{"id":3870,"date":"2025-03-30T15:03:11","date_gmt":"2025-03-30T15:03:11","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3870"},"modified":"2025-03-06T10:53:10","modified_gmt":"2025-03-06T10:53:10","slug":"a-personal-view-capital-punishments-failures","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2025\/03\/30\/a-personal-view-capital-punishments-failures\/","title":{"rendered":"A Personal View: Capital Punishment’s Failures"},"content":{"rendered":"

This essay is part of a White Paper being submitted to the International Academy of Trial Lawyers in support of a motion calling for abolition of the death penalty.<\/em><\/p>\n

 <\/p>\n

I have been a capital case litigator for thirty-plus years in Pennsylvania in the United States of\u00a0 America.\u00a0 What does that connote? Since the early 1990s I accepted appointment by the courts to represent individuals charged with murder and facing a possible sentence of death at their trials; after trials and receiving a sentence of death on their appeals; and after appeals on what is called post-conviction review where a state court and then a federal court re-examines the trial and\/or sentence for error, normally that of either ineffective representation by prior counsel or the hiding of evidence that would tend to reduce the charge or lessen the punishment.\u00a0 I have also co-authored amici<\/em> briefs challenging the constitutionality of the death penalty in Pennsylvania in the United States and Pennsylvania Supreme Courts.<\/p>\n

I will not call the death penalty process a broken system, as that implies it once worked \u2013 worked by ensuring competent, fully resourced counsel; by ensuring unbiased jurors; worked by permitting a modicum of confidence that outcomes \u2013 who receives a sentence of death and who does not \u2013 are rational and fair.\u00a0 None of those has ever been a condition that exists in Pennsylvania.<\/p>\n

How can I say this?\u00a0 When I began there was no required and little optional training for death penalty defense counsel until a small group of lawyers (of which I was a member) began creating materials and conducting courses; and although continuing education requirements are now in place, there is no quality assurance that they are accurate or sufficient.<\/p>\n

How else can I confirm this?\u00a0 We often denominate death penalty litigation the \u201cbrain surgery\u201d of criminal law \u2013 the most complex of skills demanding the most knowledge and awareness.\u00a0 Yet news reporting confirms the lack of competence among many of the lawyers who handled capital cases.\u00a0 As one newspaper reported after surveying cases and court records,<\/p>\n

312 capital cases dating back to 1980 were examined. The newspaper determined that 25 percent of the defense attorneys involved in capital cases had a criminal record when assigned to those cases. In 58 percent of the cases examined, the attorneys had racked up a disciplinary record prior to their appointment. And of the defendants assigned an attorney with a disciplinary history, 83 percent were black or Latino.<\/p>\n

\u201cNearly two out of three of the disciplined attorneys had been suspended or disbarred,\u201d the Eagle<\/em> reported. \u201cForty-five percent were disciplined multiple times.\u201d<\/p>\n

Perhaps most troubling, the Eagle<\/em> found that one in five defendants had been \u201cappointed attorneys with drug or alcohol addictions, who suffered from depression, have had a history of mishandling clients\u2019 cases, or were convicted felons.\u201d<\/p>\n

\u201cPeople are being represented by the absolute dregs in the profession that nobody with money would hire,\u201d noted Stephen Bright, president and senior counsel for the Southern Center for Human Rights. \u201cYou get the death penalty not for committing the worst crimes, but for having the misfortune of being assigned the worst lawyer.\u201d<\/p>\n

The Eagle\u2019<\/em>s review found that in cases where disciplined attorneys represented defendants in capital cases, two-thirds had been \u201cfound by Pennsylvania courts to be ineffective in at least one case where a defendant received death.\u201d<\/p>\n

https:\/\/www.prisonlegalnews.org\/news\/2017\/mar\/9\/attorneys-disciplinary-records-part-flaw-pennsylvanias-death-penalty-system\/<\/a> (last visited June 26, 2024).<\/p>\n

In testimony to the Pennsylvania legislature in 2015, then Executive Director of the Death Penalty Information Center Robert Dunham detailed the overwhelming record of inadequate representation:<\/p>\n

as of December 31, 2014\u2026more than 250 capital convictions or death sentences imposed under our current death penalty statute have been overturned. More than 145 have been overturned because of defense counsel’s ineffectiveness3 – either unreasonably failing to perform a basic duty such as investigating relevant facts and raising relevant issues or taking some action during the course of representation that was objectively unreasonable and prejudicial. The single most frequent grounds for counsel’s ineffectiveness is counsel’s failure to investigate and present mitigating evidence relating to his client’s background, upbringing, and mental health.<\/p>\n

Testimony of Robert Brett Dunham, Executive Director, Death Penalty Information Center, Concerning the Pennsylvania Death Penalty Pennsylvania House of Representatives House Judiciary Committee – Harrisburg, PA Thursday, June 11, 2015.<\/p>\n

Again, with data from the Death Penalty Information Center, as of June 2024 in Pennsylvania the \u201c[n]umber of Innocent People Freed From Death Row\u201d is 13.\u00a0 https:\/\/deathpenaltyinfo.org\/state-and-federal-info\/state-by-state\/pennsylvania<\/a> (last visited June 26, 2024).<\/p>\n

These are numbers, albeit numbers representing hundreds of individuals.\u00a0 Let me take this discussion from hard data to personal experience.<\/p>\n

My first death penalty case was in 1994, representing Al Jasper.\u00a0 Jasper had received a sentence of death after a murder conviction; and the sentence, but not the conviction, was overturned due to judicial error, an instruction to the jury that may have misled them.\u00a0 I became Jasper\u2019s attorney for the new death penalty determination.\u00a0 Here again, the jury returned a sentence of death; and here again, he was granted relief because the judge again gave an improper instruction (this time in a different area of the law).\u00a0 Two trials, two judges unable to ensure the law was followed.<\/p>\n

Let me skip ahead to the case of Freeman May.\u00a0 Convicted of murder and sentenced to death, the sentence was overturned because of a jury instruction error by the judge.\u00a0 At his second sentencing trial, he again received a sentence of death which was overturned because his lawyer was ineffective in failing to investigate his life circumstances for what is termed mitigation evidence, evidence supportive of a sentence less than death.<\/p>\n

At the third penalty proceeding, May was again sentenced to death, at which point I became his counsel for appeal.\u00a0 In my argument to the Pennsylvania Supreme Court, I began with a simple proposition \u2013 \u201cThis is a perfect storm \u2013 anything that could go wrong in a capital case did go wrong here.\u201d\u00a0 The list of errors was extreme, but the Court declined to address them because his lawyer had objected to none.<\/p>\n

At this point I remained his lawyer, now going back to litigate lawyer number three\u2019s ineffectiveness.\u00a0 The errors were many; so many, indeed, that the case was negotiated to a resolution \u2013 there would be no more appeals, but the death sentence would be removed.\u00a0 A murder in 1982, an arrest in 1990, three attempts to \u2018fairly\u2019 and legally impose the proper sentence; and all three a failure, here primarily the result of attorney error.\u00a0 It took nearly thirty years to bring this to a close.<\/p>\n

The problems of competent and well-resourced counsel remain today, as Pennsylvania does not fund capital case defense, leaving it to each county to find counsel who meet the minimum educational requirement for capital defense and then funding them, sometimes adequately and often not.<\/p>\n

More than a decade ago, one member of the Pennsylvania Supreme Court wrote the following:<\/p>\n

I am unable to agree with the suggestion that the presumption of effectiveness by and large reflects the actual state of capital defense representation in Pennsylvania. I would submit that, in fact, we have seen more than enough instances of deficient stewardship to raise very serious questions concerning the presumption’s accuracy.<\/p>\n

Commonwealth v. King<\/u>, 618 Pa. 405, 452 (Pa. 2012)(Saylor, J., special concurring opinion).\u00a0 In a system plagued endemically by inadequate counsel along with<\/em> problems of racial bias[1]<\/a>, I see no reason to suggest that matters are improved and the seemingly intractable problems of reliably and fairly determining who should die at the hand of the state have been solved.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

[1]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In an amicus <\/em>brief this writer co-authored in 2019 on behalf of \u201cacademics and researchers in statistics, social science, criminal justice, and criminal law including capital case representation[,]\u201d we concluded that \u201c<\/a>[c]ompelling social science studies confirm that, within and across the capital case litigation process, from case selection through penalty determination, race remains a \u2019thumb on the scales.\u2019\u201d<\/p>\n

.<\/p>\n","protected":false},"excerpt":{"rendered":"

This essay is part of a White Paper being submitted to the International Academy of Trial Lawyers in support of a motion calling for abolition of the death penalty.   I have been a capital case litigator for thirty-plus years in Pennsylvania in the United States of\u00a0 America.\u00a0 What does that connote? Since the early<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6],"tags":[],"coauthors":[330],"class_list":["post-3870","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law"],"yoast_head":"\nA Personal View: Capital Punishment's Failures - Advocacy and Evidence Resources<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/law.temple.edu\/aer\/2025\/03\/30\/a-personal-view-capital-punishments-failures\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A Personal View: Capital Punishment's Failures - Advocacy and Evidence Resources\" \/>\n<meta property=\"og:description\" content=\"This essay is part of a White Paper being submitted to the International Academy of Trial Lawyers in support of a motion calling for abolition of the death penalty.   I have been a capital case litigator for thirty-plus years in Pennsylvania in the United States of\u00a0 America.\u00a0 What does that connote? 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