Three defendants challenging the constitutionality of fees paid to Philadelphia capital-case defense lawyers have objected to a report to the Pennsylvania Supreme Court that the homicide program has fixed its crisis.

The Supreme Court granted extraordinary jurisdiction in the case in 2011 and remanded the matter to Senior Judge Benjamin Lerner to make a report and recommendations.

Counsel for the petitioners, Marc Bookman of the Atlantic Center for Capital Representation and David Rudovsky of Kairys, Rudovsky, Messing & Feinberg, said their litigation was not begun because of a backlog in capital cases but to challenge the adequacy of capital-case representation.

Emphasizing the disposal of cases does not provide a basis that "the sorry state of capital representation in Philadelphia" has been rectified, the petitioners said.

"As part of the factual predicate for the petition, it was shown that in the 25 capital cases that preceded this filing, court-appointed counsel were not visiting their clients, filing pretrial motions, developing mitigation evidence, or proffering jury questionnaires for voir dire, all of which are standard practice in any adequate system of capital representation," the petitioners said. "Petitioners also alleged and proved at the hearing before Judge Lerner that this unconstitutionally defective level of performance was caused, at least in part, by the fee schedule then in place."

When the justices ordered Lerner to provide an update of his report and recommendations after the First Judicial District increased their fees somewhat, Lerner found in his report earlier this summer 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 FJD's capital homicide trial-appointment list.

In his first report, Lerner recommended an hourly fee of $90 be paid to capital-defense counsel.

"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 in his second report. "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 nontrial dispositions."

Almost two years ago, there were more than 100 untried capital cases, but during 2012, 325 cases were disposed while 298 new cases came into the court, Lerner said.

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.

Most of the lawyers on the list were on previous counsel lists, the petitioners said.

Further, the petitioners argued that there are problems with the use of flat fees for compensation of counsel in capital cases.

Legal ethics expert Lawrence J. Fox canvassed case law, American Bar Association standards and other sources before concluding that flat fees "invite 'ethical' errors by court-appointed counsel and in practice cause ineffective assistance of counsel," the petitioners said. "As professor Fox explains, the former flat fee schedule (which paid so little for preparation) provided a perverse incentive for lawyers to proceed to trial, where they would get a per diem payment, even where it was in the client's best interest to reach a nontrial resolution. With the changes in the fee schedule, the incentive is the opposite, but still perverse: the current flat fee incentivizes resolution short of a trial (since trial payments do not start until the sixth day of the proceedings). Neither incentive is appropriate, as competent counsel must assess every case individually. A reasonable hourly fee schedule for the kind initially recommended by Judge Lerner allows for competent and effective representation."

While the petitioners argued that flat fees for counsel are inherently unfair and may even be unconstitutional, Lerner said in his second report 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."

Bookman said in an email, "The Philadelphia court administration seems only concerned about the management of its docket. Instead, they should be concerned about the quality of care the people on its docket are receiving."

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.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.