Monday, March 27, 2006 | 7:21 a.m.
Slipped into the thick binding of the newly authorized Patriot Act is a provision designed to speed death penalty appeals.
The act, signed into law this month, allows states to ask the U.S. attorney general for so-called fast-track reviews of federal habeas corpus petitions - the last appeal of a death row inmate.
Previously federal judges made that determination, which is based on whether a state's court-appointed attorneys in death penalty appeals are able to handle them.
No state had qualified for the fast-track review, but that could change under the new law. A fast-track review limits the amount of time a prisoner has to appeal and the subject matter of the appeal.
"This is very troubling," said Allen Lichtenstein, local attorney for the American Civil Liberties Union. "It's an attempt by certain elements of government to eviscerate the very checks and balances that are in place to guard us against the abuses of government.
"Essentially it's an attack against the Bill of Rights."
Conservative groups, long critical of the length of time it takes for appeals to wind through the system, have championed fast-track appeals.
"If the provision holds up, it should fix the problem," said Kent Scheidegger, legal director of the nonprofit California-based Criminal Justice Legal Foundation, a public interest law firm dedicated to crime victims' rights.
Scheidegger said it's not unheard of for a death penalty case to take a decade to get through the 9th U.S. Circuit Court of Appeals, based in San Francisco.
He figures fast-track reviews would cut that down to three to four years.
But critics say death penalty cases are complex and can't be rushed through the system.
"Proper review is not particularly burdensome, so there is no real need for this," Lichtenstein said. "It's like they're saying we don't need judges, we don't want any review at all."
Michael Pescetta, the federal public defender for Nevada, said the new system is "unconstitutional because it takes a judicial determination and turns it over to the attorney general."
"They want to hurry up things at the expense of justice," he said.
Pescetta, whose office handles federal death penalty appeals, said he thinks the new law will be held up by "an enormous amount of litigation."
Conrad Hafen, chief of the Nevada attorney general's criminal division, wouldn't speculate on the impact of the new system but indicated that the state will likely apply to be placed on the fast-track list.
He noted that the law allows an appeal of the U.S. attorney general's decisions to the appellate court in Washington.
"The D.C. court certainly hasn't been a pro-prosecution court over the years and they have been more than favorable to defendants and petitioners," he said.
The appellate court's decision could be appealed to the Supreme Court.
Pescetta, though, said the law takes the appeal out of the hands of the judges in the 9th Circuit, "who see Nevada cases on a regular basis and already recognize the errors occurring here are really terrible."
The key in a fast-track authorization is whether a state's requirements for a court-appointed attorney are stringent enough. The law looks not only at the lawyer's experience but also at the resources the attorney is given to conduct an appeal.
Pescetta scoffed at Nevada's requirements, saying, "All someone really needs is a bar card to be allowed to handle these cases.
"To the extent the courts are going to examine the capital post-conviction system in Nevada, they are going to find it just doesn't qualify to meet the statute," he said.
Pescetta said Nevada's guidelines have created a situation in which court appointed defense attorneys "fail to hire an investigator to look beyond the record of a case and don't even ask for discovery."
He said by the time his office receives a case - after a prisoner's state appeal has been exhausted - many issues that should have been raised to the Nevada Supreme Court haven't been.
If Nevada's system is approved, "our bad situation is only destined to become worse," Pescetta said.
There are 82 death row inmates in Nevada.
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