When it comes to implementing reforms designed to
guard against convicting innocent people, Pennsylvania lags far behind the vast
majority of states, reported Slate. It has no law requiring the police to record interviews
with suspects to prevent coerced confessions. Nor does it have a law setting
guidelines for police to follow when conducting eyewitness identifications.
Another frequent cause of wrongful convictions is
bad lawyering by defense attorneys. You get what you pay for when it comes to
legal services, and Pennsylvania pays nothing at all—standing alone among the
50 states in its steadfast refusal to allocate any money in the state budget
for indigent criminal defense.
Instead, it is up to each Pennsylvania county to
design a system to provide legal representation to the poor. Not surprisingly,
the performance is uneven: Philadelphia’s public defender office, set up as a
nonprofit, is known for its well-trained and diligent attorneys. In other
parts of the state, there is no public defender at all. Instead, judges appoint
lawyers on an ad hoc basis, often at hourly compensation rates that are
shockingly low.
According to Marc Bookman, who directs the
Philadelphia-based Atlantic Center for Capital Representation, many of these
court-appointed lawyers are poorly trained and show up to trial completely
unprepared. More than 250 death penalty verdicts have been thrown out in
Pennsylvania since 1979, the majority because of faulty representation by
defense counsel. It is, Bookman says, “a bigger reversal rate than any state in
the country.” Six of Pennsylvania’s 54 exonerees were death row inmates.
You get what you pay for when it comes to legal
services, and Pennsylvania pays nothing at all.
In 2011, Bookman filed a petition for a writ of
mandamus—an extraordinary remedy sought in instances of “immediate public
importance”—in the Pennsylvania Supreme Court. He sought to have the
compensation rates for court-appointed lawyers in Philadelphia County capital
cases declared unconstitutional. (Bookman targeted only solo practitioners, not
the Philadelphia public defender, which began accepting a small number of
capital cases in 1993 and had never had a client sentenced to death.) Capped at
$2,000 to investigate and prepare the case pretrial and at $400 per day at
trial, the rates were the lowest in the nation by several standards of
deviation. Bookman noted that the Florida Supreme Court had ruled that a
significantly higher flat fee of $3,500 was unconstitutional in 1986. (Wright’s
court-appointed trial lawyer, who was later disciplined by the bar for his
shoddy work in other cases, was paid a total of $1,800.)
“Of course, some jurisdiction has to be last,”
Bookman wrote, “and had the Philadelphia County fee schedule been even close to
the second lowest jurisdiction, this petition would not have been filed. But
Philadelphia County is not close.” In fact, the county of Philadelphia lagged
well behind far poorer counties in places such as Mississippi, Arkansas, and
South Carolina. Bookman’s legal theory was novel but grounded in common sense:
No competent lawyer would take a death penalty case for so little money.
As the Pennsylvania Supreme Court was weighing the
case, Philadelphia County raised the cap for pretrial preparation in capital
cases to $10,000, which, according to Bookman, was still “absurdly low” given
the amount of work involved and the hourly rates provided in other states.
Bookman pressed on with his lawsuit. In 2014, he lost, in a 4–3 ruling by
Pennsylvania Supreme Court. One of the dissenters lamented the lost opportunity
to “address a systemic challenge amidst much evidence that Pennsylvania’s
capital punishment regime is in disrepair.” He called Philadelphia’s fee
reforms “modest.”
A recent study conducted by the Reading Eagle suggests
that the past and current fee schedules in Pennsylvania dissuade all but the
most incompetent and compromised defense lawyers from taking capital cases. The
paper examined 312 capital cases dating back to 1980. The results concluded
that almost 1 in 5 of the defendants were “appointed attorneys with drug and
alcohol addictions, who suffered from depression, have had a history of
mishandling clients’ cases or were convicted felons.” The fact that the
attorneys had faced professional discipline—often multiple times—did nothing to
stop judges from appointing them. More than 80 percent of the defendants they
represented were either black or Latino.
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