PA high court ends litigation over lawyers' pay in death penalty cases

Posted: March 26, 2014

A divided Pennsylvania Supreme Court has dismissed litigation to reform the way Philadelphia reimburses lawyers appointed to defend indigent clients facing the death penalty.

The four-justice majority filed an unsigned per curiam order Friday that did not explain why the jurists, including Chief Justice Ronald D. Castille, decided to end the case.

The majority thanked Philadelphia Common Pleas Court Judge Benjamin Lerner for his "exemplary efforts and analysis." Castille named Lerner in 2011 to study allegations that Philadelphia's pay scale for lawyers appointed to capital cases was so low it violated their clients' constitutional right to effective counsel.

In July, Lerner reported a marked decrease in the backlog of untried homicide cases. Lerner attributed the decrease to greater analysis by the District Attorney's Office before deciding to seek the death penalty and a February 2012 increase in the flat-rate pay for appointed death-penalty lawyers.

The increase moved the flat rate paid to capital-case trial counsel from $2,000 to $10,000 and the fee for cocounsel in the penalty phase from $1,700 to $7,500. Lawyers also receive $400 a day for any trial longer than five days.

Before the increase, one group found, the original 1997 flat rate had been reduced to the equivalent of $2 an hour for defending someone's life.

Three of the seven justices dissented. Justice Thomas G. Saylor wrote that the majority was wasting "an essential opportunity . . . to address a systemic challenge amidst much evidence that Pennsylvania's capital punishment regime is in disrepair."

Saylor, whose dissent was joined by Justices Debra McCloskey Todd and Seamus P. McCaffery, said he has been "dismayed by the deficient performance of defense counsel in numerous Pennsylvania death-penalty cases."

"Pennsylvania has long been on notice that leaders of national, state, and local bar associations do not believe that capital litigation is being conducted fairly and evenhandedly in the Commonwealth, not the least because of the ad hoc fashion by which indigent defense services are funded from the local government level," Saylor wrote.

McCaffery wrote a separate dissent, joined by Todd, in which he cited Lerner's preference for an hourly rate rather than the flat-fee system.

McCaffery wrote that reforms have improved the system for providing legal services to indigent capital defendants but added, "the work is certainly not done. Thus, I disagree with the majority's determination that the oversight of this Court is no longer required."

Marc Bookman, director of the Philadelphia-based Atlantic Center for Capital Representation, which filed the petition the Supreme Court dismissed, said the justices "had a huge opportunity to make needed changes in the way death penalty cases are handled, and it swung and missed."

Bookman cited the three dissenting justices as "clear evidence that we are not yet meeting national standards for our most serious criminal cases, not only in Philadelphia but across the state."

Bookman and David Rudovsky, a Philadelphia civil-rights lawyer who joined the petition as cocounsel, said the Supreme Court's decision ends the current litigation.

Rudovsky said indigent people sentenced to death will continue appealing based on the argument that the money paid to their court-appointed lawyers was too low to ensure an effective defense.

"Why wait for the tail end to deal with this problem?" Rudovsky asked. "Why not deal with it up front?"


jslobodzian@phillynews.com

215-854-2985 @joeslobo

www.inquirer.com/crimeandpunishment

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