ATLANTIC CENTER FOR CAPITAL REPRESENTATION
BY: Marc Bookman, Esquire
Identification No. 37320
1315 Walnut Street, Suite 1331
Philadelphia, PA 19107
mbookman@atlanticcenter.org
(215) 732 - 2227
COMMONWEALTH OF PENNSYLVANIA
:
COURT OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
VS.
:
CHARGE: MURDER, ETC.
SHIRVIN MCGARRELL
:
CP-51-CR-0014623-2009
:
CP-51-CR-0001654-2011
CP-51-CR-0001658-2011
CP-51-CR-0001663-2011
CP-51-CR-0011460-2010
CP-51-CR-0015810-2010
ANTONIO RODRIQUEZ
MALIQ POWELL
DARYL YOUNG
:
:
MOTION TO REQUIRE THE COMMONWEALTH TO PROVIDE CONSTITUTIONALLY
ADEQUATE ATTORNEY FEES FOR THE DEFENSE OF THE ABOVE-CAPTIONED
CAPITAL TRIALS, OR IN THE ALTERNATIVE, TO PRECLUDE THE
COMMONWEALTH FROM SEEKING THE DEATH PENALTY
Philadelphia County, the
captioned
cases,
lays
claim
jurisdiction for the above-
to
the
following
remarkable
statistics:
1) it
pays
its
court-appointed
attorneys
less
to
prepare
a
capital case than any remotely comparable jurisdiction in the
2
country1;
2) it has the highest reversal rate of death penalty cases for
ineffective
assistance
of
counsel
of
any
city
in
the
country2;
3) its District Attorney seeks the death penalty more than any
jurisdiction in the country3.
These
three
facts
are
inextricably
linked
and
result
in
the
following scenario: the Commonwealth routinely and casually4 seeks
This fact will be developed in detail infra.
As of March 2011, a staggering 66 death sentences have been
reversed from Philadelphia County for ineffective assistance of
counsel since the modern Pennsylvania death penalty statute went
into effect; no other jurisdiction is even close.
3 The three most comparable cities in terms of capital
prosecution are Los Angeles, Houston (Harris County) and Phoenix
(Maricopa County). Los Angeles County has sought the death
penalty a little more than seven times a year for the past ten
years. See “Death penalty phase could put Rowland Heights killer
on short list of death row women,” Pasadena Star-News, 11/14/10.
Per Jennifer Friedman, Assistant Special Circumstances
Coordinator for the Los Angeles Public Defender’s Office, the
Los Angeles District Attorney’s Office has consistently sought
death in approximately 10-12% of death eligible cases over the
past five years. During that same period, the Harris County
District Attorney has gone to capital trials an average of 2.6
times a year per Kathryn Kase, Managing Attorney of the Houston
Office and Senior Staff Attorney of the Trial Project of Texas
Defender Services. Maricopa County goes to capital trials
approximately 12-13 times a year (14 times in 2010, 13 times in
2009, less the three years before that, per Emily Skinner, Staff
Attorney, Arizona Capital Representation Project). Philadelphia
County does not keep statistics on capital trials, but five
capital cases were scheduled in March, 2011.
4 Consider the matter of Commonwealth v. Campfield, CP-51-CR0006549-2009. The defendant was arrested on 10/24/08, and the
Commonwealth filed notice that it would seek the death penalty
on 6/3/09. On 10/19/10, almost two years after his arrest, 16
1
2
3
the death penalty, pays virtually nothing for the representation
of the accused5, then suffers the consequences through reversal
after reversal6. “Governments. . .quite properly spend vast sums
of money to establish machinery to try defendants accused of
crime,” Gideon v. Wainwright, 372 U.S. 335 at 344 (1963); yet
the government is spending virtually nothing to defend those
same defendants in the instant cases. It is the contention of
this motion that the fee structure currently in place in the
above-captioned
effective
cases
presents
representation,
and
an
unconstitutional
that
the
right
to
barrier
to
effective
representation is inextricably interlinked to the attorney’s right
months after the Commonwealth’s decision to seek the death
penalty, and only two weeks before the capital trial was set to
begin, the defendant’s attorney filed a motion to bar the
Commonwealth from seeking his execution. It turned out that
neither the Commonwealth nor defense counsel had realized the
defendant was only 16 years old at the time of the offense. See
Roper v. Simmons, 543 U.S. 551 (2005). The case had remained a
capital prosecution for close to a year and a half.
5 The connection between the Commonwealth’s pay scale for courtappointed counsel, the death sentences that result, and the
reversal rate for ineffective assistance of counsel is not
speculative. The Defender Association of Philadelphia, which has
been handling 20% of Philadelphia’s capital cases since April,
1993, has two full time salaried attorneys assigned every
capital case, and their capital caseload is regulated to comply
with the ABA Guidelines. Since April of 1993, court-appointed
counsel has taken more than 70 death verdicts; the Defender
Association has not taken a single one.
6 A good example of the consequences of underfunding can be found
in Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007). In that
Philadelphia case, the “mitigation lawyer,” having not attended
the trial, argued to the jury at sentencing that “an eye for an
eye” only applies when a pregnant woman is killed. The lawyer
did not realize that such was precisely the crime his client had
committed. A new penalty phase was granted.
4
to fair compensation. Makemson v. Martin County, 491 So. 2d 1109
(Fla. 1986)7. As cogently noted in Martinez-Macias v. Collins, 979
F.2d 1067 (5th Cir. 1992), a reversal of a Texas death sentence
after defense counsel was paid $11.84 per hour, “the justice
system got only what it paid” for.”
This motion will argue that the current fee schedule
for capital representation in Philadelphia County is a violation
of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 1, 6, 8,
9, 10, 13 and 14 of the Pennsylvania Constitution, as well as 16
P.S. 9960.78 and 42 Pa. C. S. 9711 for the following reasons:
1) the
fees
paid
to
counsel
are
so
low
that
counsel
is
presumed ineffective under Cronic v. United States, 466
U.S. 648 (1984) and the Pennsylvania Constitution;
2) the
fee
schedule
represents
an
inherent
conflict
of
interest for defense counsel such that ineffectiveness is
presumed; and
Makemson suggests that a mandatory cap interferes with the
right to counsel in two senses: (1) It creates an economic
disincentive for appointed counsel to spend more than a minimum
amount of time on the case; and (2) It discourages competent
attorneys from agreeing to a court appointment, thereby
diminishing the pool of experienced talent available to the
trial court. See Bottoson v. State, 674 So.2d 621 (Fla. 1996).
8 16 P.S. 9960.7 requires that an attorney appointed by the Court
of Common Pleas “shall be awarded reasonable compensation, and
reimbursement for expenses necessarily incurred, to be fixed by
the judge of the court of common pleas sitting at the trial or
hearing of the case and paid by the county.”
7
5
3) the
combination
interest
of
creates
absurdly
a
low
fees
presumption
of
and
conflicts
of
ineffectiveness
of
counsel.
The
claim,
in
essence,
is
taken
directly
from
the
landmark case of Powell v. Alabama, 287 U.S. 45 at 71 (1932):
“(I)n a capital case, where the defendant is unable to employ
counsel. . . it is the duty of the court, whether requested or
not, to assign counsel for him as a necessary requisite of due
process of law; and that duty is not discharged by an assignment
at such a time or under such circumstances as to preclude the
giving of effective aid in the preparation and trial of the case
(emphasis
added).”
See
also
Avery
v.
Alabama,
308
U.S.
444
(1940)(“ The Constitution's guarantee of assistance of counsel
cannot be satisfied by mere formal appointment.”) In the instant
cases,
attorneys
have
been
appointed,
but
under
such
circumstances that they cannot be effective in preparing and
trying
a
capital
circumstances
accorded
the
case.
disclosed,
right
of
Again
we
hold
counsel
in
from
Powell:
that
defendants
any
“under
substantial
were
sense.
the
not
To
decide otherwise, would simply be to ignore actualities.” 287
U.S. at 58. The actualities are below.
The Fees Paid To Defense Counsel In Philadelphia County For
6
Capital Defense Are So Low That Ineffectiveness Must Be Presumed
The
concepts
of
"reasonable
fee"
and
the
constitutional requirements of effective assistance of counsel
are
related
but
not
identical.
A
lawyer
could
receive
a
"reasonable fee" for very little work, but a minimal performance
might
not
provide
effective
assistance
of
counsel
in
a
particular case. The focus is not solely on providing the lawyer
with
a
reasonable
fee,
although
that
is
important,
but
on
showing that the system is designed to ensure that an indigent
defendant receives effective assistance of counsel. Simmons v.
State
Pub.
Defender,
791
N.W.2d
69
(Iowa
2010).
Thus,
a
reasonable fee schedule in a capital case must contemplate the
work
necessary
to
do
an
effective
job;
and
the
extensive
requirements to prepare a capital case are by now well known and
well documented. See, e.g., Williams v. Taylor, 529 U.S. 362
(2000); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla v.
Beard, 545 U.S. 374 (2005). The United States Supreme Court has
held
that
capital
investigate
evidence,
and
counsel
prepare
Williams,
at
has
mental
396;
an
obligation
health
that
and
counsel
to
thoroughly
other
mitigating
cannot
meet
this
requirement by relying on “only rudimentary knowledge of [the
defendant's] history from a narrow set of sources,” Wiggins, at
524;
and
that
counsel
has
an
obligation
to
investigate
and
7
prepare to rebut aggravating circumstances put forth by the
Commonwealth. Rompilla, at 386. The Pennsylvania Supreme Court
has
also
acknowledged
the
extensive
requirements
placed
on
defense counsel in a capital case, and particularly a penalty
phase investigation. See generally, Commonwealth v. Smith, 995
A.2d 1143 (Pa. 2010); Commonwealth v. Gibson, 951 A.2d 1110 (Pa.
2008). Every capital case is different, of course, and as such
each case requires different levels of preparation; nonetheless
the 2003 ABA Guidelines9 quote studies indicating “that several
thousand
hours
are
representation10.”
typically
In 1994,
required
to
provide
appropriate
Justice Blackmun estimated that a
properly conducted capital trial can require hundreds of hours
of
investigation,
preparation
and
lengthy
trial
proceedings.
McFarland v. Scott, 512 U.S. 1256, 1257-58 (1994) (Blackmun, J.,
dissenting from denial of certiorari). In short, a competent and
effective investigation and preparation of a capital case is a
The ABA Guidelines have been cited by many courts, including
the United States Supreme Court, as “guides to determining what
is reasonable.” See Wiggins v. Smith, 539 U.S. 510, 524 (2003);
Rompilla v. Beard, 545 U.S. 374 (2005).
10 The most recent study regarding attorney hours in capital case
preparation for federal cases is “Report to the Committee on
Defender Services, Judicial Conference of the United States,
Update on the Cost and Quality of Defense Representation in
Federal Death Penalty Cases”, September 2010. The Study breaks
down the attorney costs and mean number of hours spent on
authorized and unauthorized cases, as well as cases that proceed
to capital trials and cases that resolve themselves as pleas.
Several thousand hours is an accurate estimate. See relevant
pages attached as Exhibit A.
9
8
huge
endeavor
requiring
a
great
deal
County
fee
of
time
from
defense
counsel.
The
Philadelphia
schedule
for
attorneys
appointed in capital cases does not allow for the necessary
investigation
schedule
except
and
preparation
essentially
on
Williams,
an
950
precludes
entirely
A.2d
294
detailed
counsel
charitable
(Pa.
above;
from
basis11.
2008),
indeed
being
the
effective
Commonwealth
anticipated
fee
this
v.
exact
problem. The Court first found the pivotal and seminal Florida
cases of Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986),
and White v. Board of Commissioners, 537 So.2d 1376, 1380 (Fla.
1989),
inapposite.
favorably
by
other
Those
Florida
courts12,
cases,
ruled
that
subsequently
flat
fees
cited
and
fee
limitations were unconstitutional in all capital cases, finding
that
such
cases
by
definition
involved
extraordinary
circumstances and required unusual representation. The Williams
Court distinguished those cases, however, by noting that “trial
counsel did not contest the fee limitation, but rather, accepted
Preparation fees are as follows: Homicide (Disposition After
Arraignment But Prior To Trial) - $1333; Homicide (Disposition
At Trial) - $2000; Mitigation Homicide Appointment/Co-Counsel $1700; Homicide 2d Chair Associate Counsel - $650. See attached
Exhibit B.
12 See, e.g., Bailey v. State, 424 S.E.2d 503 (S.C. 1992); State
ex rel. Wyoming Workers' Compensation Div. v. Brown, 805 P.2d
830 (Wyo. 1991); Joseph v. C.C. Oliphant Roofing Co., 711 A.2d
805 (Del. Super. 1997); Arnold V. Kemp, 813 S.W.2d 770 (Ark.
1991).
11
9
it and expended substantial efforts in the advancement of his
client's cause. His explanation on post-conviction review was
that he regarded the acceptance of court appointments as part of
his duty as an attorney, and that the fee limitation had no
effect
upon
his
performance.
.
.
While
certainly
in
other
circumstances such a fee limitation may be problematic, trial
counsel's voluntary acceptance of full responsibility for the
representation subject to the limitation does not fall within
the
narrow
category
of
cases
reflecting
a
breakdown
in
the
adversary process as discussed in Cronic (emphasis added).” 950
A.2d
at
313.
Philadelphia
The
Williams
County
Court
for
was
correct
capital
-
the
fees
representation
in
are
“problematic.” Unlike in Williams, however, counsel does contest
the fee schedule in the instant cases.
Seventeen
“compensation
defendants
conducted
for
often
capital
years
ago
attorneys
is
Justice
representing
perversely
trial
can
Blackmun
low.
involve
wrote
indigent
Although
hundreds
a
of
that
capital
properly
hours
of
investigation, preparation, and lengthy trial proceedings, many
States severely limit the compensation paid for capital defense.
Louisiana limits the compensation for court-appointed capitaldefense counsel to $1,000 for all pretrial preparation and trial
proceedings. Kentucky pays a maximum
of $2,500 for the same
10
services.
Alabama
limits
reimbursement
for
out-of-court
preparation in capital cases to a maximum of $1,000 each for the
trial and penalty phases.” See McFarland, supra.
But
each
of
the
states
named
by
Justice
Blackmun
seventeen years ago now compensates its capital trial lawyers
far more than Philadelphia. Twelve years ago Alabama changed its
rate of compensation to $40 per hour out of court and $60 per
hour
in
overhead
court,
plus
expenses”
an
that
additional
averages
hourly
sum
approximately
for
$30
“office
per
hour,
thus bringing the hourly rates to 70/90. Wright v. Childree, 972
So.2d 771 (Ala. 2006). There is no limit to the hours submitted
in a capital case in Alabama. Kentucky’s Department of Public
Advocacy compensates the court-appointed attorneys at $75 per
hour, and limits each attorney to $30,000; but that limit can be
waived
under
extraordinary
circumstances.
See
Robert
L.
Spangenberg, Rates Of Compensation For Court Appointed Counsel
In
Capital
200713.
Cases
At
Louisiana,
Trial:
through
A
State
the
By
State
Louisiana
Overview,
Indigent
June
Defense
Assistance Board (now the Louisiana Public Defender Board), has
created regional offices to handle capital cases – for conflict
cases
the
Shreveport
state
to
pays
$110
in
an
New
hourly
rate
Orleans.
ranging
See
from
Spangenberg
Confirmed in email exchange with Tom Griffiths, head of
Department of Public Advocacy Capital Trial Unit, 3/7/11.
13
$75
in
Report,
11
supra.
Thus,
dramatically
every
state
modernized
shamed
its
by
fee
Justice
structure
Blackmun
for
has
capital
representation.
Other
states
pay
capital
lawyers
far
more
than
Philadelphia County. A random sampling14indicates the following:
Virginia pays court-appointed attorneys $125 per hour with no
limitations as to number of hours; Illinois, which abolished the
death
penalty
on
3/10/11,
was
paying
its
capital
attorneys
$145.39 per hour as of 2007; Idaho pays a range of $90-150 per
hour; Ohio, as of 2005, paid $46 per hour plus expenses. Florida
pays an hourly rate of $100 and caps payment at $15,000, but
this cap can be waived by the Court up to $30,000. See Justice
Admin. Comm'n v. Lenamon, 19 So. 3d 1158 (Fla. 2009).
Other
states, such as Texas and Oklahoma, employ a combination of
hourly rates and maximum fees; but every state’s maximum is at
least five times greater than Philadelphia County, and usually
far more. Even Mississippi, regularly ranked the poorest state
in the country, recognized twenty-one years ago that a low flat
fee (in that case $1000) could only be constitutional if the fee
were accompanied by an hourly “reimbursement of actual expenses”
that was a minimum of $25 per hour but would be higher subject
to proof of an attorney’s actual overhead. Wilson v. State, 574
14
C.
Attached is the entire Spangenberg Report, supra, as Exhibit
12
So.2d 1338 (Miss.1990). Twenty-one years later, Mississippi now
pays conflict counsel $125 per hour without limitations to lead
counsel and $100 per hour to associate counsel15.
Philadelphia County stands alone as the lowest paying
county
in
Pennsylvania
as
well.
A
random
sampling
of
fees16
indicate that Allegheny County pays $50 per hour, Greene County
pays $60,
Warren County pays $70, Bradford County pays $94,
Lycoming County pays $125, and Montgomery County pays $75 per
hour out of court and $150 per hour in court. The federal courts
for a capital case in Philadelphia pay “learned counsel” (the
equivalent of Lead Counsel) $178 per hour without limitation;
second
chair,
or
CJA
lawyers,
are
paid
$125
per
hour17.
Philadelphia County is indeed an outlier in the United States as
far as attorney fees for capital cases are concerned.
Courts
state’s
failure
have
to
established
pay
a
counsel in capital cases.
different
reasonable
In Makemson
fee
to
remedies
court
and White,
for
a
appointed
supra, the
Florida Court ordered a departure from the fee guidelines so
Per Andre de Gruy of the Mississippi Office of Capital Defense
Counsel, email on file with counsel.
16 Emails from practitioners in those jurisdictions on file with
counsel.
17 And even Philadelphia County, while under the same financial
constraints as many other jurisdictions, recognizes that lawyers
working in the public sector must be paid a reasonable wage –
indeed, attorneys defending the city in civil rights cases are
paid $225 per hour by the county!
15
13
that
reasonable
fees
could
be
paid.
Finding
that
the
fee
structure interfered with the Sixth Amendment right to counsel,
the Court noted that “we must not lose sight of the fact that it
is the defendant's right to effective representation rather than
the attorney's right to fair compensation which is our focus. We
find the two inextricably interlinked.” Bailey v. State, 424
S.E.2d 503 (S.C. 1992), quoting Makemson, supra, noted that “the
link
between
compensation
and
the
quality
of
representation
remains too clear,” and followed the Florida court in ordering
reasonable attorneys’ fees be paid. Bailey v. State, 424 S.E.2d
503 (S.C. 1992), quoting Makemson, supra, noted that “the link
between compensation and the quality of representation remains
too clear,” and ordered reasonable attorneys’ fees be paid. In
N.Y. County Lawyers' Ass'n v. State, 196 Misc. 2d 761 (N.Y.
Supreme Court, 2003), the court found that fees of $40 per hour
in court and $25 per hour out of court was insufficient to
ensure “the constitutional and statutory obligation . . . that
qualified assigned private counsel are available and able to
provide meaningful and effective representation,” and ordered
payment of $90 per hour in and out of court without limitation.
Other courts, focusing on the unfairness of confiscatory fees to
the lawyers, reached the same conclusion as the Florida
and
South
fee
Carolina
Supreme
Courts
and
required
that
the
14
structure be made reasonable. See, State v. Lynch, 796 P.2d
1150 (Okla. 1990). Some courts, faced with inadequate funding
for
court
appointed
attorneys,
have
ordered
the
criminal
proceedings halted until adequate funding becomes available. See
State v. Citizen, 898 So. 2d 325 (La. 2005); generally, Lavallee
v. Justices in the Hampden Superior Court, 812 N.E.2d 895 (Mass.
2004). And State v. Young, 172 P.3d 138 (N.M.2007), is perhaps
most instructive of all.
In Young, a complex capital case, $96,500 had been allotted
lead counsel and $73,000 for second counsel; counsel for the
defendant alleged that another $50,000 for each counsel would be
necessary (at $75 per hour) to ensure effective representation.
The trial court agreed, but the New Mexico legislature did not
appropriate the necessary funds. The New Mexico Supreme Court
stated the following: “We are persuaded by the evidence in the
record that the attorneys for the defendants are not receiving
adequate compensation. The inadequacy of compensation in this
case makes it unlikely that any lawyer could provide effective
assistance, and therefore, as instructed by the United States
Supreme
Court,
ineffectiveness
is
properly
presumed
without
inquiry into actual performance. See Cronic, 466 at 661. (noting
that
there
may
be
cases
where
"circumstances
ma[k]e
it
so
unlikely that any lawyer could provide effective assistance that
15
ineffectiveness
[is]
properly
presumed
without
inquiry
into
actual performance at trial.").” Faced with a Cronic violation,
the Court indeed found that defense counsels’ compensation to be
inadequate,
and
thus
a
violation
of
the
defendants’
Sixth
Amendment rights to effective representation. The Court’s remedy
was to stay the death penalty unless and until the funds in
question were made available to defense counsel. Young, supra,
172 P.3d at 144.
Financially speaking, Young is as far from the instant
cases
as
the
sun
from
Pluto;
but
the
point
is
the
same.
Inadequate compensation in a capital case is inextricably linked
to ineffectiveness of counsel, and this Court now faces the
least compensation of any jurisdiction in the United States.
“(T)he State assumes the obligation to provide assigned counsel
with a reasonable basis upon which they can carry out their
profession's
profiteering
threaten
tension
the
responsibility,
or
undue
financial
adversarial
between
without
adherence
process
to
sacrifice.
by
either
The
creating
professional
personal
current
an
rates
unacceptable
standards
and
the
financial burden an attorney assumes when serving” as courtappointed counsel. New York County Lawyers' Association v. State
of New York, 763 N.Y.S. 2d 397 (2003). This Court must now order
reasonable compensation, or bar the death penalty due to the
16
Commonwealth’s refusal to properly fund defense counsel in a
capital case.
The
Philadelphia
County
Fee
Schedule
Represents
An
Inherent
Conflict Of Interest Such That Ineffectiveness Of Counsel Must
Be Presumed
The Philadelphia County fee schedule pays lead counsel
$2000 as a preparation fee, and $1700 to Mitigation Homicide
Appointment/Co-Counsel.
If
the
case
proceeds
to
trial,
lead
counsel is paid $200 for three hours of court time or less, and
$400 per day for more than three hours. Mitigation counsel is
paid $100/$200 for court time. When the penalty phase begins,
the rates reverse for lead and mitigation counsel. Continuances
are expressly not compensable. This fee schedule represents the
following possible conflicts of interest:
1) Given
the
absurdly
low
preparation
fee,
counsel
has
a
strong financial interest in advising his client to go to
trial, where he can double his fee in a mere five days18;
A fee schedule that provides more money for trial than
negotiation is not only a conflict of interest but may be
unethical as well. Judge Renee Cardwell Hughes of the
Philadelphia Court of Common Pleas, in a high profile case
involving the Archdiocese of Philadelphia, noted that an
agreement to pay attorney fees only upon an acquittal may
discourage negotiation even if that would be the best path to
take. Stephen Gillers, a well-known Professor of Ethics at New
York University Law School, said that “arrangements to pay legal
18
17
2) Counsel
has
a
financial
quickly as possible
incentive
to
go
to
trial
as
and prepare as little as possible,
given that she will receive the same fee for one hour’s
preparation or two thousand;
3) Counsel has no incentive to request a continuance, even if
a continuance is crucially needed, as continuances are not
compensated;
4) Mitigation counsel has a financial interest in preparing
for a penalty phase as little as possible, since he will
make $1700 regardless of hours spent in preparation;
5) Mitigation
counsel,
making
a
mere
$200
per
day
for
a
possible eight hours of work, has an interest in assuring
that a trial end quickly;
6) Mitigation
counsel
has
the
same
financial
interest
in
proceeding to trial the case as lead counsel.
In short, the fee schedule is so transparently rife
with conflict issues that it is almost unreasonable to believe
that court-appointed counsel might rise above it. See, e.g.,
fees only if acquitted could result in divided loyalties, for
both lawyer and client.” See, Priests and Judge in Abuse Case
Spar Over Legal Fees, Katherine Q. Seelye, New York Times,
3/14/11. While the Philadelphia fee schedule does not pay a
bonus for acquittals, there is a clear financial interest for
the attorney in proceeding to trial rather than negotiating a
resolution.
18
Bailey v. State, supra at 424 S.E.2d 503, 506 (1992) (“[I]t
would be foolish to ignore the very real possibility that a
lawyer may not be capable of properly balancing the obligation
to expend the proper amount of time in an appointed criminal
matter where the fees involved are nominal, with his personal
concerns to earn a decent living by devoting his time to matters
wherein he will be reasonably compensated. The indigent client,
of course, will be the one to suffer the consequences if the
balancing
job
is
not
It
is
this
obvious
if
speculative
that
was
made
explicit
in
the
original).
interest
condemnation
of
flat
tilted
fees
in
and
his
favor.”)
2003
compensation
(emphasis
in
conflict
of
ABA
Guidelines
caps
(Guideline
9.1)(“Counsel in death penalty cases should be fully compensated
at
a
rate
quality
that
legal
is
commensurate
representation
and
with
the
reflects
provision
the
of
high
extraordinary
responsibilities inherent in death penalty representation...Flat
fees, caps on compensation, and lump-sum contracts are improper
in death penalty cases”).
What is not speculative is the Commonwealth’s refusal
to
remunerate
for
a
continuance
request,
whether
granted
or
denied. Seeking a continuance when a capital case is not ready
for trial is essential to good practice, and numerous cases have
been reversed for failure to grant a proper continuance in a
19
capital case, even though the decision for the trial judge is
discretionary. See, e.g., Powell v. Collins, 332 F.3d 376 (6th
Cir. 2003); People v. Lovejoy, 235 Ill.2d 97, 919 N.E.2d 843
(2009); State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000).
Nor is a continuance request a simple matter of walking to the
bar of the court and asking – in order to effectively preserve
the record should the request be denied, counsel must fully
document
her
reasons
the
continuance
should
be
granted.
The
Commonwealth’s refusal to compensate for this critical motion is
an
overt
financial
disincentive
for
counsel
to
follow
a
necessary and often constitutionally required path, and as such
presents a clear conflict of interest for counsel who know their
case is not properly prepared but knows as well that any work
aimed at gaining necessary time will be unremunerated. In short,
the
Philadelphia
County
fee
schedule
represents
innumerable
potential conflicts of interest for a terribly underpaid courtappointed counsel to navigate, and, as noted supra in State v.
Bailey,
it
is
the
indigent
client
who
suffers
from
even
a
subconscious desire on the part of his lawyer to simply make a
living.
The Combination of Absurdly Low Fees and the Inherent Conflicts
of Interest Built into the Fee Schedule Create a Presumption of
Ineffectiveness
20
While flat fees have been roundly condemned as an
inappropriate
remuneration
scheme
in
capital
cases
exactly
because of the conflicts of interest inherent in such a payment
plan, it is the low fees in the instant cases that enhance the
conflicts and make them real. Effective capital practitioners
know that many capital cases are best resolved by a guilty plea,
and that resolution may take many hours of time with a client,
his family, and representatives of the Commonwealth to achieve
this goal. Yet resolving a case by plea bargain will actually
cost defense counsel money, as he will surely not be compensated
for the hours required, and will earn no money from the per
diem. Persuading a client to take a waiver trial rather than a
jury trial may also be a sound course in a capital case; again,
however,
financial
counsel
will
interests,
as
be
a
advising
waiver
a
trial
decision
will
be
against
his
considerably
shorter than a jury trial and will thus pay less per diem. ABA
Guideline 10.9.1 (The Duty To Seek An Agreed-Upon Disposition)
explicitly discusses the advantages of guilty pleas19, waiver
trials20, agreements to forgo various legal rights21, and many
Counsel at every stage of the case should explore. . . the
types of pleas that may be agreed to, such as a plea of guilty,
a conditional plea of guilty, or a plea of nolo contendere or
other plea which does not require the client to personally
acknowledge guilt, along with the advantages and disadvantages
of each. Guideline 10.9.1, B.5
20 Counsel at every stage of the case should explore. . .an
19
21
other
options
short
of
a
death
sentence;
but
each
option
requires hours of work without real compensation.
Conclusion
The Philadelphia County fee system for court-appointed
counsel in capital cases is designed to be ineffective: lawyers
are not compensated for the work they need to do, and they are
encouraged to make decisions that inure to the detriment of
their clients and the court system22. The court-appointed lawyers
that are presently handling the bulk of the capital cases in
Philadelphia
necessary
are
handling
motion
practice,
a
caseload23
investigation,
that
precludes
the
and
development
of
mitigation, simply because they cannot make a living wage from
the fee schedule as it is constituted.
Based on the instant allegations as contained in this
agreement to permit a judge to perform functions relative to
guilt or sentence that would otherwise be performed by a jury or
vice versa. Guideline 10.9.1, B.8.b
21 Counsel at every stage of the case should explore. . .an
agreement to forego in whole or part legal remedies such as
appeals, motions for post-conviction relief, and/or parole or
clemency applications. Guideline 10.9.1, B.8.d
22 Presumably a court system would welcome more guilty pleas and
waiver trials than full-blown capital jury trials.
23 Neither the Guidelines nor the case law specifies an
appropriate number of capital cases that a court-appointed
attorney should handle at a given time. Given the requirements a
capital case entails, supra, it is obvious that the number of
death penalty cases a court-appointed attorney should handle
must be severely limited. Much like Justice Stewart’s
pronouncement that you know obscenity when you see it, this
Court will know that the caseload of many court-appointed
attorneys is far too overwhelming to even attempt an effective
job in an individual case.
22
Motion,
Defendants
in
the
above-captioned
cases
and
their
court-appointed attorneys ask this Court to grant a hearing and
allow counsel to establish the facts necessary to support one of
the two remedies requested: a reasonable fee to continue the
representation required by the United States Constitution and
the
Pennsylvania
Constitution
in
a
capital
case,
or
a
bar
precluding the Commonwealth from seeking the death penalty in
the instant cases.
Respectfully Submitted,
_______________________
Marc Bookman, Esq.
On Behalf of
Michael Farrell, Esq.
William Bowe, Esq.
Daniel Rendine, Esq.
Judith Rubino, Esq.