September 2000

Board's Work - August 2000

by Judith Berrett

Following its annual retreat, the Board of Governors met in Port Angeles on August 4. The Board’s discussion and action on the death penalty moratorium issue attracted the attention of members, interested groups and the media.

After months of planning, Celebration 2000 is nearly here. President Richard Eymann reported that hundreds of high school students will be present for the mock jury trial, which promises to be an outstanding learning experience.

After thoughtful consideration, the Committee for Diversity has recommended that a minority position be added to the Board of Governors. This issue will be voted upon by the Board at its September meeting in Spokane. Governor Jim Deno will draft a resolution for circulation before the meeting.

The Amicus Brief Committee, represented by Chair Bertha Fitzer, requested that the Board review their position in an amicus in the Bishop v. Jefferson Title case, which involves interpretation of APR 12. The Board was asked whether they supported the approach taken in the brief, whether they agreed that an amicus brief was the best approach to deal with the question, and whether they thought it appropriate to propose a possible solution to the problem posed in the case. A motion to answer all questions in the affirmative was unanimously passed. Governor Steve Osborne commended the committee for their work and called committee members "unsung heroes."

The Board adopted the 2000-2001 Operational Plan as proposed by the Long-Range Strategic Planning Committee, and approved the 2000-2001 budget.

Stating that "nothing strains, dramatizes or heightens attention more than the death penalty," and characterizing those who try death penalty cases as his heroes, President-elect Jan Eric Peterson helped bring to a close the Board’s solemn and intense discussion of and action on this very important issue.

The issue was not the death penalty per se, but rather whether the Board of Governors should recommend to Governor Locke that he declare a moratorium on the death penalty pending review of process, procedures and safeguards. The WSBA Civil Rights Committee had recommended that the WSBA call on Governor Locke to declare a moratorium.

Pamela Loginsky and Jim Kaufman, representing the Washington Association of Prosecuting Attorneys, and Todd Maybrown and Kristina Selset, of the Washington Association of Criminal Defense Lawyers, presented the points of view of these two groups. Ms. Loginsky focused on the protections and safeguards already in place, and argued that a moratorium should require a strong showing of necessity. Mr. Maybrown emphasized problems with defense qualifications, compensation limits and hour caps, and unequal treatment from county to county.

Spirited and serious discussion followed each presentation, as Board members grappled with this issue. Some governors questioned whether this was a proper topic for the Board to deal with. Jan Eric Peterson made the point that it is directly related to the Bar’s mission: "to promote justice and serve [our] members and the public," as well as one of the Bar’s purposes: "[to] promote an effective legal system, accessible to all." He observed that the death penalty has had a profound impact on the administration of justice.

Commented Governor Lindsay Thompson, "We have an obligation to constantly try to improve the system…. You don’t have to be for or against the death penalty to be in favor of improving it." Governor Dick Manning said that "at issue is whether there is due process in capital cases as they are prosecuted today."

Governor Daryl Graves suggested that the Board consider option two of the Civil Rights Committee’s report – to recommend that Governor Locke require a comprehensive report on Washington’s compliance with the four policies and procedures outlined in the ABA Policy of February 3, 1997 (those four policies are: 1) competency of counsel, 2) preservation of the courts’ independent judgment, 3) elimination of discrimination, and 4) prevention of the execution of mentally retarded persons and those under age 18 at the time of the offense).

A break was requested, during which Governor Jenny Durkan drafted a resolution. The resolution (text below) was passed unanimously.

Unanimously adopted by the Washington State Bar Association Board of Governors on August 4, 2000

The WSBA recommends that Governor Locke require a comprehensive report be provided to him that addresses the concerns raised by the ABA Policy of February 3, 1997 regarding the imposition of the death penalty as those concerns may apply to the imposition of the death penalty in Washington state. The Report should also address for our state:

1. The adequacy of funding for defense counsel in capital cases;

2. The qualifications, if any, that should be required of defense counsel in capital cases;

3. Whether the reversal rate of capital cases from our state by the federal courts indicates any systemic problems regarding how the death penalty is being implemented in Washington state;

4. Whether or not there are consistent standards being used statewide in determining whether to seek the death penalty, and if not what standards, if any, are appropriate; and

5. Determining what impact implementation of the death penalty has on local county budgets statewide, and whether procedures and/or mechanisms need to be in place to mitigate against these impacts.

This report should be completed in time to propose appropriate remedial legislation, if any, in the 2001 legislative session.

The WSBA stands ready to assist the Governor in identifying appropriate individuals to help prepare the report.

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