Justice on the Cheap: The Philadelphia Story

“Them with­out the cap­i­tal get the pun­ish­ment” is a well-worn phrase among those who have stud­ied the unequal appli­ca­tion of the death penal­ty in America. Poor peo­ple fac­ing soci­ety’s ulti­mate penal­ty must rely on pub­lic funds to ensure they are com­pe­tent­ly rep­re­sent­ed, as the Constitution guar­an­tees. Yet, in more and more juris­dic­tions, pub­lic ser­vices of all kinds are being slashed for lack of ade­quate fund­ing. Philadelphia, Pennsylvania, is one such juris­dic­tion – a dra­mat­ic and graph­ic exam­ple of a nationwide problem.

According to a recent­ly-released sur­vey by the National Association of Counties, ful­ly forty per­cent of coun­ties in the coun­try with pop­u­la­tions exceed­ing 100,000 face major bud­getary short­falls. All of them have been forced to trim away resources required for equal jus­tice to pre­vail. At the top of the list is Philadelphia. Even a brief look at what is hap­pen­ing there reveals why, when resources are scarce, the con­sti­tu­tion­al pro­tec­tions that dis­tin­guish our sys­tem of gov­ern­ment are first to be sacrificed.

• While already inad­e­quate fund­ing for indi­gent defense pro­grams is being slashed across the nation in the face of shrink­ing state bud­gets, Pennsylvania pro­vides no funds at all for such defense;
• Philadelphia has no orga­nized defense sys­tem to pro­vide train­ing or sup­port to defend cap­i­tal cas­es – nei­ther a pub­lic defend­er sys­tem nor a cap­i­tal resource cen­ter, leav­ing ill-trained, often ill-pre­pared, and inex­pe­ri­enced lawyers to han­dle the most demand­ing crim­i­nal cas­es of all;
• In a city on the verge of eco­nom­ic col­lapse such as Philadelphia, resources pro­vid­ed for attor­neys to mount the most dif­fi­cult of all crim­i­nal defens­es are woefully inadequate;
• Only about 80 lawyers in a city with 8,000 lawyers both qual­i­fy and are will­ing to rep­re­sent cap­i­tal­ly charged defen­dants because to under­take such cas­es is to agree to work for lit­tle or noth­ing, and not to be paid for months or years;
• So lit­tle mon­ey is avail­able for expert wit­ness­es essen­tial for the jury’s under­stand­ing of the defen­dant they are judg­ing and the cir­cum­stances of the crime – psy­chol­o­gists, psy­chi­a­trists, social his­to­ry inves­ti­ga­tors – that many of the most qual­i­fied and respect­ed in those pro­fes­sions refuse to pro­vide their ser­vices under those conditions;

• The District Attorney’s office seeks the death penal­ty in well over 50 per­cent of all homi­cides, a prac­tice described by one Philadelphia lawyer as ​“the real can­cer in the sys­tem,” since it requires that defense coun­sel ful­ly pre­pare to defend against a cap­i­tal charge even when unwar­rant­ed by the facts;

• The use of peremp­to­ry chal­lenges to prospec­tive jurors by the DA, cou­pled with the bias some judges have exhib­it­ed on behalf of the state, has result­ed not just in a dis­pro­por­tion­ate num­ber of African-Americans sen­tenced to death, but an absolute major­i­ty of blacks over whites on death row.

There are more than 140 peo­ple under sen­tence of death in the Commonwealth of Pennsylvania. With less than 15 per­cent of the state’s pop­u­la­tion, Philadelphia accounts for more than half of the state’s con­demned pris­on­ers. Viewed from anoth­er per­spec­tive, the two coun­ties with the state’s largest cities, Philadelphia and Pittsburgh, send vast­ly dif­fer­ent num­bers of peo­ple to death row. While the pop­u­la­tion of Philadelphia County is just two per­cent larg­er than that of Allegheny County (Pittsburgh), the per­cent­age of those sen­tenced to soci­ety’s ulti­mate penal­ty is near­ly eleven times (11) greater in the for­mer than in the lat­ter, though Philadelphia’s mur­der rate is only about three times greater than Pittsburgh’s.
Whatever one feels about the ulti­mate ques­tion of the moral, eth­i­cal or legal valid­i­ty of cap­i­tal pun­ish­ment, all Americans must be con­cerned about basic fair­ness. ​“Equal Justice Under Law,” the lofty prin­ci­ple inscribed in stone above the entrance to the United States Supreme Court, is but an emp­ty slo­gan when the resources so fun­da­men­tal to its attain­ment are unavail­able. In Philadelphia, the birth­place of American lib­er­ty, as in so many oth­er dete­ri­o­rat­ing American cities and towns, jus­tice is becom­ing ever more just anoth­er com­mod­i­ty avail­able only to the few who can afford it. 

“There’s prob­a­bly nev­er been a wider gulf between the need for legal ser­vices and the pro­vi­sion of those ser­vices. There is a great deal to be con­cerned about, or even ashamed of.”
–Supreme Court Justice Sandra Day O’Connor
American Bar Assoc. Annual Convention
Atlanta, GA, August 12, 1991

Hailed as the cra­dle of American democ­ra­cy, Philadelphia, the City of Brotherly Love, has much ​“to be con­cerned about, or even ashamed of.” This is strik­ing­ly evi­dent in the dis­par­i­ty between what is pro­vid­ed ver­sus what is need­ed to rep­re­sent ade­quate­ly those fac­ing the death penalty.

On August 28, 1991, the National Association of Counties released the results of a sur­vey of the 443 coun­ties in the coun­try with pop­u­la­tions of 100,000 or more. It found that 40 per­cent faced seri­ous bud­get short­falls aver­ag­ing $8.3 mil­lion. Philadelphia County, Pennsylvania, was at the top of the list.[1]

This city, like so many oth­ers, is fail­ing to meet its finan­cial oblig­a­tions on many fronts. When one of these fronts is in the realm of legal ser­vices to indi­gent defen­dants charged with cap­i­tal crimes, the con­se­quences are lit­er­al­ly a mat­ter of life or death.

In eco­nom­i­cal­ly-strapped Philadelphia, indi­gent defen­dants fac­ing the death penal­ty are rep­re­sent­ed by nei­ther the Philadelphia Defender Association (Public Defender) nor any oth­er orga­nized group of lawyers trained in the dif­fi­cult and high­ly spe­cial­ized area of capital defense.

“As a result,” says Philadelphia Public Defender, Stuart Schuman, ​“rep­re­sen­ta­tion in these life and death cas­es is usu­al­ly under­tak­en by over­worked, under­paid court-appointed lawyers.”

Court-appoint­ed lawyers are forced to wait up to two years between the time of appoint­ment and the col­lec­tion of their fees. They can­not even request pay­ment until after the sen­tence has been affirmed by the court, a process which usu­al­ly takes about four­teen months. After fil­ing for fees ($40 an hour for out-of-court time and $50 for in-court), [2]not only do they have to wait up to anoth­er year to be paid, their bill­able time is often cut. As one respect­ed defense attor­ney describes it, ​“We extend cred­it to the city for two years, so it’s no won­der that most lawyers just process cases.”

At the offi­cial urg­ing of the Philadelphia Bar Association, stan­dards for appoint­ment for those attor­neys were estab­lished just three years ago.[3]While these new stan­dards have undoubt­ed­ly improved the qual­i­ty of rep­re­sen­ta­tion (though, as we will see, they still fall far short of ade­quate), they have come too late for the vast major­i­ty of those already sen­tenced to death – more than half from Philadelphia County which accounts for only 14 per­cent of the state’s pop­u­la­tion. (See Figures 1a and 1b.)

Norris Gelman, long rec­og­nized as one of the most effec­tive cap­i­tal defense lawyers in Philadelphia, says, ​“These stan­dards are long over­due, but they come a lit­tle bit late for peo­ple that have already been poorly represented.”

Tragically, such cas­es are not hard to find. In 1984, the Supreme Court of Pennsylvania upheld the death sen­tence of Richard Stoyko despite find­ing that ​“nei­ther (appoint­ed) tri­al coun­sel nor addi­tion­al appoint­ed coun­sel for­mal­ly raised any issues regard­ing the penal­ty phase of the pro­ceed­ings.” (empha­sis added.)

It is dur­ing the penal­ty phase – fol­low­ing the jury’s deter­mi­na­tion of guilt – that the jury hears evi­dence designed to guide it toward the appro­pri­ate penal­ty as between life in prison or death. Without any guid­ance at all, no jury can be expect­ed to weigh this oner­ous choice fair­ly, and it is a trav­es­ty of jus­tice to ask this of a jury. Yet Stoyko’s jury was asked to make pre­cise­ly this determination.

“The court-appoint­ed coun­sel admit­ted he had not read the United States Supreme Court’s cas­es on cap­i­tal pun­ish­ment in prepa­ra­tion for this case and had nev­er tried a homicide.”

As Associate Pennsylvania Supreme Court Justice Hutchinson not­ed in dis­sent, ​“The court-appoint­ed coun­sel admit­ted… he had not read the United States Supreme Court’s cas­es on cap­i­tal pun­ish­ment in prepa­ra­tion for this case and had nev­er tried a homi­cide. This cou­pled with the lack of any argu­ment by any­one regard­ing the penal­ty phase, con­vinces me we have here… the absence of even min­i­mal­ly com­pe­tent advo­ca­cy… Ineffective assis­tance of coun­sel at the penal­ty phase of a cap­i­tal case may be quite lit­er­al­ly a mat­ter of life and death.” (empha­sis in the orig­i­nal.) [4]

When com­pen­sa­tion is both insuf­fi­cient and belat­ed, expe­ri­enced death penal­ty lawyers, know­ing the amount of time nec­es­sary to pre­pare and present a decent defense, are extreme­ly reluc­tant to take new capital cases.

“A sys­tem being held togeth­er on the backs of coun­sel hav­ing to beg and bor­row is guar­an­teed to pro­vide sec­ond-rate rep­re­sen­ta­tion,” says expe­ri­enced Philadelphia tri­al lawyer, Samuel C. Stretton. ​“The best lawyers don’t do them any more.”

While it may be hard to sum­mon sym­pa­thy for over­worked and under­paid attor­neys, the real vic­tims of such a sys­tem are the very rights and pro­tec­tions we take for grant­ed as dis­tin­guish­ing our form of gov­ern­ment. Ironically, when these pro­tec­tions are sac­ri­ficed in the inter­est of cost and expe­di­en­cy, much larg­er expen­di­tures of resources are impli­cat­ed down the line.

In tes­ti­mo­ny on behalf of the American Bar Association, Columbia University Associate Professor of law, James S. Liebman, report­ed to Congress on the find­ings of the ABA Task Force on Death Penalty Habeas Corpus:

“Poor com­pen­sa­tion almost inevitably means that only inex­pe­ri­enced and ill-pre­pared lawyers will be avail­able to han­dle cap­i­tal cas­es, and that lawyers will not devel­op exper­tise because they will be finan­cial­ly unable to han­dle more than one cap­i­tal case. Not sur­pris­ing­ly, there­fore, the inex­pe­ri­enced and inex­pert coun­sel who han­dle many of the cas­es fre­quent­ly con­duct inad­e­quate fac­tu­al inves­ti­ga­tions, are unable to keep abreast of the com­plex and con­stant­ly chang­ing legal doc­trines that apply in cap­i­tal lit­i­ga­tion, and mis­tak­en­ly fail to make time­ly objec­tions to improp­er procedures.”[5]

“A sys­tem being held togeth­er on the backs of coun­sel hav­ing to beg and bor­row is guar­an­teed to pro­vide second-rate representation.”

Habeas cor­pus is the time-hon­ored right of the impris­oned to ensure their con­vic­tions were not taint­ed by uncon­sti­tu­tion­al vio­la­tions by the state.

As Professor Liebman explained to Congress the find­ings of the ABA Death Penalty Task Force on Habeas Corpus, “…the high lev­el of con­sti­tu­tion­al error implant­ed in cap­i­tal tri­als and appeals by uncom­pen­sat­ed, inex­pert and ill-pre­pared coun­sel has required the fed­er­al courts to over­turn and order retri­als of more than 40 per­cent of the post-1976 death sen­tences that they have reviewed… Moreover, the expen­sive and time-con­sum­ing pro­ceed­ings nec­es­sary to uncov­er that aston­ish­ing num­ber of con­sti­tu­tion­al vio­la­tions and to retry and review all those cas­es is with­out doubt the sin­gle largest cause of delay in cap­i­tal lit­i­ga­tion. [6]

Few lawyers can afford to take these court-appoint­ed cas­es, which, in addi­tion to being a great finan­cial bur­den, are always emo­tion­al­ly drain­ing. With over 500 homi­cide cas­es a year in Philadelphia, the num­ber of lawyers han­dling them is already woe­ful­ly inad­e­quate. There are only about eighty qual­i­fied homi­cide attor­neys will­ing to be appoint­ed to cap­i­tal cas­es. As Judge William Manfredi, the Homicide Calendar judge who deter­mines the ini­tial allo­ca­tion of resources in death penal­ty tri­als says, ​“Eighty com­pe­tent attor­neys out of 8,000 attor­neys is outrageous.”

While Judge Manfredi believes the large law firms should and could sig­nif­i­cant­ly increase the num­ber of qual­i­fied attor­neys will­ing to take such cas­es, they are very unlike­ly to do so. Instead, the num­ber will shrink even more as already over­bur­dened lawyers remove them­selves from the list, choos­ing instead to make a living.

While the pool of qual­i­fied defense coun­sel grows small­er, the num­ber of cas­es the dis­trict attor­ney pros­e­cutes cap­i­tal­ly grows larg­er, fur­ther stretch­ing an already over­bur­dened sys­tem. Indeed, many Philadelphia lawyers iden­ti­fy the DA’s prac­tice of over­charg­ing in homi­cide cas­es – pur­su­ing the death penal­ty where it is not war­rant­ed by the facts – as among the most per­ni­cious aspects of Philadelphia’s death penal­ty process. There are approx­i­mate­ly 300 cap­i­tal cas­es tried annu­al­ly in Philadelphia, well over 50 per­cent of all homicides.

Once the DA alerts the court that it intends to seek the death penal­ty, the jury must be ​“death qual­i­fied.” This means that any prospec­tive juror opposed to the death penal­ty as a mat­ter of prin­ci­ple is auto­mat­i­cal­ly barred from serv­ing. Once these exclu­sions take place, the jury that is seat­ed is char­ac­ter­ized by crim­i­nol­o­gists as ​“death prone” – far more like­ly to con­vict than a jury which includes a fair cross-sec­tion of death penalty opponents.

“The indis­crim­i­nate move by pros­e­cu­tors to select death qual­i­fied jurors is the real can­cer in the sys­tem,” says vet­er­an defense attor­ney Daniel Greene. 

Judge David Savitt, one of 15 Common Pleas judges in Philadelphia pre­sid­ing in death penal­ty tri­als, is also con­cerned. ​“The ten­den­cy has been for the DA to death qual­i­fy the jury even when they have no inten­tion to seek the death penal­ty,” he says, ​“because they know that a death-qual­i­fied jury is a guilt-prone jury.” 

In death penal­ty tri­als, juries are required to make the most impor­tant deci­sion any cit­i­zen can be called on to make about a crim­i­nal defen­dant: first, is he or she guilty of the charge of mur­der, and sec­ond, what is the appro­pri­ate penal­ty, as between life in prison or death by the state. To make these crit­i­cal judg­ments, juries have a right to know not only the detailed cir­cum­stances of the crime, but as much about the defen­dant as pos­si­ble. Is he or she men­tal­ly com­pe­tent? Was he moti­vat­ed by greed or self-inter­est, or did he act under the con­trol of drugs or alco­hol or psy­chosis? Is he men­tal­ly retard­ed or dom­i­nat­ed by anoth­er? Are the cir­cum­stances that led to the crime like­ly to recur? Was the defen­dant respond­ing to an abu­sive sit­u­a­tion, or shaped by a life­time of abuse? Is he remorseful?

Juries are com­posed of ordi­nary cit­i­zens with no spe­cial train­ing or exper­tise in mak­ing these deter­mi­na­tions. To do so fair­ly, they must rely on trained inves­ti­ga­tors and qual­i­fied med­ical, psy­chi­atric and foren­sic experts. The U.S. Supreme Court held in Ake v. Oklahoma [7]that an indi­gent defen­dant is enti­tled to all expert ser­vices rea­son­ably nec­es­sary for an effec­tive defense. What this real­ly means is that juries have a right to all the infor­ma­tion they need to make informed life – or-death judg­ments about the defen­dants before them.

But, giv­en Philadelphia’s finan­cial con­straints, the pre­scrip­tion of Akeis very dif­fi­cult to fill. Judge Manfredi, the pre­sid­ing cal­en­dar judge of the Court of Common Pleas describes the judges’ job as bal­anc­ing ​“the com­pet­ing inter­ests of qual­i­ty rep­re­sen­ta­tion with the eco­nom­ic sit­u­a­tion of Philadelphia.”

For the fam­i­lies of poor, cap­i­tal­ly-charged defen­dants – and the death penal­ty seems reserved exclu­sive­ly for the poor – this ​“bal­anc­ing act” leaves them watch­ing help­less­ly as their loved ones face the pos­si­bil­i­ty of exe­cu­tion with­out the assis­tance of the kind of experts we would all demand for our­selves or our loved ones in similar circumstances.

Anthony Reid was such a defen­dant. Abandoned by his par­ents before his first birth­day and raised in pover­ty with sev­en fos­ter broth­ers and sis­ters, Mr. Reid was charged with homi­cide com­mit­ted at the age of 20. Unable to afford coun­sel, the court appoint­ed Samuel Stretton.

At the begin­ning of his tri­al, attor­ney Stretton asked that his client be exam­ined by a psy­chol­o­gist who might uncov­er facets of Reid’s life that could help the jury get a more com­plete pic­ture of who he is. Presiding Judge Albert Sabo denied the motion on the grounds that it was an unwar­rant­ed expense – at least until Mr. Reid was con­vict­ed and the jury was faced with deter­min­ing his appro­pri­ate sen­tence.


​“People with a lot of mon­ey are always going to get bet­ter ser­vices. But we are not in the busi­ness of cor­rect­ing every social prob­lem.”

On January 9, 1991, Mr. Reid was con­vict­ed. The next day, the penal­ty phase began, and Mr. Stretton renewed his request for a psy­cho­log­i­cal eval­u­a­tion and testimony.

“Your client told me… that he has no prob­lems at all so what are we going to look for?” Judge Sabo asked the star­tled defense attorney.

Dr. Gerald Cook, an expe­ri­enced foren­sic psy­chol­o­gist, was in the court­room at Mr. Stretton’s request, ready and will­ing to con­duct the exam­i­na­tion of Mr. Reid.

“I want the jury to under­stand his per­son­al­i­ty… his intel­lect… I am look­ing for mitigating circumstances…”

“Why don’t you dig for gold while you’re at it,” the pre­sid­ing judge interrupted.

Before rul­ing on Stretton’s request for the expert wit­ness, Judge Sabo turned to the pros­e­cut­ing attor­ney and asked his opin­ion. Like the judge, he, too, relied on the ​“exper­tise” of the 22-year-old Reid, him­self, who swore ​“under oath that he has no psychological problems.”

Stretton protest­ed. ​“I have retained a psychologist.”

“Take care of it out of your fee,” the judge replied, sar­cas­ti­cal­ly. ​“There is no basis for me to expend pub­lic funds needlessly.”

“I am court-appoint­ed,” the defense attor­ney protest­ed one last time. ​“There is a good chance we will nev­er be paid…”

“A good chance he would nev­er be paid, either,” Judge Sabo said, dis­miss­ing the request.

Thus, in the cru­cial penal­ty phase, dur­ing which the defen­dant is allowed to pro­vide any infor­ma­tion for the jury to con­sid­er in mit­i­ga­tion of the crime, the jury heard only the pre­dictable pleas for mer­cy of Mr. Reid’s fos­ter sis­ters, beg­ging for his life.

“I am just ask­ing for his life, just don’t take his life,” Lydia Banks begged. ​“He’s only 22. He can change. He’s suf­fer­ing. Our fam­i­ly are all suf­fer­ing… I’m just ask­ing for you not to take his physical life!”

Lydia Banks ran out of the court­room, weep­ing. Another sis­ter, also hys­ter­i­cal, was ordered removed.

Without the ben­e­fit or guid­ance of a pro­fes­sion­al eval­u­a­tion, with no expert psy­cho­log­i­cal tes­ti­mo­ny to assess, the jury sen­tenced Mr. Reid to die by lethal injec­tion. [8]

The prob­lem is made worse by its unpre­dictabil­i­ty. ​“I always grant mon­ey for experts,” says homi­cide judge, David Savitt. But he admits that oth­er judges rou­tine­ly deny such requests. Because there is no insti­tu­tion­al sys­tem gov­ern­ing either the request or the response, both the qual­i­ty of defense and the out­come are widely divergent.

Some experts sim­ply no longer pro­vide their ser­vices to the defense. One psy­chi­a­trist who request­ed anonymi­ty, and who, in the past, has tes­ti­fied equal­ly for both the pros­e­cu­tion and the defense, now gen­er­al­ly declines requests by defense attor­neys to eval­u­ate their clients. ​“Court-appoint­ed lawyers are hand­cuffed,” he says.

Dr. Robert Sadoff, will no longer serve as an expert for the defense in court-appoint­ed cas­es in Philadelphia – though he con­tin­ues to tes­ti­fy in New Jersey, Ohio, Alabama and Mississippi – because he can­not rely on promis­es of pay­ment down the road. ​“I’m stand­ing on the side­lines until a reli­able and fair fee sched­ule, paid on time, is a reg­u­lar part of the sys­tem,” he says.

Former President Jimmy Carter once observed that ​“life isn’t fair.” In the case of the death penal­ty, how­ev­er, that unfair­ness can result in the exe­cu­tion of some for their inabil­i­ty to buy the expert assis­tance many of us take for grant­ed. ​“People with a lot of mon­ey are always going to get bet­ter ser­vices,” says Judge Savitt. ​“But we aren’t in the busi­ness of cor­rect­ing every social problem.”

The ques­tion is: Are we in the busi­ness of pro­vid­ing equal jus­tice under law? 

As men­tioned before, in 1989 the Philadelphia court estab­lished new stan­dards to qual­i­fy lawyers to defend those charged with homi­cide. Under these stan­dards, for exam­ple, for the first time, lawyers rep­re­sent­ing defen­dants fac­ing the death penal­ty must have par­tic­i­pat­ed in at least one pre­vi­ous homi­cide tri­al. Another new qual­i­fi­ca­tion requires that homi­cide lawyers have par­tic­i­pat­ed in at least one death penal­ty train­ing pro­gram with­in the past two years.

The stan­dards, though wel­come inno­va­tions, are them­selves seri­ous­ly lim­it­ed. In the words of one Philadelphia lawyer who par­tic­i­pat­ed in the devel­op­ment of the new stan­dards, ​“They quan­ti­fy. They do not qual­i­fy. They ask how many cas­es you’ve han­dled, not how well you handled them.”

The Philadelphia District Attorney’s Office which zeal­ous­ly pros­e­cutes death penal­ty cas­es insists on far more oner­ous stan­dards for its team of pros­e­cu­tors than any imposed on defense attor­neys. Every new recruit in the DA’s office, for exam­ple, gets a three-week train­ing course in gen­er­al crim­i­nal law and Philadelphia pro­ce­dures. Beyond that, accord­ing to just-appoint­ed Chief of Homicide, Assistant District Attorney David Webb, to qual­i­fy for the homi­cide unit, an assis­tant DA must have at least five years as a pros­e­cu­tor, with 25 – 30 major felony prosecutions.

Only after they have worked with­in the homi­cide unit for a year are they assigned their first cap­i­tal case, and then as assist­ing coun­sel, or sec­ond chair, not as lead pros­e­cu­tor. The goal is to recruit and train the best team of homi­cide pros­e­cu­tors they can get.

To sea­soned cap­i­tal defense attor­ney Norris Gelman, the dif­fer­ence is stark. ​“Their search for excel­lence is applaud­ed,” he notes. ​“Our search for bare com­pe­tence is swept under the rug.”

The con­trast between Philadelphia and Pittsburgh is also stark. Philadelphia County accounts for about 14 per­cent of the state’s pop­u­la­tion, but more than 50 per­cent of death row. Allegheny County (Pittsburgh) accounts for about 12 per­cent of the state’s pop­u­la­tion, but less than 5 per­cent of death row. (See Fig. 1a and 1b.)

The dif­fer­ence can be attrib­uted, at least in part, to a homi­cide defense team orga­nized with­in the Pittsburgh Public Defender’s office that has estab­lished ongo­ing lit­i­ga­tion train­ing and support.

In hear­ings before the Judiciary Committee of the Commonwealth of Pennsylvania, Lester G. Nauhaus, Director of the Public Defender’s Office of Allegheny County, tes­ti­fied: ​“Two lawyers always work on every cap­i­tal case… I am astound­ed that lawyers try cap­i­tal cas­es in major met­ro­pol­i­tan areas with only one attorney.[9]

In an attempt to address this glar­ing dis­par­i­ty in qual­i­ty of rep­re­sen­ta­tion, the Philadelphia Bar Association passed a res­o­lu­tion in March, 1991, per­mit­ting the city’s Defender Association for the first time to rep­re­sent up to 20 per­cent of indi­gent homi­cide defen­dants. However, funds have not been allo­cat­ed for this pur­pose, no cas­es have yet been assigned them, and none is antic­i­pat­ed for months or even years. [10]

Not all areas of seri­ous con­cern are relat­ed to the appalling lack of resources. Another seri­ous prob­lem unre­lat­ed to finances is one that plagues the appli­ca­tion of the death penal­ty in far too many places: the destruc­tive influ­ence of race.

Many point to the record of Judge Sabo – the same judge who refused to allow a psy­chol­o­gist to exam­ine black defen­dant Anthony Reid – as an exam­ple of that influ­ence. Sitting as a homi­cide judge since 1974, he has sen­tenced more peo­ple to death than any judge in the state: 26 death sen­tences, account­ing for 40 per­cent of all those sen­tenced to death from Philadelphia and more than 20 per­cent of all con­demned pris­on­ers in the Pennsylvania. A whop­ping 24 out of the 26 – more than 92 per­cent – are black men. (See Fig. 2.)

A more recent exam­ple of bla­tant racism came to light in July, 1991, dur­ing a con­gres­sion­al hear­ing con­cern­ing the fed­er­al crime bill then being debat­ed in the Congress.

In 1986, the Supreme Court held that sys­tem­at­ic exclu­sion of blacks from juries vio­lates the Constitution. [11]However, the Court refused to apply the prin­ci­ple retroac­tive­ly. An amend­ment to the crime bill under con­sid­er­a­tion at the hear­ing, the Berman Amendment, would have rec­ti­fied this by per­mit­ting pre-1986 pris­on­ers one year in which to raise claims that blacks had been uncon­sti­tu­tion­al­ly exclud­ed from their juries.

The Philadelphia DA’s office dis­patched Assistant dis­trict attor­neys, Gaele Barthold and Elizabeth Chambers, to tes­ti­fy against the amend­ment. Committee Chairman Don Edwards asked, ​“Do you believe there is racism in the crim­i­nal jus­tice sys­tem, espe­cial­ly in cap­i­tal cas­es?” Assistant DA Barthold replied, ​“I don’t believe that this is some­thing we see in Pennsylvania.” [12]

What both DAs had seen in Pennsylvania, how­ev­er, was just such an uncon­sti­tu­tion­al, sys­tem­at­ic exclu­sion of blacks by the head of the Philadelphia homi­cide unit, Assistant DA Barbara Christie. [13]Indeed, Elizabeth Chambers, sit­ting next to Ms. Barthold at the hear­ing, had recent­ly – and unsuc­cess­ful­ly – defend­ed the prac­tice before a federal magistrate.

Described by a defense attor­ney as ​“a vicious guid­ed mis­sile” whose pros­e­cu­tion tac­tics have been char­ac­ter­ized by one homi­cide judge as ​“out­landish” and ​“out of con­trol,” Ms. Christie had three-times pros­e­cut­ed accused mur­der­er Charles Diggs. [14]Three times she used her dis­cre­tionary peremp­to­ry chal­lenges sys­tem­at­i­cal­ly to exclude black jurors. In the sec­ond and third tri­als, she suc­ceed­ed in seat­ing all-white juries.

In March, 1991, Federal Magistrate Richard Powers, III, rec­om­mend­ed to the U.S. District Court that it grant habeas cor­pus relief in the case because pros­e­cu­tor Christie used all 15 of her dis­cre­tionary strikes to seat an all-white jury, a prac­tice pro­hib­it­ed by the Constitution.

“Given the inescapable fact that mem­bers of the black race account­ed for approx­i­mate­ly one-third of Philadelphia’s total pop­u­la­tion at the time of peti­tion­er’s tri­al, it is incred­i­ble that the assis­tant DA could not find one sat­is­fac­to­ry black juror capa­ble of fair­ly sit­ting in judg­ment of the peti­tion­er,” the Magistrate wrote.

“Assistant DA (Christie)… kept a run­ning tab­u­la­tion of the num­ber of blacks left on the jury after each chal­lenge was exer­cised… a telling indi­ca­tion of (her) pre­dis­posed prej­u­dice toward blacks on the jury… par­tic­u­lar­ly when no white jurors were chal­lenged for any rea­sons what­so­ev­er… The Assistant District Attorney tes­ti­fied that she nev­er used race as a fac­tor to exclude a black from a jury… I find that… unwor­thy of belief.”[15]

On March 27, 1991, the U.S. District Court Chief Judge, John P. Fullam, accept­ed the rec­om­men­da­tion of his mag­is­trate, and grant­ed the writ for habeas corpus. 

When for­mer U.S. Supreme Court Justice William Brennan said of the death penal­ty, ​“It smacks of lit­tle more than a lot­tery sys­tem,” he might well have had Philadelphia in mind. There, the pover­ty of indi­vid­ual defen­dants is matched by the pover­ty of the city. This dual impov­er­ish­ment starves the sys­tem of justice itself.

When you are poor in Philadelphia, and charged with a cap­i­tal crime, two rolls of the dice go a long way in deter­min­ing your fate. The first deter­mines the lawyer who will rep­re­sent you. The sec­ond deter­mines the judge who will preside.

As unfair as this ini­tial crap shoot may be, any pre­tense to equal jus­tice of law is fatal­ly under­mined by the lack of avail­able resources and their uneven dis­tri­b­u­tion. When jus­tice is defined dif­fer­ent­ly for the poor than for the rest of soci­ety, jus­tice ceas­es to be a vaunt­ed prin­ci­ple and becomes instead an emp­ty slo­gan. In the realm of the death penal­ty, such inequal­i­ty of appli­ca­tion is intol­er­a­ble to a just soci­ety. Like a house divid­ed, jus­tice divid­ed cannot stand.