- The Washington Times - Tuesday, December 10, 2002

The Supreme Court yesterday refused to consider lawyers' claims that the federal government must pay them for continued representation of state death row inmates as they appeal for a governor's clemency.
Without comment the justices followed Solicitor General Theodore Olson's advice to reject a petition seeking payment for Texas lawyers who represented three executed killers. The court requested Mr. Olson's opinion.
Mr. Olson said accepting lawyers' claims that state clemency hearings or state trials were included in a 1998 law that funds defense attorneys for state prisoners "in every criminal action punishable by death" would pose "a significant risk of federal intrusion into and interference with the state judicial process."
University of California law professor Charles Weisselberg said Congress intended to assure condemned prisoners had attorneys until the end, and those appointed to such cases in Texas often work alone for little money.
"Congress made clear that people sentenced to death should not be abandoned by their lawyer as an execution date nears," Mr. Weisselberg of Boalt Hall Death Penalty Clinic said in a brief for the Texas lawyers. "Clemency is a critical part of our criminal justice system, and is particularly vital when the state seeks to take a human life."
Attorneys Philip Alan Wishkaemper and Gary A. Taylor were appointed to represent Odell Barnes Jr. for a federal habeas corpus appeal they carried all the way to the U.S. Supreme Court.
After that process, the lawyers started new appeals and sought clemency from then-Gov. George W. Bush for Barnes. Payments of more than $17,600 were approved. When partial repayment was demanded, the lawyers began the case that led to yesterday's decision.
"One lawyer said he had to take out a loan to pay it back. These are not extraordinarily rich people," Mr. Weisselberg said in an interview.
He said salaried federal defenders often do the identical work for which appointed defenders are denied payment. "Many private lawyers also typically just go ahead and do the work anyway even though they know they won't get paid," he said.
Barnes, 31, was executed March 1, 2000, for shooting Helen Bass of Wichita Falls, Texas, during a 1989 burglary with her own pistol, newly purchased for self-defense. Protests to his execution generated an international outpouring, including a plea to spare his life by French President Jacques Chirac.
The legal work also involved Juan Soria, executed in 2000 for kidnapping and stabbing to death a 17-year-old swimmer, and Jack W. Clark, who died last year, for abducting, raping, and fatally stabbing a 23-year-old woman.
In presenting the Bush administration views invited by the court, Mr. Olson ridiculed the argument that Congress intended to fund such work in state courts or pleas for clemency, and said the law applied only to federal proceedings.
"Petitioners' broad reading [of the defender law] would mean that Congress, with no discussion, has for the first time ever authorized the federal courts to appoint and the federal government to fund counsel to pursue state remedies in state clemency proceedings," Mr. Olson told the court.
In other actions yesterday the justices:
Refused to enter Dr. Richard Borgner's free-speech challenge to advertising disclaimers that Florida requires of dentists advertising their specialty.
Justices Clarence Thomas and Ruth Bader Ginsburg joined in dissenting from the refusal, saying the court should clarify state regulation of advertising by lawyers and doctors. In this case, Dr. Borgner was required to say the academy that certified his training in implant dentistry was not a "bona fide" organization according to the Florida Dental Board.
Refused to consider Republican Senate candidate Douglas Forrester's challenge of New Jersey's decision to allow the replacement of Sen. Robert G. Torricelli on the November ballot with former Sen. Frank R. Lautenberg, who ultimately won the election. Mr. Forrester claimed the federal Constitution was violated when Mr. Torricelli dropped out of the race after polls showed him losing ground to Mr. Forrester, who made Mr. Torricelli's ethics problems the focus of his campaign.

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