Federal defenders, who have already faced criticism from the Pennsylvania Supreme Court and a federal judge over their tactics, are now being asked to explain themselves to the U.S. Supreme Court.
In refusing to review the death sentence of Michael Ballard, who pleaded guilty in 2011 to killing four people, including his ex-girlfriend, in Northampton County, the court took note of a letter from Ballard complaining about the federal defenders’ attempts to get involved in his case.
According to the docket, the court has ordered Marc Bookman, the director of the Atlantic Center for Capital Representation, to respond to Ballard’s June 2 letter within 40 days.
In his letter, Ballard said he “never authorized anyone” to file anything on his behalf and that he’s not appealing his sentence “any further than it has been.”
“It is my most ardent plea that asks now of you that the appeal filed in my behest be rejected summarily,” Ballard wrote. “The reasons being: the ‘federal defender’s’ filing have acted without my authorization; without my knowledge even. They are attempting to secure themselves as ‘attorney’s of record’ so as to circumvent having to obtain my authorization.
“And lastly, but most importantly, they are acting against my own wishes to waive my appeals.”
Bookman declined comment. Northampton County District Attorney John Morganelli was not available at press time. However, he told the Easton Express-Times he sent a copy of Ballard’s letter to the court to let the justices know of Ballard’s opposition.
“He (Bookman) has some explaining to do to the Supreme Court,” Morganelli told The Express-Times.
This isn’t the first time the federal defenders have faced questions from the judiciary.
Back in April, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania accused them in a case involving the appeal of a death-penalty case that had been around for two decades of “gaming” the system in capital cases.
In a memorandum issued April 24, Jones said lawyers for Seifullah Abdul-Salaam “are at bottom gaming a system and erecting roadblocks” in an effort to stop the death penalty from being carried out.
Jones denied Abdul-Salaam’s petition for a writ of habeas corpus. Abdul-Salaam was sentenced to death in 1995 for the killing of New Cumberland, Pa., police officer Willis Cole.
Abdul-Salaam’s case, which has seen numerous petitions for relief, stays of execution and has been sent to the Pennsylvania Supreme Court several times for different issues since 1996, is a symptom of a larger problem, according to Jones.
“The case at bar amply demonstrates that there is something grievously amiss in both our laws and jurisprudence as they relate to federal habeas practice,” Jones said. “For while we admire zealous advocacy and deeply respect the mission and work of the attorneys who have represented Abdul-Salaam in this matter, they are at bottom gaming a system and erecting roadblocks in aid of a singular goal—keeping Abdul-Salaam from being put to death.”
Jones called the course the case has taken “meandering and even bizarre” and noted that it has spent 12 years on the federal docket.
“We have given Abdul-Salaam every courtesy and due process, perhaps even beyond what the law affords. And yet for the family of Willis Cole, and indeed for Abdul-Salaam and his family as well, there has been no closure,” Jones said. “Rather, they have endured a legal process that is at times as inscrutable as it is incomprehensible.”
But Jones said that process isn’t over yet: The case’s next destination is the U.S. Court of Appeals for the Third Circuit, which is set to review the denial.
“It is right and proper to [e]nsure that criminal defendants are given fair and open trials that fully comport with the protections afforded to them in the Constitution,” Jones said. “But we fear that a process has evolved that in reality is based on the goal of perfection rather than constitutionality.”
Pennsylvania Supreme Court Chief Justice Ronald D. Castille has also been critical of the federal defenders—as well as the federal judiciary—in the handling of death-penalty cases.
In a concurring opinion in the case Commonwealth v. Spotz, Castille had accused the defenders of engaging in “abusive” litigation tactics that are designed to create delay in order to pursue a “global strategy to obstruct capital punishment in Pennsylvania at all costs.”
“The defender has the resources and the luxury to pursue a more global agenda, and its conduct to date strongly suggests that, if once engaged in mere legitimate zealous defense of particular clients, it has progressed to the zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania,” Castille wrote.
In response to similar comments Castille made in another article in The Legal, Bookman wrote a letter to the editor to the paper published May 8. In the letter, Bookman rejected the idea the defenders were gaming the system.
“The implication is that, but for the delaying tactics of the defense attorneys, there would have been regular executions in Pennsylvania, rather than the three individuals who wanted to be executed in the late 1990s,” Bookman wrote. “This does not explain the more than 100 reversals of death sentences, reversals based on constitutional errors rather than delay. In short, this ‘gaming’ is nothing more than outstanding lawyering.”
According to The Express-Times, Ballard pleaded guilty in April 2011 to murdering his ex-girlfriend, Denise Merhi; her father, Dennis Marsh; her grandfather, Alvin Marsh; and neighbor, Steven Zernhelt, who rushed into Merhi’s home after hearing screams for help. A jury sentenced him to death the following month. The newspaper reported that at the time of the murders in June 2010, Ballard was on parole after serving more than 18 years for a previous murder.