Third Circuit Rebuffs "Concerted Effort" to Exclude Capital Habeas Lawyers from Pennsylvania State Cases

On June 12, a unanimous panel of the U.S. Court of Appeals for the Third Circuit rebuffed what it described as “a concerted effort” by Pennsylvania prosecutors to bar lawyers from the Philadelphia federal community defender’s capital habeas unit from representing death row inmates in Pennsylvania state-level appeals. The former Chief Justice of the Pennsylvania state courts had sharply critized the unit — which has overturned more than 100 Pennsylvania death sentences — for what he termed its “abusive” litigation tactics and its “commitment of … manpower” at the level “one would expect in major litigation involving large firms.” Pennsylvania state and county prosecutors subsequently attempted to remove the habeas unit lawyers from representing death-row inmates in seven separate cases, alleging that its participation in state post-conviction proceedings constituted misuse of federal funds. The Third Circuit ruled that the habeas unit’s appearance in state court was governed by the terms of its federal sustaining grant as determined by federal court administrators, and that Pennsylvania could not exclude the habeas unit from representing its capital clients in state court. “It is difficult not to wonder why the commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court,” Chief Judge Theodore McKee said in a concurring opinion. “A victory by the commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden.”

The Chief Judge said “I am not quite sure why the same kind of meticulous devotion of resources [available in commercial litigation] should not be available to someone who has been condemned to die by the state and who seeks to challenge the legality of that punishment.” Pennsylvania is not alone in efforts to block qualified representation of death row inmates in state courts. Earlier this year, the Texas Court of Criminal Appeals suspended respected capital attorney David Dow for allegedly missing a filing deadline. Dow, an outspoken critic of the death penalty, was banned from practicing before the Court of Criminal Appeals for one year. A dissenting judge wrote that “Dow’s pleadings were arguably timely filed,” because the court still had the mandated seven days to consider the filing.

(G. Passarella, “Third Circuit OKs Federal Defenders in State Court,” The Legal Intelligencer, June 15, 2015; Associated Press, “US court rejects effort to ban capital defenders group in Pa. death penalty cases,” Allentown Morning Call (June 12, 2015); D. Lithwick, “Revenge, Not Justice,” Slate, March 12, 2015.) Read the Third Circuit decision. See Representation.