Petition critical of low pay for court-appointed death-penalty lawyers

Posted: April 07, 2011

The amount of public funding paid to Philadelphia court-appointed criminal-defense lawyers is so low that it violates the constitutional rights of indigent people facing the death penalty.

So argues a petition filed Wednesday by a group of Philadelphia court-appointed death-penalty lawyers who told a city judge that the commonwealth should pay them adequately or stop seeking capital punishment.

"It amounts to a presumption of ineffectiveness," lawyer Marc Bookman told Common Pleas Court Judge Benjamin Lerner, citing the U.S. Constitution's Sixth Amendment provision guaranteeing a criminal defendant the right to legal counsel.

Bookman, a former city public defender who specialized in death-penalty cases, last year opened a nonprofit consulting group, Atlantic Center for Capital Representation.

He filed the petition with Lerner - who handles pretrial motions for all city murder cases - with the consent of four court-appointed lawyers whose death-penalty cases were before Lerner on Wednesday, including that of Antonio Rodriguez, the alleged Kensington strangler.

According to documents Bookman filed with the motion, Philadelphia "pays its court-appointed attorneys less to prepare a capital case than any remotely comparable jurisdiction in the country."

Research filed with the petition indicates that Philadelphia death-penalty defense lawyers get a flat fee of $1,333 to prepare a murder case if it is resolved before trial and $2,000 if the case goes to trial, with a flat $1,700 prep fee for a second lawyer who acts as "mitigation counsel."

If the case goes to trial, after the first day the lawyer gets $200 per trial day under three hours and $400 per day for any time over three hours.

Michael Medway, a defense lawyer who joined the petition, cited a case that took hundreds of hours of preparation time, persuaded the prosecutor to drop the death penalty, and ended three years later in an acquittal after a five-day trial.

Medway's bill to the court: $4,200.

Legal experts say experienced, privately hired Philadelphia criminal lawyers charge $35,000 to $50,000 to handle a capital case.

The gap between the fee schedule and reality has led some Philadelphia criminal-defense lawyers to refuse to accept capital-case appointments.

"I do this as my vocation," added Michael Farrell, a death-penalty defense lawyer who lent his name and support to the Bookman petition. "But they're asking you to get paid $10 an hour."

Even within Pennsylvania, the petition continues, the flat-fee system in Philadelphia makes it the lowest-paying county for capital cases.

The petition cites hourly rates of $50 in Allegheny County, which includes Pittsburgh; $60 in Greene County; $125 in Lycoming County; and $75 in neighboring Montgomery County.

In the Eastern District of Pennsylvania, the federal courts for the nine counties of Southeastern Pennsylvania, court-appointed lawyers in death-penalty cases get $178 an hour and other criminal-case appointments $125 an hour.

Bookman's petition cited a 1994 U.S. Supreme Court decision critical of fees paid to court-appointed capital lawyers in Louisiana, Kentucky, and Alabama.

"Each of the states named . . . 17 years ago now compensates its capital-trial lawyers far more than Philadelphia," the petition reads.

At the same time, the motion maintains, the city District Attorney's Office seeks the death penalty more than any jurisdiction in the country and has the highest reversal rate for death-penalty cases challenged because the defense attorney was ineffective.

"Ineffectiveness of counsel," based on the Sixth Amendment, is commonly argued on appeal by people convicted of first-degree murder and sentenced by the jury to death by injection.

The petition concludes: "These facts are inextricably linked and result in the following scenario: The commonwealth routinely and casually seeks the death penalty, pays virtually nothing for the representation of the accused, then suffers the consequences through reversal after reversal."

Officials from the District Attorney's Office who administer the homicide division were not in the courtroom when the motion was filed.

"We are reviewing the petition and determining what course of action to take," said Tasha Jamerson, spokeswoman for District Attorney Seth Williams.

Lerner, a veteran homicide judge, who also once led the city's public defenders office, seemed taken aback by the filing.

Lerner said he did not know if he, as homicide motions judge, had the authority to consider the petition, or whether it must be assigned to another judge, or even a panel of judges.

He also said he wanted to make clear that the petition's filing would not become a reason to delay capital cases already on the way to trial.

Lerner set a hearing for April 27 for any parties affected by the petition to respond and argue about how to proceed.

Although the petition cites "the commonwealth" as the entity responsible for funding court-appointed criminal-defense lawyers, reality is more complex.

The Philadelphia court system - formally the First Judicial District of Pennsylvania - sets the fees paid to court-appointed defense lawyers, but gets its budget through the city and state, which are in the midst of budget crises.

The decision about whether to seek the death-penalty rests with the county District Attorney's Office.

And, Lerner noted, the state attorney general could also have an interest in the litigation.

"I really don't want to play Whac-a-Mole, Your Honor," said Bookman after Lerner reviewed the fragmented court structure.

Spokespeople for Gov. Corbett and acting Attorney General William H. Ryan Jr. had no immediate comment on the petition.

Judge Pamela Pryor Dembe, president of the Philadelphia Common Pleas Court, said she could pay court-appointed counsel only what the city had provided.

Recently, she said, city funding was not enough to cover court appointments under the current fee schedule.

Nevertheless, Dembe said, a lawyer elects to obtain advanced certified training to handle death-penalty cases; not every lawyer does so.

"I'm sympathetic to the contention of counsel that rates should be higher, but there is a sufficient pool of adequately trained lawyers in the mix," Dembe said.

The fee schedule for court-appointed criminal-defense lawyers has long been a source of complaint from lawyers, and death-penalty cases are especially demanding.

Death-penalty cases in Philadelphia typically require two defense lawyers: one who handles the trial and the other the penalty phase, if the jury finds the person guilty of first-degree murder and must then decide whether to sentence to death or life in prison without parole.

The penalty phase requires background investigations of a defendant's family life to develop "mitigating evidence" favoring life in prison.

Moreover, a Philadelphia death-penalty trial can take more than a year to get to trial and last one to two months from jury selection to sentencing.


Contact staff writer Joseph A. Slobodzian at 215-854-2985

or jslobodzian@phillynews.com.

 

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