July 22-28, 2004

cover story

Lethal Direction

DEDICATION: Danielle Scott spent countless hours interviewing Abdul Malik El-Shabazz to help him stave off execution. Photo By: Michael T. Regan

The Defender Association of Philadelphia has kept all its clients off DEATH ROW. So why can't it get a bigger caseload? MONEY.

by Susan Phillips

Corrections:

This week's cover story ["Lethal Direction," Susan Phillips] stated Stanford Shmukler represented James Jones at his murder trial. Shmukler did so at Jones' post-verdict hearings; O. Robert Silverstein represented Jones at trial. The Court of Common Pleas found that Silverstein, not Shmukler, failed to adequately interview witnesses and prepare for trial. Citypaper regrets the error.

When Robert Dunham, a public defender in Philad-elphia's federal death penalty unit, asked the mother of death row inmate Simon Pirela to tell him about her son's childhood, she said, "When he was born, we thought he was dead."

Those words came years after her son was found guilty of ordering another man to murder a dealer who sold a fatal batch of drugs to Pirela's brother. Dunham, who served as co-counsel on Pirela's post-conviction death penalty challenge, delved into Pirela's background to present "mitigating" evidence that might sway a jury to sentence a convicted murderer to life without parole rather than death.

On April 30, 21 years after the Court of Common Pleas sentenced Pirela to death, that same court commuted his sentence to life after concluding that the 44-year-old was mentally retarded.

ANTE UP: Judge Frederica Massiah-Jackson says the Defenders Association should get more cases sent its way. Photo By: Michael T. Regan

Pirela had received court-appointed private counsel for two different murder cases back in the early 1980s, but in neither case did a lawyer investigate his medical history. Dunham did, and the information he found included brain damage suffered when he was nearly strangled by his umbilical cord at birth.

In one case the lawyer hadn't met with Pirela until a week before the trial started — that's when he learned that his client did not speak English.

Pirela is not alone.

James Jones was sentenced to death on June 25, 1981, for the arson murders of Karen and Diane Williams of North Philadelphia. At the time, hospital records show that his blood alcohol content was 30 percent above the rate considered legal intoxication. While seeking a state court challenge to Jones' sentence, Dunham found that Jones had substantial brain damage from alcohol use that began when his parents introduced him to drinking as a child. At sentencing, Jones' original lawyer, presented no mitigating evidence. After all, he'd never spoken to Jones' family until after the trial began. Although the sentence was overturned, the case is on appeal and Jones remains on death row.

On Dec. 26, 1990, Billy Brooks was convicted of killing a fellow inmate at Holmesburg prison and sentenced to death in Common Pleas Court. Thirteen years later, the state Supreme Court ruled that his court-appointed attorney, Thomas Turner, failed to prepare for trial. Court records show that Turner had one telephone conversation with Brooks that lasted 20 to 30 minutes.

"His lawyer could have spent maybe two to three hours prepping his case," says George Newman, Brooks' new court-appointed attorney. Newman brought in Brooks' sister from Kansas to testify that her father subjected Brooks to frequent and savage beatings with an automotive fan belt.

Brooks is now awaiting a retrial.

Nationwide, support for the death penalty seems to be fading, and in recent years the Supreme Court has limited it by, among other things, ruling against the execution of mentally retarded persons.

According to the Death Penalty Information Center, a nonprofit, D.C.-based group working against capital punishment, 114 death row inmates have been exonerated since 1976, some of those due to advances in interpreting DNA evidence. Six came from Pennsylvania's death row, which remains one of the largest in the nation with 232 people, more than half of whom are from Philadelphia.

Since 1994, 23 death sentences originating in Philadelphia's Court of Common Pleas have been overturned in state or federal courts due to ineffectiveness of counsel. But by the time these cases reach the state Supreme Court, 10 to 20 years of expensive appeals processes have passed.

The commonwealth doesn't keep track of how much taxpayers end up paying for these lengthy appeals, but the state of Kansas does.

In December, Kansas officials issued a performance audit of the state's death penalty that estimated that the cost was 70 percent more than a comparable non-death penalty case. They also found that the costs of appeals for capital cases were about 21 times greater than non-capital murder cases.

The Sixth Amendment requires courts to provide for a poor person's defense, although it does not stipulate who should pay; usually, it falls to the states. However, only Pennsylvania and Utah do not fund indigent defense, leaving the burden completely to the counties — despite a 1996 Supreme Court of Pennsylvania ruling that the state legislature fund the entire court system, including indigent defense. Several judges and lawyers say they don't know why the order hasn't taken hold.

Dunham says, "Regardless of who is at fault, this inter-branch warfare has severe consequences for the quality of indigent defense representation across the state."

With the city left to pay for both the prosecution and the defense of capital cases — rarely can capital defendants afford their own lawyers — the Defender Association, with its track record of averting death sentences and thereby avoiding costly appeals, actually saves both the city and state money.

In fact, a 2002 report by the state Supreme Court on racial and gender bias in the justice system found that the Defender Association was the only group in the commonwealth that met American Bar Association standards for indigent defense.

Of late, financially minded people — including the highest-ranking Common Pleas Court judge — have been pushing to give them more work, but a proposal drafted by the Defender Association did not even reach the recent City Council budget debates.

The reason? The price tag was too high.

Philadelphia has a dual system for handling indigent homicide defense. The city's public defenders office gets one out of every five cases, while the rest are distributed to court-appointed private attorneys. Since the Defender Association of Philadelphia began handling 20 percent of the city's indigent homicide cases at the initial trial level in 1993, no defendant under its representation has received the death penalty. In contrast, Dunham says, indigent homicide cases handled by private court-appointed attorneys since 1993 have resulted in 80 death sentences.

As such, City Council is left to fund three competing entities: the District Attorney's Office, which prosecutes the capital homicide cases; the Defender Association of Philadelphia, which defends one out of five homicide cases; and the 1st Judicial District of Pennsylvania, which pays the trial-related costs as well as the fees for private court-appointed attorneys, who defend 80 percent of the cases.

This leaves Philadelphia's taxpayers footing the entire bill for a state-mandated death penalty. And it leaves defense attorneys struggling to meet increasingly higher standards set by the federal courts, which of course costs money that nobody seems willing or able to pay.

The District Attorney's Office does not release figures on how much it spends to prosecute either homicide or death penalty cases. The Defender Association spent $1.8 million on homicide cases in fiscal 2004, about 80 percent of which it says are capital cases. The 1st Judicial District spent more than $1.5 million in 2003 on homicide appeals alone, but it doesn't break it down by capital cases.

"It is a big chunk of the city's money," says Deputy City Controller Tony Radwanski, who's looking for ways to make the state pick up the tab. "And when you're talking about closing fire departments, here we are spending all this money on what really is a state function."

Asked about the 1996 judicial order to the state, Radwanski notes that the Supreme Court, which gets its funding from the General Assembly, is unlikely to try to bite the hand that feeds it.

Complicating matters are recent rulings that raise the standards of capital homicide representation, which, in turn, increase the cost of providing adequate defense, both at the criminal trial and the penalty phase. The ABA also has improved its guidelines on what constitutes a proper defense. In the entire state of Pennsylvania, however, only one group of indigent defendants facing a capital murder trial receive representation that follows the ABA guidelines — those assigned to the Philadelphia public defenders office.

A number of different reforms have occurred since the trials of Pirela, Brooks and Jones. Some say these changes are great leaps forward for indigent defense in Philadelphia; others consider them baby steps in a process of playing catch-up with the rest of the nation and recent U.S. Supreme Court rulings.

Still, everyone seems to agree on one thing: If the District Attorney's Office wants to kill you, your best chance of staying alive is with the Philadelphia public defenders office.

On the eighth floor of its offices at 15th and Sansom streets, the homicide unit of the Defender Association has 11 lawyers working on cases. Alongside them are four investigators, three mitigation experts and a social worker. The appeals unit is housed on the same floor. Paul Conway, chief of the office's homicide unit, helped establish it back in 1993.

"We took the approach that we didn't know anything," Conway says. "We went around the country and brought the best people in to give seminars."

Conway says the lawyers they chose had a minimum of 10 years of courtroom experience.

"You have to have a basic knowledge of homicide law," says Conway. "You have to dissect the entire case. There's a considerable body of case law that constantly changes."

They employ the help of colleagues such as Dunham, whose Federal Defender Association represents death row inmates after their appeals have been exhausted. These lawyers are experts in how not to try a capital case.

Before 1993, the Defender Association of Philadelphia was barred from taking homicide cases. Court of Common Pleas Judge Benjamin Lerner, who served as the chief public defender from 1975 to 1990 and now presides over homicide trials, says the Board of Judges and the private defense bar did not want the Defender Association to take homicide cases for economic and political reasons.

"Judges run for office here in Philadelphia, and they have to raise [campaign] money," Lerner says. "Lawyers provide contributions."

Lerner added that private defense attorneys wanted to retain the homicide appointments because they provided the most money and the best courtroom exposure, which helps build a lawyer's practice.

(However, the court's president, Judge Frederica Massiah-Jackson, says that the money received by lawyers who took homicide cases was not significant enough to channel into campaign contributions.)

Despite the track record of success and lower costs, some private lawyers who take on court-appointed homicide cases still don't want the public defenders getting more cases. George Newman, chair of the Philadelphia Bar Association's criminal justice section, says any additional money for indigent capital defense should go toward helping private defense attorneys meet ABA standards.

"Everyone recognizes that one of the biggest issues is whether or not the client gets a good defense," he says. "The fundamental issue is dollars. If you were to take more dollars and put them into the private bar, I strongly believe they would be able to do a better job."

In 1992, the Inquirer ran a series of articles exposing consistently ineffective counsel in Philadelphia's murder cases due to inadequate funding and failure to follow basic ABA guidelines. At the same time, court administration hired a new director from California named Geoff Gallas. "He was an outsider," says public defender Ellen Greenlee. "He was a breath of fresh air and got the Board of Judges to agree to give us every fifth case."

From the very beginning, she says, the office demanded appropriate resources, but the subsequent dozen years hasn't brought any increase in the defenders' workload, a fact that Massiah-Jackson wants to change. She says the Court of Common Pleas wants the city to increase the percent of homicide cases taken by the Defender Association to 30 percent or 40 percent.

"We strongly urge the city to increase the percent of cases that the Defender Association accepts if they would fund them 100 percent," she says. By sending more cases to the defenders office, the courts would save money in the long run by providing adequate defense up front and avoiding costly appeals. But again, the issue comes down to funding.

Greenlee says she submitted a proposal prior to the recent City Council budget hearings at the 1st Judicial District Court's request, which asked to double the $1.8 million it receives to represent homicide cases.

"The feedback we got was that the court experienced sticker-shock," says Greenlee. "They hoped we'd do it for $1.98 a case. They need to get serious about what representation in capital cases cost."

City Councilman David Cohen, who hadn't heard of the proposal until contacted for this article, says he wished that poor people's constitutional rights to a fair trial had a higher priority. But, he says, the city also has the responsibility of paying for schools, firefighters and recreation centers.

"Whether in the process of fending off cuts we do damage to fair trials," he recently said, "is yet to be determined."

When Abdul Malik El-Shabazz was convicted in April of rape and first-degree murder, a team of two Defender Association lawyers, a mitigation specialist and a criminal investigator had prepared for more than a year to convince a jury that life without parole should trump death.

El-Shabazz had at least one aggravating circumstance that could have put him on death row: His victim, Destiny Wright, was only 6 years old.

His performance in court could not have helped him avoid execution. El-Shabazz showed the jury a violent streak when he punched his defense lawyer, Fred Goodman, in the face. And yet, the jury hung, six for and six against the death sentence. Without a unanimous death verdict, El-Shabazz automatically got life without parole.

The mitigation specialist on the case, Danielle Scott, says she spent at least 1,000 hours with El-Shabazz, visiting him at the prison 60 to 70 times. She also says she met with his family members at least 100 times.

Scott dug up school records, tracked down teachers, principals and former caseworkers, brought doctors and psychiatrists up to the prison to meet and evaluate him, and retrieved Department of Human Services records that dated back to five years before he was born. From February through the end of the trial on April 6, Scott says she worked 10- to 15-hour days, traveling up to the prison at night to see El-Shabazz.

"I had to overcome a lot," Scott says. "He didn't trust me."

But the picture that Scott was able to paint of El-Shabazz most likely saved his life.

He was born addicted to heroin. The caseworker assigned to the infant El-Shabazz testified that he never managed to see the child in the 18 months he had him as his charge. At the age of 8, there was speculation that El-Shabazz could have been sexually abused. Until then, he had never attended school. When he did enroll in school, he was violent and disruptive. A principal testified that efforts to help the young El-Shabazz were thwarted by his father, who was described in the penalty phase closing arguments as controlling, paranoid and mentally ill. El-Shabazz's mother gave up custody of her son to his father and rarely participated in his life. A litany of intervention efforts by school officials and social workers failed when the father refused help.

"It's heartbreaking that a little girl is dead," Scott says. "And it's heartbreaking how ill [El-Shabazz] is. Nobody wins here. But I have a job to do. I have to save somebody's life."

Ed McCann, chief of the homicide unit in the District Attorney's Office, helps decide whether to pursue the death penalty in homicide cases. He says that the lawyers in his office understand their jobs carry a great responsibility.

"It's not that we discount a defendant's humanity when we seek the death penalty," he says. "We have to consider what happens to the victims and their families. The way that these victims lost their lives is horrific, and this is justice, in many cases, for the victims' families."

Greenlee says that if a homicide does not become a death penalty case, it drastically reduces the amount of resources spent. Defense lawyers say that sometimes the best situation for a client facing death would be a plea bargain. But in Pennsylvania, where life means life without parole, it's not popular with defendants.

Mark Bookman, an assistant public defender who has been with the homicide unit since its beginning, says he would always urge clients to pursue a trial if he thought the plea bargain was not in their best interests.

"Working with our clients to resolve a case short of trial requires a great effort," he says. "People often ask me what I say the first time I meet with a client. My answer is 'nothing.' We have to meet with them 25 times before we could begin to discuss resolving the case. Clients don't take advice from lawyers; they take advice from people they trust. Lawyers have to work very hard to become the people our clients trust."

McCann says that he sees more homicide defendants pleading guilty in exchange for automatic life without parole, and he attributes this to the work of the public defender.

"If the defendant is willing to give up their rights to an appeal, and save the family the horror of going through a trial," he says, "there is an element of closure both for our office and for the families.

"It's an incentive for defendants to take those guilty pleas. The defendant takes responsibility [for the crime] and that has a huge effect on victim's families; you can't underrate that."

In addition to pushing for the public defenders to take more homicide cases, Massiah-Jackson recently implemented reforms of the court-appointed system.

In December 2002, she bolstered guidelines that established training, standards and instructions on how to conduct pretrial investigations into a defendant's background. She also ensured the appointment of a second counsel that would handle the trial's penalty phase.

On June 4, the state Supreme Court issued statewide standards for death penalty defense. But both Newman and Dunham say they don't meet ABA standards and are not as rigorous as those issued by Massiah-Jackson.

"The rules are a step forward as long as the Supreme Court understands it's a first step and not a last step," says Dunham. "If they represent a last step they're worse than if they hadn't done anything at all."

Then, in July, Massiah-Jackson increased the pay rates to court-appointed attorneys. The lead attorney now receives a $2,000 flat fee for pretrial preparation and $400 a day in court. (They used to get $1,700.) The second, or mitigation attorney, receives a $1,700 pretrial fee and $400 per diem rate for the penalty phase defense. If either attorney is present in the courtroom while the other is arguing, he or she receives $150 a day. Mitigation experts estimate that preparing for a death penalty trial takes between 50 to 300 hours. At the federal level, Congress mandates that court-appointed attorneys representing indigent capital defendants receive $125 an hour with no limits placed on the amount of hours spent in preparation.

Still, several private defense attorneys say that the Philadelphia fees are still too low and keep qualified lawyers from taking the cases.

"Very few competent, decent lawyers are going to want to take these cases for such little money," says private criminal defense attorney Daniel Silverman.

Either way, Massiah-Jackson's hands are tied because she does not control the amount of money that must come from the city. (In fiscal year 2003, the city courts spent more than $1.5 million for indigent homicide appeals.)

"Judge Massiah-Jackson is a hero for what she did. And Judge Lerner is on the mark for recognizing the need for resources," says Jules Epstein, a Philadelphia criminal defense attorney with extensive background in capital case litigation and mitigation. "But there is only so much money in the world."

Massiah-Jackson says defense attorneys should not view these appointments as the bulk of their income. "We know that counsel fees are not private-sector rate," says Massiah-Jackson. "We hope that the attorneys are looking at this as pro bono; that they are giving back to the community."

In fact, Massiah-Jackson wants the courts out of the business of paying lawyers altogether. "The Philadelphia Bar Association and the city should create a quasi-governmental institution to handle the fees," she says.

This is similar to how New York state funds New York City's Capital Defender Office, an independent entity that takes on all the city's homicide cases where the district attorney's office declares it might pursue the death penalty. New York City's defenders office also recommends court-appointed private attorneys for the cases it doesn't accept. Russell Stetler, director of investigation and mitigation for the New York City Capital Defender Office, says states such as Pennsylvania put a terrible burden on counties to fund death penalty defense.

"Our legislature said that if we have to have the death penalty," he says. "We don't want it to be like Texas."

In Philadelphia, death penalty convictions have decreased steadily since 1999, indicating in part that private attorneys providing indigent defense have improved. District Attorney Lynne Abraham testified in City Council budget hearings in May that her office filed aggravating circumstances in 133 homicide cases last year, designating that in those cases, lawyers had to begin preparing for a death penalty defense. In 2003, only one death sentence was handed down in Philadelphia.

In the long run, Lerner says, the system will save money if the cases aren't coming back to the courts years later due to ineffective assistance of counsel. But he says the proposal he received from the Defender Association for taking on more cases could never seriously be considered due to its high price tag.

"Not everyone can have a Mercedes," he says. "There's no reason why properly maintained Chevys and Fords aren't appropriate defense."

Some in the legal community feel that the high cost of Greenlee's proposal indicates she isn't serious about taking more cases. But it could be that, with the current budget crisis, she doesn't want to gamble on increasing a caseload today, only to have her funds for adequate defense cut tomorrow. Joanne Epps, president of the Defender Association's board of directors, wants the state to get involved.

"The ultimate solution would be to get a bigger group of people together. The public defenders [office] is funded by Philadelphia and saves the state money," she says. "We need to try to get everyone who benefits to pay."

In the meantime, defense for Philadelphians facing homicide charges continues to be a crapshoot.

El-Shabazz, who was randomly chosen for the Mercedes defense, is locked away for life, and will likely not cost Philadelphians any more money. But others will still get Chevys and Fords or — as in the cases of Pirela, Jones and Brooks — worse. Fifteen years later, they're still paying for that twist of fate. And so are the taxpayers.