Report calls pay for lawyers in Philly death-penalty cases 'grossly inadequate'

A report ordered by the state Supreme Court concludes that the pay for court-appointed lawyers in Philadelphia death-penalty cases is "grossly inadequate" and "unacceptably increases the risk of ineffective assistance of counsel."

The report, made public Tuesday, was written by Common Pleas Court Judge Benjamin Lerner, whom the high court ordered to assess the facts and legal issues on the subject and report back. It is now up to the Supreme Court to decide if it will act, and when.

Last year, The Inquirer reported that scores of Philadelphia death-penalty cases had been reversed by appellate courts or sent back for new hearings because of serious errors by defense attorneys. Low pay is a key reason, critics say.

In Philadelphia, fewer than 30 of 11,000 lawyers are willing to take capital-case appointments for indigent clients and also meet minimum state requirements for doing so.

And Philadelphia pays less than any other county in Pennsylvania, according to defense lawyers who petitioned the Supreme Court to increase the fees or halt death-penalty cases until that happens. The high court instead ruled that more information was needed and gave Lerner the assignment.

Lerner, who oversees homicide cases in Philadelphia, was told to determine if the pay for court-appointed lawyers was "so inadequate that it can be presumed that court-appointed counsel are constitutionally ineffective."

He also was asked if the problem needed to be dealt with "in a general, global sense," or case-by-case.

Lerner concluded that each case must be dealt with individually.

"However," he wrote, "the compensation of court-appointed capital defense lawyers in Philadelphia is grossly inadequate, both as to the dollar amount of the compensation and as to the compensation schedule provided by the present fee system.

". . . The existing compensation system unacceptably increases the risk of ineffective assistance of counsel in individual cases and is primarily responsible for the First Judicial District's growing inability to attract a sufficient number of qualified attorneys willing to accept court appointments in capital cases."

Lerner wrote that the shrinking lawyer pool had led to the prolonged dispositions of cases and, "in too many cases, has delayed justice to the threshold of denial."

Reached Tuesday evening, Lerner would not comment. "A lot of work obviously went into this, and I hope the report and recommendations will speak for itself," he said.

Lerner's report recommended that an additional $340,000 be spent in Philadelphia for capital-case attorneys. In 2010, the city spent $200,000 for such lawyers, he reported.

The Philadelphia fee system was established in 1997, with an update in 2002 requiring two appointed lawyers in death-penalty cases.

The lead counsel gets a flat "preparation fee" of $2,000, which includes the first half-day of trial. For the rest of a trial, a lawyer gets $200 for half days and $400 for full days. A lawyer receives $1,700 fee for the penalty phase of a case.

For cases resolved before trial, a lawyer's preparation fee is reduced by a third.