Defense issues in capital cases hit PA, not NJ

Pa. has death-penalty reversals. A N.J. unit wins more life terms.

When New Jersey reenacted its death-penalty law in 1982, public defenders moved swiftly to set up a special statewide unit of lawyers, investigators, social workers and mental-health experts for capital cases.

The idea was to have a skilled team in place to prepare a sympathetic portrait of a defendant's life that might persuade jurors to sentence the convicted killer to life in prison rather than death.

Twenty-one years later, the unit boasts an interesting track record: Juries in 80 percent of the cases have decided on life.

In Pennsylvania, the state has never developed such an approach, and a divergent lot of lawyers - some highly skilled, some not - represent people accused of murder. And death-penalty sentences are being reversed at virtually every level of the court system because of claims of ineffective defense representation.

Thirty-seven death-penalty cases - including 17 from Philadelphia - have been remanded for new sentencing  hearings or new trials because defense lawyers were deemed ineffective, according to the Defender Association of  Philadelphia. In New Jersey, only one case has been reversed for that reason.

Across the nation, the issue is starting to draw attention. Two U.S. Supreme Court justices have publicly expressed concern about the poor quality of lawyering in capital cases, and the high court recently gave new guidance about what defense lawyers must do in capital cases. Last week, the court announced it will consider a second case on the subject this term.

"There's a huge problem with the competence of lawyers who represent death-row inmates," said James E. Coleman Jr., a Duke University law professor who chairs the American Bar Association committee for a nationwide moratorium  on capital punishment.

Prosecutors, however, contend that many such claims are exaggerated and merely ploys to drag out the appeal process.

 

"There's not a single capital case in which the defendant doesn't claim ineffective assistance of counsel," said Ronald Eisenberg, head of the law division of the Philadelphia District Attorney's Office. "It's the easiest claim to raise. There's always something you can say your lawyer could have done differently."

Eisenberg said such claims added years to the costly appeal process and brought more torment to the family of murder victims. "That's really the heartache," he said.

Pennsylvania, with a population of 12.3 million and 237 inmates on death row, has the fourth-largest death row - behind California, Texas and Florida - among the 38 states with death-penalty laws and has executed three prisoners who waived appeals. More than half of those on death row were convicted in Philadelphia cases.

New Jersey, with a population of 8.5 million, has 14 convicted murderers awaiting execution. Robert O. Marshall is nearing the end of his appeals and could be the first New Jersey prisoner executed since 1963. A federal judge is weighing whether Marshall's trial lawyer was ineffective and if he should get a new sentencing hearing.

The reversals in Pennsylvania, experts said, result from the state's failure to provide funding or to set standards for defense lawyers.

"Pennsylvania is in the Middle Ages," said Caroline M. Roberto, a Pittsburgh defense lawyer.

Elected officials in each county determine how much money is available to represent the indigent, and defense lawyers complain that they often have had trouble getting money to hire experts who might provide crucial help in a case.

Robert B. Dunham, who handles death-penalty appeals for the Defender Association of Philadelphia, said the lack of statewide standards and funding had made the problem egregious in Pennsylvania.

One death-row inmate, he said, was represented by a part-time public defender just out of law school, another by a domestic-relations lawyer. And one lawyer, he said, had to be tracked down at a crackhouse.

The Pennsylvania Supreme Court this year appointed a committee to examine the quality of legal representation in capital cases.

But in Philadelphia, where District Attorney Lynne M. Abraham has a reputation for aggressively seeking the death penalty, the homicide unit in the Defender Association has never had a defendant sentenced to death since it started handling city murder cases in 1993. Dunham's unit represented defendants in 29 of the 37 cases across the state that were reversed for ineffective assistance by prior defense lawyers.

"Given the resources, you can do this the right way," said Ellen T. Greenlee, head of the nonprofit Defender Association, which gets about $1.6 million a year under a contract with the city to defend 20 percent of indigent accused murderers.

New Jersey's approach in capital cases stands in contrast to Pennsylvania's, experts said, primarily because it has a state-funded Office of the Public Defender, which moves quickly to prepare for capital trials and appeals.

"We were not really an outcast, an afterthought, in the criminal-justice system," said Assistant Public Defender Dale Jones, a 30-year veteran of the office, who estimated that eight of 10 convictions in capital cases his office handled resulted in life sentences.

In addition, the New Jersey Supreme Court has a tradition of scrutinizing capital appeals, often reversing death sentences and, experts said, sending a signal that it expects high quality in aspects of a capital trial.

"There was, I think, a strong awareness [about] the resources that would have to be marshaled to deal with capital prosecutions," retired New Jersey Justice Alan Handler said.

Just what constitutes inadequate representation has been hotly debated.

Prosecutors say many of the claims are debatable.

"It is second-guessing,... and that's very frustrating," said Amy Zapp, a deputy attorney general in Pennsylvania who oversees death-penalty appeals.

She said many death-row inmates were suffering from "buyer's remorse": Unhappy with their sentences, they attack the decisions their lawyers made.

Zapp said that many of the Pennsylvania reversals were being appealed through the system, and that the effectiveness of some fine defense lawyers was being questioned.

Dunham, of the Defender Association, predicted that the U.S. Supreme Court's decision in June to reverse the death sentence of Maryland inmate Kevin Wiggins for ineffective assistance would lead to more reversals.

The court said in that case that lawyers in capital cases must at least meet prevailing professional standards in searching for mitigating evidence.

"I think that Wiggins makes clear that many more of Pennsylvania's death-penalty cases are going to be reversed for ineffective assistance of counsel," Dunham said.

New Jersey is at the forefront with Marshall's death-row case, which has been the focus of a TV miniseries, two books and a documentary.

Marshall, convicted in March 1986 of arranging the 1984 contract murder of his wife, was sentenced to death after a   brief hearing in which his lawyer called no witnesses and made no pitch for his life. "Whatever you feel is the just   thing to do, we can live with it," his lawyer told the jury.

Seventeen years later, Marshall, 63, is represented by public defenders and contends that his trial lawyer was so ineffective that he deserves a new sentencing hearing.

His trial lawyer, Glenn Zeitz, an experienced criminal-defense lawyer, testified last month that he had been faced with a difficult case - a slew of evidence and a client who insisted he was innocent.

After the prosecutor dropped two aggravating factors, Zeitz said, he did not want to risk further alienating jurors, and he did not want the prosecutor to further inflame them.

So, he said, he and the prosecutor agreed to call no witnesses and present only brief summations.

Marshall's sentencing hearing began at 2 p.m. on March 5, 1986. By 4 p.m., the jury was back, and Marshall was on his way to death row. He has been there ever since.

Contact Inquirer staff writer Emilie Lounsberry at 856-779-3863 or elounsberry@phillynews.com.

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