Orange and Osecola lack attorneys in capital cases

Defense attorney Roger Weeden’s client Markeith Loyd is slated for trial twice in four months — in September for the deaths of Sade Dixon and her unborn child, and in January for the killing of Orlando Police Lt. Debra Clayton — and his are not the only death-penalty cases Weeden has on his slate.

This month, he has a sentencing hearing for Juan Rosario, whose jury unanimously recommended capital punishment last year. In June, he will represent Darrell Avant, charged with killing his 5-year-old son. Before Loyd’s trials, he and his co-counsel plan to interview 194 witnesses.

Chief Judge Frederick Lauten said Weeden’s busy schedule is part of a larger problem.

Orange and Osceola counties face a shortage of lawyers who can represent indigent defendants in death penalty cases. The list of so-called “conflict” attor-

neys — who take cases in which the Public Defender’s Office has a conflict of interest — is “the smallest it’s ever been,” Lauten said.

State law only allows conflict attorneys to receive up to $25,000 per case, which is “just not enough money,” he said.

“So what has happened is other talented, experienced defense counsel working capital cases have dropped off the list, claiming that, ‘I’m practically going bankrupt to get a capital case and only get $25,000,’ ” Lauten said.

Weeden is one of about 10 attorneys in Orange and Osceola counties qualified to represent defendants facing the death penalty who can’t afford to hire a lawyer. Three work for the Orange-Osceola Public Defender’s Office, and of those, two became qualified this month. The other seven, including Weeden, are private-practice attorneys. Those seven make up the shrinking list Lauten mentioned.

That list had about 17 people on it in 2005, according to Ninth Judicial Circuit records.

“There’s not a lot of names to pick from,” and heavier caseloads mean cases take longer to get to trial, Lauten said.

A congressional study found a link between the amount of money spent on defense attorneys and the likelihood of a death sentence in federal cases: Defendants who fell in the lower third of spending were sentenced to death 44 percent of the time, while defendants in the higher twothirds received death sentences 19 percent of the time.

The American Bar Association discourages paying lawyers with flat fees in death penalty cases, arguing they should be paid a rate that reflects “the extraordinary responsibilities inherent in death penalty representation.”

Attorneys in Orange and Osceola counties can ask Lauten to increase their payments, but he is limited to $75,000 at most for the total case. Death penalty cases can sometimes take years to resolve. Avant has been waiting for trial since 2013.

“It’s probably the most pressured litigation because your client’s life is literally at stake. And so the attorneys want to do a good job, but it takes an enormous investment of time, and time is money for a lawyer,” Lauten said.

Orange-Osceola Public Defender Robert Wesley put it more bluntly.

“You can take 10 DUI cases from 10 rich people and charge them $10,000 each, you have $100,000 a year,” Wesley said, “Or you can take one capital case as a private lawyer that’s gonna take you three years to prepare and get you maybe $50,000.”

To qualify as a lead attorney in a Florida capital case, attorneys must serve as cocounsel in at least two other death penalty cases that were tried to a jury verdict and show that they are experienced in using expert witnesses, among other things.

The money available “doesn’t allow you to cover your overhead, let alone make a living and write yourself a paycheck,” defense attorney Patricia Cashman said.

Cashman worked death penalty cases for about 13 years with the public defender’s office, then took between eight and 10 cases as a private attorney before changes to the state’s rules for paying and reimbursing attorneys, along with other changes, made it financially unfeasible for her as a smallbusiness owner, she said.

Death penalty cases bring sometimes thousands of pages of police reports, crime scene photos, interrogation transcripts and autopsy findings, but attorneys also have to gather what are called mitigating circumstances: details about a defendant’s life that could convince a jury to opt against the death penalty.

“You go all the way back to when the client’s mother became pregnant, and you start with prenatal care,” Cashman said. “Was mom ever beaten during the pregnancy? You want to get birth records to see if there was oxygen deprivation or problems with the actual birth. You want medical records and school records and DCF [Department of Children and Families] records.”

Finding records, family members and loved ones can be more complex for defendants who grew up far from Orlando, Cashman said. Wesley pointed to a case his office finished trying this month, in which assistant public defenders had to travel to rural Haiti to record family members’ testimonies.

“You’re looking to put together history from when your client was in utero to the day that you go to trial,” Cashman said.