It's Always Christmas in the DA's Office

We’ve been feeling a little slighted at ACCR these past few days. It being summer and vacation time, we took a few days off – but for some reason we can’t fathom, none of our friends stepped forward to pay for our flights. Not only that, we’ve been footing the bill for Eagles and Sixers and Phillies tickets – why aren’t our supporters offering us free seats? When our roof leaks, we have to pay to have it repaired ourselves! And then, of course, there’s the cash – why aren’t people walking up to us to hand us some hard currency, for god’s sake??

But Seth Williams, the top prosecutor in Philadelphia, doesn’t have these problems. He’s been taking free trips with free lodging, getting his roof fixed “on the house” (rather than the $45,000 it costs non-District Attorneys), standing on the sidelines of sporting events, and getting gifts that are the color of money. If he forgot to tell anyone about it, “he wasn’t paying attention,” his lawyer said. Well, a leaky roof can really be a distraction.

Under the “anything’s possible” column, maybe Williams is just an extraordinarily terrific fellow, and when he goes online to take a flight, an alert goes out to his buddies to make sure he doesn’t actually have to pay for the trip himself! Indeed, his security detail, who surely make less than his $175,000 salary, gave him $800 in cash for Christmas. But while ACCR believes more than most in the presumption that one is innocent until proven guilty, we also have to acknowledge another explanation: the people providing all this largess expect something in return. Two of the main gift-givers, in fact, were defense attorneys handling cases prosecuted by Williams’ office, and one became a judge subsequent to Williams’ endorsement. The Eagles, who apparently like to provide free sideline passes to important Philadelphia officials, were fortunate enough not to have two of its star players prosecuted after a DA investigation.

Nor is it really plausible that Mr. Williams wasn’t paying attention. Not too long ago, his office successfully prosecuted five state legislators and local officials for taking gifts much smaller than those Mr. Williams has himself admitted to receiving. Certainly an elected official, no less the top prosecutor in Philadelphia, is acutely aware of the ethical and legal standards to which he must be held.

But what does all this have to do with the death penalty? We think a lot. For starters, Williams has bucked the national trend to seek the ultimate punishment infrequently – while Philadelphia is surely pursuing the death penalty less often than it used to, it still does so more than virtually every other major city, even though no death sentence has been returned in more than three years. Perhaps more importantly, Williams continues to ignore the very real regional shift away from capital punishment – every state in the Northeast except New Hampshire (which has one person on its death row) has now done away with it. Of course, it is still the law of Pennsylvania that a District Attorney can attempt to impose a death sentence, even though Governor Wolf has rightly suspended executions pending a full evaluation of an obviously flawed system. But if capital punishment is sought, we would at the very least hope that the decision to do so was being made by a prosecutor following the most rigorous ethical and legal principles. Is there any question that Mr. Williams’ behavior has fallen well beneath such standards?

The Republican Platform

We know we’re not the only ones who feel guilty for secretly hoping that Donald J. Trump got the Republican nomination. After all, who could have imagined that he might actually win? It wasn’t the racism and misogyny and Muslim-bashing that we thought might derail his candidacy – while he was more obvious about it than his compadres, he was hardly more sincere. Rather, we assumed he was just too buffoonish to be taken seriously, what with his moronic baseball hat, insipid slogans, and seeming inability to complete a sentence without repeating it again, to emphasize the profoundly middle-schoolish nature of his thought. Even in our feverish imaginations, we did not see this coming.

We know we’re not the only ones who hate the idea that the Republicans have co-opted the word “conservative” – have we become so academically illiterate, or the Republicans so good at stealing language, that we’ve forgotten the meaning of the word “conservative?” Is denial of global warming conservative? Or this, from our potential future Vice President, Mike Pence – “Time for a quick reality check. Despite the hysteria from the political class and the media, smoking doesn’t kill.” Or this from Ted Cruz at the RNC – “We [the GOP] passed the Civil Rights Act, and fought to eliminate Jim Crow laws.” Unless conservatism now means ignoring facts, debunking science, and rewriting history, none of the above has anything to do with the meaning of the word conservative. Indeed, it is hard not to recall the great Helen Hayes line from Anastasia: “Truth serves only a world that lives by it.”

Which brings us to the capital punishment platform of the Republican party: “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.” Where to begin?

Well, for starters, while the Fifth Amendment mentions capital punishment, it certainly does not endorse it as a timeless penalty beyond future scrutiny. For 70 years our courts have assessed the constitutionality of punishment by the “evolving standards of decency that mark the progress of a maturing society,” rather than by the opinions of the Framers, who viewed blacks as three-fifths of a person and women as unfit to vote. But why should the Republicans worry about obscuring the law, when they can simply lie about the facts? Murder rates are not “soaring” – of the 63 jurisdictions surveyed by the Major Cities Chiefs Association in May 2016, 32 showed an increase in homicides, while 27 showed a decrease and four remained the same in a first quarter comparison between 2016 and 2015. This is more of a little bump in the road than a major trend. But even these statistics can be very misleading.

Here are some facts that cannot be controverted. Murder rates across the country are as low as they’ve been in decades; and these rates are occurring at the same time executions and death sentences have plummeted. While no honest statistician would draw the conclusion that the lack of a viable death penalty has caused such declines, only a perniciously dishonest one would advocate capital punishment as a cure for the nonexistent problem of soaring homicide rates.

Finally, the GOP has condemned the Supreme Court’s “erosion of the right of the people to enact capital punishment in their states.” If saying it, or writing it in a platform, only made it so! There’s nothing – other than the good sense of legislatures who think money can be better spent on schools or roads or drug treatment facilities than on a mostly imaginary punishment fraught with error – stopping states from enacting death penalty statutes.

The trend among the states, of course, is in the opposite direction. And regardless of the code words and dog whistles used by Trump and the RNC, our country’s inclination is against racism, misogyny and Muslim-bashing as well. There may be the occasional electoral blip, but this sort of hatred can never prevail for long. Indeed, many true conservatives have rejected the vitriol, just as they have come to understand capital punishment as an anachronistic throw-back to an era long gone.

Now if only we can say the same thing about morons with orange hair wearing really stupid hats.

Let's Pay Attention

Tuesday is a pretty big day for Democrats in Pennsylvania: Hillary or Bernie? Sestak or McGinty or the very cool but lesser known John Fetterman? And, of course, that critical race for Attorney General. Wait, you don’t know about that critical race for Attorney General? Allow us to provide you a little information.

ACCR doesn’t endorse candidates (honestly, do you think we need more enemies than we already have?). We do, however, believe that voters should be informed consumers when entering the booth. And since Kathleen Kane has decided to end her biblical reign (in terms of calamitous, not miraculous, events), this election is particularly important in reestablishing a sense of legal dignity in our state. Here are a few facts about the three running in the Democratic primary, Stephen Zappala, John Morganelli, and Josh Shapiro.

Zappala is the long time District Attorney of Pittsburgh and the son of a former Chief Justice of Pennsylvania’s Supreme Court. When asked his opinion about the death penalty, he bravely noted that it must be applied “in a thoughtful way.” And, in truth, for most of Mr. Zappala’s tenure as District Attorney, his office sought capital punishment more selectively than the rest of the state, and far less than Philadelphia. But then the worst thing that can happen to a prosecutor happened to Mr. Zappala – he got ambitious. In the years leading up to his decision to run for Attorney General, Pittsburgh has seen a huge uptick in death penalty prosecutions, while the rest of the country has moved in the opposite direction. Would Mr. Zappala be the first politician trying to climb higher on the backs of poor people accused of serious crimes? Hardly.

Then there is Mr. Morganelli. Of the three candidates, he is the only actual trial prosecutor; and in fact he has personally put a number of men on death row. He is a staunch believer in the death penalty, but he has a casual relationship with the truth when he discusses this issue. “We have federal judges who constantly block these executions. It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty,” Morganelli said. The reality, of course, is that Pennsylvania state judges have granted relief in far more capital cases than Pennsylvania federal judges. While the possibility of executing an innocent person weighs heavily on even most pro-death penalty advocates, Mr. Morganelli is the exception: “Death row right now, there’s absolutely no evidence at all that these people are innocent, in fact they’re all guilty, we know that,” he said in a televised debate with the Director of ACCR. At least he is not struggling with his conscience.

Finally, there is Josh Shapiro. A Montgomery County commissioner and chairman of the state’s Commission on Crime and Delinquency, he has no background as a prosecutor. While he does support the death penalty for “the most heinous of crimes,” he believes the current system is broken and needs to be fixed. Mr. Shapiro sees the problems with capital punishment as part of a larger discussion on criminal justice reform; unlike Mr. Morganelli, who has criticized the ongoing state study as a maneuvering tactic by abolitionists, Mr. Shapiro anxiously awaits the results of the study and believes it will provide insight into possible remedies.

For those of us who have been doing criminal justice work for a while, recommending a vote for a prosecutor, a judge, or an attorney general is always fraught with the possibility of disappointment. Nonetheless, we should at least know what a person’s track record is before we pull a lever. Hopefully this has helped. But, as always, let the buyer beware.

Christmas Is Still On December 25th

Well yes, the title of this blog entry requires an explanation. We were originally going to call it “Christmas Comes Early,” referring to yesterday’s Pennsylvania Supreme Court unanimous decision upholding Governor Wolf’s declaration of a moratorium. But that title would suggest that the opinion was a gift – it was not. The Court’s decision relied on 300 years of prior case law, legal treatises, gubernatorial actions, and, last but not least, the Pennsylvania Constitution. Given the scandals that have devastated our courts and prosecutors’ offices over the past few years, it is easy to fall into the trap that an opinion that simply follows the law is a “gift.” Rather, it is critically important that we demand the highest legal standards from our highest court, even when that court is beleaguered.

The decision itself, Commonwealth v. Terrance Williams, is significant for what it says and what it doesn’t say. What it says, specifically, is that Governor Wolf’s decision to grant a reprieve to Terry Williams (and to several others whose executions were pending) was not an abrogation of constitutional duty, but a “valid exercise of constitutional authority.” What it doesn’t say is that a governor’s conscience can be compromised by the political leanings of the District Attorney’s Association, and specifically by Seth Williams, the Philadelphia DA. The Court emphasized that it was not their task to address the wisdom of Governor Wolf’s decision. This blog need not be so restricted.

That the death penalty in Pennsylvania has become a political football cannot be denied. The Court practically said as much:

Governor Wolf issued the reprieve on February 13, 2015, indicating that it will continue until the Task Force’s report is issued and any concerns raised therein are addressed. The Commonwealth initiated an action in this Court five days later, seeking to invalidate the reprieve as unconstitutional. At this time, when the Task Force report has yet to be issued, we cannot conclude as a matter of law that the effect of the reprieve is to permanently suspend Williams’ sentence.

In other words, the Philly DA was so anxious to appeal the governor’s decision that even though he believed the Task Force’s work important enough that he voluntarily agreed to be a member, he didn’t even care to see what the Task Force report might say. Regrettably, such knee-jerk support for the death penalty, in the face of historically low death sentences and executions across the country, is what we have come to expect from Seth Williams.

Governor Wolf, in declaring the moratorium on executions, recognized many of the problems with capital punishment: the unending cycle of death warrants and reversals that is unfair to defendants and victims’ families alike; the racial discrimination; the excessive cost; and the risk of executing an innocent man. Yesterday, the Supreme Court recognized the Governor’s right to exercise his conscience. Not a gift, just a correct decision. Happy Holidays!

A Call To Action

It is impossible to overestimate the impact of the Pope’s visit on the United States, and the way he has inspired all of us who hope and work for repeal of the death penalty. His words to Congress will not soon be forgotten:

The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule reminds us of our responsibility to protect and defend human life at every stage of its development. This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

And his words to the inmates at the Curran Fromhold Correctional Facility, while not directed at the death penalty, carried a message irreconcilable with the ultimate punishment:

This time in your life can only have one purpose: to give you a hand in getting back on the right road, to give you a hand to help you rejoin society. All of us are part of that effort, all of us are invited to encourage, help and enable your rehabilitation. A rehabilitation which everyone seeks and desires: inmates and their families, correctional authorities, social and educational programs. A rehabilitation which benefits and elevates the morale of the entire community.

The Pope’s visit came only one day after Justice Scalia, at a small college in Memphis, Tennessee, remarked that he “wouldn’t be surprised” if the United States Supreme Court found the death penalty unconstitutional. Scalia, in turn, was referencing the dissent by Justice Breyer and Ginsburg in the Glossip opinion only a few months earlier. It is hard not to hear the dominoes falling, one by one, on capital punishment.

The Curran Fromhold speech, like every event on the Pope’s itinerary, was well attended by civic leaders. Among the attendees was Seth Williams, the District Attorney of Philadelphia, one of a rapidly diminishing number of prosecutors in the entire United States still regularly seeking the death penalty and, like Justice Scalia, a Catholic. Was he listening to the Pope’s message? Judging by his tweets – “Powerful words from ‪@Pontifex redemption, forgiveness, mercy, justice, hope and love. ‪#PopeInPhilly” – it sounds like he was. If so, is he willing to forego the punishment that a huge majority of the civilized world has already put behind it? Only time will tell.

When the Pope spoke to the inmates at Curran Fromhold, he recognized that for them “it is a difficult time, one full of struggles.” For us, too. Change never comes easy personally or politically; and if we want to achieve the goal of a more humane criminal justice system, we must struggle to be heard. The Pope’s visit is nothing less than a call to action.

It's Always Something

As one of our greatest and saddest comedians liked to say, it’s always something. A quick recap of the scandals in the Pennsylvania criminal justice system over the last year shows us just how astute Gilda Radner really was.

For starters, the racist, misogynistic, pornographic email scandal doesn’t seem anywhere near its endpoint. Having already claimed former Supreme Court Justice Seamus McCaffery – who resigned not only in the wake of email accusations but also allegations of ticket fixing and huge consultation fees given his wife – the scandal then proceeded to out former deputy attorney generals Frank Fina, Marc Costanza and Patrick Blessington. Each of them had been hired by Philadelphia District Attorney Seth Williams after their involvement with said emails, but Williams decided not to fire them. Bravely announcing his decision late Friday afternoon before Labor Day, Williams determined that “sensitivity training” might be the better course for his wayward lawyers.

Unfortunately, improper emails are not the only problem confronting our top law enforcement officials. The Philadelphia Inquirer has reported that Mr. Williams himself is being investigated by a federal grand jury for improper campaign spending – subpoenas have been issued to his political action committee, and the investigation is said to be a joint FBI/IRS effort.

But Williams’ problems pale in comparison to his archrival, Kathleen Kane, who as of this writing is still the Attorney General of Pennsylvania. In August, she was charged with illegally leaking information to the news media about grand jury proceedings in a 2014 case, then lying about it. That case involved former state prosecutors with whom she was feuding, namely the former deputy attorney generals now working for Seth Williams. But the tangled web doesn’t stop there – yesterday the Pennsylvania Supreme Court, acting unanimously at the behest of the Disciplinary Board, suspended Kane’s law license. Kane, seizing on the thin lifeline that she has not been ordered removed from office, insists that she will remain the Attorney General and that she is the victim of a vendetta by an “old boys’ network” of political and legal rivals. While this may or may not be true, she is now an attorney general who cannot sign legal documents, provide legal advice, or act in a legal capacity. Her next step, apparently, will be to release even more of the damning emails to prove the conspiracy she claims has been hatched against her.

None of this should give us confidence that law enforcement decisions are being made with the level of calm deliberation the public deserves. But there is one thing we can always count on – just as patriotism is the last vestige of a scoundrel, so is the urge to execute a citizen the last vestige of a prosecutor in trouble. The ink was barely dry on Governor Wolf’s declaration of a moratorium when Seth Williams and Kathleen Kane attacked it as an outrageous usurpation of justice. Of course, it is no such thing – given the number of well-documented death penalty reversals and exonerations, the atrocious lawyering and thinness of resources, the procedural carousel that is unfair to victims and defendants alike, the Governor’s decision was consummately reasonable and thoughtful.

The decision about capital punishment is the most serious one a law enforcement officer can make. We should expect a lot more from the elected officials who make them.

What Can You Say?

What can you say in the face of an inexplicable act? When you are committed to explanations – never excuses, but explanations – what can you say? When you are dedicated to opposing the death penalty unilaterally, no matter how heinous the crime or vilified the criminal, no matter how violated we might feel as a community, what can you say in light of Charleston?

Well, let’s start with the low hanging fruit first. Dylann Storm Roof, a skinny 21-year-old white supremacist with a ridiculous haircut and an unfortunately predictive middle name, seems to have lived the isolated, loner experience we might expect one with his views to live. A high school dropout with a pill problem, he scuffled around on the edges of the law absorbing the odium so easily found in this era of internet-charged access to the nether regions of hate groups. Sporting some badly outdated apartheid patches from South Africa and what used to be called Rhodesia on his Facebook profile photo, it seems likely he wouldn’t even have known the history of those countries without having been spoon fed it on a hate site. Of course, the answer to such a problem does not lie in the narrowing of the First Amendment – as long as we have it, and hopefully we always will, the lowest form of human speech will find its way into the open air. But in South Carolina you don’t have to plug in to find symbols of intolerance; all you need do is look up at the Confederate flag waving in front of the state capital. Under the absurd guise of respect for the heritage of the South, the shameful image of slavery continues to be dignified by a government. Does this excuse the mad killing of nine worshippers in a church? Of course not. But nor should we be shocked when such an atmosphere breeds demented violence in those who might be vulnerable to incitement.

And then there is the gun, the .45 caliber handgun he had to reload several times in order to achieve his goal of killing as many blacks as possible, the gun that was bought with the money given him as a birthday present by his parents. The president, saddened by the bloodshed but also enraged at the easy access this kid had to guns, couldn’t help but point out that sooner or later we had to come to grips with the laxity of our gun laws. We don’t know much about Dylann Roof’s home life or his upbringing, but very few of us would guess that he grew up in a home of diverse and tolerant views. Is there something we could do tomorrow to end the generational passing of hatred and intolerance? No. Is there something we could do tomorrow to end the possibility that a disturbed young man might walk into a Walmart and leave with a semi-automatic? Of course there is.

But the gun problem this country has, the outrage of a Confederate flag that continues to wave, the hate groups that fester on the internet, those are the easy targets. The much harder target is Dylann Roof himself, and what we do with him. What in the world was he thinking as he sat for an hour among those people he wanted to destroy? Was he struggling with his own hatred while those around him prayed and presumably welcomed him into their circle? Did he try to shout down the voices of hate in his own head, or listen to other voices that might have told him the Confederacy was dead and with good reason, that South Africa decades ago did away with apartheid, that Rhodesia is now Zimbabwe? Did he think for even a second that the violence he felt welling up inside him wasn’t going to achieve anything?

We may never know. There is a very good chance that even Dylann Roof doesn’t know, so consumed is he by delusions of starting a new civil war with the same sense of inhumanity that started the old one. What can you say in the face of an inexplicable act? That we must react with reason to unreason, and humanity to inhumanity. If there was ever a time to understand that violence only increases violence, this is it. This is what we must say.

Nebraska? Seriously?

When a good friend of ACCR’s heard that the reddest of red states, Nebraska, had voted to repeal its death penalty, he emailed: “Nebraska? Seriously?” Well, yes. Not only did the Nebraska legislature vote to repeal, but it overrode the veto of their Republican governor, Pete Ricketts. The vote crossed party and even religious lines – at one point in the final debate the sponsor of the bill, the great and long-standing Senator Ernie Chambers was accused of not believing in God – and legislators withstood a serious lobbying effort by law enforcement as well. Given that this vote busted up all sorts of stereotypes, the arguments that worked so well in Lincoln bear close examination.

Was it the drugs, or more accurately, the lack of drugs? No doubt. The Governor was so intent on keeping his state in the death penalty column that he spent $51,000 of taxpayer money to obtain lethal drugs from West Bengal, India – “the functionality of the death penalty in Nebraska has been a management issue that I have promised to resolve,” Ricketts declared. But in debate only minutes before the final vote, Ernie Chambers urged his fellow legislators to listen carefully to the Governor’s words: “He said he paid for the drugs, he never said he actually had them.” Nor was there ever any assurance that the drugs from West Bengal would meet constitutional standards for quality – did Nebraska really want to join the line of states that had suffered through a botched execution?

Was it the fact that the death penalty hadn’t been working the way it had been advertised, and that the state hadn’t executed anyone in almost 20 years? Certainly. Several legislators pointed out the risk of executing an innocent person, and others made the more nuanced but equally important point that the death penalty coerces innocent people toward an improper guilty plea out of fear of possible execution. (For a good example from Philadelphia, see http://www.theatlantic.com/national/archive/2013/08/the-confessions-of-innocent-men/278363/.

Was it that the Nebraska legislature got tired of wasting money? Of course. “The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years,” said Senator Colby Coash, a Republican. “This program is broken. How many years will people stand up and say we need this?” Legislators interspersed the “failed government program” motif with the words of Justice Stevens and the late Justice Blackmun, both of whom concluded after many years of tinkering that the death penalty simply couldn’t be fixed.

And was there a clear recognition – particularly in this day of supermax prisons and plummeting crime rates and the DNA-infused recognition of how easily we can and do make mistakes – that the death penalty is not morally justified? Over and over again legislators stepped to the podium to point out the fallacy of deterrence, the myth of closure for victims who must suffer through mandatory death penalty appeals, and the plain truth that retribution is just a fancy word for vengeance. Finally, many relied on the conclusion that seems so obvious to so many of us – it is simply wrong to kill.

What can we take from repeal by a state so conservative that it hasn’t seen a Democratic governor or senator this century? That injustice resonates for everyone, that the horror of a botched execution is no less horrifying if you prefer smaller government, that conservatives are no more in favor of wasting money than liberals, that unnecessary killing is wrong, and that putting executions under color of law may make them legal but doesn’t make them right.

It took 30 votes to override the governor’s veto in Nebraska, but no one rushed to take credit. As Omaha Sen. Robert Hilkemann said, his vote to override was not the deciding one. “We were all No. 30.” And today we are all Nebraskans.

Taking Note

We should take note when a good one passes. Dean Smith, the longtime coach of the University of North Carolina Tar Heel basketball team, was much beloved by basketball fans everywhere – he was a Hall of Fame coach of some of the greatest players ever, including Michael Jordan; an innovator with some of the most creative ideas the hard court has ever seen; and a man who made sure that 97% of his players graduated from college. But that was the tip of the iceberg.

Dean Smith integrated the Atlantic Coast Conference, at the time the most prominent league in the country. Charlie Scott, the first black player with a scholarship at UNC, had this to say about his coach: “Coach Smith never treated me like the first African-American to go to the University of North Carolina. It was all any person would want to be treated like — like everybody else.” He integrated more than just a basketball team, though; he helped a graduate student break the color line in an all-white neighborhood in Chapel Hill, and then broke bread at an all-white restaurant as well. He was also ahead of his time in protesting against the Vietnam War and nuclear proliferation, for equal treatment for women, and for LGBT rights. Years ahead.

But we wouldn’t be blogging about him if there wasn’t more. He took a stand against the death penalty when it was a highly unpopular position in North Carolina, and when Dean Smith took a stand he didn’t just mouth the words. He took his players to death row In Raleigh and to Angola Prison in Louisiana, and had them interact with the inmates. In 1998 he went with a delegation from People of Faith Against the Death Penalty to meet with then Governor Jim Hunt in a desperate attempt to save a mentally ill condemned man named John Noland. Pointing a finger at the governor, Smith called him a murderer – then he pointed at the others in the room and said, “And you’re a murderer, and you’re a murderer, and I’m a murderer.” He didn’t save Noland, who was executed two weeks later, but it didn’t stop him, either. “I really haven’t done much other than send a little money and talk to the governor and do some public-service announcements, so don’t make me out to be too much of a hero,” he said.

Dean Smith’s fight is not over, of course. But since his passing many have recalled his bravery, from the basketball court to the lunch counter to the governor’s office; and there is a sense that we are closer to his vision than we have ever been before. The good ones leave you feeling that way.

A Cartoon is Worth a Thousand Motions - In Memory of Tony Auth

Tony Auth, who died Sunday at the age of 72, was a good friend. He came to the Atlantic Center fundraiser, gave a great and (thankfully) short speech, posed for pictures and signed examples of his work. When death penalty-related news made the Philadelphia Inquirer, we could always count on a penetrating cartoon on the editorial page, followed by an autographed copy coming our way. We even have an as yet unpublished children’s book he illustrated sitting in a desk drawer in the office.

But while he was a good friend to the Atlantic Center, he was a great friend to those of us who seek reform of the criminal justice system and repeal of the death penalty. He was particularly insightful about what he labeled the lottery of capital punishment – he called it a “state-sponsored game of chance.” One memorable cartoon featured a wheel with the following choices: “plea bargain, bad lawyer, guilty but white, and innocent…so?” Another featured a defense lawyer dressed as a clown, explaining: “Your Honor, my client is on trial for his life…and he’s getting the best defense the system would pay for.” You could litigate for years and not sum up the issue so neatly.

Death penalty work is not all gloom and doom. Of course there is a huge amount of pain, from victims and clients and the general devastation of the crime itself. But there is much humor as well, even if it is of the gallows sort. How else can you deal with a lawyer who argues to a jury that an “eye for an eye” only applies to the killing of a pregnant woman, forgetting that his client was just convicted of killing a pregnant woman? Or one who prepares two years for a capital trial but forgets to ask his client how old he is, thus not realizing that he was under 18 at the time of the crime, and consequently not even eligible for the death penalty?

The other day Henry McCollum, declared innocent even by the prosecution, walked off of North Carolina’s death row after 30 years. But 20 years earlier, when his case was pending in the United States Supreme Court, Justice Scalia wrote that his case “cried out for punishment.” Now all we can think is, “God, what would Tony have done with all of this material?”

He will be greatly missed. And remembered.

Time to Stop Pretending

Let’s be clear about what we’re not saying. We’re not saying that certain combinations of drugs should be banned from execution protocols, though it is obvious the state is trying and failing to use some drugs in a way they were never designed to be used. We’re not saying that the state needs to come clean about the drugs they are using and where and how they obtained those drugs, though the government’s arrogant and absurd claim that they need to protect the pharmacies from undivulged (and imaginary?) threats is an insult to an informed public. And we’re not saying that the lethal injection protocol needs to be fine-tuned to avoid black market drugs and assure that professionals are in attendance in the killing chamber, though the three ring circus that passes for a state-mandated execution has brought shame to the United States.

We’re saying that the idea of a humane execution is like the idea of a safe drag race – no matter how well designed the cars are, and how safe the track, and how trained the drivers, crashes are going to happen. That’s what happened in Arizona yesterday afternoon, when a human being – Robert Rudolph Wood – crashed after one hour and fifty-seven minutes of suffocation. This is not a surprise. While we all know about Clayton Lockett in Oklahoma, and the more informed among us know about Dennis McGuire and Romell Broom and Joseph Clark in Ohio and Angel Diaz in Florida and Joseph Cannon in Texas and Tommie Smith in Indiana and Emmitt Foster in Missouri and who knows how many more, our courts (who are always the last to know or at least the last to admit that they know) are slowly coming around. Listen to the prescient Chief Judge Kozinski of the Ninth Circuit only two days ago: “Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful – like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality.”

But Chief Judge Kozinski goes on to complete the circle in blood – if drugs don’t work, and they don’t, let’s go back to something that does. “The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to the occasional mishaps. The firing squad strikes me as the most promising.” There is no sarcasm here, and surely no parody – Judge Kozinski is a well-known conservative thinker and long time supporter of the death penalty. “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all,” he concludes.

The judge is right, even when he’s wrong. We as a society cannot stomach the splatter from an execution carried out by the firing squad, any more than we can stomach a head falling into a bucket – the firing squad, the guillotine, hanging, they are all against our national ethos. And for one and only one reason: we are no longer comfortable with state-sanctioned killing. We cannot put lace on the pig, much as we might try. We are not going back to lining people up against the wall and shooting them, because we knew when we were doing it that it wasn’t right. And it isn’t right now. Just as lethal injection isn’t right now. It’s time to stop pretending it is.

The Circle Game

A little more than two years ago, I wrote an op-ed that appeared in the Philadelphia Inquirer. http://articles.philly.com/2012-04-05/news/31294488_1_death-penalty-cases-death-penalty-jury-questionnaire. The piece discussed two distinct but overlapping issues: the atrocious and inept defense of a young man named Derrick White, and the Philadelphia court administration’s refusal to address the crisis in indigent capital representation. The op-ed concluded with the not-so-bold prediction that those facing capital punishment “will continue to be sent to death row until, years later, appellate courts overturn their sentences. This is the well-worn path of most of Philadelphia’s capital cases.” For Derrick White, the path was shorter than usual.

This was a case where no pretrial motions were filed, no capital voir dire was conducted, no jury questionnaire was employed; and the defense expert called in the sentencing phase did not think that Mr. White, barely twenty at the time of the crime and with a history of being passed from foster home to foster home due to the substance abuse problems of his parents, had any real mitigation to tell the jury about. The jury quickly returned a death sentence. But it did not take long for our courts to realize that Mr. White had not been accorded the rights guaranteed him by the Constitution – indeed, he hadn’t been given the due process we might normally expect when fighting a traffic ticket. A little more than a year after going to death row, Derrick White was back in the trial court – the Commonwealth had agreed to a hearing on “clear ineffectiveness of counsel at penalty phase.” Last week, and again without opposition from the Commonwealth, Mr. White was granted a new sentencing.

Let’s take a second to understand what has happened here. Ordinarily a case is appealed to the Pennsylvania Supreme Court, where briefs are filed by both sides, arguments are heard, and a decision rendered. If the conviction and sentence are upheld, the case moves into post-conviction, where a close examination of the quality of the defense is undertaken. This ordinarily takes years. In the White case, the incompetence of the defense was so apparent that…they skipped all of the formalities and just decided to do the sentencing again. Now, sometime in the future, another jury will be brought together. The defendant, his family, and his witnesses will appear again, as will the Commonwealth’s witnesses and the victim’s family. The process will rewind and start over. As people used to say before the Republicans tried to defund public transportation, this is no way to run a railroad.

It goes without saying – though of course I will say it anyway – that the White case is emblematic of all that is wrong with the death penalty in Philadelphia. But it would be wrong to blame all of the moving parts. The District Attorney’s Office surely did the right thing in agreeing to a new sentencing, and the Pennsylvania Supreme Court seems to have recognized almost immediately how substandard the defense was. The fault lies in one place – the abject refusal of court administrators to take the necessary steps to prepare and resource a capital defense team to do it right the first time.

Even now, after the White case has shown us exactly how not to proceed, irony abounds. Although it seems safe to say that a new sentencing might have been granted for any number of reasons, the case was specifically reversed because the defense failed to properly pursue Mr. White’s youth as a mitigating circumstance. White’s new attorney is the same lawyer who, several years ago, failed to realize that his own client was under 18 years old at the time of the crime, and thus not eligible for the death penalty. As Joni Mitchell once said, the painted ponies go up and down. And until we make some necessary changes, we’ll continue to be captive to the carousel.    

What Happened in Oklahoma (ALCU PA Guest Blog!)

The number one rule of the internet is never read the comments. If you broke this rule over the last week, you might have seen the following in relation to the botched execution of Clayton Lockett in Oklahoma:

1)    “if his lawyers were so concerned about the execution method failing perhaps they should have considered shooting him then burying him alive. it (sic) worked for his victim.”

2)    “I will do it for free ….I won’t use a single tax payer dollar…Drop him off and come back in 5 minutes to pick up his body ….I am scared to think of the links (sic) I would go to if that were my family member..”

3)    “Get a rope.”

In short, these are the folks who believe that our community should act just like the murderers we condemn. It’s enough to make you remember the penetrating question asked by that greatest and most imaginary of West Wing occupants, Jed Bartlet: “These people don’t vote, do they?” More on that in a minute. What’s important to keep in mind is that “these people” aren’t us – for the overwhelming majority in this country, the events of the past weeks in Oklahoma were horrifying in their unpredictability, their arrogance, and their outcome. Let’s take the concepts one at a time.

If there is a single word that must be included in the description of a constitutionally satisfactory execution, it is predictable. And yet Oklahoma authorities went to extremes to guarantee that anything might happen: they used an untested combination of drugs, they refused to reveal where they had been obtained, and they fought all efforts by the defense to find out how the drugs had been made. (And Oklahoma is far from alone in this effort – in Georgia, a law is now in place declaring all information about lethal injection a “confidential state secret.” Texas, where the next execution in the United States is scheduled for May 13th, has also recently reversed course and now maintains that the details of the killing protocol are not the condemned man’s business.) When anything can happen, eventually it will.

The Oklahoma courts struggled with this regime of secrecy. They also struggled to decide whether the state supreme court or the court of criminal appeals had jurisdiction over the issue, a strange circumstance indeed considering the fact that the state has conducted well more than 100 executions in the modern era. After spending a week acting like petulant children fighting over the portions of dessert, the Oklahoma Supreme Court eventually stayed Lockett’s execution, along with a second execution scheduled shortly thereafter, that of Charles Warner. This infuriated every other branch of the Oklahoma government. First, the state attorney general asked the Supreme Court to reconsider. When the Court quickly rejected the request, Governor Mary Fallin issued an executive order declaring that she could overrule the Supreme Court, and announced that the executions would take place two hours apart on the night of April 29th. While her authority to do so was being questioned by every law professor in the United States, a member of the Oklahoma legislature drafted a resolution to impeach the justices of the Oklahoma Supreme Court who had ordered the stay of the execution. That’s when the Court caved, dissolved its stay, and allowed the executions to proceed. As the old song goes, it doesn’t take a weatherman to know which way the wind is blowing.

The night of April 29th won’t soon be forgotten by the witnesses to Clayton Lockett’s execution. Seven minutes into the execution, prison officials checked to see if Mr. Lockett was unconscious – “I’m not,” Lockett said. Three minutes later, he was declared unconscious; six minutes after that, Lockett said “man” and tried to lift himself off the gurney. All the while Lockett’s body had been writhing, his mouth twitching. 16 minutes after the execution began, a prison official stated, “We are going to lower the blinds temporarily,” a phrase that Andrew Cohen of The Atlantic aptly noted might serve as an epitaph for the entire sequence of events that had led to this debacle. http://www.theatlantic.com/national/archive/2014/04/Oklahoma/361414/. Lockett’s execution was then stayed by the state officials who were present, but he died of a heart attack 30 minutes later. As the lawyer for Warner described it, he was “tortured to death.” Another lawyer called the execution a “human science experiment.” As for Charles Warner, his execution has been delayed for several weeks while Oklahoma conducts an investigation into what went wrong. Governor Fallin has already gotten the investigation off to a bad start by assigning the inquiry to the state’s public safety commissioner, who answers directly to…Governor Fallin.

What we are left with is the specter of government secrecy in our most public of government spectacles, the subversion of the rule of law by elected state officials, and the horror of an execution that would have been condemned had it occurred before our constitution was even written. At the very least, the events in Oklahoma should be yet one more reason for hesitation in Pennsylvania – indeed, two days after the botched execution, all of the candidates in the democratic primary for governor announced their support for a moratorium on the death penalty. And as to that first question: do “these people” vote? It’s not really the right question. As an old client of mine liked to say, one thing is for sure and two things are for certain – we had better vote. Because the community gets the government it deserves, and we surely deserve better than what the Oklahoma government has delivered.

An Extreme Attack on the Right to Counsel

Mumia Abu Jamal can’t keep himself out of the news. 31 years after a death sentence was imposed on him for the killing of Officer Daniel Faulkner, three years after the Third Circuit Court of Appeals ordered a new sentencing, 2 ½ years after the Philadelphia District Attorney’s Office chose not to seek another death sentence against him, but rather to have him live the rest of his life in prison, Mr. Jamal got 756 hits in a Google news search this morning. The latest kerfuffle concerns one of his former lawyers, Debo Adegbile, who President Obama has nominated to head the Civil Rights Division of the Department of Justice. It seems that Mr. Adegbile’s association with the Legal Defense Fund, which successfully represented Mr. Jamal, disqualifies him from working for the Department of Justice. The Legal Defense Fund, of course, is the former legal arm of the NAACP, legendary for successful civil and human rights battles against segregation, discrimination and the death penalty. Could it really be that his work with such an organization would disqualify him from running the Civil Rights Division of the Department of Justice? Apparently yes.

Or so the usual suspects would have it. The National Fraternal Order of Police called his nomination “a thumb in the eye of our nation’s law enforcement.” The Major County Sheriff’s Association attributed the overturning of Mr. Jamal’s death sentence “to the manipulation of the justice system by the Legal Defense Fund.” The National Association of Police Organizations claimed that Adegbile’s efforts “led to the overturning of the just sentence Abu-Jamal received for murdering a valuable member of the law enforcement community.”

And then there was the Wall Street Journal op-ed by the not-so-odd couple of Republican Senator Pat Toomey and Democratic District Attorney Seth Williams. “Let there be no mistake,” they bravely proclaimed. “Our concern is not based on the fact that Mr. Adegbile acted as an attorney for a criminal defendant. The right to counsel is a fundamental part of America’s criminal justice system, and no lawyer should be faulted for the crimes of his clients.” Of course their op-ed was not a staunch defense of the right to counsel, as they quickly noted: “But it is one thing to provide legal representation and quite another to seize on a case and turn it into a political platform from which to launch an extreme attack on the justice system.”

So it seems appropriate and even necessary to take a closer look at the “extreme attack on the justice system” that led to a reduction from a death sentence to life in prison for Mumia Abu Jamal. The Third Circuit Court of Appeals, the second highest court in the land, found that Mr. Jamal’s jury was misinformed about how it should consider the evidence it was given. Not exactly an extreme attack on the justice system; or an extreme result, for that matter, given that Pennsylvania has seen more than 100 death sentences reversed.  And who were these judicial rebels who took the law into their own hands and created such havoc? The three judges were Ambro, Scirica, and Cowen, who combined had 59 years serving on the Third Circuit at the time of their decision in the Jamal case. The latter two, Judges Scirica and Cowen, were nominated by that legendary rabble-rouser, Ronald Reagan.

Which makes it all the more disappointing to hear that Senator Robert Casey, a Democrat and a man we would expect far more from, relented to the bombardment of irrational argument and pressure and announced his decision to vote against the nomination of Debo Adegbile. Taking a page from Toomey and Williams, Casey noted his “respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime.” Nonetheless, he went on, “Pennsylvanians and citizens across the country (must) have full confidence in their public representatives – both elected and appointed.” He released his decision to the media late Friday afternoon, so as to garner the minimum amount of press. It is this sort of courage that makes one proud to be a Pennsylvanian.

All is not lost, however. The Senate will still vote on the nomination this Tuesday, and even without the brave Mr. Casey there is a bare majority of Democrats in that august body. Assuming Mr. Adegbile doesn’t represent anyone else facing execution between now and then, he still has a chance to prevail.

The Beat Goes On

It would be easy to say that a perfect storm hit Philadelphia’s justice system yesterday – an extremely aggressive and often reversed prosecutor rolls over an inept defense attorney whose clients often seem to end up on death row, and then both of them run into the outraged federal judge who orders a new trial for the unjustly convicted accused after 20 years of wrongful incarceration. And indeed all of that happened yesterday – except that we wouldn’t call it a perfect storm, because a perfect storm implies that the factors making the storm rarely come together, and that would not be the case. The truth is that the James Dennis case is more like a routine summer shower than a perfect storm.

First let’s cover the facts: After a short trial and an even shorter penalty phase, James Dennis was sentenced to death for the brutal and pointless murder of Chedell Williams in 1991. The evidence against him was not strong, largely three very tentative eyewitness identifications and some clothes allegedly seized by the police and then “lost” by them before trial. Even the eyewitness testimony identifying Mr. Dennis suggested a reasonable doubt – the descriptions were almost uniformly of a man 5’9” or 5’10”, while Dennis is a very small 5’5”, 130 pounds. In addition, the Commonwealth failed to reveal that four other eyewitnesses did not identify Mr. Dennis at all.

And that wasn’t all the Commonwealth failed to reveal. There was a receipt given to the police by an alibi witness that somehow only turned up 10 years after trial. (Seth Williams, the present District Attorney of Philadelphia, complained that the Judge accepted a “newly concocted alibi defense,” but Mr. Williams has apparently never read the transcript of the trial or the opinion in the Dennis case, since the alibi defense was presented at trial.) The Commonwealth also buried a series of documents in which a witness presented compelling evidence that others committed the crime; that witness named names, provided corroborating evidence, and was taken by police on a drive-along to identify various relevant locations aimed at solving the crime. Yet these six documents were never revealed to the defense until Mr. Dennis had spent a decade on death row.

And what might the defense have done with all these documents? An effective defense team would have made a compelling case for innocence. But Mr. Dennis did not have an effective team; in fact, he barely had a lawyer. A competent lawyer would have interviewed all the eyewitnesses – had this lawyer done so, he would have learned that many of the witnesses had failed to identify Mr. Dennis, and that one had actually identified someone else. A competent lawyer would have prepared Mr. Dennis’s alibi witnesses, thus learning about the missing receipt that would have been strong corroboration. Mr. Dennis’s lawyer didn’t do any of these things – indeed, it is unclear what in fact this lawyer did do, other than appearing in court every day to collect his $400 per diem.

Once again the city of Philadelphia is embarrassed by its justice system. Ironically, its court administration believes that it has improved representation by hiking its fees a meager amount. But the same lawyers – not screened for merit, not trained for improvement – continue to receive appointments to our most serious murder cases. In fact, the lawyer in James Dennis’s case has been appointed to a very serious murder case going to trial in the near future in…Philadelphia.

It would be nice to think that our District Attorney, seeing reversals like this one over and over again, might form a real Wrongful Convictions Unit to examine past mistakes and rectify real injustices? Many District Attorney offices, in Dallas and Brooklyn and Manhattan and other jurisdictions, have done so. Instead Seth Williams doggedly defends the outrages of the past, accusing the judge in the Dennis case of accepting “slanted factual allegations.” 

And the beat goes on. It is easy to believe that things have improved, that we are not living in a time where such injustices could occur. In fact nothing at all has improved; and as sure as I’m typing this I am certain that similar injustices will be found 20 years from now, because we have done nothing to prevent them.

An ACCR Perspective on the Trayvon Martin Case

Many people are outraged by the Trayvon Martin case – they perceive racial motivations behind the actions of George Zimmerman, a wannabe police officer drawing stereotyped conclusions about a young black man in a hoodie, acting illegally on his assumptions, and covering up through a transparently false story. They see the state’s feeble and inept investigation and presentation of the case; and they see not-so-subtle prejudices behind Florida’s gun and self-defense laws. Many of those same people are outraged by the George Zimmerman verdict. Consider me in the former group but not the latter.

Florida has created an atmosphere of vigilantism that leads predictably to confrontation and excessive violence. The entire country is now aware that George Zimmerman was a volunteer of his local town watch, but Town Watch is not called Town Act, and for a very good reason. We hire and train policemen to act, and we are all grateful when volunteers are willing to watch our neighborhoods for possible criminal problems; but we do not hire these volunteers to police our streets or make the myriad decisions necessary to ferret out crime. The key word is “watch” – we may never fully know what prompted George Zimmerman to leave his car when the police dispatcher suggested there was no need to follow Trayvon Martin, but is there the slightest question that an unarmed Zimmerman might well have acted differently? Town Watch volunteers should not be armed; if the use or threat of force becomes necessary, they have walkie talkies to alert people who are hired and trained to know how and when to do so.

Adding to the casual arming of the civilian population, Florida has passed a law known as Stand Your Ground. In essence, this new law makes one significant change to the law of self-defense. Traditionally, and in Pennsylvania, you do not need to retreat when faced with life-threatening violence unless you can do so in complete safety. This makes complete sense – no matter what circumstances you are facing, if you can escape the situation without harm to yourself or anyone else, that is obviously preferable to any other scenario. Stand Your Ground changes this centuries old understanding of self-defense – under this law, you may use deadly force when confronted with deadly force, even if you could leave the confrontation safely. The Zimmerman defense team did not utilize the Stand Your Ground law; they opted instead to argue that Zimmerman could not escape in complete safety. But laws change perceptions – how else to explain the condemnation of drunk driving after the many years that it was considered socially acceptable and even humorous? The passing of Stand Your Ground in Florida sends the very clear message to the population that violence in the context of self-defense is acceptable even when it’s not absolutely necessary.

Am I outraged by the killing of Trayvon Martin when it could so easily have been avoided? Of course. Am I outraged that the state of Florida allows a wannabe cop with a racist attitude to walk the streets with a loaded gun? Certainly. Am I outraged by the atmosphere of violence fostered by the Florida legislature in its gun and self-defense laws? Without question. Am I outraged by the verdict in State vs. George Zimmerman? No.

I was a public defender in Philadelphia for 27 years. I know that our law says that no one can be convicted of any crime unless proven guilty beyond a reasonable doubt, and I know that many people have been convicted on less evidence than that standard requires. I know, beyond any doubt whatsoever, that if we start to complain that the high burden of proof for conviction was met when there wasn’t enough evidence under the law, those who suffer will be poor people accused of crime. And many of them will be people of color.

I was not present at the trial; nor did I rush home every night to watch the replay on television. But I followed it closely enough to say this – the Zimmerman trial was not the Rodney King case. This was not a crime captured on video, with a jury that bent over backwards to ignore the evidence and give police officers an outrageous verdict. Rather, huge amounts of evidence that might be expected in a murder conviction – an eyewitness, a confession – were missing from the case entirely. Juries are told that a reasonable doubt arises from the evidence or the lack of evidence – in the Zimmerman case there was a significant lack of evidence. While the state’s medical examiner was confused and ruffled, the defense’s expert (one of the leading medical examiners in the world, and author of a seminal text in the field) was professional and confident. Is it reasonable to complain that the state’s expert should have been better prepared and more accomplished? Yes. Should the state have put greater and more prompt effort into evidence gathering? No doubt. Did the jury reach the wrong verdict considering the evidence that was given to them? It would appear not.

It is silly to believe that we are living in a post-racial era, Barack Obama’s presence in the White House notwithstanding. The same legislators who are dismantling our gun laws and creating an atmosphere of violence in our laws are climbing over each other to repress minority voting, so that they might continue to dismantle our gun laws and create an atmosphere of violence. We must protest these outrages at the tops of our lungs, just as we must continue working to expose the racism that lies just beyond the silhouette of a hoodie.  But we should be very careful not to complain that the evidence was sufficient to convict when it clearly wasn’t. In other words, we should be careful what we complain about.   

The Terry Williams Case in Retrospect - A Canary in the Coal Mine

In looking back over 2012, it seems a good time to revisit the case that now stands for everything wrong with the death penalty in Pennsylvania: Terry Williams. His tale, occurring under the shadow of imminent execution, involves a badly abused young man, an inept trial lawyer, an unscrupulous prosecutor, a District Attorney’s Office “Inspector Javert”-like in its single-minded pursuit of execution; and finally, a judge brave enough to uncover the truth, and tell the story fairly.

As in many death penalty horror stories, this one begins with an incompetent court-appointed defense attorney, who first met the 18-year-old Terry Williams on the literal eve of trial. Later disbarred, the lawyer had not even bothered to familiarize himself with his young client’s prior third degree murder conviction, and did not know that the victim in that case, as in the case wherein Mr. Williams received a death sentence, was a known sex abuser of young boys. Thus, when the prosecutor argued that two innocent men had been killed, and that Mr. Williams had no reason to commit such crimes, the defense attorney did not know enough to respond. Partly, of course, this was because he did not know the facts of his own client’s prior case. To a far greater extent, however, it was because the prosecutor had hidden crucial evidence from the defense.

Prosecutors are obligated by law and ethics to provide all information that in any way might be deemed exculpatory to the defense, either at trial or at sentencing. As it turned out, the lead prosecutor and the detectives who worked on the case knew very well that the victim had a long history of sexually abusing young boys; and they had good reason to think that he was sexually abusing the young Mr. Williams as well. But they violated the Constitution by hiding all the evidence about it. For starters, the assistant district attorney’s handwritten notes documented sexual allegations against the victim by other young boys – perhaps even more outrageously, full and detailed statements of the abuse were sanitized from witness statements before being provided to the defense. The scrupulous cleansing of the victim’s sexual proclivities with young boys from all police documents made it safe for the prosecutor to argue to the jury that the victim was an innocent man murdered for no reason at all. Safe, but completely untrue.

When the allegations did arise – just around the time Mr. Williams had lawyers who hadn’t been disbarred – the District Attorney’s Office, in appeal after appeal, ridiculed the claims. Rather than look through its own files, recognize that an injustice had been done, and take steps to rectify the error, the District Attorney himself claimed that the sex abuse had been made up by Mr. Williams to escape execution. Indeed, in the face of more than 350,000 signatures calling for clemency and a majority vote to spare the condemned man by a very conservative Pardons Board, the District Attorney accused Mr. Williams “of manipulative and malevolent behavior” and called his claims of molestation “a last ditch effort to escape punishment for his crime.” Given the overt fraud perpetrated by the prosecutor, this might fairly have been labeled enabling behavior by the District Attorney.

Thankfully, the story did not end there, though in many courtrooms it would have. Indeed, Mr. Williams’s story could not have been told were it not for the events that occurred in Courtroom 507 of the Criminal Justice Center and the judge who presided there. Earlier we referred to her as brave, but that’s only in comparison – in reality, she was doing what all judges should do, which was to make absolutely certain that the process was as fair as human beings could make it. She ordered the District Attorney and police files to be turned over to the defense; and then she found as a fact that the prosecutor was incredible in her explanation of the hidden material, that the Commonwealth had perpetrated a fraud on the jury, and that a new and fair sentencing was mandated.  Judge Sarmina’s Opinion

In retrospect, justice seems so obvious in the Terry Williams case: a young man, barely eighteen and sexually abused his entire life; a disbarred lawyer who hadn’t seen his client and hadn’t investigated his case; a victim who had sexually molested Terry Williams and many other young men. But mix in other ingredients: a prosecutor who wanted to win so badly that she hid compelling evidence, a District Attorney blind to his own office’s misdeeds, a police department that rewrote its own statements to protect the reputation of a dead victim over a live defendant. It is reasonable to think that we might learn from the Terry Williams case, and it is necessary that we do so. But only time will tell if we will.

A View from the Fiscal Cliffs of Philadelphia's Death Cases

Almost two years ago the Atlantic Center for Capital Representation embarked on an effort to improve the absurdly low fees paid to court-appointed counsel in death penalty cases in Philadelphia. After two dismissals from the Philadelphia Court of Common Pleas – apparently we were not adept at properly numbering our paragraphs – the Pennsylvania Supreme Court accepted the matter, ordered hearings to make findings of fact, and sent the matter back to the Philadelphia courts. But things don’t always go smoothly when money is on the table – three days of hearings abruptly became one, and the special master recommended a very moderate hourly rate of $90 for court-appointed counsel handling our most serious cases. That recommendation sat in the Pennsylvania Supreme Court, gathering dust, for a gestation period of nine months – until in early December the Court asked for an update based on the fee schedule currently in place. You see, the Philadelphia courts went from $2000 and $400/day of trial to $10,000 and zero/day of trial. Both are hopelessly inadequate, the first because the numbers are so outrageously low that lawyers spent no time in preparation; and the second because, while the numbers are still far below every other major city in the country, lawyers now have no incentive to go to trial at all. Nationally respected ethicist Lawrence Fox, Yale Law Professor and partner at Drinker Biddle and Reath, called the current system “unconstitutional, unethical and embarrassing.”

Judge Lerner, who recommended the $90/hour rate in the first place and concluded in his initial recommendation to the Supreme Court that the Philadelphia fee schedule was “grossly inadequate,” noted the other day that the city paid $200,000 for capital defense services in 2010, and that the $90 hourly rate would require the city to spend $340,000 more per year. What he failed to mention was that the $200,000 figure was for more than 20 cases – the average amount of money spent for a SINGLE federal death penalty trial is $465,000! And for those who love the idea of saving money on the backs of poor people accused of our most serious crimes, keep in mind the recent conclusions from the Yale Law Journal’s How Much Difference Does the Lawyer Make: The Effect of Defense Counsel on Murder Case Outcomes by James Anderson and Paul Heaton – the lawyering prompted by such outrageously low fee schedules has cost the taxpayer in incarceration rates alone over $200 million in 11 years.

It appears that the Pennsylvania Supreme Court will take another look at Philadelphia’s system of representing poor people in capital cases. One only hopes that the Court does the constitutional, ethical, fiscally sound, and morally right thing – establishing a reasonable hourly rate so that competent attorneys can properly represent their clients in the most serious cases we have. And at the same time, Philadelphia can cease to be a national embarrassment.

A New Year...

As 2013 rolls in, the ACCR staff will begin blogging about the death penalty in PA.