Changes reduce Phila. homicide trial backlog

Posted: July 12, 2013

Increased pay for court-appointed lawyers in death-penalty cases and increased scrutiny of potential capital cases by prosecutors have significantly reduced the backlog of Philadelphia homicide cases awaiting trial.

That's the conclusion of a report filed Wednesday with the Pennsylvania Supreme Court by a Philadelphia judge overseeing changes in the city's homicide trial program.

According to the 11-page update by Common Pleas Court Judge Benjamin Lerner, the number of untried capital cases in Philadelphia dropped from more than 100 in August 2011 to 40 a year later.

That number remained down in the first half of 2013 compared with two years earlier - with 55 untried death-penalty cases, Lerner wrote.

The average time for a homicide case to go from arrest to verdict also fell from 30 months in 2011 and 2012 to 17 months this year, Lerner wrote.

"It is clear beyond reasonable doubt," Lerner wrote, that the reforms implemented in Philadelphia "have resulted in enormous improvements in the fairness and efficiency of capital-trial litigation."

Lerner mostly recommended maintaining advances made rather than making new initiatives.

"The improvements . . . are real and significant," he wrote. "But they are not self-sustaining, and they do not indicate that we can rest on our laurels."

Along with a hike in compensation, the number of pending capital cases has fallen because District Attorney Seth Williams is seeking the death penalty in far fewer cases.

Building for years, the backlog of untried homicide cases reached what Supreme Court Chief Justice Ronald Castille called a "critical point" in 2011.

A boom in murder in Philadelphia in the middle of the decade resulted in a crush of cases - mostly for defendants too poor to hire their own lawyers - at the same time the number of qualified capital defense lawyers willing to take court appointments fell below 30.

One reason for the lack of qualified capital lawyers willing to accept court appointments was what was commonly considered appallingly low compensation. One legal group estimated that the flat-fee set in 1997 had atrophied to the equivalent of $2 an hour.

The compensation issue had consequences beyond the constitutional rights of poor people facing the death penalty.

In 2011, an Inquirer report found that more than 125 capital trials in Pennsylvania - 69 from Philadelphia - were reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

Lawyers quoted in the story cited low pay for court-appointed lawyers as a major factor.

And in December 2011, a federally funded RAND Corp. study of 3,157 Philadelphians charged with murder from 1994 to 2005 showed "an enormous and troubling chasm" in the quality of homicide defense between public defenders and court-appointed counsel. The RAND study also blamed the low pay rate.

A push for change came in April 2011 when the newly founded Atlantic Center for Capital Representation, a Philadelphia nonprofit that consults in death-penalty cases, filed a petition in the state Supreme Court challenging Philadelphia's flat-fee reimbursement.

The petition argued that the pay for court-appointed capital lawyers effectively violated an indigent defendant's constitutional right to "effective assistance of counsel."

Ten months later, Common Pleas Court Judge John W. Herron, administrative judge of the trial division, increased the flat rate paid capital-case trial counsel from $2,000 to $10,000 and the fee for penalty-phase cocounsel from $1,700 to $7,500. Both sides also got $400 a day for any trial lasting more than five days.

Lerner reported that there are now 33 qualified capital-case lawyers on the court-appointment list.

"Without this step," Lerner wrote of the fee increase, "it is doubtful that other efforts at reform could have succeeded."

Not everyone was satisfied with Lerner's report.

Atlantic Center director Marc Bookman, who filed the Supreme Court petition, called Lerner's report "very disappointing." Bookman especially criticized Lerner's support for the flat-fee system instead of the hourly rate common in the legal profession.

Bookman said flat fees are "condemned universally by all ethicists who work in the capital punishment field. While the fees have been increased, they have been raised from an appallingly low level to a very low level."

The other major change Lerner cited for cutting the backlog of death-penalty cases was Williams' decision to seek capital punishment only after extensive analysis and in "the most horrendous cases."

Capital cases are the longest and most expensive criminal cases to try. Williams' office has instituted a program in which defense lawyers can outline their mitigation case - evidence supporting a life sentence over execution - before the case is assigned to a trial judge.

In August 2011, Lerner's report says, there were more than 100 untried death-penalty cases in the Philadelphia courts. As of Wednesday, Lerner wrote, there were 55.

"Significantly, thus far in 2013 the district attorney has removed capital case designation for more defendants (17) than it has approved for capital prosecution (12)," Lerner added.

Last year, Lerner wrote, only three death-penalty cases went to trial, two went to the penalty phase, and only one resulted in a death sentence.

In an interview, Lerner said the homicide trial system could become more efficient but for a lack of homicide prosecutors.

Since December 2009, Lerner said, the number of nonsupervisory homicide prosecutors in the District Attorney's Office has fallen from 23 to 17.

In an interview, First Assistant District Attorney Edward McCann said the homicide unit now includes 18 trial prosecutors and three supervisors.

McCann said the main reason for the decrease in homicide prosecutors was budgetary: "This year and in prior years we have really tried to make a case to get back where we were."

Contact Joseph A. Slobodzian at 215-854-2985,, or @joeslobo on Twitter.

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