exhibit 12
Page 524

0

Table VI-5-: Regression Model of Non-California Cases
Factors

Number of
Claims (Federal
PCP)
Pages of Trial
Record (by
category)
Travel for
Investigation (at
trial)*
Continuity of
Counsel from
State to Federal
PCP*
No. of Prior
Capital
Representations
by Counsel
No. of State
PCPs
Judge Denied
Resources at
Federal PCP*
Judge Denied
Evidentiary
Hearing at State
PCP *
Provision of
Funding for State
PCP*
Number of Cases
Value of ? (rsquared)

Coefficients

Statistically
Significant at
95%
Confidence
Level?

Statistically
Significant at
90%
Confidence
Level?

959.71

NO

YES—Increases
Costs

-11,248.78

NO

YES—
Decreases Costs

-8,560.28

NO

NO

-19,478.77

NO

NO

NO

NO

-3,154.21

NO

NO

7,787.59

NO

NO

-19,349.73

NO

NO

15,204.80

NO

NO

16.07

84
0.14

To further investigate the factors driving costs, and why the factors
examined in the regression analysis did not show significant results,
PwC analyzed the costs of cases in particular states.
VI-95

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 525

Section VII: Comparative Study of Selected States
This section analyzes the average case costs of six states, as well as
procedural and cultural factors of those states, in an attempt to further
explain cost disparities between California and non-California federal
capital habeas corpus cases. The states examined are the same as those
for which case studies were collected. In order to concentrate on the
costliest parts of a case, this analysis concentrates on the three stages
of proceeding in which most costs are incurred:
• The habeas petition stage;
• The evidentiary hearing stage; and
• The appeals stage.
Because some factors influence case costs in more than one stage, a
final category entitled "All Stages" discusses those factors that may
contribute to costs over the lifetime of a case.
This section combines findings from the C.TA Panel Attorney Payment
System database, the survey results, and the case studies. The case
study profiles are furnished in Appendix C. The three sets of data
support each other in providing reasons for California's significantly
higher average costs per case.

VILI Habeas Petition Stage
As shown earlier, California has a more costly habeas petition stage
than any other state—almost $250,000 more costly on average than the
second most costly state studied. Because the habeas petition stage
accounts for so much of costs, there is a correlation between the
VII-96

PRICEWATERNOUSECOOPER5

Exhibit 12
Page 526

average cost of an entire case and the average cost of the habeas
petition stage of proceeding. For example, Texas was the least
expensive state studied and also had the lowest average cost per case
for the habeas petition stage.

5400,000
13

Avg Cost of Petition Stage

tii

Avg Casa Cast

$350000
.• ,
1,1 WY

$300,000

I/

.

•

.

0

.i?
,

'

•'•'

..

•

2100,000
4,-....,
.1.,

i;

250.030

k7j4

so
235.5
TX

452.8
Al.

556.9
IL

389.1
PA

471.3
MO

1925.0
CA

Average Number of 01A-of-Court Hours por Casa In the Haboos Petition Stago

Figure VH-1: Average Cost of the Habeas Petition Stage of a Case for
Selected States

The case studies offer some explanation for the differences shown in
Figure VII-1 above. For the two California cases, many of the facts in
the cases were underdeveloped at the state level and required many
hours of investigation at the federal level. Attorneys hypothesized that
lack of funding at the state post-conviction level resulted in
underdeveloped cases reaching federal court. The California attorneys
stated that as a result, they spent more time performing investigations
at the federal habeas corpus petition stage than attorneys in other
states. In support of this assertion, the payments to investigators are
VII-97

PRICEVVATERNOUSECODPERS

Exhibit 12
Page 527

much higher in California than in the other states studied. By contrast,
most of the investigation in the case study from Alabama took place at
the state level; hence investigation costs were low.
The survey data also indicates that California attorneys are denied
resources at the state post-conviction proceedings more frequently than
non-California attorneys. Eighty-three percent of California attorneys
surveyed stated that their requests for discovery in state court were
denied or sharply reduced, compared with 59 percent of non-California
attorneys.
Among the four states in Figure VII-2 below (Alabama and
Pennsylvania did not have any cases which billed for investigators),
California attorneys were four times more likely to use investigators
than attorneys in the other states. On average, investigators in an
average California case cost more than $15,000 compared with $1,000
in.Missouri, $1,100 in Texas, and $700 in Illinois. These figures do
not include attorney time spent on investigation, and indicate that
investigations may be much more thorough in California federal
courts. A high level of investigation may also explain the relatively
high average cost in Missouri, where the attorney interviewed
emphasized the necessity of conducting new investigations at the
federal district level.'

" See Case study #3 in Appendix C.

VII-98

PRICEWATERHOUsECODPERS

Exhibit 12
Page 528

$18,000.00

$16,000.00

$14,000.00
s(

$12,000.00

,s 1
i

-...••'4:7-'

s

'

-.,...''

'

4,5

•,, i,,,
i

$6.000.00

$4,000,00
'

•.'

,

$2,000.00

.

$0,00
022
TX

1:7

. T2(-,, q,. 1
0.16

IL

.

legefj.FJ:

"" A

0.32
MO

M.
1.30
CA

Average Numer of Investigators Per Case

Figure

Average Cost of Investigators Per Case for Selected States

In addition, the trial records in California are longer than trial records
in other states, requiring attorneys to spend substantial time reading
and understanding the case's history. As federal capital habeas
attorneys read the record, they must not only look for general themes
of the case, but they must also decide which specific portions of the
record are relevant when writing the federal habeas corpus petition.
The data in the CIA Panel Attorney Payment System database supports
the anecdotal evidence provided in the case studies on the amount of
time that attorneys spend reviewing the trial records. California
attorneys spend an average of 188 hours per case, compared with 136
hours in Missouri. The product of the average number of hours and the
average out-of-court rate provides the average cost per case. In
California, attorneys spent $25,300 for reviewing the record, which is
VII-99

PRICEWATERHOWECCOPER5

Exhibit 12
Page 529

$10,000 more than Missouri, and $20,000 more than a typical state like
Pennsylvania.

53,000,00

325,000.00
,

$20,000.00

:,.-, 2A

c.s
g $15,000.00

4

4

1-

$10.001190

‘:,...
„

.-.P'
-4

35,000.00

i

;I

1

,-)
$0.09
42.1
TX

69.4
AL

74.1
IL

42.4
PA

136.3
MO

1137.8
CA

Average, Humbor of Hours Par Casa

Figure VII-3: Average Cost Per Case for Selected States
of Reviewing Court Records

The case studies illustrated one factor possibly limiting costs in Texas
and Alabama. This factor is that the attorneys did not bill for all their
work because of historically low payments. Judges can also decide
how much of a voucher is worthy of reimbursement and can cut what
they want. Sometimes an attorney could choose not to bill because of
an expectation that a judge will cut his or her voucher. In California,
attorneys stated that they are generally paid the full amount of a
submitted voucher. One of the California attorneys stated that when the
judge tried to cut his vouchers, he argued with the judge and in the
end, received the money. Different billing practices in each state,
therefore, may partly explain the variations in costs.
VII-100

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 530

VIII Evidentiary Hearing Stage
In California, the average cost of the evidentiary hearing stage was
almost twice the average cost of the average evidentiary stage in the
next most costly case study state. In fact, the average cost of an
evidentiary hearing in California, over $100,000, was greater than the
average cost of an entire federal capital habeas corpus case of the other
case study states examined. The graph below provides a more detailed
comparison.

$400,003.00

Oftvg Stage of Proc. Cost
El Avg Case Cost

$350,000.00

:

$303,000.00

$250,000.00

a

$200.000.00

EN
$150,000.00

5100,00000

$50,000.00

,. -.,

$0.00
TX

..„ ....

IL

PA

MO

CA

State

Figure 'VH-4: Average Cost Per Case of the Evidentiary Hearing Stage
for Selected States

Again, the case studies suggested reasons for these differences in costs.
A California attorney stated that in California, the State Supreme Court
rarely holds evidentiary hearings during state post-conviction
proceedings. Holding an evidentiary hearing at the state level may

VII-101

PRICEVVATERHOLSECCOPERS

Exhibit 12
Page 531

0

decrease the need for an evidentiary hearing at the federal level.
However, if an evidentiary hearing is not held at the state level, the
district court may want the evidence to be presented at the federal
level. Special circumstances, such as the discovery of new evidence
and so on may create the need for a hearing in both state and federal
court. Part of the reason why hearings in the federal level might be
more expensive than at the state level is because so much time has
elapsed since the state trial. Changes in the law and delays in
interviewing witnesses create additional challenges for the federal
capital habeas attorney. According to data in the CIA Panel Attorney
Payment System database, 42 percent of all California federal capital
habeas cases proceeding to the appeals stage had evidentiary
hearings.46 In all of the other states, only 11 percent of cases had an
evidentiary hearing by the appeal stage.
The higher cost of evidentiary hearings can also be attributed to the
frequent use of experts in California cases, especially mental health
experts (psychiattists and psychologists). On average, a California
case uses 4.3 experts per case, more than three times the number of
experts used in Missouri and eight times the number used in Texas or
Pennsylvania (no Alabama case billed for expert costs). This translates
into an average expenditure of $39,500 per case in California, while
other states averaged less than $4,000. Thus, the average cost per case
of experts in California is at least 10 times higher than in other states.

" The California attorneys interviewed believed that almost all California federal capital habeas
corpus cases have an evidentiary hearing at some point-possibly on remand by the Ninth
Circuit.
VII-102

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 532

71Me".14

3

4Z.
S25,000.00

2
520,000.00

,*

S15,000.00

S1 0,C00.00

S5,000.00

I

50.00
0.52
-

rx

0.28
IL

0.56
PA

1.58
MO

4.30
CA

Average Number of Experts Per Case

Figure V11-5: Average Cost of Experts Per Case for Selected States

Equally important is the difference between cases in California and
other states in the likelihood of using mental health experts. The
attorney who provided representation in one California case study
considered the cost of the psychologist and psychiatrist very costly.
The CJA Panel Attorney Payment System database and the survey data
show that this was typical of California cases. California federal
capital habeas corpus cases average 1.54 mental health experts per
case, seven times the 0.20 average of other states. The average cost of
mental health experts per case in California was $9,000, 10 times the
average cost in Pennsylvania, the median state.

VII-103

PRICEWATERHOUsECCOPERS

Exhibit 12
Page 533

$10,000.00

..._ ,,

69,000.00

n let

56,000.00

'44
$7,000.00
S6,000.00
....

8

0

4-

$5,000.00
64,000.00
4

7"

$3.000.00

rj

$2,000.00

-A

$1,000.00

v.

60.00
0.18
DC

0.22
PA

0.12
IL

0.68
MO

ty

1.54
CA

Average Number of Mental Health Experts Per Case

Figure V11-6: Average Cost Per Case of Mental Health Experts for
Selected States

In addition to the higher expert costs, California attorneys on average
spent more time consulting experts. The average amount of time spent
per case in California was 107 hours, which, when multiplied by the
average out-of-court attorney rate, translates into $14,500 per case,
$12,000 more than Missouri. Non-California attorneys in the case
studies stated that if they were granted more money for experts, they
could greatly improve the strength of their cases.

WI-104

PRICEWATERHOUSECODPERS

Exhibit 12
Page 534

$15,000.00
1

__,I
!

1

$14.000.00

il.
.4_.

$12.000.00

..
$10,000.00

!I

a
58,0013.00

I

$5,000.00

a

,..,..

-

$4,000.00

I.
......., t...2
,..
4

P-' '

52.000,00

iis1

$0.00
13.5
TX

5.8
AL

1.4iard
12.0

IL

-

O-4.4.7:4
i3
13.5
PA

,

-',-.
18.3
MO

107.3
CA

Average Number of Hours Per Case

Figure VII-7: Average Cost Per Case of Consulting With Experts for
Selected States

VII.3 Appeal Stage
An item of further study was a comparison of the cost of the appeal
stage. California had the highest average cost at the appellate stage,
but there was no direct correlation between the cost of the appeal stage
and the average case cost, since the cost of the appeal stage is typically
a smaller component of total case costs than other stages.

VII-105

PRICEWATERHOUSECODPERS

Exhibit 12
Page 535

$400.000.00

0 Avg Stage of Proc. Cost
B Avg Case Cost

$350.000.00

5300.000.00

5250.000.00
(.5

$200,000.00

$150,000.00

5100.400.00

$50.000.00

$0.00
TX

AL

IL

PA

MO

CA

State

Figure

Average Cost Per Case of the Appeal Stage for Selected
States

In the appeal stage, California cases do not cost much more on average
than cases from other states. The average cost of the appeal stage in
California was 39 percent higher than in Missouri, the state with the
next highest costs. This indicates that most of the higher costs are in
other stages and are concentrated in the district courts.

1/11.4 All Stages
There are several factors that can drive the costs of a typical federal
capital habeas corpus case in more than one stage. Some of these
factors are discussed below.

VII-106

PWCEWATERHOUSECCOPERS 0

Exhibit 12
Page 536

Litigation Strategy of the Attorney General

California attorneys emphasized that the California Attorney General's
Office never waives exhaustion requirements and litigates all matters.
The California Attorney General's litigation of exhaustion
requirements often sends cases back to state court while the federal
habeas corpus proceedings are ongoing. Survey responses showed that
California cases were more likely to be simultaneously in federal and
state court. Eighty-three percent of California cases were in both
courts at some point in time, compared with 30 percent of nonCalifornia cases. The case studies revealed that in the states of
Alabama, Texas, and Pennsylvania (with the exception of
Philadelphia), the representation for the state typically waives
exhaustion claims and enforces procedural defenses to expedite the
entire habeas corpus process. In these places, the state provides
compensation for representation in proceedings that return to state
court. The attorneys interviewed suggested that the actions of the
California Attorney General's Office drive a portion of California
federal capital habeas corpus attorney activity, which increases case
costs. However, the litigation strategy of each state's attorney
general's office cannot be quantified in terms of costs.
Movement of Cases Among the State, District, and Circuit Courts

As well as "bouncing" down from the federal district to the state court,
cases can also "bounce" up from the federal district to the federal
appellate court. Cases may be remanded to the state court to resolve
exhaustion requirements that the Attorney General pursued, or because
the district court finds that some issues are underdeveloped. The
VII-107

PRICLWATERHOUsECCOPERS 0

Exhibit 12
Page 537

Attorney General also often files interlocutory appeals, challenging the
California district courts' rulings on procedural matters. The survey
data showed that 65 percent of California cases had an interlocutory
appeal taken to the Ninth Circuit Court of Appeals, compared with 22
percent of non-California cases. The case studies suggested that this
tendency to move back and forth might contribute significantly to the
number of hours spent both preparing and filing documents and
researching the appropriate court proceedings.
Use of Attorneys from Large Corporate Law Firms 47

In response to an apparent shortage in the number of available panel
attorneys, during the 1990s, judges assigned a number of federal
capital habeas corpus cases to attorneys from large, corporate law
firms. It is possible that the use of attorneys from such firms increased
the total, average, and median costs of California cases during the late
1980s and early 1990s. One possible cause is that the attorneys may
have been inexperienced in this type of law, and may have used
different billing practices from smaller criminal law firms who
typically represent these cases. This factor may not be relevant to
costs in recent or future federal capital habeas corpus cases, because
large corporate law firms are generally no longer appointed in federal
capital habeas corpus cases.

Note that this section is not a judgment on the competency or efficiency of one set of
attorneys as opposed to another. Rather, the point is more intuitive: costs are likely to be lower
if the attorney does not need to spend significant amounts of time learning about federal capital
and habeas corpus law.

47

VII-108

ftraWATERHousECOoPERs

Exhibit 12
Page 538

To investigate the possible cost impact of using attorneys from large
corporate law firms to provide representation, PwC analyzed the costs
of the 36 most expensive cases in California. The average cost of these
cases is approximately $758,000, with costs ranging between $500,000
and $2,000,000. These case represent only 24 percent of all California
cases but 44 percent of the total costs in California. As a result, these
36 cases add $139,771 to the average cost of all the 156 California
cases. When the costs of these 36 cases are broken down by type of
attorney", compensation is discovered to be $13,796,719 for the 33
civil attorneys and $11,531,164 for 47 criminal attorneys. This data
indicates that civil attorneys were billing more per case than criminal
attorneys. On average, the 33 civil attorneys contributed $88,441 to
the average case cost of $372,029 for California's 156 cases. Thus,
without the vouchers submitted by 33 civil attorneys, the average cost
of California cases would have been $283,588, rather than $372,029.
This section does not indicate that if the civil attorneys had not
provided representation, the average cost would have fallen by
$88,000. Someone still would have been needed to perform the work.
The question is whether by criminal attorneys would have performed
the same work at lower costs.
There are reasons to believe why this may be the case. Attorneys from
civil law firms may have been more costly, because they frequently
used several associates on one case, all of whom bill for the hours that

" PwC asked an attorney familiar with California cases to identify which of the 80 attorneys
providing representation in these cases were employees of large corporate law firms ("civil"
lawyers, or of firms that specialize in criminal cases ( "criminal" lawyers).
VLI-109

PWCEWATERHOUSECOOPERS

Exhibit 12
Page 539

they expended. These attorneys may have also needed to familiarize
themselves with federal capital habeas corpus law, thus incurring costs
that would not be charged by experienced capital habeas corpus
attorneys.
Billing practices of civil law firms may also differ from those of
criminal firms in the area of non-travel expenses, which may include
the cost of paralegals, research assistants, and administrative expenses.
On average, civil attorneys in the top 36 most expensive cases spent
three times more money on non-travel expenses than criminal
attorneys. In the 36 most expensive cases, civil attorneys spent an
average of $64,139 on non-travel expenses, while criminal attorneys
spent an average of $22,534. In fact, civil attorneys charged an
average of $24.83 per hour in non-travel expenses, compared to
criminal attorneys, who charged an average of $14.28 per hour in other
expenses, which is 43 percent less.

VII-110

PRICEWATERHOISECCDPERS g

Exhibit 12
Page 540

Section VIII: Conclusions
The three kinds of analyses described above are consistent in their
portrayal of the costs of federal capital habeas corpus cases and the
factors that drive those costs. These analyses also suggest why costs of
cases originating in California are much higher than cases that
originate in other states. Nevertheless, the issue of why costs are
higher in California than in other parts of the country is complex, one
that involves the interaction of many social, judicial, behavioral,
political and economic factors that create a high-cost environment in
that state.
The factors driving the costs of federal capital habeas corpus cases are
difficult to determine due to the uniqueness of each case:
• The costs of the federal post-conviction proceedings are
determined partly by what happens at the state trial and during the
state post-conviction proceedings; analyzing the costs of federal
capital habeas corpus cases is relatively similar to examining what
drives the cost of inspecting products rolling off the end of a faulty
production line.'
• The hours spent on an individual case are often determined by
several factors specific to the case that make generalizations
difficult; specific factors include:
e The complexity of the petitioner's personal background;

" The analogy is only partly true: the cost to the federal courts also includes tearing the faulty
product (that is, case) apart and rebuilding it or debating whether the product and product line is
faulty at all.

V111-111

PRtaWATERHOusECCOPERS

Exhibit 12
Page 541

a

• Actions undertaken by the trial counsel and the state postconviction counsel;
• Unusual incidents that happen during the course of the original
state trials; and
• The "novelty" of the constitutional claims being raised.
In spite of these difficulties, PwC was able to reach several conclusions
on non-case-specific factors as a result of this study. These
conclusions flow from the data analysis, the factor analysis, and the
case studies.

VIII. 1

The Costs of Capital Federal Habeas Corpus Cases

National Findings
•

Of the 783 federal capital habeas corpus eases examined, 631
were open and 152 were closed. However, 90 percent

of the total

$102 million costs of the 783 cases were incurred by open cases
and only 10 percent by closed cases.

The proportionately low

percentage of costs incurred by closed cases is due to the large
number of open and costly cases from California. If California
cases are not included in the analysis, the difference between the
average cost of open and closed cases disappears.
•

Eighty-six percent of out-of-court hours are spent preparing and
writing the habeas petition.

As discussed below, this is most

probably due to the amount of investigation and legal research
required during this stage.
•

Other costly stages include the evidentiary hearing stage and the
appeal stage. On average, an evidentiary hearing costs $55,000 for

VIH-112

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 542

open cases and $20,000 for closed cases. An average appeals stage
costs $29,000 for open cases and $30,000 for closed cases.
•

In total, the costs of federal capital habeas corpus cases are
largely a function of the number of hours spent out of court.

Approximately 80 percent of the costs of cases are composed of
attorney fees for time spent out of court.
Regional Findings
•

The cost of cases in the Ninth Circuit is approximately four times
greater than the cost of cases in all other circuits.

For both open

and closed cases, the average cost per case in the Ninth Circuit is
$289,054, compared to $62,483 for all other circuits combined.
•

The high cost of cases in the Ninth Circuit is primarily due to the
high costs of California cases. The average cost of California

cases is more than $370,000, compared to approximately $70,000
for non-California cases. The median cost of California cases is
$307,666, and the median cost of non-California cases is $48,401.
•

The combined impact of the sheer number (156 cases out of 783)
and high average cost of California cases is that cases
originating in California have generated more than 57 percent of
the total CJA panel attorney payments between FY 1992 and FY
1998.5° The total amount of C.IA payments (including expert

expenses) was $102 million between 1992 and 1998. Cases
originating in California account for $58 million of this total. In

" This includes only the payments analyzed in this study. Some vouchers and cases were not
included in the analysis for various reasons presented in the methodology section.
VIII-113

PRIaWATERtpu sECooPER5 0

Exhibit 12
Page 543

other words, 20 percent of the cases have generated 57 percent of
the costs.
•

Attorneys in the Ninth Circuit spent almost three times as much
time working out of court as their counterparts in other circuits.
In addition, expert costs are, on average, more than three times
as much in the Ninth Circuit as in other circuits. These

differences account for a large part of the cost differences between
cases in the Ninth Circuit, compared to cases in other circuits.
•

California cases cost five times as much as non-California cases
(from all circuits). There is a gap of approximately $300,000

between the average cost of a case in California ($372,029) and the
average cost of a non-California case ($70,360). This difference is
made up of:
• $170,000 resulting from the additional out-of-court hours
worked by attorneys in California;
• $60,000 resulting from the higher attorney hourly rates in
California;
• $35,000 resulting from higher expert costs in California cases;
• $31,000 resulting from higher attorney expenses in California
cases; and
• $4,000 resulting from additional in-court attorney fees in
California.
While most of the additional costs in California are due to the
additional out-of-court hours, expert costs and attorney expenses in
California are many times the equivalent costs of non-California
cases (eight times for attorney expenses and 11 times for experts).
•

Forty-five percent of California attorney out-of-court time is
spent conducting legal research and writing. Fourteen percent is

V111-114

PRICEWATERI:10UsECOOPERS

Exhibit 12
Page 544

spent reviewing documents, 8 percent in reviewing the record, and
6 percent in consulting with experts.

111112 Factor Analysis
Many factors influence the costs of federal capital habeas corpus cases.
PwC attempted to identify some of these factors through the use of
regression analysis, a type of statistical analysis. Due to the number
and complexity of factors that influence case costs and the variation in
costs of cases that, on paper, appear similar in terms of case, petitioner,
and attorney characteristics, the regression analysis was inconclusive.
One reason for this is that many factors that influence case costs were
not included in the analysis, either because the factors were too
difficult to quantify, or because data describing the factors was not
available.
•

Regression analysis found that two factors—whether
investigation for the trial involved travel to other states and
continuity of counsel between state and federal post-conviction
proceedings—were significant cost drivers.

However, these two

factors were not statistically significant when California cases were
excluded from the analysis, most likely because there are one or
more other factors affecting costs in California that were not
captured in the analysis.
•

The regression analysis of non-California cases found no factor
that was statistically significant (at the 95 percent level of
confidence) in driving costs of cases. This means that many

factors influencing the costs of federal capital habeas corpus cases
not easily quantifiable. The regression analysis was unable to
VIII-115

PR/CEWATERHO USECCO PERS

Exhibit 12
Page 545

identify any single variable that consistently showed a statistically
significant relationship to case costs in different tests. Moreover,
the factors in the model for non-California cases only accounted for
14 percent of the costs of cases. The remaining costs were
accounted for by factors outside of the model. This suggests that
costs are driven by many factors, some of which may be difficult or
impossible to quantify.
Although many factors are influencing case costs, attorney survey
responses indicated the factors that attorneys believe to be the most
important:
•

The single most important factor driving the costs of federal
capital habeas corpus cases is the competency of the state trial
counsel. Not only is this the view of the attorneys surveyed by

PwC, but "ineffective assistance of counsel" (at the state trial) is
the most common claim raised in federal capital post-conviction
proceedings. Over 80 percent of the attorneys surveyed raised
this issue in their petition to the federal courts. The problem
stems from the fact that federal habeas corpus review is, in
essence, a quality control procedure. Consequently, the costs of
this procedure depend heavily on whether mistakes were made
earlier on in the process. This, however, does not explain why
costs are higher in California compared to elsewhere.
•

Most attorneys surveyed (70 percent) believe that the attitude of
the office of the attorney general for the state increased costs in
the federal capital habeas corpus case they represented. This

finding supports assertions to this effect made by the case study
attorneys, notably those from California. Many attorneys noted
that the behavior of the state attorneys plays a significant role in
W11-116

PRCEVVATERHOUSECOOPER5

Exhibit 12
Page 546

determining the length and hours spent on a case. For example,
decisions by the attorney general's office (or the attorney
representing the state) to raise, rather than waive, exhaustion, and
other defenses will add to the time spent in litigation and will
prolong the whole process. As described below, the litigation
practices of California's Office of the Attorney General appear to
have a major impact on the costs of cases.

VIII.3 Case Study Analysis and Analysis of States in the
Ninth Circuit
The case studies were a useful tool in understanding the factors that
drive costs of individual federal capital habeas corpus cases. In
addition, attorneys reviewed statistical findings to ensure that PwC was
drawing appropriate conclusions from the data. Generally, these
attorneys were not surprised by the findings and did not challenge
them. The attorneys also suggested other factors and explained why
they may be difficult to quantify and capture in responses to a
questionnaire or in statistical analysis.
These answers, in combination with the data analysis, the regression
analysis, attorney opinions, and survey responses, allowed PwC to
develop, and to some extent test, various hypotheses as to why costs in
California are higher than cases from other parts of the country.
• Much time spent by attorneys in California is in response to
challenges and decisions made by the state attorneys.

A strong

and common theme from attorneys who practice, or who have
practiced, in California is that the attorneys representing the state
VIH-117

Fta
WATERH OUsECCOPERS 0

Exhibit 12
Page 547

are persistent in making legal challenges to the actions of the
petitioner's attorneys at every step in the process. Such behavior
was not common in other states. For example, the attorneys
representing the state of California will consistently maintain that
not all of the habeas claims made by the petitioner have been
exhausted during the state post-conviction proceedings. Therefore,
the case is remanded from federal to state court. According to the
seven case study attorneys, state attorneys in other states, such as
Texas, often waive this challenge. The Office of the Attorney
General seems to play an important role in determining the speed
with which a case moves through the federal courts in California
and in generating a workload that is unparalleled in other states.
Among the top 36 most costly California cases, civil law firms
account for a disproportionate amount of costs.

The use of

attorneys from large corporate law firms as counsel for some of the
petitioners possibly increased the total and average costs of cases in
California. While the top 36 cases represent only about 24 percent
of California cases, they incurred 44 percent of the total costs in
California. In fact, the 36 most costly cases added about $139,771
to the average cost of the 156 California cases. In these 36 cases,
33 "civil attorneys" (attorneys who were employed in a large
corporate law firms) provided representation for total fees of just
under $13.8 million. It is likely that many of these civil attorneys
were inexperienced in representing habeas corpus and capital cases,
and spent many hours learning the notoriously complex case law.
Corporate law firms are accustomed to billing for however many
attorney hours it takes to research complex legal issues, a different
practice from smaller, criminal law firms who have fewer
VIII-118

PKWVATERNOUsECOOPER5 0

Exhibit 12
Page 548

attorneys' hours to allocate. These 33 civil attorneys also averaged
$64,139 in non-travel expenses, while attorneys who practiced in a
criminal practice averaged $22,534. This also may reflect different
billing practices between large, corporate law firms and smaller,
criminal law firms.
•

The federal courts in Caltfornia will generally allow an
evidentiary hearing to be held at some point in the process.

This

is not always true of judges in other federal districts or circuits.
Based on attorney survey results, 83 percent of requests for
evidentiary hearings in California are granted as opposed to 40
percent of requests for evidentiary hearings in non-California
cases. The high cost of evidentiary hearings in California (average
$92,000 per case) contributes to the high total cost of California
cases. This begs the question of why evidentiary hearings are
typically allowed in California cases. Part of the explanation may
be that the state post-conviction procedures in California rarely, if
ever, allow for an evidentiary hearing at that stage. This puts
pressure on federal judges to grant an evidentiary hearing to
account for the lack of one during the state post-conviction
proceedings. By contrast, the state post-conviction proceedings in
Missouri will often include an evidentiary hearing, lessening the
need for one at the federal level. However, according to the case
study attorney from Texas, evidentiary hearings are rare in Texas at
both the state and the federal level.
•

Federal judges in California approve vouchers for higher
amounts than judges in other states. PwC heard several examples

where judges in other districts and circuits were surprised at the
cost of cases on their docket, while the cost of these cases were
V111-119

N CEWATERip usECOOPER5

Exhibit 12
Page 549

lower than the cost of the average case in California. There is the
possibility that approval of vouchers for high-cost cases sets
expectations that may guide the attorney in his or her next case. As
judges consistently approve vouchers for high-cost cases, attorneys
for the petitioner—in their duty to provide adequate
representation—request the resources required.
• The significant difference between the average costs of experts in
California and non-California eases suggests that judges in
California approve the use of expert witnesses more often than
those in non California states. As stated above, California cases
-

employ more experts and incur more expenses for experts than
non-California cases. The difference in the costs of experts may be
due to a number of factors: the high cost of living in California, the
process for evaluating mental health, and difficulty in finding local
experts willing to provide services at the low rates provided by the
courts.
o

The absence of a rigorous state post-conviction process,
combined with procedurally conscientious judges in the
California district courts and the Ninth Circuit Court of Appeals,
create a situation whereby the federal courts pick up costs that
state courts would incur otherwise.

The suggestion from some

attorneys is that the combination of a perfunctory state postconviction process in California with a rigorous federal postconviction process means that the federal courts are performing
tasks, such as holding evidentiary hearings, that would normally be
undertaken during state post-conviction proceedings. However, the
costs of California cases are so much higher than they are in nonCalifornia cases (average difference of approximately $300,000)
PRicEWATERHousECcoPERs

Exhibit 12
Page 550

that it does not appear to be the result of a simple cost-shifting
(deliberate or not) process.
Further understanding of the explanatory power of each of the above
factors would require a more in-depth examination of how California
attorneys spend their time and for what reason. This requires going
beyond the data provided in the CJA Panel Attorney Payment
database, but interviewing or surveying more attorneys with
experience of practicing in California and other states to understand
more how they spend their time. Given the affect of case-specific
factors on costs, even this analysis would not necessarily provide an
explanation of the costs of specific cases.

V111-121

PREEWATERHOUsECOD PERS El

Exhibit 12
Page 551

APPENDICES
A,B,&C

Exhibit 12
Page 552

APPENDIX A:
REGRESSION ANALYSIS
METHODOLOGY

Exhibit 12
Page 553

APPENDIX A: Regression Analysis Methodology
Overview of regression analysisl

Regression analysis is a form of statistical analysis that shows how one
variable—called the dependent variable—is related to one or more
other variables—called independent variables. For example,
regression analysis might be used to show that the number of votes
cast for an incumbent president (the dependent variable) is the result of
a number of other factors, such as indicators of the strength of the
economy and dollars spent on the campaign (independent variables).
Investment banks use regression analysis to try to predict how
exchange rates are a function of other economic variables.
To identify such relationships, regression analysis compares a large
number of observations, or sets of dependent and independent
variables, and then computes an equation that links them. Each
observation must include one value for each independent variable and
one value for the dependent variable. The number of votes cast for
President Carter in 1979 and the inflation rate at the time of the
election together constitute an example of a single observation for a
regression analysis that relates the number of votes for an incumbent
president with inflation rates. Generally, the more observations
included in the comparison, the greater the confidence in the results.

For a fuller discussion of regression analysis see Mansfield, Edwin, Statistics for Business and
Economics. 1991. W.W. Norton and Company: New York, pp. 457 to 467.

A- 1

PRICEWATERHOUsECODPERS

Exhibit 12
Page 554

Regression analysis creates an equation that relates the variables being
considered. For a regression analysis that only considers one
independent variable, the equation is generally in the form of:
Y = a + bX
where "Y" represents the dependent variable, "X" represents the
independent variable, and "a" and "b" represent constants that relate
the independent variable to the dependent variable. For example, a
hypothetical study using regression analysis to investigate the
relationship between the number of years a person spends in higher
education to a person's salary at the age of 40 might result in an
equation:
Y = $20,000 + $5,000 x X
where "Y" represents the person's salary at the age of 40, "a" =
$20,000, "b" = $5,000 and "X" represents the number of years that
person spends in higher education. This equation would show that a
person with four years of college would, on average, be earning
$40,000 at the age of 40 ($20,000 + $5,000 x 4).
Goodness of Fit

Of course, there are many factors besides the number of years spent in
higher education that affect a person's salary. For this reason, the
regression equation shows only a statistical relationship (the likely

A-2

11210EWATERipusECODPERS M

Exhibit 12
Page 555

impact of education on salary), not a deterministic2 relationship (a
guaranteed impact of education on salary). In the example above, the
equation only represents what happens when all of these other factors
that influence a person's salary are held constant (that is, if they gain
another year of higher education but there are no other changes that
would affect their salary).
In reality these other factors are never constant. Gaining an additional
year of higher education may lead to a person's salary increasing more
or less than $5,000, depending on these other factors. Regression
analysis includes the calculation of a number, known as "?" (rsquared), that tells the researcher how well the independent variable or
variables—and only the independent variables—explain or predict the
value of the dependent variable, ignoring the effect of these other
variables. The value of the "?" is the percentage of variation in the
dependent variable explained by the independent variables and is also
known as the "goodness of fit."
In the example above, the value of "r2" shows how much of the
differences in peoples' salaries are explained by the number of years
spent in higher education alone. Suppose the value of "r2" is 10
percent. This means that 10 percent of a person's salary is explained
by the number of years that person spent in higher education. This
also means that 90 percent of a person's salary is explained by other
factors. In this case, the 10 percent figure is low (the figure is probably
higher in real life). If more independent variables are added (such as
= Mansfield, Edwin. 1991. Statistics for Business and Economics. W.W. Norton and Company:
New York, p. 460.

A-3

PRICEWATERtpusECCoPERS 0

Exhibit 12
Page 556

IQ scores or scores on tests that measure a person's diligence), then the
value of "r2" will increase. However, because the world is a very
complicated place, with many factors influencing salaries, the value of
"r2" would never reach 100 percent for this regression analysis.
At the same time, there is no set "acceptable" level of "r 2" for
regression analysis. The acceptable level depends on the specifics and
complexity of the analysis being undertaken.
Regression analysis is commonly used in many academic disciplines
and in business to try to identify some of the causes of a dependent
variable (for example, what causes the number of votes cast for an
incumbent president, or what causes the unemployment rate).
However, strictly speaking, regression analysis can only show
statistical relationships between variables, not causal relationships.
For this reason, it is important that a regression analysis be built on a
theory as to why the variables being analyzed should be related. A
theory as to how variables are related should be developed before the
regression analysis begins. If the regression analysis shows a
statistical relationship consistent with the theory, then causal
relationships between the variables being analyzed are inferred,
although not proven.
The use of a theory is one way to avoid faulty conclusions. For
example, regression analysis potentially could show that the rainfall in
the state capital on a given day is statistically related to the
unemployment rate in the state. However, without a theory that
explains why these should be related—such as why years of higher
A-4

PRICEWATERHOUSECOJPERS

Exhibit 12
Page 557

(ti

education should be related to a person's salary—the analysis is not
very meaningful.

Statistical Significance

Even if a theory is supported by the regression analysis, the possibility
exists that the statistical relationship shown by the regression analysis
happens just by chance. This might be so if the regression analysis is
based on only a sample of all the total possible observations, which is
often the case. For example, no statistician would be able to collect all
possible observations of the number of years of higher education and
that person's salary at the age of 40, for this would require collecting
information on everyone in the U.S. population aged 40 and over.
Researchers typically use a sample instead, and then draw conclusions
about the population (that is, all possible observations) based on the
results of the sample. The question becomes how does the researcher
know that the regression results are not simply the result of a sample
that is not representative of the population?
There is one measure calculated by regression analysis typically used
to measure the probability that the relationship shown by the
regression analysis simply results from choosing a skewed sample.
This is called the standard error. The standard error can be used to
determine the likelihood that the value of "b" (from the equation
above) is greater (or less, if the sign of "b" is negative) than zero, due
to choosing a skewed or unrepresentative sample.

A-5

PRICEWITERHOUSECCOPERS

Exhibit 12
Page 558

Statisticians will adopt an acceptable level of probability, prior to the
regression, that the value of "b" is greater (or less) than zero due to an
unrepresentative sample. For example, a statistician may create a rule
that says any value of "b" where the chance of that value being greater
than zero simply by the selection of an unrepresentative sample is
greater than 95 percent shall be called a statistically significant value.
This means that the statistician will accept a value as being statistically
significant if the standard error shows that the chances of that value
being greater than zero is 95 percent. The statistician can be confident
that the probability of the value of "b" being greater than zero is 95
percent (called the level of confidence). As with the acceptable level
of "r2" there is no universally accepted level of probability. However,
the convention is that the 95 percent level of confidence is used unless
there is a reason to adopt a higher (or lower) level of confidence.

Model Building

Once a level of confidence has been adopted, model building for the
regression can begin. This involves selecting the most appropriate
variables or factors to put into the equation, using an underlying theory
(see the preceding discussion). Model building may entail trying out
several different variables to see which group of variables provides the
best fit, and shows an acceptable level of confidence. However, care
must be taken to avoid simply selecting the variables that provide the
best fit without developing any underlying theory to explain why those
variables are appropriate.

A-6

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 559

Once the model is built with appropriate variables, various tests can be
performed—such as the statistical significance test—to ensure that the
methodology and the results are valid. Discussions of these tests can
be found in standard statistical textbooks.

A-7

PRICEWATERF .IOUSECCOPER5 0

Exhibit 12
Page 560

APPENDIX B:
FEDERAL CAPITAL
HABEAS CORPUS SURVEY
FOR PANEL ATTORNEYS

Exhibit 12
Page 561

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

If you are not a panel attorney or have not represented a federal capital habeas corpus petitioner, please
contact the Administrative Office of the US Courts representative, Elizabeth A. Brown, at [phone]
or the PricewaterhouseCoopers representative, Mindy Murch, at [phone]. Please return the
completed survey in the postage paid envelop or fax it to [phone] by Friday, November 13, 1998.

A. Attorney Background Information
1. Total number of years practicing criminal law:
O 8 to 10 years
0 Less than 1 year
O 11 to 15 years
O 1 to 3 years
O More than 15 years (specini)
O 4 to 7 years

2. Total number of years practicing in federal court:
O 8 to 10 years
O Less than 1 year
O More than 10 years (speciM
O I to 3 years
O 4 to 7 years
3. Total number of years representing this petitioner in federal capital habeas corpus proceedings:
0 8 to 10 years
O Less than 1 year
0 More than 10 years (speci6))
O 1 to 3 years
O 4 to 7 years
4. Have you previously provided representation in: (Please enter number of cases .)
Capital trial
Trial of a non-capital homicide
Trial of a felony
Non-capital federal habeas corpus
Other trial

Federal capital habeas corpus
Direct appeal of a death sentence
State capital post-conviction
Direct appeal of non-capital homicide
Direct appeal of a felony

5. Approximate number of hours spent in training programs on federal capital habeas corpus litigation
(prior to this case)?
0 31 to 40 hours
O 0 to 10 hours
0 More than 40 hours
O 11 to 20 hours
O 21 to 30 hours
6. Did the court provide you with access to computer-assisted legal research? 0 Yes
7. Was co-counsel appointed to this case?

O Yes

0 No

B. Profile of Petitioner
1. Age of Petitioner at the Time of the Crime:
O Between 40 and 49 years of age
O Under 20 years of age
O 50 years of age or older
O Between 20 and 29 years of age
O Between 30 and 39 years of age

Page I

Exhibit 12
Page 562

0

No

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

2. Gender of Petitioner:

0 Female

0 Male

3. Race of Petitioner:
O American Indian or Alaska Native
O Native Hawaiian or Other Pacific Islander
O White
4. Citizenship of Petitioner:

0

0 U.S.

0 Black or African American
0 Asian
Other

5. Does petitioner suffer from mental illness, mental retardation, or other infirmity?
0 No
0 Yes
If yes, did the mental illness, mental retardation, or other infirmity make the representation
0 No
0 Yes
more costly?
6. Did you require the use of a translator to communicate with the petitioner?
0 No
0 Yes
7. Did the petitioner have previous criminal convictions when he was arrested for the crime tried at the
state level?
0 No
O Yes
8. Were these convictions in another state?
0 No
O Yes

C. information on State Court Proceedings
1. Was this a felony-murder case?

0 No

0 Yes

If yes, what was the underlying felony? (Please mark all that apply.)
0 Arson
O Robbery
0 Torture
O Burglary
0 Other (specifii)
O Rape
O Kidnapping
2. Aggravating factors presented by the Prosecution: (Please mark all that apply.)
Aggravating Factors

a. Prior criminal conviction(s)
If marked, please circle number of crimes
1 2 3 4 5 6 7 8 9 10 or more
b. Unadjudicated prior bad acts
If marked, please circle number of acts
1 2 3 4 5 6 7 8 9 10 or more
c. Multiple murder
d. Murder committed during the course of a felony

Page 2

Exhibit 12
Page 563

Please
mark here
0

0

0
0

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

Please
mark here

Aggravating Factors
e.
f.
g.
h.
i.
j.

Murder was "heinous," "depraved," "cruel," etc.
Murder committed by lying-in-wait
Murder committed for financial gain
Murder for hire
Murder committed to avoid arrest
Torture of victim

0
0
0
0
0
0

k.
.
m.
n.
o.

Vulnerable victim
Public official victim
Future dangerousness
Defendant's lack of remorse
Defendant's age

0
0
0
0
0

3. Mitigating factors presented by the Defense: (Please mark all that apply.)

Please
mark here

Mitigating Factors
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
I.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.

Absence of criminal history
Remorse
Abuse suffered as a child
Youth
Mental retardation
Medical problems
Mental illness or defect
Emotional disturbance
Post-traumatic stress syndrome
Fetal alcohol syndrome
Addiction/substance abuse or intoxication
Adjustment to prison
Cooperation with police/prosecution
Cultural background
Potential for rehabilitation
Disparate sentencing of co-defendants
Lingering doubt of defendant's guilt
Dysfunctional family
Institutional failure
Poverty
Military service
Positive relationship with family and friends
Tolerance of life sentence by family of victim
Other positive acts/attributes of defendant

Exhibit 12
Page 564

0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0

_

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

4. How many charges were there in addition to the murder charge?
0 6 or more
04
O 0
02
05
O 1
03

5. Number of Co-Defendants:
02
O 1

03

04

6. Number of Murdered Victims:
04
O 1
05
O 2
O 3
06

O7
O8
O9

O 10 or more

7. Number of Other Victims:
O 0
O3
O 1
O 4
O 2
O5

O6
O7
O8

O 9
O 10 or more

0 6 or more

0 5

8. How many months did the trial last? (From appointment of counsel to handing down of sentence.)
Months
0 Yes

0 No

0 Yes

9. Did the investigation require travel to other states?

0 No

If yes, how many states?
10. Did the investigation require travel to another country?
if yes, how many countries?
11. Was a translator used to communicate with the petitioner during the trial?
O Yes
0 No
12. What was the level of media exposure or interest in the case?
0 High
O Low
0 Medium
13. Did the following factors affect the costs associated with the case? If yes, did they increase or
decrease costs?

Increase

Decrease

0

0
0
0

0

0

0

0
0
0
0

0

0

0

0

0

0

0

0

0

0

0

0

Yes No

Factors
Local community attitudes toward the original crime.
Local community attitudes toward the death penalty.
Attitude of the state judge toward the original crime.
Attitude of the state judge toward the death penalty.

0

0

0

0

0

e. Attitude of the prosecutor's office toward the original
crime.
f. Attitude of the prosecutor's office toward the death
penalty.
g. Experience of the prosecutors assigned to the case.

a.
b.
c.
d.

Page 4

Exhibit 12
Page 565

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION
14. Overall, to what extent did the judge deny or reduce defense requests for the following during the
state trial?

a.
b.
c.
d.

Sharply Minimally
Reduced Reduced

Denied

Requests
Requests for experts
Requests for discovery
Requests for investigation
Requests for travel

0
0
0
0

_

0
0
0
0

0
0
0
0

Did Not
Reduce

N/A

0
0
0
0

0
0
0
0

D. State Trial Attorneys
I. In your state, are defense attorneys for state capital trials chosen by a set of criteria?
0 No
0 Yes
If yes, please list the criteria:
a.
b.
e.
d.
e.
f.
g.
h.

2. Had the lead counsel at trial previously represented a client in: (Please enter number of cases.)
State trial of a non-capital homicide
State trial of a felony
Non-capital federal habeas corpus
Other trial
Unknown

Direct appeal of a death sentence
State capital post-conviction
Direct appeal of non-capital homicide
Direct appeal of a felony
State capital trial
3.

What was the hourly rate of compensation for lead counsel at trial?
0 Between $60 and $79
Pro Bono
0 Between $80 and $99
Less than $20
0 $100 or more
Between $20 and $39
Between $40 and $59

4.

Did the state trial judge deny or reduce defense requests for attorney fees?
0 Sharply Reduced 0 Minimally Reduced
0 Denied

0 Did Not Reduce

5. Did or do you represent the federal capital habeas corpus petitioner in the state trial?
0 Yes

0 No

Page 5

Exhibit 12
Page 566

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION
6. Was co-counsel appointed to this case at the state trial level?

0 No

0 Yes

E. Information on State Post-Conviction Proceedings

1. How many state post-conviction proceedings have there been in this case?
O 1

02

0 5 or more

0 4

03

2. Where were the state post-conviction proceedings originally filed?
0 Appellate Court
O Trial Court
3.

How many months did the state post-conviction proceedings last? (If more than one proceeding,
Months
please provide total months.)

4.

Was additional investigation undertaken for the state post-conviction proceedings?
O Yes
0 No

5.

If yes, did the investigation require travel to other states?
How many states?

0 Yes

0 No

To other countries?
How many countries?

0 Yes

0 No

6. What was the level of media exposure or interest in the state post-conviction proceedings?
0 High
O Low
0 Medium
7. Did the state provide funding for state post-conviction representation?

0 Yes

0 No

8. To what extent did the judge deny or reduce defense requests for the following during the state postconviction?

Denied

Requests
a.
b.
c.
d.
e.

Requests for experts
Requests for discovery
Requests for evidentiary hearings
Requests for investigations
Requests for travel

Sharply
Reduced

Minimally
Reduced

Did Not
Reduce

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

F. State Post-Conviction Attorneys
I . Was there continuity of counsel from the state trial to the state post-conviction process?
0 Yes

0 No

Page 6

Exhibit 12
Page 567

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

2. In your state, are defense attorneys for state post-conviction proceedings chosen by a set of criteria?
0 Yes
0 No
If yes, please list the criteria:
a.
b.
c.
d.
e.
f.
g.
h.
3. Had the lead counsel in the state post-conviction proceeding previously represented a client in:
(Please enter number of cases.)

State capital trial
State trial of a non-capital homicide
State trial of a felony
Other trial
Unknown

Federal capital habeas corpus
Non-capital federal habeas corpus
Direct appeal of a death sentence
State capital post-conviction
Direct appeal of non-capital homicide
Direct appeal of a felony

4. What was the hourly rate of compensation for lead counsel for the state post-conviction proceeding?
0 Between $60 and $79
O Pro Bono
0 Between $80 and $99
O Less than $20
0 $100 or more
O Between $20 and $39
O Between $40 and $59
5. Did the state post-conviction judge deny or reduce defense requests for attorney fees?
0 Did Not Reduce
0 Minimally Reduced
0 Sharply Reduced
O Denied
6. Did or do you represent the federal capital habeas corpus petitioner in the state post-conviction
0 No
0 Yes
proceedings?

G. Information on Federal Capital Habeas Corpus Case
1. How many months were there between the entry of the death sentence in state court and the
Months
commencement of federal proceedings?
2. How many months from the conclusion of the first state post-conviction proceeding to the
Months
commencement of federal proceedings?

Page 7

Exhibit 12
Page 568

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

3. Was the case ever pending at the federal level while it was simultaneously in state court for
exhaustion proceedings?
O Yes
0 No
If yes, for how long?

Months

4. Number of Habeas claims:
O 1
0 6 to 10
O 2 to 5
0 11 to 20

0 More than 40 (speciM

021 to 30
031 to 40

5. Claim(s) on which Habeas was sought (Please mark all that apply.):

o
o
o
o
o

Actual innocence
Ineffective assistance of counsel in guilt phase
Ineffective assistance of counsel at sentencing
Prosecutorial misconduct
Newly discovered evidence
6. What is the current case status ?

Ineffective appellate counsel
Jury misconduct
Jury selection
Other

o
o
o

o

0 Closed

0 Open

7. If open, current stage:
0 Pre-Petition
0 On Appeal of Grant or Denial of Relief

0 Pending Hearing or Dispositive Motion
0 On Certiorari

8. If closed, method of disposition:
0 Habeas Granted
0 Habeas Denied

0 Government Dismissed

9. Did the state set an execution date? 0 Yes

0 No

If yes, did the execution date affect the cost of the federal capital habeas corpus process?
0 Yes 0 No
10. How many months did it take to complete the stages listed below? (Please enter number where
applicable.)

Stage

Months

Months Stage

Habeas petition
Evidentiary hearing
Di spositive motions
Appeal

Petition for Supreme Court Writ of Certiorari
Stay of execution
Appeal of denial of stay
Petition for Writ of Certiorari to Supreme Court
regarding denial of stay

Other
11. How long was the trial record?
O 0 to 500 pages
O 501 to 1,000 pages
O 1,001 to 10,000 pages
O 10,001 to 30,000 pages

O 30,001 to 50,000 pages
O 50,001 to 75,000 pages
O More than 75,000 pages

Page 8

Exhibit 12
Page 569

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

12. How many pages were the trial counsel files?
0 30,001 to 50,000 pages
O 0 to 500 pages
0 50,001 to 75,000 pages
O 501 to 1,000 pages
0 More than 75,000 pages
O 1,001 to 10,000 pages
O 10,001 to 30,000 pages

13. How many pages were the appellate counsel files?
0 30,001 to 50,000 pages
O 0 to 500 pages
0 50,001 to 75,000 pages
O 501 to 1,000 pages
0 More than 75,000 pages
O 1,001 to 10,000 pages
O 10,001 to 30,000 pages
0 Yes

0 No

15. Were you granted an evidentiary hearing? 0 Yes

0 No

14. Did you request an evidentiary hearing?

16. Was the case decided by the grant or denial of a dispositive motion? 0 Yes

0 No

17. Was an interlocutory appeal taken to the Circuit Court of Appeals? 0 Yes

0 No

18. Was the case reversed on appeal?

0 No

0 Yes

0 No

0 Yes

If yes, was the case remanded to the District Court?
19. What was the level of media exposure or interest in the case?
0 Medium 0 High
0 Low

20. What were major contributors to costs? Please rate the following with respect to their effect on total
case costs.

Not
No
Little
Moderate
High
Contribution Contribution Contribution Contribution_ Applicable _
0

0

0

0

0

0

0

0

0

0

0
0

0
0

0
0

0
0

0
0

0

0

0

0

0

0

0

0

0

0

g. Number of pages of trial record

0

0

0

0

0

h. Number of pages of trial counsel files

0

0

0

0

0

i.

0

0

0

0

0

0

0

0

0

0

a.
b.
c.
d.
e.
f.

j.

Complex defendant personal
background
Large number of capital charges or
aggravating circumstances
Competency of state trial counsel
Competency of state post-conviction
counsel
Incomplete factual development in
state court
Large number of habeas claims

Number of pages of appellate
counsel files
Difficulty in locating state records

Page 9

Exhibit 12
Page 570

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION

k. Large number of expert witnesses
required
1. Geographically dispersed evidence
and witnesses
m. Number of motions

0

0

0

0

Not
Applicable
0

0

0

0

0

0

0

0

0

0

0

n. Significant legal research to support
motions
o. Court evidentiary hearings

0

0

0

0

0

0

0

0

0

0

p. Expedited briefing required because
of execution date or other limitations
q. Need for translators

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

No
Little
Moderate
High
Contribution Contribution Contribution Contribution

r.

Aggressiveness of the Attorney
General
s. Other

21. Were or are there any state specific statutes or laws which have increased or decreased costs in this
0 Yes
0 No
case?
If yes, please list them below:
Increased

Decreased

22. Were there any state specific clemency laws which have increased or decreased costs in this case?
0 Yes
0 No
If yes, please list them below:
Increased

Decreased

Page 10

Exhibit 12
Page 571

Federal Capital Habeas Corpus Survey for Panel Attorneys
CONFIDENTIAL INFORMATION
23. Did any of the following factors affect the cost of the federal capital habeas corpus case? If yes, did
they increase or decrease costs?

Yes

Factors

No

Increase

Decrease

0
0
0
0

0
0
0
0

0
0
0
0

a.
b.
c.
d.

Local community attitudes toward the original crime.
Local community attitudes toward the death penalty.
Attitude of the judge toward the original crime.
Attitude of the judge toward the death penalty.

0
0
0
0

e.

Attitude of the Office of the Attorney General toward
the original crime.
Attitude of the Office of the Attorney General toward
the death penalty.

0

0

0

0

0

0

0

0

f.

24. Overall, to what extent did the federal judge deny or reduce defense requests for the following during
the federal capital habeas corpus process?

Denied

Requests
a. Requests for experts
b. Requests for evidentiary hearings
c. Requests for attorney fees

Sharply Minimally Did Not
Reduced Reduced Reduce

0
0
0

0
0
0

0
0
0

0
0
0

N/A
0
0
0

25. Did you employ any of the following techniques as a means of lowering case costs?
Conduct independent or unilateral case budgeting
Conduct case budgeting with judicial oversight
Employ paralegals
Consult with expert counsel
Other

O
O
O
O
O

Yes
Yes
Yes
Yes
Yes

O
O
O
O
O

No
No
No
No
No

If you did consult with expert counsel, was counsel associated with:
O The Federal Habeas Assistance and Training Counsel Project
O A Federal Defender Organization
O A State or Local Defender Organization
O Other
26. Overall, did you lose money as a result of representing this petitioner?
0 No
O Yes

Thank you for completing the survey. Please return the completed survey in the postage paid envelop or
fax it to [phone] by Friday, November 13, 1998.

Page 11
Exhibit 12
Page 572

APPENDIX C:
CASE STUDY
PROFILES

Exhibit 12
Page 573

Appendix C: Case Study Profiles
The case study section describes in detail the proceedings of 7 cases
from 6 different states: California, Texas, Alabama, Illinois,
Pennsylvania, and Missouri. The table below, which summarizes stateand case-specific information, provides two sets of data. The first half
of the table details state-specific cost and procedural information. The
second half of the table describes case-specific information for each
case study conducted.

Exhibit 12
Page 574

Table C-1: Breakdown of Costs and Cost Factors by Selected State
A Regional Comparison of Cost Factors
in the States of the Case Profilest
California

Missouri

Texas

Pennsylvania

Alabama

Illinois

Ninth
Circuit

Eighth
Circuit

Fifth
Circuit

Third Circuit

Eleventh
Circuit

Seventh
Circuit

Average/Median Cost

High

Low

Medium

$324,176

$35,092

$66,418

MediumLow
$57,480

Medium

Average Total Case
Cost by State
Median Case Cost by
State
Average In-Court
Attorney Costs
Average Out-of-Court
Attorney Costs
Average Expert Costs
Standards of
Qualification to
Represent Indigent
Defendants in a
Capital Case

MediumHigh
$74,975

$266,105

$65,959

$24,289

$42,464

$30,401

$64,459

$ 5,006

$ 725

$ 350

$ 1,339

$ 257

$ 1,681

$ 292,815

$ 90,832

$ 40,880

$ 57,096

$ 53,900

$ 61,348

$49,462

$3,714

$1,907

$2,756

—

$843

Yes

No

No

No

Yes

No

I

8

18

18

15

State
Circuit

Number of Capital
Offenses Prosecutable
by State

First Degree
Murder with
special
circurnstances 2

The above data and information were extracted from the following sources: the CJA Payment
System, The Bureau of Justice Statistics, Federal Capital Habeas Corpus Attorney Case Profiles,
and an article by Stephen Bright of Emory University Law School and the Southern Center for
Human Rights.
According to the California Attorneys in the Case Profile, there are over 300 offenses that can
make a defendant eligible for the death penalty.

2

C-2

Exhibit 12
Page 575

$67,163

Table C-2: Breakdown of Costs and Cost Factors by Profiled Case
Petitioner Name

Total In-Court
Attorney Costs

Petitioners
# 1&#2
# 1: $670,782
#2: $386,306
#1: $30,710
#2: $10,218

Total Out-of-Court
Attorney Costs
Total Expert Costs

Total Case Costs

Specific Case Profile Comparisord
Petitioner
Petitioner
#4
#3
$48,777
$112,822

Petitioner
#5
$53,180

Petitioner
#6
$59,267

Petitioner
#7
$65,654

$250

$88

$925

$450

$790

#1:5526,343
#2: $307,459

$107,291

$46,813

$50,550

$57,825

$64,761

#1: $3,468
#2: $52,168

$1,690

$0

$0

SO

$0

Attorney General
Litigated Exhaustion
Requirement and
Waives Procedural
Default
District Evidentiary
Hearing

# 1: Yes
#2: No

No

No

yes4

No

Yes

Granted (in
Both Cases)

Denied

Denied

Denied

Denied

Denied

State Post-Conviction
Evidentiary Hearing

No (in Both
Cases)

Under
Time
Limits
Only

Sometimes
Granted

Usually
Granted

Sometimes
Granted

Usually
Granted

Attorney Utilized
Resources Outside of
CIA Compensation

Yes (in Both
Cases)

Yes

Yes

Yes

Yes

Yes

Court Cut This
Attorney's Expenses/
..... .
Vouchers

No

Yes

No

No

No

No

Following is a summary of each case and the factors contributing to
costs.

3

See Appendix C for the Case Profile Analysis.

Federal Habeas Attorney # 4 stated that only in Philadelphia are exhaustion requirements
waived. Also, Pennsylvania has a unique state criminal prosecution system, guided by local
District Attorneys, rather than by a centralized Attorney General's Office.

C-3

Exhibit 12
Page 576

Case Profile # I

Table C-3: Profile for Petitioner # 1
Petitioner Name

Petitioner #1
Case Background

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Ninth Circuit, California, Northern
3
2
Double Homicide/Robbery
Open: Active
11-20
Application to United States Supreme
Court for Writ of Certiorari

Amount of Time and Money Spent
Breakdown of Attorney Hours
Number of Hours

Attorney 1n-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

230
4,209
4,439

Breakdown of Attorney Fees

Amount of Money Spent

Attorney In-Court
Attorney Out-of-Court
Total Attorney Costs

$30,710
$526,343
$557,053

Breakdown of All Fees by Stage

Amount of Money Spent

Habeas Petition
Evidentiary Hearing (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari

$281,352
$200,694
$30,622
$149,594
$8,520

Total Case Costs

Amount of Money Spent

Attorney, Expert and Expenses in District
Attorney, Expert and Expense in Circuit
Total Case Costs

$492,130
$178,652
$670,782

Background to the Crime

In the early 1980s, Petitioner # 1, a foreign national, moved to
California only 18 months before his arrest. Petitioner # I was
convicted and sentenced to death for a robbery in which two people
were killed.

C-4

PRia-WATERHousECcoPER5 0

Exhibit 12
Page 577

The State Trial
During the state trial, two public defenders represented Petitioner # 1.
The public defenders office had two part-time investigators and four
experts working on the case. Petitioner # 1 was the only person
arrested for the crime, but the circumstances of the offense raised the
possibility that someone else may have been involved. However, trial
counsel did not pursue an accomplice defense. Rather, even though
there was significant forensic proof that Petitioner # 1 was at the scene
of the crime, his trial counsel argued that he was not there. The jury
rejected Petitioner # 1 's alibi defense, and he was convicted of firstdegree robbery murder.

During the penalty phase, the prosecution used the fact that Petitioner
# 1 had been convicted for a crime in his native land as an aggravating
factor. During the penalty phase presentation, the defense neither
challenged the validity of the foreign conviction, nor investigated for
mitigating evidence in Petitioner # 1 's homeland. Even though
Petitioner # I had only been in the United States for 18 months,
defense counsel provided little mitigating evidence beyond witnesses
who testified that Petitioner # 1 was a good person and a well-behaved
prisoner.

The Direct Appeal
In California, there is an automatic direct appeal to the State Supreme
Court in death penalty cases. This case was one of the earliest death
penalty appeals heard before the California Supreme Court. In
C-5

PRICEWATERHOusECO3PERS 0

Exhibit 12
Page 578

Petitioner # l's case, the trial record was approximately 5,500 pages,
the average size of a case tried in California at this time. The appeal
raised issues regarding tapes of a conversation between Petitioner # 1
and a friend. The California State Supreme Court denied the
petitioner's appeal.

State Post-Conviction Proceedings

During state post-conviction proceedings, a large corporate law firm
was appointed to represent the petitioner. Counsel was provided
$3,000 in seed money for investigation, but no additional funds were
granted. Without holding an evidentiary hearing, the Court issued a
summary decision in which it denied some of the habeas claims and
simply did not rule on the others. The Court did not detail the reasons
for its decision. The case profile attorneys from California stated that
in California, the State Supreme Court does not typically provide a
written opinion to clarify its position on the issues within a case.
Therefore, when the case progresses to federal court, the district judge
must first try to discern for himself or herself why the claims were
denied at the state level and then must rule on the claims. This creates
a longer review process. In contrast, attorneys from other states have
stated that the highest court in their state often writes opinions that can
easily be reviewed by the district courts.
Proceedings in the Federal District Court

Petitioner # I's case moved to federal district court in 1988. State
post-conviction counsel continued as representation on the case. In his
C-6
PRICEWATERHOUSECOOPER5

Exhibit 12
Page 579

petition, Petitioner # I claimed that had trial counsel investigated in his
native country, he not only would have uncovered extensive mitigating
evidence, but also that Petitioner # l's prior criminal conviction was
inappropriately used as an aggravating factor. The California Resource
Center (CAP) performed most of the investigation for the petition.
The district court judge denied Petitioner # l's entire habeas petition
without holding an evidentiary hearing.
In his appeal to the Ninth Circuit Court of Appeals, one issue that
demanded a large amount of time and money was the debate over
whether the district court should have permitted an evidentiary hearing.
In its decision, the Ninth Circuit Court of Appeals determined an
evidentiary hearing was required and remanded the case to the district
court for a hearing.
• The day the case returned to the district court, the judge ordered the
evidentiary hearing to be held two weeks later. In preparation for the
hearing, Federal Habeas Attorney # 1 traveled to the petitioner's native
country (charging his firm, because he was not granted travel expenses
by the federal district court judge). There, he interviewed the
petitioner's family and reviewed the records relating to Petitioner # l's
prior conviction.
The evidentiary hearing consisted of many exhibits, even though
counsel's motion for discovery was granted very late. Because this
was one of the first federal capital habeas corpus cases to have an
evidentiary hearing in California, a lot of novel issues were raised.
About a dozen witnesses were called to the stand, including trial
C-7

PRICEINATERHOUSECOOPERS

Exhibit 12
Page 580

counsel and some family members. The court approved travel
expenses for members of Petitioner # l's family who were witnesses,
leading to costly travel expenses. The examination of trial counsel
lasted about 4 days instead of the usual one. In all, the evidentiary
hearing lasted 2 weeks. After the evidentiary hearing was complete,
Federal Habeas Attorney # 1 filed extensive post-trial briefings and
requested further hearings on the ineffective assistance of counsel
claim.

Following the passage of the Antiterrorism and Effective Death
Penalty Act (AEDPA) in April 1996, there was another round of
briefings needed regarding the application of AEDPA to Petitioner #
l's case. In the spring of 1996, Federal Habeas Attorney # 1 discussed
the possibility of a settlement with the Attorney General. The
Attorney General rejected the proposed settlement. Several months
later, the district court entered a decision against the petitioner over the
coirse of a 3-hour telephone conversation with the attorneys.

Proceedings in the Ninth Circuit Court of Appeals

Before the heating was held, Petitioner # 1 's case returned to the Ninth
Circuit Court of Appeals twice. According to a California attorney, the
Ninth Circuit Court of Appeals differs from other circuits, because it
grants the writ of Mandamus in about 80 percent of cases.' The writ of
Mandamus effectively overturns the summary judgment and orders the

PwC was not able to verify or disprove this claim.

C-8

OJPER5
PRICEVA TERfp UsEC

Exhibit 12
Page 581

district court to rule on specific matters. In this case, the writ stated
that:
I. Federal Habeas Attorney # I was entitled to expert witnesses; and
2. When the district court judge cross-examined Petitioner # 1 on the
witness stand, the petitioner was entitled to a Fifth Amendment
defense.
After the district hearing, Federal Habeas Attorney # 6 submitted a 35volume record of the district court proceedings. At the beginning of
1998, the appeal was denied. Later, the U.S. Supreme Court denied
certiorari.
Factors Affecting the Amount of Time and Resources Expended

Petitioner # I had three sets of attorneys—one at the trial, one at the
direct appeal, and one at the federal habeas stage. When attorneys had
to "reinvent the wheel" at each stage, costs inevitably increased.
Regardless of costs, the appointment of new counsel is considered
appropriate in many cases, especially when ineffective assistance of
counsel at the trial or appellate level is one of the habeas corpus
claims.
The Attorney General's strategy may have also driven case costs.
Attorneys suggested that in most other states, the Attorney General's
Office wants the courts to decide claims expeditiously so that the death
sentence can be implemented. According to the case profile attorneys
from California, the California Attorney General's Office often takes
action that prolongs the cases. This includes a refusal to waive
C-9

PRICEVVATERNOLSECOOPERS

Exhibit 12
Page 582

0

exhaustion requirements, leading to extensive procedural litigation.
The zealous litigation strategy adopted by the Office of the Attorney
General may cause the case to travel between district and state courts,
creating what has been coined a "bouncing effect." There is no
anecdotal evidence that this occurs in other states.
According to the case profile attorneys from California, one possible
reason for the "bouncing effect" may be that a petitioner in federal
court has a good chance of victory when the California district court
rules on the merits of a case. This may have two consequences:
1. Attorneys representing federal capital habeas corpus petitioners
request funds or implement zealous litigation strategies, which
does not occur in other states; and
2. The California Attorney General's Office litigates most procedural
issues and thus sidesteps the merits of the case. For example, the
Office apparently. litigates the applicability of the AEDPA in all
150 federal capital habeas corpus cases, rather than allowing there
to be a test case and creating a precedent for all others.
In California, as in several other states, the death penalty can be used
as a way to gain political office. The case profile attorneys from
California stated that many district attorneys are able to pursue the
death penalty in almost every murder case, because the special
circumstances of capital murder under California statute are extremely
broad. Similarly, the case study attorney from Pennsylvania said that
in Philadelphia the district attorney prosecutes the death penalty in
almost every murder case in order to gain political recognition.

C-10

PWCEWATERFOUSECCOPEISO

Exhibit 12
Page 583

A further issue in California is the lack of development of cases at the
state appellate level. Now, there are 500 people on California's death
row (increasing at a rate of about 40 a year). Sometimes, the most
basic, such as whether the convicted crime merits the punishment is
never confronted in state appellate court, possibly because of the State
Supreme Court's attempt to shift costs to the federal level. The case
profile attorneys from California claimed that if the state postconviction process were more rigorous, many cases would be
eliminated at the state, rather than at the federal level.
The other integral part omitted from Petitioner # l's state postconviction proceedings was an evidentiary hearing. According to the
California case profile attorneys, only two California cases have
included an evidentiary hearing since the Court's composition changed
in early 1989. One possible reason why there may be so few
evidentiary hearings is that the California Supreme Court is simply not
financially equipped for such a large number of state post-conviction
appeals. While California state post-conviction appeals are filed in the
State Supreme Court, in many other states they are filed in an
intermediate court, which has more time to decide on the procedural
and material issues of a case. In these states, some cases may be
filtered out during state post-conviction proceedings, thus leading to a
relatively lighter workload for both the state supreme court and the
federal courts.
In addition to the aforementioned factors, the amount of investigation
and the size of the record greatly increased the time spent exploring
possible claims as well as conducting legal research. The novelty of
C-11

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 584

the issues in this case also increased the amount of time spent litigating
unique matters not typical in an average case. According to Frank
Zirnring, professor at the University of California's Boalt Law School,
the number of issues litigated per case in California is greater than in
other states due to the lack of uniformity in the interpretation of
various laws by the district, and even circuit courts.

C-12

PRICEWATERHOUsECCOPER5 0

Exhibit 12
Page 585

Case Profile #2

Table C-4 : Profile for Petitioner #2
Petitioner #2

Petitioner Name

Case Background

Ninth Circuit, California, Northern
3
2
Double Homicide/Robbery
Closed: Granted Habeas Petition (as to
penalty)
11-20
Application to United States Supreme
Court for Writ of Certiorari

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Amount of Time and Money Spent
Number of Hours
Breakdown of Attorney Hours

Attorney In-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

58
2,170
2,228

Breakdown of Attorney Fees

Amount of Money Spent

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs

$10,218
$307,459
$317,677
Amount of Money Spent

Breakdown of All Fees by Stage

$335,770
---$21,821
$28,715

Unknown Stage
Habeas Petition Stage
Evidentiary Hearing Stage (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari
Total Case Costs

Amount of Money Spent

$255,331
$130,974
$386,306

Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

The State Trials

Petitioner # 2 was tried in two cases simultaneously, both of which
involved double homicides. In the first case, the petitioner was
eventually sentenced to Life Without The Possibility Of Parole
C-13

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 586

Ea

(LWOP). In the second case, he was sentenced to death. Although he
had no prior criminal convictions, he had led a difficult life. His issues
included:
1. Drug and alcohol abuse;
2. Problems holding a steady job;
3. Constant transience; and
4. Psychological problems.
In back-to-back trials, Petitioner #2 was tried and found guilty of both
sets of murders.
The Direct Appeal

In the early 1980s, the California Supreme Court appointed Federal
Habeas Attorney # 2 to file the automatic appeal in both of Petitioner #
2's cases. Counsel did not have to file a state habeas petition along
with a direct appeal; the documents could be filed sequentially. This
changed in 1989, when a California law was enacted that required state
habeas corpus proceedings to occur simultaneously with a direct
appeal.
In the midst of Petitioner # 2's direct appeal, the makeup of the
California Supreme Court changed drastically. A few months later, the
newly composed court affirmed one case; the other was reversed and
remanded to the trial court. In that case, the trial court resentenced
Petitioner #2 to LWOP.

C-14

PRICEWATE RtibusEC ERS
COP

Exhibit 12
Page 587

State Post-Conviction Proceedings

During state post-conviction proceedings of the affirmed case, Federal
Habeas Attorney #2 received no funding for investigation, and
Petitioner # 2's appeal was denied without either a hearing or a written
opinion. Consequently, Federal Habeas Attorney #2 applied for
certiorari to the U.S. Supreme Court, but as is typical, certiorari was
denied.
Federal District Court Proceedings

In the late 1980s, Federal Habeas Attorney # 2 filed a federal capital
habeas corpus petition expanding on all the issues laid out in the state
petition. The new petition consisted of the same core issues, but was
more focused and refined. The case was assigned to a district judge
who had not previously presided over a death penalty case. A week
after the petition was filed and before the state responded, the judge
denied relief in a two-page decision. Federal Habeas Attorney if 2
appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit found the district court's summary decision deficient
and reversed the district court's decision. The Circuit Court of
Appeals returned the case to district court and ordered the district court
to require a written response from the Attorney General.
Subsequently, the Attorney General filed a response, and Federal
Habeas Attorney #2 filed a written reply, as well as a motion for an
evidentiary hearing.

C45
5

PR/CEWATERHOUsECCOPERS

Exhibit 12
Page 588

In support of the request for an evidentiary hearing, Federal Habeas
Attorney #2 amassed key information to support a claim of ineffective
assistance of counsel, including signed affidavits by trial counsel
admitting a failure to accumulate information on the petitioner's
childhood, family background, and mental history. Federal Habeas
Attorney # 2 billed the court for very little of the investigative costs, as
CAP performed most of the work to support the ineffective assistance
of counsel claim. The district court eliminated many claims because of
an insufficient amount of merit-based evidence and denied the federal
habeas petition.
Proceedings in the Ninth Circuit Court of Appears

The Ninth Circuit Court of Appeals reversed the district court's
decision, holding that a hearing was required on the ineffective
assistance of counsel claim. In its decision, the Court criticized the
Attorney General for not conceding that an evidentiary hearing was
required.
The presiding district judge passed away. A newly assigned judge
required 6 months before the commencement of briefings to read the
court record. After reviewing the record of a 6-day-long evidentiary
hearing, the successor judge determined that trial counsel had been
ineffective at the penalty phase, but not at the guilt phase. Both
Petitioner # 2 and the state appealed. The Circuit denied both appeals,
and the case was sent back to the trial court for re-sentencing. The
Attorney General appealed to the U.S. Supreme Court, but certiorari

C-I6

PRiCEWATERNOUSECOOPER5 0

Exhibit 12
Page 589

was denied. The trial court eventually re-sentenced Petitioner # 2 to
LWOP.
Factors Affecting the Amount of Time and Resources Expended

When attorney fees reached $60,000 at the district level, the presiding
judge tried to stop the attorney from billing more hours. The attorney
argued, and the judge eventually conceded, allowing him to continue
charging time. In other states, attorneys stated that judges often cut
their vouchers without debate.
Federal Habeas Attorney #2 cut his own time on the vouchers by
about 15 percent, but except for a disagreement with one judge, did not
have any problems being reimbursed. The attorney stated that
vouchers are now scrutinized much more closely. Apparently,
legislators exert pressure on judges to reduce costs, and as a result,
judges press federal capital habeas attorneys to reduce costs. In this
particular case, Federal Habeas # 2 believed that actions taken by the
Attorney General did not increase costs except for the postponement of
the evidentiary hearings.
The two primary factors driving costs in this case included:
1. Three appeals to the Circuit Court of Appeals; and
2. High expert costs: there was one psychologist and one psychiatrist,
both from the East Coast.
The experts were brought in from the East Coast, because apparently,
the pool of California experts who work in these types of cases is
small. One expert was used for the guilt phase claim and the other for
C-17

PRICEWATERHOUsECODPERS

Exhibit 12
Page 590

the sentencing phase claim. Before the hearing, Federal Habeas
Attorney #2 devoted substantial time to reviewing and refining both
the two experts' and the two trial lawyers' testimony.
Federal Habeas Attorney # 2 commented that certain factors typical of
California affected this case's costs:
1. There was no state evidentiary hearing; as in most California cases,
most work was not completed at the state, but at the federal level.
Federal hearings are more costly, mainly because they happen at a
much later date and are more costly to investigate, because of
changes that occur in:
• The law;
• The participants; and
• The case itself;
2. The size of records in all California cases, but especially in this
case, was extraordinarily low due to the number of hearings and
trials. The evidentiary hearing itself lasted 6 days, requiring about
12 hours of work each day and about 200 hours of preparation;
3. Cost of living expenses are higher in California than in other states,
making costs difficult to compare;
4. The State Supreme Court denies state habeas petitions without
explaining the reasons for its decisions. This does not happen in
any other state. This means that not only are more cases in federal
court, but also, the judges in the district courts must spend more
time trying to interpret rulings at the state level; and
5. Ineffective state trial counsel was one of the claims.
Federal Habeas Attorney #2 stated that, in contrast to popular
perception, many California judges who grant habeas claims are not
C-18

PUCEVVATE Rti OUSEC
OOPER5

Exhibit 12
Page 591

liberal, especially in the Northern and Central districts. Independent of
political persuasion, many judges become frustrated when cases reach
their chambers that do not appear to warrant a death sentence.
One factor that might have decreased costs in this case is that one
attorney continued as counsel from the state post-conviction
proceedings to the federal level. Continuity of counsel most likely
decreases costs, because the initial research does not need to be
repeated, as the attorney probably knows the strengths and weaknesses
of the issues as the case progresses.

C-19

PR10EWATERHOUSECODPER5 0

Exhibit 12
Page 592

Case Profile #3

Table C-5: Profile for Petitioner # 3
Petitioner #3

Petitioner Name

Case Background

Eighth Circuit, Missouri, West
4
2
Double homicide, robbery
Closed: death sentence re-sentenced to
LWOP at trial court
More than 60
Granted Relief by Eighth Circuit Court
of Appeal

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Attorney Hours

Amount of Time and Money Spent
Number of Hours

2
603
605

Attorney In-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

Amount of Money Spent

Breakdown of Attorney Fees

$250
$107,291

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs

$107,541
Amount of Money Spent
$80,228

Breakdown of All Fees by Stage
Unknown Stage

Habeas Petition Stage
Evidentiary Hearing Stage (District and
Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari
Total Case Costs

---$30,166
$2,438
Amount of Money Spent

$80,228
$32,604
$112,822

Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

Background to the Crime

In the mid-1980s, Petitioner # 3 was incarcerated for a drug-related
crime involving two first-degree homicides. The state trial began
almost 2 years after Petitioner # 3's arrest but lasted only 4 days.
Petitioner # 3's habeas appeal was granted 12 years later, and the
C-20

PRICEVVATERHOUSECCOPER5

Exhibit 12
Page 593

Eighth Circuit Court of Appeals reduced his sentence from death to
Life Without Parole.
The State Trial

Even though Petitioner # 3 was charged with a capital crime, the public
defender representing him did not prepare the trial as a death penalty
case, because the case involved one "bad guy" killing "two other bad
guys," which usually does not warrant a sentence of death. In fact,
Petitioner # 3 was provided with an opportunity to plea-bargain his
sentence down to a term of 20 years, but instead, decided to let the jury
decide his verdict and sentence. As a result, Petitioner # 3 was found
guilty of both murders, in addition to a robbery committed that same
day.
In preparation for trial, Petitioner # 3 underwent a 30-minute mental
health evaluation that included no testing, only interviews by a
psychologist. Despite sufficient behavior to suggest that Petitioner # 3
might suffer from bipolar manic depression, trial counsel failed to
request additional testing to prepare for the sentencing phase. There
was very little mitigation evidence presented, and the jury sentenced
Petitioner # 3 to Life Without Parole for one of the murders and to
death for the other.
The Direct Appeal and Batson Review

In the late 1980s, while Petitioner # 3's case was on direct appeal to
the Missouri Supreme Court, the U.S. Supreme Court decided the case
Batson v. Kentucky. The decision in Batson stated that neither

C-21

PRICEWATERI1OUSECCOPERS

Exhibit 12
Page 594

attorneys nor judges can use an individual's race as a factor to
disqualify potential jurors from a trial. Another case further held that
Batson applied retroactively to all cases occurring before it was

decided. In light of this development, the Missouri Supreme Court
sent Petitioner # 3's case back to the state trial court for a hearing on
whether there was cause to believe that the trial prosecutor violated the
rules laid out in the Batson decision. However, the judge who
presided over the original trial found no Batson violations, and the
Missouri Supreme Court affirmed Petitioner # 3's conviction and death
sentence. The following year, the U.S. Supreme Court denied
Petitioner # 3's application for the writ of certiorari.
State Post-Conviction Proceedings

Over a year later, new counsel was appointed for the state postconviction stage of Petitioner # 3's trial. However, Missouri law
provided post-conviction review. Once counsel was provided, the
petition had to be filed within 30 days, with only one additional
extension allowed for up to 30 days thereafter. Petitioner # 3 had
already filed apro se petition, meaning that when counsel was
appointed, he was not provided with the full 30 days. Nevertheless,
the attorney thought that the court would adhere to its behavior under
the old rules (with no time limits on filing amended petitions) and filed
six amended petitions with additional claims after the deadline had
already passed. The court held an evidentiary hearing on the first
claim (the others were defaulted) that lasted 8 days, and postconviction relief was denied. On appeal, the Missouri Supreme Court
affirmed the denial of relief, and the U.S. Supreme Court denied
C-22

PRICEWATER1iOUSECOOPER5

Exhibit 12
Page 595

certiorari review. Seven months later, Petitioner # 3 filed his habeas
petition in the federal district court.
Proceedings in the Federal District Court

In federal court, Federal Habeas Attorney # 3 was appointed as
counsel. The petition for the writ of habeas corpus included the
Batson claim as well as claims of prosecutorial misconduct, ineffective

assistance of counsel in the guilt and sentencing stages, and other
claims of improper jury selection.
The filed petition was approximately 150 pages long, and 6 months
later the Attorney General filed a 170-page response. Three months
later, Federal Habeas Attorney #3 submitted a 140-page reply.
Almost a year later, the district court issued a short order denying both
an evidentiary hearing and relief, but did not directly address the
habeas issues. Federal Habeas Attorney #3 responded with a motion
to alter, amend, or reconsider the previous decision, but this motion
was denied as well.
Proceedings in the Eighth Circuit Court of Appeals

The case continued to the Eighth Circuit Court of Appeals where
Petitioner # 3 and Federal Habeas Attorney # 3 found a more
sympathetic panel. The Court of Appeals affirmed the convictions but
vacated the death sentence on fact-specific grounds of prosecutorial
misconduct and ineffective assistance of counsel. The case returned to
state court for re-sentencing where eventually, 14 years after his trial,
C-23

PRiCLWATERipu5EGDPER5

Exhibit 12
Page 596

Petitioner # 3 was sentenced to LWOP. While Federal Habeas
Attorney # 3 successfully presented the case, a district court judge
significantly reduced the amount of fees he would reimburse.
Factors Affecting the Amount of Time and Resources Expended

Federal Habeas Attorney # 3 was not assigned to this case until about 7
years after the trial verdict. During that time, only mental health
status investigation had been undertaken. Because certain facts were
underdeveloped or undeveloped during the trial, many new issues had
to be investigated thoroughly for the first time during the habeas stage.
In order to know what issues to investigate, Federal Habeas Attorney if
3 devoted substantial time to reading the state trial and post-conviction
proceeding records, which described everything that had occurred in
the case up to that point.
His investigation work was challenging and costly, because it occurred
8 years after the state trial. It was difficult to find the client's family
and friends, as well as employment and other records. Research about
the client's bipolar manic depression absorbed much of Federal Habeas
Attorney # 3's time, because he had to become well versed in a
medical diagnosis with which he was unfamiliar, and also, because it
was an issue that had been inadequately pursued at trial.
Federal Habeas Attorney # 3 relied on the Resource Center to assist
him, because the case involved a type of law to which he had not been
previously exposed. In addition, several cutting-edge issues such as
Batson and the AEDPA surfaced during state and federal proceedings.

C-24

PRICEWATERI! OUSECOOPERS

Exhibit 12
Page 597

Before this case, a capital habeas corpus appeal would linger for 2 or
more years in Missouri Western District Court. This case moved very
quickly once it reached the circuit level, partly because of the
sympathetic panel. Neither the district court nor the attorney general
enforced exhaustion requirements, so Federal Habeas Attorney # 3 was
able to submit his claims at the federal level without the state postconviction court ruling on them.
Federal Habeas Attorney #3 won the case, but his firm went into
significant debt, partly due to the high cost of this case. Federal
Habeas Attorney #3 concluded that he would never take a case with
the same presiding district court judge because of the judge's refusal to
sign Federal Habeas Attorney # 3's vouchers. According to Federal
Habeas Attorney # 3, the subtlest factors affecting costs is attorney
expectations on how much money judges will approve and at the same
time how much money judges expect federal capital habeas corpus
attorneys to request. According to Federal Habeas Attorney # 3, the
most obvious factor is the presence of underqualified state trial
attorneys who make mistakes that require significant resources to
correct later in the process. Both of these factors are difficult to

quantify.

C-25

PREEWATE RH OusEC
WPERS g

Exhibit 12
Page 598

Case Profile #4
Table C-6 : Profile for Petitioner #4
Petitioner #4

Petitioner Name

Case Background

Fifth Circuit, Texas, Southern
3
2
2 murders, burglary, and rape
Open: Active
11-20
Petition for Writ of Cert

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding
Attorney Hours

Amount of Time and Money Spent
Number of Hours

1
375
376

Attorney In-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

Amount of Money Spent

Breakdown of Attorney Fees

$88
$46,813
$46,901

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs
Breakdown of All Fees by Stage

$13,413
$11,154
-$5,232
$18,978

Unknown Stage
Habeas Petition
Evidentiary Hearing (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari

—

Total Case Costs

$29,799
$18,978
$48,777

Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

Background to the Crime

In the mid-1980s, Petitioner # 4 was convicted of the burglary,
aggravated assault, and murder of two women in a Texas suburb.
Petitioner # 4 received a sentence of death for one of the murders and
pled guilty to the other, which resulted in a sentence of life.
C-26

PRICEWATERNOISECCOPER5

Exhibit 12
Page 599

a

The State Trial

The defense counsel who represented Petitioner # 4 during the state
trial were two former District Attorneys defending their first capital
case. A key issue at trial was whether a law enforcement official
coerced Petitioner # 4's confession. The trial court allowed the jury to
hear the confession, and as a result, the guilt phase of the trial lasted 1
week.
At the sentencing phase, which lasted 1 day, the prosecution
introduced several aggravating factors, arising from Petitioner # 4's
criminal record and acts of violence in other states. Mitigating
evidence included testimony that Petitioner # 4 was a good worker,
exhibited a change in behavior when intoxicated, was abused as a
child, and had been born into a dysfunctional family. The jury
sentenced Petitioner # 4 to death for one murder. He pled guilty to the
second murder and received a life sentence.
The Direct Appeal

Petitioner # 4's trial counsel also represented him on direct appeal.
The Texas Court of Criminal Appeals (CCA), the state's highest
criminal court, affirmed Petitioner # 4's conviction and sentence. The
CCA denied counsel's motion for a rehearing. The following winter,
the U.S. Supreme Court denied counsel's petition for the writ of
certiorari. The CCA set the execution date for 2 months later.

C-27

PRICEWATERHOUSECCOPERS

Exhibit 12
Page 600

State Post-Conviction Proceedings

Three attorneys, including Federal Habeas Attorney #4, were all
members of the Texas Resource Center. They filed Petitioner # 4's
state post-conviction petition in the trial court. Four days before his
scheduled execution, Petitioner # 4 was granted a temporary stay of
execution. Several months later, the trial court denied the petitioner's
habeas claims. The court signed the state's proposed findings of fact
and conclusions of law, which recommended a denial of relief without
change or revision. According to Federal Habeas Attorney #4, this
case was typical of Texas state post-conviction cases in that the court
quickly set an execution date, granted a temporary extension of the
execution date, and summarily rejected the petitioner's claims. The
CCA adopted the trial court's findings and conclusions and denied
relief. A new execution date was set for 6 months later.
A couple of weeks before his scheduled execution, Petitioner # 4 filed
a second state post-conviction petition to exhaust all remaining claims.
Ten days later and 2 days before his execution, Petitioner # 4's state
post-conviction petition was denied. On the day of his scheduled
execution, Petitioner #4 filed a federal habeas petition, and his
execution was stayed within 5 hours of the execution.
Federal District Court

In district court, Federal Habeas Attorney #4 continued as counsel.
The district court denied funds to investigate, which, according to
Federal Habeas Attorney #4, is not unusual in Texas. Combined with
C-28

PRICWATERNOUsECODPER5 M

Exhibit 12
Page 601

the setting of the execution date, this meant that the Texas Resource
Center's prior work in state court represented most of the evidence
available to petitioner's counsel. Because of time and resource
limitations, Federal Habeas Attorney #4 was unable to perform an
exhaustive background investigation in various parts of the country
where both the petitioner and his family had previously lived.
Purportedly, the denial of investigative funds is not unusual in Texas
capital cases. The presiding district judge had granted Federal Habeas
Attorney #4 with up to $7,500 in investigative funds in other cases,
but only under special circumstances.
Despite the time constraints, Federal Habeas Attorney # 4 devoted
substantial time to reading the 3,000-page trial record. After filing a
100-page federal capital habeas corpus petition on Petitioner # 4's
behalf, Federal Habeas Attorney # 4 filed motions for both discovery
and an evidentiary hearing.
Although a Texas district judge granted an oral argument on the
discovery motion, Federal Habeas Attorney #4 considered this
unusual. The district court ordered a supplemental briefing on the
discovery issue, and the hearing demanded a substantial amount of
preparation time. At this point, the Attorney General filed a motion for
summary judgment. In response, Federal Habeas Attorney #4 filed a
motion to postpone the decision on summary judgment until after the
discovery motion was resolved. However, the district court issued an
order denying discovery and granting summary judgement. This was
done without an opportunity for Federal Habeas Attorney #4 to
respond to the motion for summary judgment. Although the hearing
C-29

PRICEWATERHOUSECCOPERS 0

Exhibit 12
Page 602

on the discovery motion was not typical, according to counsel, the final
result was highly typical in that the motion for discovery was denied
regardless. After the federal habeas corpus petition was denied,
Federal Habeas Attorney #4 filed lengthy motions requesting the court
to reconsider its ruling. These motions took about 160 hours to
prepare and write, and were subsequently denied.
Proceedings in the Fifth Circuit Court of Appeals

In the briefing to the Fifth Circuit Court of Appeals, there were two
relatively standard suppression of evidence claims asserting that:
• The prosecution did not share evidence regarding a claim of selfdefense in an alleged prison assault involving Petitioner #4; and
• The district court incorrectly denied discovery with regard to the
law enforcement official's record of civilian complaints.
The Court of Appeals affirmed the district court's decision, and a
petition to the U.S. Supreme Court for the writ of Certiorari was filed
earlier this year.
Factors Contributing to Costs

Federal Habeas Attorney # 4 stated that he billed for only 20 percent of
what he and his colleagues devoted to this case. All told, his firm was
compensated $70,000. The district judge did not cut his vouchers. In
another federal capital habeas corpus case, when Federal Habeas
Attorney #4 presented a $120,000 voucher to another Texas district
judge, the judge responded that he had never received a voucher for

C-30

PRICEWATERF/OUsECOOPER5 0

Exhibit 12
Page 603

such a large amount of money and proceeded to cut the voucher by
about 25 percent.
The Texas Attorney General's Office is known for being experienced
and administratively united. The Office apparently reduces costs by
frequently using boilerplate language in its briefings and by importing
it from one case to another. However, this can mean that arguments
are made that are inapplicable or out of context. This can also increase
costs for petitioner's counsel, who must respond to all of the Attorney
General's arguments.
Federal Habeas Attorney # 4 stated that an underlying factor increasing
his case costs was the minimal amount of investigation work
conducted by trial counsel. A Texas statute at the time of Petitioner #
4's state trial provided only $500 for investigations in capital cases.
Not only was state trial counsel unable to undertake any meaningful
investigation, but counsel also failed to present an aggressive crossexamination of witnesses. As a result of these factors, Federal Habeas
Attorney #4 had to develop or expand on information to which the
jury could have been exposed during the original trial. By the time
that Federal Habeas Attorney # 4 was appointed to this case, a key
witness was in failing health, making it difficult for Federal Habeas
Attorney #4 to question him.
According to Federal Habeas Attorney # 4, other factors that drove
down the costs of this case include:
1. The setting of execution dates as a form of docket control. For
example, Texas courts often set dates that prevent a sentenced
C-31

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 604

individual to utilize his or her full year for filing a federal habeas
petition (established by the AEDPA);
2. The Attorney General did not litigate most motions, but rather,
aimed to proceed in the most expeditious manner possible; and
3. Federal Habeas Attorney # 4's heavy caseload which, when
combined with the state's aggressive setting of execution dates,
compressed the time he could spend on the case. Federal Habeas
Attorney #4 claimed he often worked long hours for a short period
of time to meet execution deadlines.
Federal Habeas Attorney #4 believes that the lack of continuity of
counsel from state to federal post-conviction increases the costs of
Texas cases. He also mentioned that at present state post-conviction
representation in Texas is limited to $15,000. Because judges cut his
vouchers in previous state post-conviction proceedings, Federal
- Habeas Attorney # 4 no longer accepts appointment to state postconviction cases.
A court's denial of a request for investigation will usually decrease
costs in the federal capital habeas corpus stage, because it limits
potential claims. However, the federal court's denial of investigators
may have a reverse effect on costs, because attorneys are more costly
to compensate than investigators. On the other hand, if the attorney
does perform the investigation, he will either have to work more hours
to fulfill other commitments (for example, interviewing witnesses,
researching, and so forth), or will have less time to spend on other
activities. This is an example of how one factor may have an
ambiguous impact on costs.
C-32

PRiCEINATERHOUsECOOPER5

Exhibit 12
Page 605

Case Profile # 5
Table C-7: Profile for Petitioner # 5
Petitioner Name

Petitioner #5
Case Background

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Third Circuit, Pennsylvania, Eastern
1
1
1 murder for hire
Open: Active
11-20
Application to United States Supreme
Court for Certiorari

Amount of Time and Money Spent
Breakdown of Attorney Hours
Number of Hours

Attorney hi-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

8
538
546

Breakdown of Attorney Fees

Amount of Money Spent

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs

$925
$50,550
$51,475

Breakdown of All Fees by Stage

Amount of Money Spent

Habeas Petition
Evidentiary Hearing (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari

$20,417
-$13,538
$14,088
$5,137

Total Case Costs

Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

$13,538
$39,642
$53,180

Case Background

In the late 1970s, Petitioner # 5 arranged a contract killing. Two codefendants were charged with capital murder but were tried separately.
The petitioner initially concocted a false story, but later confessed to

C-33

PR10EWITERHOLSECCOPER5

Exhibit 12
Page 606

0

the police. He then recanted his confession during the trial. Only
Petitioner # 5 was sentenced to death.
The State Trial

Petitioner # 5 had privately retained trial counsel. His defense was that
his co-defendants blackmailed him, but the men ruthlessly killed the
victim even though he paid them the money. The jury did not believe
this story and convicted the petitioner of first-degree murder. During
the penalty phase, the petitioner's family testified to his good
character, but little other evidence was offered in mitigation. Petitioner
# 5 was sentenced to death.
The Direct Appeal

On direct appeal, Petitioner # 5 was appointed new counsel, as he
could no longer afford private counsel. The state provided minimal
compensation for Petitioner # 5's representation and his appeal was
denied in 1984, 4 years after the state trial was completed. Apparently,
the Pennsylvania Supreme Court often takes a long time to process
capital cases.
State Post-Conviction Proceedings

During the first of two state post-conviction proceedings, Petitioner #
5's direct appeal attorney represented him and received expert
assistance. After the post-conviction petition was denied, new
evidence indicated that Petitioner # 5 was coerced to pay a codefendant. Thus, the state court ordered a second hearing to consider
this new evidence and whether trial counsel performed ineffectively.
C-34
pRrawATERHousECoopER5 0

Exhibit 12
Page 607

The Pennsylvania State Supreme Court rejected these claims, and the
case proceeded to the federal district court.
Proceedings in Federal District Court

The district court granted habeas relief, finding ineffective assistance
of trial counsel. The District Attorney appealed. The Third Circuit
Court of Appeals reversed the district court's decision after it
determined that Petitioner # 5 was not prejudiced by counsel's
ineffectiveness. The court also decided that the petitioner was not
denied due process. However, the court remanded the case to the
district court for consideration of the remaining issues.
On remand, the district court denied the remaining claims, and
Petitioner # 5 appealed. The Circuit Court of Appeals reversed the
district court's decision, holding that the penalty phase jury
instructions were un&onstitutionally misleading. The District
Attorney's application to the U.S. Supreme Court for a writ of
certiorari was denied.
Factors Affecting the Amount of Time and Resources Expended

The number of briefings increased costs in this case. However, many
of the strongest claims, both the penalty phase jury instruction issue
and the ineffective assistance of counsel claim, were presented in state
post-conviction proceedings. Thus, the investigation was well
developed when the case reached the federal level and did not demand
substantial federal compensation for investigation. The research into

C-35

PRICEVVATERHOUSECGOPERS

Exhibit 12
Page 608

0

the jury instruction claim demanded a lot of time, because it involved a
cutting-edge issue.
According to Federal Habeas Attorney #5, the District Attorney's
litigation strategy did not increase costs in this case. Enforcement of
the exhaustion requirements is not uniform in Pennsylvania. According
to Federal Capital Habeas Attorney #5, the state prosecutor's office is
not as centralized as California's Attorney General Office. In
Pennsylvania, the county district attorney not only represents the state
at trial, but also at the direct appeal and at post-conviction proceedings.
Pennsylvania's decentralized district attorney system prevents
development of a uniform strategy. Therefore, some cases may have
more litigation than others. For example, Federal Habeas Attorney # 5
mentioned that in the state of Pennsylvania, only the District Attorney
in Philadelphia routinely refuses to waive exhaustion requirements. As
a result, there is not the same backlog of cases that originated in
Philadelphia as there is in those cases in the rest of the state.
Apparently, Philadelphia also has a resourceful public defenders
service, so ineffective assistance of counsel claims do not arise as often
in cases from this area.
In addition, Federal Habeas Attorney # 5 said that many cases are
currently percolating in the Pennsylvania state post-conviction stage,
partly because in Pennsylvania, the governor, not the court, signs death
warrants. Prior to 1994, the presiding governor rarely signed death
warrants. He would carefully read each case before making a decision
and often did not feel that the death penalty was warranted. In
addition, the Pennsylvania courts rarely enforced the statute of
C-36

ftiCEINATERROusECODPER5 0

Exhibit 12
Page 609

limitations for state prisoners. As a result of these two factors, Federal
Habeas Attorney # 5 stated that during this time, there was no need to
submit an appeal and no time pressure if an appeal was made.
Because the current governor, elected in 1994, has signed many death
warrants, the number of cases entering or about to enter the federal
system has increased. Currently, there are few cases that have reached
the circuit court. As a result, total average costs in Pennsylvania
(district and circuit) are relatively low. However, the expectation is
that costs might increase as cases begin to reach the later stages of
capital litigation.

C-37

PRICEVVATERHOUSECCOPERS

Exhibit 12
Page 610

Case Profile # 6

Table C-8: Profile for Petitioner if 6
Petitioner

Petitioner Name

if

6

Case Background

Eleventh Circuit, Alabama, Northern
3
2
Homicide, arson, and burglary
Closed: Executed
5
Application to United States Supreme
Court for Writ of Certiorari

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Amount of Time and Money Spent
Number of Hours
Breakdown of Attorney Hours

8 (Co-Counsel)
676
684

Attorney In-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

Amount of Money Spent

Breakdown of Attorney Fees

$450
$57,825
$58,275

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs

Amount of Money Spent

Breakdown of All Fees by Stage
•

.

$37,290
----$11,057
$10,920

Habeas Petition
Evidentiary Hearing (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Cert.
Total Case Costs

Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

$28,200
$31,067
$59,267

Background to the Crime

Petitioner # 6 accompanied two men in an armed burglary that resulted
in the death of the homeowner. The crime generated much anxiety and
sorrow within the local community, particularly because the victim
was well respected. The petitioner was arrested and held in jail for
C-38

PRiCEWATERHOusECOOPER5

Exhibit 12
Page 611

about 3 months before the trial began. During this time, Petitioner # 6
confessed in great detail to the murder. Later, he claimed that he
confessed only because he was promised a polygraph test that he
believed would exonerate him.
The State Trial

The two attorneys assigned to this case were compensated a total of
$1,000. One of the attorneys had recently graduated from law school,
and the other had never provided representation in a capital case. The
only alibi evidence presented during the guilt phase was testimony by
Petitioner # 6's girlfriend that Petitioner # 6 was with her when the
crime allegedly occurred. Although the police had little direct
evidence linking Petitioner # 6 to the crime, his confession was the
only evidence necessary for Petitioner # 6's conviction.
At the penalty phase, the prosecution presented evidence of Petitioner
# 6's long criminal record, including a crime committed in prison
while he was on trial in this case. The defense attorneys did not present
any evidence in mitigation. In defense of their tactics, they argued that
Petitioner # 6 did not want to be saved. According to Federal Habeas
Attorney # 6, because they had conducted little investigation about the
petitioner's background, they were unaware that the petitioner had
earlier undergone a serious brain operation.
According to Alabama statute, the jury merely recommends the
appropriate sentence, and the judge decides whether or not to accept it.

C-39

PUCEVVATER1-.10USECOOPERS

Exhibit 12
Page 612

In this case, the jury and the judge were in agreement that a death
sentence was appropriate.

The Direct Appeal
During the direct appeal, Petitioner # 6's counsel submitted a 4-page
brief, citing only the Miranda v. Arizona case as precedent to justify
his appeal. The attorneys also raised the issue of prosecutorial
misconduct but did not base their argument on case law. The Court
denied Petitioner # 6's direct appeal.

State Post-Conviction Proceedings
For the state post-conviction proceedings, Petitioner # 6 was appointed
new counsel from the Southern Poverty Law Center. The new counsel
further investigated the innocence claim. He also established a
relationship with the petitioner's family and uncovered evidence of
childhood psychological and sexual abuse. A psychiatrist for both the
defense and prosecution examined the petitioner. A brain surgeon was
also deposed regarding the petitioner's injury. The state judge denied
post-conviction relief During the state post-conviction proceedings,
the petitioner went on a hunger strike and underwent a religious
conversion. From that point onward, the petitioner attended weekly
religious meetings and no longer acted violently towards others.

Proceedings in Federal District Court
Petitioner # 6 was assigned new counsel in federal court, a federal
public defender who had never before represented a federal capital
C-40

Exhibit 12
Page 613

PRICEVVATERIpUSECOOPERS

0

habeas corpus petitioner. Because of the scarcity of attorneys with
federal capital habeas corpus experience in several states along the
Gulf of Mexico, attorneys from other states are frequently appointed to
cases in this area as happened in this case. According to Federal
Habeas Attorney # 6, the investigation conducted by the Resource
Center was virtually complete by the time he received the records.
Another local attorney was appointed as co-counsel, but his duties only
involved appearing in court. However, there were no district court
hearings, so co-counsel's bills were minimal.
Federal Habeas Attorney # 6 visited Petitioner # 6 in Alabama prison
and met with the petitioner's family members. As a result of his
religious conversion, Petitioner # 6 became a helpful source of
information. In addition, Federal Habeas Attorney #6 met with the
trial lawyers who provided him with the trial record. According to
Federal Habeas Attorney # 6, the record of the state post-conviction
proceedings was much longer than the trial transcripts, because an
investigation and several hearings were conducted during the postconviction phase.
The district judge denied relief without ordering an evidentiary
hearing, relying instead on the state court's findings plus various
affidavits submitted by both parties. The court denied two of the
claims on the merits and the others were deemed procedurally
defaulted. The court may deny a petitioner's habeas corpus claim,
either on the grounds that it was unjustified (on the merits), or on the
grounds that it did not follow federal guidelines (procedural default).

C-41

PRICEWATERIIOUSECCOPERS

Exhibit 12
Page 614

Proceedings in the Eleventh Circuit Court of Appeals

Federal Habeas Attorney # 6 wrote the brief filed in the Eleventh
Circuit Court of Appeals but then withdrew from the case. New
counsel continued to investigate the innocence claim and sought
clemency from the Governor. The governor seriously considered
granting clemency to Petitioner # 6, but clemency was denied. After
the Eleventh Circuit denied the appeal, the Supreme Court twice
denied certiorari. Petitioner was ultimately executed.
Factors Affecting the Amount of Time and Resources Expended

At the time that Federal Habeas Attorney # 6 was working on the case,
the Attorney General had a friendly working relationship with the
Resource Center. Before 1995, federal capital habeas attorneys
representing Alabama petitioners, including Habeas Attorney # 6, were
apparently allowed unrestricted time to research and write a petition.
The Attorney General never requested a death warrant in this case. On
several occasions, Federal Habeas Attorney # 6 requested extensions of
time on procedural deadlines, and they were readily granted. For a
similar case in Pittsburgh, where this attorney has also practiced, there
was more time pressure. The attorney claimed that strict deadlines can
cause an attorney to rush and to waste time on a less important issue.
The Alabama district court judge ultimately denied relief but never cut
vouchers, nor denied funding.
Originally, Federal Habeas Attorney #6 planned on representing
Petitioner # 6 pro bono. When he was granted local co-counsel,
C-42

PRICEWATERHOUsECOOPER5 0

Exhibit 12
Page 615

Federal Habeas Attorney # 6 changed his mind, but still did not bill
aggressively, because he was working under salary in the Federal
Defenders Office. Consequently, he had no overhead costs to consider
and thus, decided to cut some hours out of his vouchers.
According to Federal Habeas Attorney #6, the following factors
reduced costs:
1. The Alabama Attorney General waived exhaustion requirements to
expedite the case. As a result, Federal Habeas Attorney # 6's case
never reentered state court (no bouncing effect);
2. The Alabama Attorney General requested, and the court granted,
procedural default. Depending on the case, procedural default
generally can either speed up or slow down the federal habeas
corpus process. In some cases, procedural default is argued on
every issue and usually denied, thus adding many unnecessary
hearings. In other cases, like this one, procedural default is
immediately granted on the petitioner's claims and the case is
shortened;
3. Federal Habeas Attorney # 6 did not perform any substantial
investigation, because the state post-conviction proceedings
already had held exhaustive hearings, and the Resource Center
completed the other necessary investigation work; and
4. Federal Habeas Attorney #6 worked in a publicly funded office,
where he received a salary and paid no overhead.
Federal Habeas Attorney # 6 also mentioned that there was a lack of
issues to raise in this particular case. The innocence claim was difficult
to prove, because several key witnesses would not cooperate, and
C-43

PRICEWATERHOUSECCOPER5

Exhibit 12
Page 616

because direct appeal counsel raised so few issues. The district court
decided only two claims on the merits. The rest were procedurally
defaulted.
Finally, personal characteristics of the petitioner played a role in
reducing costs, as Petitioner # 6 was generally easy to work with at the
federal level. Federal Habeas Attorney # 6 received additional pro
bono legal assistance from law professors at the Columbia University
and New York University Law Schools. This use of an outside
resource is an instance whereby the AOUSC did not incur all costs.

C-44

PRICEVVATERHOUSCCOPERS

Exhibit 12
Page 617

Case Profile # 7

Table C-9: Profile for Petitioner #7
Petitioner Name

Petitioner # 7
Case Background

Seventh, Illinois, Northern
8
2
Double Homicide, Armed Burglary
Closed: Executed
10
Application to the United States
Supreme Court for Writ of Certiorari

Circuit, State, and District
Number of Original Charges
Number of Murdered Victims
Crime Description
Case Disposition
Number of Habeas Claims in Petition
Most Recent Stage of Proceeding

Amount of Time and Money Spent
Attorney Hours

Number of Hours

Attorney La-Court Hours
Attorney Out-of-Court Hours
Total Attorney Hours

10
703
713

Attorney Fees in-Court/Out-Court

Amount of Money Spent

Attorney In-Court Cost
Attorney Out-of-Court Cost
Total Attorney Costs

$790
$64,761
$65,551

Breakdown of Attorney Fees by Stage

Amount of Money Spent

$25,138
---$3,345
$37,171
--

Habeas Petition
Evidentiary Hearing (District and Circuit)
Dispositive Motion
Appeal
Application to Supreme Court for Certiorari
Total Case Costs
Attorney, Expert and Expense Costs in District
Attorney, Expert and Expense Costs in Circuit
Total Case Costs

$28,483
$37,171
$65,654

Background to the Crime

In the early 1980s, Petitioner #7 was involved in two armed robberies
in the Chicago area. During the second robbery, three people were
shot; two were killed. Petitioner # 7 was immediately apprehended.

C-45

PRICEVIATERHOUSECCOPERS

Exhibit 12
Page 618

While in police custody, a court reporter transcribed the petitioner's
45-page oral confession.
The State Trial

Petitioner # 7 was represented at trial by two county public defenders
who worked in the murder task force division. Because this was an
early case, trial counsel was hindered by the lack of an organized
manual to assist Illinois defense counsel in determining how to best
prepare for both the guilt and penalty phases of a death penalty case.
Now, however, there are various texts available to defense attorneys
who provide representation in Illinois death penalty cases.
The defense had difficulty mustering a powerful argument with respect
to Petitioner # 7's guilt in light of his confession and entered a blind
guilty plea on the day the case was set for trial. In other words, the
defendant changed his plea from not guilty to guilty without any
promise of leniency from the prosecution or from the court. Possibly
because this was the presiding judge's first death penalty case, he
failed to issue admonishments to the defense when they changed their
plea. An admonishment is a judge's warning to the defendant to
ensure that he understands that he is voluntarily surrendering the
procession of the guilt phase, and that all promises made by the court
or by the state are on the record. There is no record of such promises.
At the penalty phase, the state presented the petitioner's criminal
record, but he had no felonies as an adult and had never served a day in
the Illinois Department of Corrections. The state also presented the
C-46

PRICWVATERHOusECCOPER5

Exhibit 12
Page 619

gruesome details of the crime with little cross-examination by the
defense. Four witnesses testified on the petitioner's behalf. Two were
family members and two were former employers. The testimony of the
employees was eventually used against in the petitioner as aggravating
evidence. There was some evidence of a history of drug abuse, which
defense counsel never presented. The defense made a motion to
perform a psychological study of the petitioner, but the court denied
the motion. The defense also argued that the Illinois capital crime
statute was unconstitutional. The public defenders' closing argument
was about 10 pages long and counsel simply made a plea for
compassion from the judge. The trial record was only 500 pages, most
of which included the state's presentation of aggravating factors.
Federal Habeas Attorney # 7 noted that the record's length was
comparable to that of a simple automobile theft case.
The court sentenced .Petitioner # 7 to death. After the death sentence
was handed down, defense counsel made a motion to withdraw the
guilty plea, but the motion was denied.
The Direct Appeal

In Illinois, capital appeals proceed directly to the Illinois State
Supreme Court. The state funded Appellate Defenders Office
represented the petitioner on direct appeal. The primary issue was the
voluntariness of the guilty plea, because the plea was entered
haphazardly. The Supreme Court denied the petitioner's appeal by a
single vote of 4 to 3.

C-47

PRICEWATERHOUSECCOPEPS 0

Exhibit 12
Page 620

State Post-Conviction Proceedings

During the state post-conviction proceedings, the Appellate Defenders
Office continued representation and repeated the argument that the
guilty plea was entered involuntarily. Neither the State court nor the
Attorney General was in any hurry for this case to proceed. As a
result, there was an extended period of time to file briefs. A new
execution date was set during this delay. Even though the U.S.
Supreme Court decided that ineffective assistance of counsel during
the state trial is a legitimate state and federal habeas corpus claim,
ineffective assistance of trial counsel was never raised, and postconviction relief was denied without a hearing.
Proceedings in Federal District Court

The Appellate Defenders Service withdrew from the case, because they
could not claim their own ineffective assistance of counsel for failing
to raise on appeal trial counsel's failure to investigate and present any
mitigating evidence. As a result, Federal Habeas Attorney # 7 was
appointed to represent Petitioner # 7 in federal court. In addition to the
ineffective assistance of state trial and post-conviction counsel claims,
Federal Habeas Attorney # 7 also raised issues with respect to the
constitutionality of the Illinois death penalty statute.
Much of the early litigation in the district court involved the need for
an evidentiary hearing. The district judge eventually postponed the
execution date until after the completion of federal proceedings. In the
early 1990s, the judge finally issued an opinion stating that the trial
C-48

PRICEVVATERNOUSECOOPERS 0

Exhibit 12
Page 621

court judge should not have accepted Petitioner # 7's guilty plea
without first admonishing him properly. The state could have foregone
the appeal and accepted a sentence of LWOP, but instead decided to
appeal to the Seventh Circuit Court of Appeals.
Proceedings in the Seventh Circuit Court of Appeals

The Seventh Circuit Court of Appeals reversed the district court's
decision. In a motion to reconsider the court's decision, Federal
Habeas Attorney # 7 mentioned that the district court overlooked
several claims. The motion for reconsideration and a subsequent
petition to the U.S. Supreme Court for the writ of certiorari were both
denied, but the Circuit Court remanded the case and ordered the district
court to decide on all remaining claims.
Thereafter, the district court denied relief on the remaining claims,
including the ineffective assistance of counsel claim. Federal Habeas
Attorney # 7 appealed to the Seventh Circuit Court of Appeals. The
Court denied the second appeal expeditiously, and the U.S. Supreme
Court subsequently denied the second petition for the writ of certiorari.
At the request of the Attorney General, the district court set an
execution date for the end of 1997. Federal Habeas Attorney # 7 filed
a state post-conviction petition in the state court. The motion was
denied.
Federal Habeas Attorney # 7 returned to the federal district court by
filing a new petition arguing that the AEDPA's 1-year statute of
limitations did not apply to this case. The district court denied relief,
C-49

PRICEWATERHOUSECOOPER5

Exhibit 12
Page 622

but did grant a Certificate of Appealability (see Life Cycle section).
The Seventh Circuit Court of Appeals denied the Certificate of
Appealability after 3 days of review, and Federal Habeas Attorney # 7
filed an emergency petition in the U.S. Supreme Court. The Supreme
Court denied the petition, and on the same day, the governor of Illinois
denied a petition for clemency. Petitioner # 7 was executed at 12:01
a.m. the next day.
Factors Affecting the Amount of Time and Resources Expended

The district court never reduced Federal Habeas Attorney # 7's
vouchers, but counsel was initially compensated at a rate of only $75
an hour. The judge's rationale behind this relatively low rate was that
this case was relatively straightforward. After the first reversal, the
Court of Appeals granted Federal Habeas Attorney #7 the maximum
, rate of $125 an hour.
As with many other cases in this study, Federal Habeas Attorney #7
had several resources available to him, most notably law school
students who provided free legal assistance. The Resource Center
conducted the investigation for Federal Habeas Attorney #7, and he
therefore did not bill for any investigation work.
If the presentation of aggravating evidence at the penalty phase had not
been included in the trial record, it would have totaled only about 50
pages. As a result, Federal Habeas Attorney # 7 did not need to devote
much time to learning the case. The brevity of the record raised other
challenges, though, such as the need to investigate and pursue other
C-50

PRiavvATERHousEcoDpERs 0

Exhibit 12
Page 623

possible habeas claims. When this case was delayed, there were
changes in the law that required new research. Moreover, every time
an issue arose or a court date approached, the attorney had to become
reacquainted with the case. In addition, this was Federal Habeas
Attorney # 7's first federal capital habeas corpus case, so it took some
time before he fully understood this type of law. Overall, the bulk of
attorney costs was spent drafting the habeas petition. Part of the costs
could be attributed to the ineffective assistance of counsel at the state
level, because so many facts were left undeveloped in the state
proceedings.
The court appointed one expert, a psychologist and a neurologist who
examined Petitioner # 7 at the early stages of the federal proceedings.
Because there were no evidentiary hearings or research expenses, the
bills were relatively low, considering that Habeas Attorney # 7 was in
district court twice and circuit court three times. Still, Federal Habeas
Attorney # 7 subsidized this case through earnings from his own
privately retained clients.
The Attorney General's office did not substantially drive costs up in
this case. The Attorney General raised exhaustion questions and filed
a response to everything, whether it was merited or not. Federal
Habeas Attorney #7 attributed this frustrating strategy at least partly to
the Attorney General's inexperience with federal capital habeas corpus
cases. Federal Habeas Attorney # 7 believes that the Attorney
General's strategy has become less frustrating, as they have become
more experienced in these cases. On the other hand, according to
Federal Capital Habeas Attorney # 7, the Attorney General has adopted
C-51

PRICEWATERHOUsECCOPERS

Exhibit 12
Page 624

a more aggressive strategy to decrease the current backlog of death
penalty cases on appeal in Illinois. Unlike Pennsylvania, both Illinois
governors have signed death warrants expeditiously, and partly as a
result, more cases have reached the federal stage.
In the past, the state did not track cases, but according to Federal
Habeas Attorney #7, the Illinois Attorney General's Office has
become much more centralized. According to Federal Capital Habeas
Attorney #7, the primary issue currently litigated by the Illinois
Attorney General's Office is the AEDPA and the application of
procedures initially intended to expedite cases. Purportedly, the
litigation of procedural issues has delayed or prevented many cases
from being argued on their merits, and Federal Habeas Attorney #7 is
not sure whether this piece of legislation will, in the end, reduce costs.

C-52

PRICEWATERHOUsECCOPERS

Exhibit 12
Page 625

Exhibit 13
California Department of Corrections.
Condemned Inmates Who Have Died
Since 1978, March 4, 2014 (available at
http://www.cdcr.ca.gov/
Capital_Punishment/docs/CONDEMNE
DINMATESWHOHAVEDIEDSINCE19
78.pdf)

Exhibit 13
Page 626

CONDEMNED INMATES WHO HAVE DIED SINCE 1978
______NAME: _________

DATE DIED: _________

CAUSE:_______

1. David Moore
2. Richard Chase
3. Ronald Hawkins
4. George Carpenter
5. Mose Willis
6. Joselito Cinco
7. Ronald Fuller
8. Lewis Crain
9. Joseph Poggi
10. Martin Gonzalez
11. Gary Guzman
12. Donrell Thomas
13. Robert Alton Harris
14. Jay Kaurish
15. David Mason
16. Corvin Emdy
17. Robert McDonald
18. Christopher Day
19. Roland Comtois
20. Timothy Pride
21. Robert Danielson
22. William Bonin
23. Keith Williams
24. Jeffrey Kolmetz
25. Jeffrey Wash
26. Michael Wader
27. Sammy Marshall

November 29, 1980
December 26, 1980
January 17, 1983
January 30, 1984
June 26, 1988
December 26, 1988
March 24, 1989
November 3, 1989
March 22, 1990
March 30, 1990
February 7, 1991
March 31, 1992
April 21, 1992
November 6, 1992
August 24, 1993
September 18, 1993
December 31, 1993
January 29, 1994
May 6, 1994
September 30, 1994
September 7, 1995
February 23, 1996
May 3, 1996
August 16, 1996
September 12, 1996
May 11, 1997
June 15, 1997

28. Jimmy Palma
29. Thomas Walker
30. Jessie Ray Moffat
31. Thomas Thompson
32. Andrew Robertson
33. William Poynor
34. Jerry Bailey

October 13, 1997
November 18, 1997
May 2, 1998
July 14, 1998
August 22, 1998
October 19, 1998
December 25, 1998

Suicide
Suicide
Suicide
Suicide
Natural Causes
Suicide
Suicide
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Suicide
*Executed*
Natural Causes
*Executed*
Suicide
Natural Causes
Suicide
Natural Causes
Shot on Exercise Yard
Suicide
*Executed*
*Executed*
Natural Causes
Suicide
Natural Causes
Heart attack after
pepper spray exposure
Stabbed on exercise yard
Suicide
Natural Causes
*Executed*
Natural Causes
Natural Causes
Natural Causes

California Department of Corrections and Rehabilitation
Office of Public and Employee Communications
March 4, 2014
Exhibit 13
Page 627

35. Kelvin Malone
36. Jaturun Siripongs
37. Manuel Babbit
38. Bronte Wright
39. Darrell Rich
40. Robert Lee Massie
41. Frank Dean Carter
42. James Warren Bland
43. Theodore F. Frank
44. George Marshall
45. Stephen Anderson
46. Stephen DeSantis
47. Gerald Gallego

January 13, 1999
February 9, 1999
May 4, 1999
February 5, 2000
March 15, 2000
March 27, 2001
August 21, 2001
August 30, 2001
September 5, 2001
October 14, 2001
January 29, 2002
March 2, 2002
July 18, 2002

48. Robert Nicolaus
49. Robert E. Stansbury
50. Raymond Johns
51. Paul Brown
52. Charles Whitt
53. Robert F. Garceau
54. Donald J. Beardslee
55. Nicholas Rodriguez
56. Larry Davis Jr.
57. Caroline Young
58. Drax Quartermain
59. Michael Ihde
60. Donald Miller
61. Stanley Williams
62. Stuart Alexander
63. Clarence Ray Allen
64. Earl Preston Jones
65. Robert Thompson
66. James Tulk
67. Alejandro G. Ruiz
68. Marcelino Ramos
69. Raymond Gurule
70. Herb Koontz
71. Tony Lee Reynolds
72. Billy Ray Hamilton
73. Bill Bradford

April 12, 2003
December 12, 2003
March 28, 2004
April 10, 2004
November 7, 2004
December 29, 2004
January 19, 2005
July 10, 2005
September 2, 2005
September 16, 2005
September 22, 2005
October 9, 2005
October 14, 2005
December 13, 2005
December 27, 2005
January 17, 2006
February 3, 2006
October 1, 2006
November 30, 2006
January 4, 2007
January 22, 2007
February 3, 2007
May 5, 2007
June 10, 2007
October 22, 2007
March 10, 2008

*Executed in MO*
*Executed*
*Executed*
Natural Causes
*Executed*
*Executed*
Natural Causes
Natural Causes
Natural Causes
Natural Causes
*Executed*
Natural Causes
Natural Causes
(Died in Nevada)
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
*Executed*
Drug Overdose
Acute drug toxicity
Natural Causes
Natural Causes
Natural Causes
Natural Causes
*Executed*
Natural Causes
*Executed*
Natural Causes
Natural Causes
Suicide
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Suicide
Natural Causes
Natural Causes

California Department of Corrections and Rehabilitation
Office of Public and Employee Communications
March 4, 2014

Exhibit 13
Page 628

74. Alfredo Padilla
75. Edward Bridges
76. Terrance C. Page
77. Isaac Gutierrez, Jr.
78. Thomas Edwards
79. Larry Graham
80. Lawrence Bergman
81. Michael Mattison
82. Fred Freeman
83. Miguel Martinez
84. Albert Howard
85. David Arisman
86. Cedric Harrison
87. Joseph Musselwhite
88. Robert Rubane Diaz
89. George Hatton Smithey
90. John Levae Post
91. Richard Parson
92. James Glenn VanPelt
93. Brandon Wilson
94. David Murtishaw
95. Dennis H. Lawley
96. Frank Abilez
97. James Lee Crummel
98. Kenneth Friedman
99. James Karis
100. Justin Helzer
101. Mario Gray
102. Timothy Rodriguez
103. Richard Ramirez
104. Timothy Russell
105. Albert Ruiz
106. Wilbur Lee Jennings
107. Ralph Michael Yeoman

July 25, 2008
October 9, 2008
December 5, 2008
December 7, 2008
February 14, 2009
June 16, 2009
June 26, 2009
July 17, 2009
July 25, 2009
July 26, 2009
August 13, 2009
September 5, 2009
November 19, 2009
February 2, 2010
August 11, 2010
August 28, 2010
December 20, 2010
February 28, 2011
March 6, 2011
November 17, 2011
November 22, 2011
March 11, 2012
April 3, 2012
May 27, 2012
August 26, 2012
January 31, 2013
April 14, 2013
May 4, 2013
June 2, 2013
June 7, 2013
October 5, 2013
December 29, 2013
February 11, 2014
March 4, 2014

Natural Causes
Suicide
Suicide
Natural Causes
Natural Causes
Suicide
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Natural Causes
Suicide
Other
Natural Causes
Natural Causes
Suicide
Natural Causes
Natural Causes
Natural Causes
Suicide
Suicide
Natural Causes
Suicide
Natural Causes
Natural Causes
Natural Causes
Pending
Natural Causes
Natural Causes
Pending

California Department of Corrections and Rehabilitation
Office of Public and Employee Communications
March 4, 2014

Exhibit 13
Page 629

SUMMARY OF CONDEMNED INMATES WHO HAVE DIED SINCE 1978
_________________________ ________________________________________________
Executed in California: 13
Executed in Missouri: 1
Total Executions: 14
Natural Causes: 63
Suicide: 22
Other: 6
Pending: 2
Total Non-Execution Deaths: 93
Total Deaths: 107

California Department of Corrections and Rehabilitation
Office of Public and Employee Communications
March 4, 2014

Exhibit 13
Page 630

Exhibit 14
Howard Mintz, State U.S. Courts at Odds
on Sentences - Different Standards Lead
to Reversals, San Jose Mercury News,
April 15, 2002

Exhibit 14
Page 631

STATE, U.S. COURTS AT ODDS ON SENTENCES - DIFFERENT STANDARDS LEAD TO
REVERSALS
San Jose Mercury News (CA) - Monday, April 15, 2002
Author: HOWARD MINTZ, Mercury News
When it comes to death sentences, the California Supreme Court and federal courts seldom
agree. The state's highest court upholds them. Federal judges overturn them.
The conflict between these two powerful institutions can be seen in cases like that of James
Richard Odle, who was convicted in 1983 of murdering a Contra Costa County woman and then
killing a police officer in a shootout.
Odle's guilt has never been in doubt. But last year, a federal appeals court reversed the death
sentence based on evidence that had been disregarded by the state courts throughout Odle's
18-year legal odyssey.
Long before the slayings, doctors treating Odle for injuries suffered in a car accident had removed
part of his brain. The state Supreme Court, in rejecting his appeals on four occasions, never
considered the brain injury relevant to whether Odle was mentally competent to stand trial.
The federal judges not only considered the injury important but also found that the state's failure
to evaluate its impact on Odle may entitle him to a new trial.
As Odle's case illustrates, federal judges and the state Supreme Court have developed very
different legal standards for evaluating death sentences -- such different standards that nowhere
in the country is there a more pronounced divide in the way a state high court and the federal
courts administer death-penalty justice.
A comprehensive Mercury News review of death-penalty appeals found 36 cases in which the
California Supreme Court noted problems in a trial and decided they were not important enough to
reverse a death sentence -- and a federal court later overturned the sentence because of those
same problems.
The review found that federal courts, by reversing six out of 10 California death sentences, are
overturning a higher percentage of capital cases than those from any other state. But it is the
California Supreme Court that has moved further from the national norm in ruling on these
life-and-death cases, affirming nine of every 10 it reviews.
Studies show that the California Supreme Court is less likely to overturn a death sentence than
just about any of the 38 state high courts that review capital appeals.
''Maybe the reality is that state courts aren't looking at things they should be,'' said Judge Alex
Kozinski of the 9th U.S. Circuit Court of Appeals, a President Reagan appointee who has voted to
affirm and reverse death sentences, and who wrote the ruling overturning Odle's sentence.
''I've been amazed and sometimes appalled at some of the things I've seen come out of the state
system,'' he said.
For California, the consequences of this conflict are enormous, with more than 600 inmates on
death row waiting for their appeals to make their way through the system.
Legacy of 1986
Death penalty seen
as political must
The review indicates that the federal courts have become a formidable counterweight to the
conservative California Supreme Court that grew out of the 1986 election in which voters removed
Chief Justice Rose Bird and two liberal colleagues who consistently voted to reverse death
sentences.

Exhibit 14
Page 632

That is particularly true of the San Francisco-based 9th Circuit, the nation's largest appeals court.
The court, which covers California and eight other states, has voted eight times since November
to reverse a California death sentence.
California's seven-member high court includes six justices appointed by the tough-on-crime
Republican Govs. George Deukmejian and Pete Wilson. And the death penalty remains such a
political must in California that Gov. Gray Davis, a Democrat, demands support for it from his
judicial nominees, including his recent choice for the Supreme Court, Carlos Moreno.
Even some federal judges who review the California Supreme Court's work wonder whether the
ghosts of the 1986 election still haunt the state's justices. Federal judges are appointed for life.
''It may well be they are saying, 'What the hell, the 9th Circuit or the district courts will take care of
it if there is a problem,' '' said one 9th Circuit judge, insisting on anonymity. ''We're free from
political pressure.''
California Supreme Court Chief Justice Ronald George strongly denied that political
considerations have anything to do with the court's record indeath-penalty cases. His court takes
a hard look at every death sentence, he said.
But George also acknowledged the conflict with his federal counterparts: ''It may just be we have
different standards on prejudicial error than the federal courts,'' he said.
''The bulk of the cases in which they granted relief, we recognize some error,'' he said. ''But in the
context of evaluating all the evidence and the law, we found'' the errors not prejudicial.
Critics speak out
Prosecutors decry
federal reversals
Death-penalty supporters say the problem is with the federal courts, which have been accused of
blocking California's death penalty since at least 1992. That year, California executed its first
inmate since the reinstatement of capital punishment, Robert Alton Harris, only after the U.S.
Supreme Court issued an unprecedented order forbidding any more federal delays.
Supporters say the federal courts are interfering with a death-penalty law that the state's voters
strongly support, and that the state Supreme Court affirms most death sentences because
California's capital trials are fundamentally fair. Prosecutors such as Gary Yancey, the former
Contra Costa County district attorney who tried James Odle, call the federal court reversals
''nonsense.''
Prosecutors are particularly frustrated because Congress enacted a law in 1996 intended to make
it tougher for federal judges to second-guess the state courts in death-penalty cases. The U.S.
Supreme Court has adopted a strict reading of the law, but even that hasn't mattered in California
cases.
''The U.S. District Courts and the 9th Circuit are vehemently opposed to the death penalty,'' said
Alameda County prosecutor James Anderson, who has sent more murderers to death row than
anyone else in California. ''We're at their mercy.''
To prevail in federal court, the last stop in the appellate process, death row inmates must show
that their constitutional rights were violated at trial. And federal judges in California do appear to
reverse a higher percentage of death sentences than their counterparts elsewhere.
The Mercury News found that federal judges have overturned 36 of 58 cases in the state -- 62
percent -- since California restored capital punishment in 1978. Nationally, a Columbia University
study found that all federal courts reversed about 40 percent of cases from 1973 to 1995.
Because of California's long delays, few of its cases had reached the federal level by 1995.
Only the Atlanta-based 11th Circuit, which covers Florida and other states, came close to the 9th
Circuit, reversing 50 percent of its death sentences. At the other extreme, the conservative 4th
Circuit reversed about 15 percent of death sentences in Virginia, Maryland and the Carolinas.
A league of its own
California reverses
fewest capital cases

Exhibit 14
Page 633

The state Supreme Court, however, stands alone at the opposite end: the Mercury News found
that since 1997 it has reversed seven of the 67 death sentences for which it has produced full
rulings, or 10 percent. By comparison, the Columbia study found that other state high courts
reversed about 40 percent.
Even in Texas, which leads the country in executions, state courts reversed 31 percent, triple
California's rate.
''The fact there are federal court reversals in California doesn't mean jack because there are no
state court reversals,'' said Maria Stratton, the chief federal public defender in Los Angeles who
has supervised dozens of death-penalty appeals.
In fact, there is evidence that the 9th Circuit is more willing to uphold death sentences when state
courts are more aggressive in weeding out flaws. Consider the case of Arizona, where the high
court reverses two out of every five sentences it reviews, four times California's rate.
When Arizona affirms a death sentence, the 9th Circuit tends to agree, reversing 42 percent of
them, in line with the national average. One result is that Arizona has executed 22 people since
1992, compared with 10 in California, even though its death row is one-fifth the size.
A second fact that stands at odds with the critics' portrayal of liberalbias in the 9th Circuit is this:
The court has many conservatives among its current and former judges, and the Mercury News
review shows that those conservatives have voted dozens of times to overturn death sentences.
While Democratic appointees do vote more often to reverse sentences, Republican appointees
voted to reverse in about a third of the cases.
''It's not a secret to anybody that the 9th Circuit views the death penalty different than some other
places,'' said Idaho-based 9th Circuit Judge Stephen Trott, a Reagan appointee who usually votes
to affirm death sentences. ''But we just call them the way we see them. I think the 9th Circuit as a
court attacks these things very objectively.''
Faulty defense
Court downplays poor lawyering
The central difference between the California court and the federal courts in capital cases is how
they regard trial mistakes. And the review of reversed death sentences shows that the main
example of this conflict is how judges view the issue of inadequate legal representation.
Incompetent lawyering -- which can often be the difference between a defendant being sentenced
to death and being sentenced to life in prison -- is the biggest reason for reversals in the federal
courts.
Federal judges have overturned 19 death sentences because of constitutionally defective
representation -- half of all the cases they have reversed.
In the state Supreme Court, by comparison, incompetent representation is the third-most-common
reason for reversals. Of the hundreds of cases the state court has heard (most have not yet
reached the federal level), it has reversed seven for bad lawyering.
The result can be seen in cases like that of Steven Ainsworth, who was convicted in 1980 of
murdering a woman near Sacramento in the Sacramento area. The jury sentenced him to death
after his lawyer put on four witnesses in the penalty phase of the trial during a one-hour defense.
The California Supreme Court, without comment, rejected Ainsworth's claims that the verdict was
unfair because his lawyer had failed to prepare for the penalty phase.
But federal judges took a different view. In 1999, U.S. District Judge Lawrence Karlton reversed
the death sentence, saying Ainsworth's legal defense ''amounted to no representation at all.'' Last
fall the 9th Circuit agreed, affirming Karlton's decision.
Twenty-one years after trial, the appeals court concluded that Ainsworth's lawyer ''failed to
investigate, develop or present the wealth of evidence available.''
Caption: Photo, Charts (2)
PHOTO: CALIFORNIA DEPARTMENT OF CORRECTIONS
Although California leads the nation in death row inmates, only 10 people have been executed

Exhibit 14
Page 634

since 1978. Most death sentences upheld by the state's high court are ultimately overturned in
federal court.
Memo: RELATED STORIES: page 12A
Edition: Morning Final
Section: Front
Page: 1A
Series: LIFE-AND-DEATH DECISIONS THE DEATH PENALTY IN CALIFORNIA Second in an
occisional series
Record Number: 0204160173
Copyright (c) 2002 San Jose Mercury News
To bookmark this article, right-click on the link below, and copy the link location:
STATE, U.S. COURTS AT ODDS ON SENTENCES - DIFFERENT STANDARDS LEAD TO
REVERSALS

Exhibit 14
Page 635

Exhibit 15
Declaration of Michael Laurence,
June 9, 2014

Exhibit 15
Page 636

DECLARATION OF MICHAEL LAURENCE
I, Michael Laurence, declare as follows:
1.

I am an attorney at law admitted to practice by the State of

California and before this Court. I am the Executive Director of the
Habeas Corpus Resource Center (HCRC).
2.

On October 20, 2000, the California Supreme Court

appointed the HCRC to represent Ernest Jones in habeas corpus
proceedings stemming from his convictions and judgment of death. Mr.
Jones filed a petition for writ of habeas corpus in the California Supreme
Court on October 21, 2002. On April 14, 2009, this Court appointed the
HCRC to represent Mr. Jones in his federal habeas corpus proceedings. I
was designated lead counsel in both proceedings.
3.

In 2008, the Commission on the Fair Administration of

Justice recommended a five-fold increase in the HCRC’s budget, phased
in over a five-year period, to address the severe shortage of counsel
willing and able to accept habeas corpus appointments.

Since the

publication of the Commission’s Report, the HCRC has submitted Budget
Change Proposals to expand the HCRC’s ability to accept appointment in
every budget cycle. To date, none of these proposals have been funded.
4.

Pursuant to its legislative mandate as a resource center for

California capital postconviction attorneys (Cal. Gov’t Code § 68661), the
HCRC collects and analyzes information concerning the California death
penalty process and California Supreme Court’s disposition of state
habeas petitions. The information contained in this Declaration and the

Exhibit 15
Page 637

{Initials}

Declaration of Michael Laurence
Page 2 of 5

accompanying Tables/Figures was collected as part of the HCRC’s
information-gathering function.
5.

There are 493 capital inmates in California whose judgment

was imposed before June 9, 1994, and 318 whose judgment was imposed
before June 9, 1989.
6.

At the time that Mr. Jones was appointed habeas corpus

counsel in 2000, there were approximately 215 inmates on California’s
death row without habeas corpus counsel.
7.

There currently are 70 condemned prisoners without counsel

for the automatic appeal in the California Supreme Court and 352
condemned prisoners who are awaiting appointment of postconviction
counsel. Table/Figure 1 attached to this Declaration contains the number
of California death row inmates without habeas corpus counsel as of June
30 (the end of the state fiscal year) for the years between 1999 and 2013
and as of June 6, 2014.
8.

On average, the 77 inmates whose direct appeals are

concluded and who lack habeas corpus counsel have waited 15.81 years
after their sentencing; 160 inmates have been without a habeas corpus
attorney for more than ten years, and one lacks counsel despite being
sentenced in 1992.
9.

Between January 1, 2009 and December 31, 2013, the state

has averaged 22 death judgments per year, while over the same time
period, there has been an average of 10 annual appointments to represent
death-row inmates in their habeas corpus proceedings.

Exhibit 15
Page 638

Declaration of Michael Laurence
Page 3 of 5

10.

Since 2003, of the 192 cases in which habeas corpus

petitions have been filed, 40 capital habeas corpus petitioners lost their
initially appointed private counsel and required replacement counsel – a
replacement rate of 21 percent.
11.

Since 2006, the HCRC has accepted approximately forty

percent of the capital habeas appointments made by the California
Supreme Court, and in the past five years has filed approximately forty
percent of the first habeas corpus petitions.
12.

For first state habeas corpus petitions filed in 2004 in capital

cases, the respondent took an average of .53 years to file the informal
response and petitioners took an average of .69 years to file the reply.
Following the submission of the informal briefing in these cases, the
California Supreme Court took an average of 3.78 years to issue an order
denying the petition. In one case, In re Kenneth Gay, Case No. S130263,
the California Supreme Court issued an order to show cause, and the case
is still pending.
13.

The California Supreme Court currently has 176 pending

capital habeas cases. Thus number excludes initial petitions that the
California Supreme Court permits to be filed to toll the federal statute of
limitation period while the court locates counsel willing to accept an
appointment, counsel files an amended petition within the court’s
timeliness policies, and the court resolves the amended petition in
accordance with In re Morgan, 50 Cal. 4th 932, 237 P.3d 993 (2010). The
average pending time of these 176 cases is 4.07 years. Of the 176 cases,
107 have been fully briefed awaiting decision for an average of 4.16 years
(or 50 months) since the reply to the informal response was filed.
Exhibit 15
Page 639

Declaration of Michael Laurence
Page 4 of 5

Table/Figure 2 attached to this Declaration depicts the length of time that
the fully briefed case have been pending.
14.

For the 68 first capital habeas corpus petitions that the

California Supreme Court has resolved from 2008 through the filing of
this Brief, the average time between the completion of briefing and the
California Supreme Court’s decision is 3.98 years, or 47.8 months.
15.

For those capital habeas corpus proceedings in which the

California Supreme Court has issued a final decision between 2008 and
the filing of this Declaration, the average time between sentencing and the
final decision was 17.2 years.
16.

Since 1978, condemned inmates have filed 267 exhaustion

petitions in the California Supreme Court, and the average time that the
inmate remains in state court following the filing of the exhaustion is 3.19
years.
17.

Since 1978, the court has resolved the merits of 729 of the

1003 habeas corpus petitions filed by condemned inmates. Of the 729
cases, the court has issued orders to show cause in 99 cases (13.6%), and
ordered evidentiary hearings in 45 cases (6.2%). Of these cases, the
California Supreme Court has granted some form of relief in capital
habeas corpus proceedings only eighteen times or in 2.5% of the cases it
has resolved.
18.

Using figures publicly available from the California

Department of Justice and the California Department of Corrections and
Rehabilitation, I calculated the average suicide rate on California’s death
row between 1980 and 2010 to be 299.5 per 100,000. In comparison, the
Exhibit 15
Page 640

Declaration of Michael Laurence
Page 5 of 5

average suicide rate in the general population of California and in the
United States in the same time period were 11.6 per 100,000, and 11.7 per
100,000, respectively.

Table/Figure 3 attached to this Declaration

compares the average suicide rates for California death row inmates to
other relevant populations.
19.

To conduct an initial assessment of the length of time it takes

the state court to resolve non-capital habeas corpus petitions, my staff
searched for federal recommendations, orders, and opinions resolving
federal habeas corpus petitions filed under 28 U.S.C. section 2254 that
included the date a state petitioner was sentenced and the date the state
court completed review of his or her state habeas corpus claims. The time
from sentencing to completion of state habeas corpus review in number of
months and averaged the time across the cases that comprise the sample.
The search was to homicide and attempted homicide cases and primarily
searched for cases that subsequently obtained relief in federal court,
though three cases in which the federal habeas corpus petition was denied
were included. There was not a significant difference in the length of the
state court process for non-capital petitions based on whether or not they
received relief in federal court.
The foregoing is true and correct and executed under penalty of
perjury under the laws of the United States and the State of California on
June 9, 2014.
/s/ Michael Laurence
Michael Laurence

Exhibit 15
Page 641

TABLE/FIGURE 1

Fiscal
year end
6/30/1999
6/30/2000
6/30/2001
6/30/2002
6/30/2003
6/30/2004
6/30/2005
6/30/2006
6/30/2007
6/30/2008
6/30/2009
6/30/2010
6/30/2011
6/30/2012
6/30/2013
6/06/2014

Number of inmates
needing habeas counsel
160
215
220
260
248
263
266
271
279
284
303
315
324
332
341
352

Source: California Supreme Court
Automatic Appeals Monitor and Habeas
Corpus Resource Center

Exhibit 15
Page 642

TABLE/FIGURE 2

Number of Fully Briefed Habeas Corpus Cases
Currently Awaiting Decision
as of 6/6/14
24
21

13

14
11

6
2

2

2

2002

2003

2004

3

2005

7

2
2007

2008

2009

Source: Habeas Corpus Resouce Center

Exhibit 15
Page 643

2010

2011

2012

2013

2014

TABLE/FIGURE 3

Average Suicide Rates 1980-2010
(per 100,000)
California Death Row Suicide Rate
California General Population Suicide Rate
California General Population Male Suicide Rate
United States General Population Suicide Rate
United States General Population Male Suicide Rate
0

50

100

150

200

Souce: California Department of Corrections and Rehabilitation, California Department of
Justice, and Habeas Corpus Resource Center

Exhibit 15
Page 644

250

300

350