Skip to content
Link copied to clipboard

Phila. courts increase pay for capital defense

Moving to reduce a shortage of lawyers qualified and willing to take court appointments to defend the poor in death-penalty cases, the Philadelphia courts have dramatically increased lawyers' fees and temporarily suspended the work of a new committee that screens capital-case attorneys.

Moving to reduce a shortage of lawyers qualified and willing to take court appointments to defend the poor in death-penalty cases, the Philadelphia courts have dramatically increased lawyers' fees and temporarily suspended the work of a new committee that screens capital-case attorneys.

An order by Common Pleas Court Judge John W. Herron, administrative judge of the trial division, increases the flat rate paid to capital-case counsel from the current $2,000 to $10,000 for trial lawyers and the fee paid to penalty-phase cocounsel from $1,700 to $7,500.

At the same time, Herron suspended the work of a new screening committee for the rest of the year. Herron noted that the committee has approved only 12 Philadelphia defense lawyers after reviewing their applications.

Last year, an Inquirer report found that more than 125 capital trials in Pennsylvania - 69 from Philadelphia - were reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

Lawyers quoted in the story cited low pay for court-appointed lawyers as a major factor.

While not criticizing the so-called HAS (Homicide Appointment System) Committee, Herron wrote Monday that he had to respond to a growing backlog of homicide cases due to a lack of qualified lawyers for court appointments.

Herron called death-penalty cases "a community nightmare," adding that he needed "to more expeditiously address the devastating consequences of these crimes to the victim's family and the other parties involved."

Pennsylvania Supreme Court Chief Justice Ronald D. Castille said Tuesday that he concurred with Herron's action, saying the backlog of Philadelphia homicide cases was at a "critical point."

The time between arraignment and trial for Philadelphia murder defendants is sometimes 11/2 years or longer, Castille said, and is threatening to run afoul of the court's "speedy trial rule."

Without judge-approved continuances requested by prosecution or defense lawyers, murder cases must be tried in 360 days or the charges are dismissed.

"It's just not appropriate for the families of the victims or the individuals who are charged to be left hanging for all this time," Castille added.

Instead of the new HAS Committee, Castille said, homicide counsel appointments this year will be made by Common Pleas Court Judge Benjamin Lerner, who handles pretrial matters in all city murder cases.

For almost a year, there have been efforts on several fronts to change how Philadelphia's court system handles homicides, particularly the defense of poor people facing the ultimate punishment under Pennsylvania law.

In December, a federally funded RAND Corp. study of 3,157 Philadelphians charged with murder from 1994 to 2005 showed "an enormous and troubling chasm" in homicide defense between public defenders and court-appointed counsel.

The RAND study also blamed the low pay rate and access to resources available to court-appointed lawyers.

There have been successes, Castille said, referring to the recent addition of a 10th Common Pleas Court judge to handle homicide trials.

Castille also praised District Attorney Seth Williams for withdrawing the death penalty in about 65 pending homicide trials and reserving its use for only "the most horrendous cases."

But the system remains hobbled by the limited number of lawyers willing to accept capital appointments. Defense lawyers say the reason is a fee schedule that effectively pays them less than minimum wage to defend a poor person facing death.

Last April, the Atlantic Center for Capital Representation, a Philadelphia nonprofit that consults on death-penalty cases, filed a petition challenging Philadelphia's flat-fee reimbursement.

The petition argued that the amount paid to court-appointed lawyers in capital cases effectively violated an indigent defendant's constitutional right to "effective assistance of counsel."

Until Herron's order, Philadelphia's fee schedule, adopted in 1997 and never revised, reimbursed a court-appointed death-penalty lawyer a flat fee of $1,333 to prepare a murder case if it is resolved before trial, and $2,000 if the case goes to trial.

If the trial lasts more than a day, the lawyer gets $200 per trial day under three hours and $400 per day for any time over three hours.

Defense lawyers say that given the complexity and time-consuming nature of most homicide cases - and the stakes involved - the rate was about $2 an hour.

Even as the Atlantic Center's petition moved forward - a report by Lerner based on the petition's claims is pending before the high court - court officials were trying to improve the quality of death-penalty lawyering.

Philadelphia lawyers who wish to accept court-appointments in capital cases must be certified by the state Supreme Court as completing certain legal continuing-education courses.

In Philadelphia, the system was replaced, effective in January, by the HAS Committee of judges and lawyers responsible for soliciting, screening, and approving applications from lawyers seeking capital-case appointments.

Ironically, the committee's first review of applicants actually wound up reducing the number of qualified death-penalty lawyers available for appointment by about half.

Lerner said Herron's order was not meant to criticize the HAS Committee's work.

"This is a onetime temporary response to specific problems that exist right now," Lerner said.

"I certainly respect what the committee has done . . . and don't intend to substitute myself for the committee," Lerner added.