By Claire Cooper -- Sacramento Bee Legal Affairs Writer

Spurred by a national unease over kinks in the death-penalty process and a string of sentence reversals in the federal courts, California judicial policy-makers for the first time have set qualifications for defense lawyers in capital trials.

In what's seen as a first but limited step, the standards will outline what litigation experience and extra training lawyers should have if they are to represent defendants in death penalty cases.

The crackdown comes amid mounting evidence that more than a few innocent people have been sent to the nation's death rows, a fact that has prompted two states, Illinois and Maryland, to declare temporary moratoriums on executions.

Those who want to save capital punishment have focused on a key problem: Just about everywhere incompetent or unprofessional lawyers are being assigned to indigent death-penalty defendants -- the Texas lawyer who repeatedly snoozed in front of the jury, the California lawyer who interviewed his client for the first time on the morning of the trial. Behind these headline stories may lie a broad pattern of injustice.

"I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial," U.S. Supreme Court Justice Ruth Bader Ginsburg said in a speech last year.

Later she stated the point more bluntly: "People who are well represented at trial do not get the death penalty."

On another occasion Justice Sandra Day O'Connor cited Texas statistics showing that death penalty defendants with court-appointed lawyers were 28 percent more likely to be convicted and, once convicted, 44 percent more likely to be sentenced to die.

"Perhaps it's time," said O'Connor, "to look at minimum standards for appointed counsel in death cases."

That's now happening.

In California, a court rule setting standards for defense lawyers goes into effect Jan. 1. It was adopted by the California Judicial Council, the policy-making arm of the state court system. It was crafted by the council's standing committee on criminal courts, which includes judges, prosecutors and defense attorneys.

The new rule requires trial judges to assign potential death cases to lawyers with at least 10 years' litigation experience, including murder and other major felony cases. The lawyers also must have extensive recent classroom training in death penalty defense.

Even then, no lawyer would automatically qualify: Case by case, a judge must determine whether a lawyer "has demonstrated the skill, knowledge and proficiency to diligently and competently represent the defendant."

The right of a criminal defendant to effective counsel is enshrined in the U.S. Constitution. Denial of that right has been the reason for most reversals of California death sentences in recent years.

The problem seems particularly serious here. The 9^th U.S. Circuit Court of Appeals, the highest federal court in the West, has been reversing a greater percentage of death sentences from California than from nearby states, said Dane Gillette, coordinator of capital cases in the state attorney general's office.

About a year ago the appeals court sent back a half-dozen California death penalty cases in quick succession, including the double-murder case in San Bernardino of Demetrie Mayfield, whose court-appointed lawyer claimed to have spent 200 hours on the case but billed for only 40.

The 9th Circuit, which has a reputation for liberalism, gets slapped down by the U.S. Supreme Court now and then, as it was when the high court restored John Visciotti's Orange County death sentence in November.

Visciotti's trial lawyer sometimes failed to show up for court.

But the Supreme Court's standards for measuring lawyer competence in death penalty cases are in flux. The justices recently announced they'll review a Maryland case next year that could become the vehicle for a landmark ruling -- the case of a brutalized, borderline-retarded man whose public defender did not ask the sentencing jury to show mercy.

Whatever the high court does, though, most 9th Circuit decisions aren't reviewed by the Supreme Court, and some that are reviewed are upheld. That means the circuit usually will continue to have the last word.

State policy-makers have been listening.

"We don't want federal courts overturning our state court judgments," said Sacramento Superior Court Judge David F. De Alba, a member of the committee that drafted the new rule.

Court officials aren't expecting the rule to eliminate every problem.

For one thing, it will be mandatory only for lawyers appointed by the trial judge and paid from county coffers. For public defenders, the other large group that represents defendants in death penalty cases, it will be merely advisory because judges don't assign the public defender's cases.

For people like Roger Agajanian, the lawyer retained to represent Visciotti by the defendant's father, the rule won't apply at all. The Constitution protects the right to hire the lawyer of one's choice -- for the rare death penalty defendant who can afford it.

Critics say the rule has other shortcomings: It permits a judge to appoint a lawyer who doesn't meet every standard if, after reviewing 10 criteria, the judge determines that the attorney can handle the job.

The judge must justify the decision on the record.

Backers say even with that loophole, the rule will be better than nothing in counties with few experienced death penalty lawyers.

"It's a thinking process for the appointing judges to go through that evaluation," said Alameda Superior Court Judge Richard Iglehart, a drafting committee member.

The rule also leaves the selection of a defense lawyer to the judge, who may be inexperienced in death penalty cases or prey to local pressures. The committee said it may consider creating a statewide certification board for death penalty lawyers in the future.

In the meantime, said state Chief Justice Ronald George, objective standards will help, particularly in communities where the same inadequate defense lawyer may have been handling death penalty cases for years. The trial judge will have a basis for saying, "Now I can turn him down," George said.

Many lawyers and court officials welcomed the rule. "It seems very good to me to have some minimum standards," said Marc Ament, a federal public defender in Fresno. "It may be an argument should be made they should be even higher."

Ament should know.

As a Fresno County public defender two decades ago, he represented Fernando Caro. Last February, the 9^th Circuit threw out Caro's death sentence on grounds that the jury wasn't informed of the effects of pesticide poisoning on his brain. Ament said he would not have met the new standards if they'd been in place then because he hadn't been practicing law long enough.

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The (Judicial Council's) action is not motivated by altruistic due process considerations but by a desire to speed the pace of the court review process and thereby speed the pace of executions.

In 1996 President Clinton signed a sweeping piece of death penaly reform legislation which the death penalty post-conviction bar calls the AEDPA. That stands for the Anti-Terrorism and Effective Death Penalty Act.

The AEDPA tightened the time line for the filing and federal court review of federal habeas corpus petitions. It provides that such petitions, which raise numerous constitutional challenges to the state court trial process and defense counsel's preparation for that trial--must be filed within one year of the time when the state appellate courts complete their review.

The act further provided that the federal review process could go even faster than that for states which decided to "opt-in" to this alternate system by satisfying certain prerequisites. One of these prerequisites is that the state statute or rule "must provide standards of competency for the appointment of counsel". So by adopting the standards which are discussed in the article, the Court is attempting to achieve opt-in status for California death cases and accelerate their determination.

The problem, of course, is that death penalty cases are gargantuan in size and complexity and a new set of lawyers with federal court experience take over the case when it reaches the federal courts. A six-month filing period is an invitation to legal disaster. Moreover, it probably won't have a significant effect in unjamming the system. I haven't checked recently, but my best recollection is that about one quarter to one-third of the prisoners on California's death row are unrepresentated and that it takes several years for these persons to have counsel appointed to begin their state appeals.

Another major AEDPA reform--unrelated to the lawyer training issue--was in the area of constitutional interpretation. The statute requires federal courts considering death row habeas corpus petitions to give more deference to the judgments of state court interpretations of the federal constitution. Before its enactment federal courts applied their own federal interpretation of whether a federal constitutional right applicable and violated, but now the law is that if a state court's interpretation of the constitutional issue is reasonable, the federal court must yield to it even if its own interpretation would be otherwise.

Click here for more information on the MGO Criminal Justice Committee and the Death Penalty Moratorium Campaign