Federal Appeals Court Upholds Grant of New Trial for Pennsylvania Death-Row Prisoner Denied Counsel of His Choice

A fed­er­al appeals court has upheld a low­er court’s deci­sion grant­i­ng a new tri­al to a Pennsylvania death-row pris­on­er whose retained lawyer was pre­vent­ed from rep­re­sent­ing him at trial.

In a unan­i­mous deci­sion issued on July 20, 2021, a three-judge pan­el of the U.S. Court of Appeals for the Third Circuit ruled that Samuel Randolph​’s right to rep­re­sen­ta­tion by coun­sel of choice was vio­lat­ed when the tri­al court refused to grant even a three-hour con­tin­u­ance to per­mit his cho­sen lawyer to par­tic­i­pate in the tri­al. The tri­al court’s rul­ing forced Randolph (pic­tured) to go to tri­al with an unpre­pared court-appoint­ed lawyer with whom he had an ​“absolute[,] com­plete break­down of communication.” 

“For those able to secure rep­re­sen­ta­tion in a crim­i­nal case inde­pen­dent of a court appoint­ment, a fair oppor­tu­ni­ty to select and retain one’s choice of coun­sel is not just a boon, it is a right pro­tect­ed by the Sixth Amendment,” cir­cuit judge L. Felipe Restrepo wrote. Granting Randolph’s retained coun­sel a three-hour con­tin­u­ance to accom­mo­date a pre­vi­ous­ly sched­uled court appear­ance before the Pennsylvania Supreme Court in anoth­er mat­ter ​“would not have been unfair to the pros­e­cu­tion, nor would it have strained the state’s inter­est in the ​‘swift and effi­cient admin­is­tra­tion of crim­i­nal jus­tice’ or per­mit­ted Randolph ​‘to unrea­son­ably clog the machin­ery of jus­tice or ham­per and delay the state’s efforts to effec­tive­ly admin­is­ter jus­tice,’” the court said. ​“It was just three hours.”

Randolph, who has long assert­ed his inno­cence, was con­vict­ed and sen­tenced to death in May 2003 on charges that he shot to death two men the year before in a Harrisburg, Pennsylvania bar. According to court fil­ings by the defense, his court-appoint­ed lawyer, Allen Welch, was run­ning for District Attorney in neigh­bor­ing Perry County at the time and failed to meet with or com­mu­ni­cate with Randolph. During the tri­al, with­out advance notice, Welch turned over the defense to Anthony Thomas, a lawyer who had been admit­ted to the bar only two years before and had nev­er tried a homi­cide case. Thomas had been act­ing as an inter­me­di­ary between Welch and Randolph because of their shat­tered rela­tion­ship. Following his con­vic­tion, Randolph waived his right to coun­sel in the penal­ty-phase of tri­al and refused to present argu­ment or evi­dence to spare his life. The jury then sen­tenced him to death.

Chief Judge Christopher Conner of the U.S. District Court for the Middle District of Pennsylvania con­duct­ed a hear­ing in July 2019 on Randolph’s claim that police and pros­e­cu­tors had with­held excul­pa­to­ry evi­dence in the case and had selec­tive­ly refused to con­duct DNA test­ing of evi­dence that could have exclud­ed him as the killer. In May 2020, Judge Conner grant­ed Randolph a new tri­al based upon the vio­la­tion of his right to coun­sel of choice, obvi­at­ing the need to address the oth­er issues. ​“The excul­pa­to­ry evi­dence out­lined in this claim, if admis­si­ble, can be advanced at Randolph’s retri­al,” Conner wrote.

The Denial of Counsel of Choice

On August 30, 2002, a Dauphin County tri­al court appoint­ed Allen Welch to rep­re­sent Randolph in his cap­i­tal mur­der tri­al. In the fol­low­ing five months, Welch, who was run­ning for District Attorney in neigh­bor­ing Perry County, vis­it­ed Randolph just once, prompt­ing Randolph’s fam­i­ly to under­take efforts to sell a bar his moth­er owned so they could raise mon­ey to hire Samuel Stretton as pri­vate coun­sel. Randolph, who assert­ed his inno­cence, told the court in January 2003 that he and Welch fun­da­men­tal­ly dis­agreed about tri­al strat­e­gy and asked about rep­re­sent­ing him­self at tri­al. As a com­pro­mise, the court per­mit­ted Anthony Thomas, who had been attend­ing the pro­ceed­ings at the request of Randolph’s fam­i­ly, to serve as unpaid second counsel.

The next time Randolph appeared in court was in late March 2003, when he learned that Welch had yet to secure the ser­vices of an inves­ti­ga­tor and had filed pre­tri­al motions with­out dis­cussing the issues with him or pro­vid­ing any notice. Welch admit­ted that he had met with Randolph once with Thomas to go over the dis­cov­ery mate­ri­als pro­vid­ed by the pros­e­cu­tion, but said it was use­less to talk with his client about the defense until he had the ser­vices of an inves­ti­ga­tor. Randolph then told the court he would rather rep­re­sent him­self than be rep­re­sent­ed by Welch. 

At an April 3 hear­ing, Randolph told the court that he ​“didn’t want to waive [his] right to coun­sel, but [he] did want to change [his] appoint­ed coun­sel.” The court denied his motion. Given the choice of con­tin­u­ing with Welch or rep­re­sent­ing him­self, Randolph even­tu­al­ly decid­ed against self-rep­re­sen­ta­tion. Welch final­ly got court approval for an inves­ti­ga­tor in on April 4, but nev­er hired anyone. 

One week before tri­al, with Randolph still com­plain­ing about Welch’s fail­ures to com­mu­ni­cate and pre­pare for tri­al, Randolph’s fam­i­ly was final­ly able to secure fund­ing to hire Stretton. Stretton imme­di­ate­ly filed a motion to enter his appear­ance and Welch sup­port­ed Randolph’s effort to change counsel.

Stretton request­ed a one-month con­tin­u­ance, not­ing both the need for time to famil­iar­ize him­self with the case and sched­ul­ing con­flicts he had dur­ing the fol­low­ing week, includ­ing an appear­ance in the Pennsylvania Supreme Court on the morn­ing jury selec­tion was set to begin. The court denied the con­tin­u­ance request. Stretton then request­ed a con­tin­u­ance of ​“a day or two,” which the court also denied. Three days before jury selec­tion was set to begin, Stretton mod­i­fied his request, ask­ing that jury selec­tion be pushed back three hours, until noon, to accom­mo­date his pre­vi­ous­ly-sched­uled appear­ance before the Pennsylvania Supreme Court. Welch tried to per­suade the tri­al court to grant the con­tin­u­ance, telling the judge, ​“I have at this point absolute­ly a com­plete break­down of com­mu­ni­ca­tion with my client.” The court said it would delay jury selec­tion one hour, forc­ing Welch to rep­re­sent Randolph in the trial.

Completely unpre­pared for tri­al, Welch had not spo­ken to Randolph’s poten­tial ali­bi wit­ness­es and, accord­ing to a sworn affi­davit sub­mit­ted by Thomas, had not even spo­ken with him about the tri­al strat­e­gy because of sched­ule con­flicts relat­ing to his cam­paign for dis­trict attor­ney. Two weeks after the tri­al, Welch lost the pri­ma­ry elec­tion and lat­er com­plained to Thomas that he lost because of ​“this damn trial.”

Stretton took over the case on appeal and chal­lenged the court’s denial of coun­sel of choice. The Pennsylvania Supreme Court denied the claim, say­ing that the tri­al court had ​“g[iven] pri­vate coun­sel the oppor­tu­ni­ty to par­tic­i­pate and was will­ing to accom­mo­date his sched­ule and allow him time to pre­pare fol­low­ing jury selec­tion. However, pri­vate coun­sel nev­er showed up at tri­al or during sentencing.”

Judge Conner crit­i­cized the state court for its ​“abbre­vi­at­ed and selec­tive recita­tion of facts” and a deci­sion ​“so lack­ing in jus­ti­fi­ca­tion that there was an error well under­stood and com­pre­hend­ed in exist­ing law beyond any pos­si­bil­i­ty of fairmind­ed dis­agree­ment.” The cir­cuit pan­el agreed, hold­ing that the Pennsylvania Supreme Court’s deci­sion con­sti­tut­ed an unrea­son­able appli­ca­tion of clear­ly estab­lished U.S. Supreme Court prece­dent on the right to be rep­re­sent­ed by coun­sel of choice.