A Philadelphia judge asked by the Pennsylvania Supreme Court to review the constitutionality of the fees paid to capital-case defense lawyers said in a report Wednesday that the homicide program has fixed its crisis.
Senior Judge Benjamin Lerner said that a fee schedule of $10,000 for lead counsel, $7,500 for penalty phase counsel and a $400 per diem fee for each day of trial beyond five days, as well as simplification in the approval process for lawyers willing to be appointed in capital cases, has led to a sufficient number of qualified attorneys on the First Judicial District's capital homicide trial-appointment list.
"Better compensation for court-appointed counsel in capital cases results in a larger number of qualified counsel with smaller court-appointed homicide caseloads," Lerner said. "Coupled with more funding for investigators, mitigation specialists and other experts, this results in better preparation and more effective representation, including, where appropriate, earlier pursuit of advantageous non-trial dispositions."
Almost two years ago, there were over 100 untried capital cases, but during 2012, 325 cases were disposed while 298 new cases came into the court, Lerner said.
But more work needs to be done regarding noncapital homicide cases, Lerner said, where there remain issues of adequate pay for those attorneys and scheduling those cases for trial.
Marc Bookman, director of the Atlantic Center for Capital Representation and counsel for the petitioners who challenged the constitutionality of the fees paid to private attorneys appointed in capital cases, said in an email that Lerner's supplemental report and recommendations were "very disappointing."
"He endorses flat fees, which are condemned universally by all ethicists who work in the capital punishment field," Bookman wrote. "While the fees have been increased, they have been raised from an appallingly low level to a very low level — defense lawyers actually work for free for the first week of trial, whereas prosecutors and judges obviously get paid."
While the petitioners argued that flat fees for counsel are inherently unfair and may even be unconstitutional, Lerner said he does not agree that flat fees are inherently unfair.
"I have found that the lawyers who now accept these appointments are fully committed to representing their clients effectively and aggressively," Lerner said. "Moreover, in indigent defendant capital cases, the funds provided for investigative and expert services are almost as critical as those provided for counsel. The amount of public money provided for these services has steadily increased over the past 10 years and continues to do so."
Yet Lerner said that a modest fee increase may be necessary in the future, whether the fees are flat or hourly. In Lerner's first report to the Supreme Court, Lerner suggested that private defense attorneys, who represent about 80 percent of the defendants charged with death-eligible murders, should be paid $90 per hour.
When a committee of judges and lawyers was set up to screen court-appointed attorneys for their qualifications, the Homicide Appointment System Committee was bound to fail until the "woefully inadequate fee structure" was addressed, Lerner said. Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, suspended HAS in February 2012 because only 12 attorneys were approved by the HAS committee.
But the "basic theory behind its creation is correct," Lerner said. "In the long run, the FJD cannot rely exclusively on a couple of judges making phone calls to ensure sufficient qualified counsel for court-appointed homicide cases."
There are 33 lawyers on the current appointment list, which was generated by Lerner and Philadelphia Court of Common Pleas Judge Jeffrey Minehart, and others reaching out to qualified attorneys, Lerner said.
Lerner also credited the District Attorney's Office with tightening the standards governing when the office seeks the death penalty and with reviewing defense mitigation submissions as quickly as possible so some cases are no longer designated as capital cases after those reviews.
The cases pending in the Supreme Court and in which Lerner made his report are Commonwealth v. McGarrell, Commonwealth v. Young and Commonwealth v. Burton.