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Call to train defense lawyers in death penalty cases draws confusion, praise

WASHINGTON—Criminal defense advocates said Thursday they were puzzled by President Bush's call Wednesday night for funding to train defense lawyers in death penalty cases because a law to provide such training already exists.

In his State of the Union address Wednesday night, Bush said he would soon "send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side."

The call was a rare moment when Democratic lawmakers applauded Bush's speech and seemed to reverse longtime Republican hostility toward legal services for indigent defendants.

On Thursday, a senior administration official briefing reporters under a condition of anonymity, said the proposal would provide $50 million over three years to "train private defense counsel and public defenders, but also to work with state and local prosecutors as well."

But death penalty activists and defense lawyers said the Justice for All Act, which Bush signed last year, addresses the same issue and calls for $375 million to be spent over five years to train defense lawyers and prosecutors. So far, that portion of the law has remained unfunded.

The administration official said Bush's proposal wasn't in response to that act and said the money would be "more targeted."

"It kind of doesn't make sense," said John Terzano, director of the Justice Project, a nonprofit group working for death penalty reform in Washington. "The president signed Justice for All into law, why not just use that? It had extraordinary bipartisan support."

George Kendall, a lawyer with Holland & Knight in New York who's handled dozens of capital trials, worried about splitting the money between the defense and prosecution sides.

"It's not a way of leveling the playing field between the prosecution and the defense. Prosecutors already get a lot of federal money to help them with training, and there's a whole federal training program for them in South Carolina," Kendall said. "The need is on the defense side, and while this begins to address that, it doesn't go that far."

Terzano worried that the president's proposal might be a way to avoid the requirements of the Justice for All act.

"The law sets up criteria for states to get that money, such as setting up adequate funding to pay defense lawyers in capital trials," Terzano said. "These were things that Congress thought were very important. Will they be part of whatever he's proposing?"

Bush did call for funding for another portion of the Justice for All Act—$236 million to expand DNA testing for death row inmates.

The law, originally titled the Innocence Protection Act, gained momentum behind the stream of cases in which DNA evidence exonerated many inmates and the decision by former Illinois Gov. George Ryan to commute all of that state's death sentences and suspend executions indefinitely.

But the issue of untrained lawyers handling capital cases has typically taken a back seat in the political arena to claims of actual innocence. Some advocates said they hoped Bush's promise to include $50 million for lawyer training in his upcoming budget would move lawyer training to the fore.

One Houston defense lawyer said the president's call for more lawyer training and expanded DNA testing was tacit acknowledgement that unfair trials may have resulted in innocent people being sentenced to death.

"I think it's a crack in the armor of some proponents of the death penalty to have the president suggesting that we may be putting people on death row when they're innocent, and we should use public money and science to help them," said Edward Mallett, who handles capital cases on appeal

"Now that the president's advisers have allowed him to acknowledge that there may be a problem, we can go about fixing it."

But Mallett said he was uncertain the president's words would turn into action.

"Was he just throwing us a bone? Will Congress actually approve the money? Who knows?" he said.

Paul Brathwaite, a staff spokesman for the Congressional Black Caucus, called the $50 million a nice gesture, but said the relatively small amount of money won't mean much if Bush doesn't address issues such as inmate rehabilitation and the appointment of impartial judges. Brathwaite said the CBC raised those issues in its recent meeting with Bush.

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(c) 2005, Knight Ridder/Tribune Information Services.

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