Systemic Flaws in Capital Representation Cited for Recent Pennsylvania Death Sentence

Following the recent handing down of a death sentence in Philadelphia, the Executive Director of the Atlantic Center for Capital Representation blamed the outcome on an inadequate indigent-defense system. Marc Bookman (pictured), writing in the Philadelphia Inquirer, reviewed the case and found, “There isn’t a single motion filed by the attorneys in defense of their client. Nor is there a request for a jury questionnaire, which is standard in most jurisdictions that regularly handle capital cases, or for a mitigation specialist to prepare a case against the death penalty. Indeed, the only motion in the record was handwritten by the defendant. Prison logs indicate that his lawyers visited him a total of three times.” Bookman said that such ineffective representation is the norm in Philadelphia capital cases because of “grossly inadequate” pay for court-appointed lawyers. “In other words,” he wrote, “if we’re asking attorneys to work for next to nothing, we are likely to get next to nothing from them.” Read the full op-ed below.

Regional Spotlight: No danger of excess justice
By Marc Bookman

Two astonishing but largely unnoticed events recently took place in the Philadelphia criminal justice system: A young man was sentenced to death after proceedings that were often reminiscent of a routine felony case; and John Herron, the administrative judge of the Common Pleas Court, dismantled a committee of judges, defense lawyers, and prosecutors convened to monitor and improve the quality of representation in death-penalty cases.

Almost 25 years ago, when a majority of the U.S. Supreme Court refused to address the overt racism of capital punishment in Georgia, Justice William Brennan wrote that his brethren seemed to have a “fear of too much justice.” It’s a fear Philadelphians need not have.

The man sentenced to death here was represented by court-appointed lawyers who have represented scores of other indigent defendants. They were paid an absurdly small amount to defend him in the face of the ultimate punishment.

Mitigating factors
What did the money buy? A review of the court record doesn’t take long. There isn’t a single motion filed by the attorneys in defense of their client. Nor is there a request for a jury questionnaire, which is standard in most jurisdictions that regularly handle capital cases, or for a mitigation specialist to prepare a case against the death penalty. Indeed, the only motion in the record was handwritten by the defendant. Prison logs indicate that his lawyers visited him a total of three times.

Jury selection took only two days, partly because the defense didn’t ask prospective jurors a single question about the death penalty. In Texas, which executes more convicts than any other state, the average jury selection in death-penalty cases takes a month.

The defendant’s guilt was established in three days.

At the sentencing presentation - the defense’s chance to persuade the jury to sentence the man to life without the possibility of parole instead of death - a series of relatives spoke briefly on the man’s behalf. A psychologist called as an expert witness for the defense said one mitigating factor was that the defendant had a drug problem that he never got help for. When asked whether he would like to mention any other mitigating factors in defense of the man - who, according to testimony, had been passed from home to home because his parents had serious substance-abuse problems - the psychologist said, “No, I would not.” This was a witness for the defense.

The defense’s closing argument was a brief affair. The attorney agreed with the prosecutor several times and barely mentioned the defendant’s name. The jury, having been given little reason not to, quickly returned a death sentence.

Grossly inadequate
Was this case an aberration? Hardly. Court-appointed lawyers in Philadelphia rarely visit their clients much, seldom file motions on their behalf, and never use a jury questionnaire.

The reason is obvious, and it was clearly articulated in a report to the Pennsylvania Supreme Court by Common Pleas Court Judge Benjamin Lerner, who found that the fees paid to these lawyers were “grossly inadequate.” Judge Herron recently ordered that the fees be raised, but they are still well below national standards. Worse, the new fee schedule doesn’t pay lawyers for their court time - giving them that much more incentive to finish trials as quickly as possible. In other words, if we’re asking attorneys to work for next to nothing, we are likely to get next to nothing from them.

This is not a technical issue. Death sentence after death sentence has been reversed based on the quality of legal defense in Philadelphia.

This is no secret to the city’s criminal justice system. A RAND Corp. study released in December revealed the consequences of the disparity between the city’s under-compensated court-appointed lawyers and the well-trained, well-funded attorneys of the Defender Association of Philadelphia. It found that the result actually cost taxpayers more than $200 million just for incarceration.

To improve the quality of representation, a Homicide Appointment System Committee was formed. It was the first attempt in three decades to impose quality control on the lawyers handling the city’s most serious cases. But when the committee found only 12 qualified lawyers willing to take such cases, the administrative judge did not look for more; he simply suspended the committee.

Philadelphians need not fear too much justice. Based on recent events, our courts will continue to be penny-wise and pound-foolish. And convicts will continue to be sent to death row until, years later, appellate courts overturn their sentences. This is the well-worn path of most of Philadelphia’s capital cases.

Is this approach sound, financially practical, or morally defensible? No. But in the Philadelphia criminal justice system, these things don’t seem to matter.
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Marc Bookman is the executive director of the Atlantic Center for Capital Representation and a former public defender. He can be reached at [email protected]

(M. Bookman, “Regional Spotlight: No danger of excess justice,” Philadelphia Inquirer (Op-ed), April 5, 2012.) See Representation and Costs.