Sen. Ernie Chambers used a hearing Friday on adopting American Bar Association standards for defense attorneys in death penalty cases to blast the Nebraska Supreme Court.
Chambers criticized the court for what he called a dishonorable decision in the death penalty case of Carey Dean Moore.
The court would not allow defense attorney Jeff Pickens, of the Nebraska Commission on Public Advocacy, to withdraw from Moore's case when Moore would not allow him to do what ethically should be done in representing a defendant, Chambers said.
"The court wanted to mandate representation to give the appearance of regularity in this execution that was being done hastily, indecently and out of order, in my opinion," Chambers said.
"The court engineered a train wreck and then withdrew itself from the damage that would result, but made the lawyer stay there," he said.
Several motions that could have been filed would have kept Moore alive, he said. The death drugs would have expired and there would have been no execution.
Chambers said that to allow the execution to be carried out under those circumstances was inexcusable, and there was no way to call them to account.
Lincoln Sen. Adam Morfeld introduced the interim study (LR406) to adopt the guidelines for death penalty defense attorneys.
If Nebraska is going to do executions, it is imperative that defense attorneys in capital cases meet what are considered the appropriate standards for their appointment and performance, as recommended by the American Bar Association, Morfeld said.
"Nebraska may be alone in having an active death penalty without statutory or regulatory standards," Morfeld said.
Nebraska carried out its first execution in 21 years last month when it killed Moore by lethal injection.
The state has a Commission on Public Advocacy that defends capital cases, created in 1995 to relieve counties from the financial burden of having to provide representation to defendants being tried in capital murder cases.
It developed its own standards in 2002 that were revised at least as late as 11 years ago, Pickens said. The standards cover qualifications for attorneys in capital cases, compensation, caseloads and workloads, training and professional development. He doesn't know if people are aware of them or that they have been used.
Pickens said funding from court filings is going down for the commission and it is now drawing down excess funding needed from a cash fund. In 2008-09, the commission had $350,000 more in revenue than this fiscal year.
"If this trend continues ... it's just a matter of time until we will be financially compromised," he said.
Emily Olson-Gault, director and chief counsel for the American Bar Association Death Penalty Representation Project, said the Bar Association guidelines are a baseline for what is necessary to help ensure fairness and accuracy in capital cases.
The project points out the need for qualifications, training, how a team should be structured, funding and workload. It also points out what quality representation looks like, including a four- or five-member team with at least one attorney to act as a fact investigator and one as a mitigation specialist.
For mitigation, biological, social and psychological history of the defendant should be investigated, as well as family history, she said.
The guidelines also point out the importance of fully funding the defense effort. And it's not cheap, Olson-Gault said.
"That's the tradeoff that you make for having the death penalty, is that you also have to have the ... defense team to ensure competent representation," she said. "If you don't, that's how we see cases going through the system over and over and over again because it's not done right the first time."
Judiciary Committee Chairwoman Laura Ebke asked what Olson-Gault would say to people who think having these attorneys and post-conviction appeals are a waste of taxpayer dollars.
Olson-Gault said about 150 people have been exonerated from death rows across the country, almost exclusively from post-conviction appeals. Sometimes important evidence comes to light only after multiple rounds and years and decades of proceedings.
Some of these are cases in which the person looked to be unquestionably and undeniably guilty in the beginning, she said.
"If judges and juries don't have the information, they can't make the right decision," she said.
But Sen. Steve Halloran of Hastings said there is no lawyer between the murderer and the about-to-be victim to appeal or seek clemency at the time of the murder.
His concern is spending an inordinate amount of time and effort to protect someone who admits murder.
"No one wants anyone who's innocent to be convicted and sentenced to death, but every day people are murdered without intervention from lawyers."
Lincoln Sen. Patty Pansing Brooks reminded the committee of the Beatrice 6, who were falsely convicted of murder, five who had admitted to it under threats of the death penalty and were kept in jail a couple of decades. There are mistakes made. It is not a perfect system, she said.
Pansing Brooks said she resents statements that the state should pay for the prosecutorial side of these cases and not the defense side. If there's not enough money to pay for an entire court system, then close the courts, because there is no justice there, she said.
"Should there be standards? Absolutely," she said. "Should we be using the best practices possible? Yes. Should we have the lawyers who are the most prepared? Yes."