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.

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