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When the Pennsylvania Supreme Court’s Committee on Racial and Gender Bias in the Justice System reported that court-appointed counsel throughout the state had failed to adequately represent indigent defendants in capital cases, the Philadelphia Court of Common Pleas and Philadelphia criminal lawyers could not have been surprised. According to Common Pleas President Judge Frederica A. Massiah-Jackson, the First Judicial District and the Philadelphia Bar Association’s criminal justice section have been working together for the past two years – and during the past six months, especially – to improve the services that court-appointed lawyers provide to their capital clients. Just last week, the FJD’s Administrative Governing Board approved increased counsel fees for lead counsel in homicide cases, Massiah-Jackson said. And last month, the county Board of Judges enacted new procedural rules setting out guidelines and required criteria for attorneys handling the mitigation phases of death penalty cases. But those concerned about indigent representation did not stop there. In December 2002, Massiah-Jackson signed an order creating a mitigation protocol for all court-appointed attorneys handling death penalty cases in the city courts. And today, 80 to 100 attorneys are taking part in a training seminar devoted to the nuances of presenting mitigating factors during the penalty phase of a capital trial. “Philadelphia is taking enormous steps to provide equal justice for all,” Massiah-Jackson said. She said the training program, funded by the Dickinson School of Law, is a significant component of the court’s capital defense initiative. Jules Epstein of Kairys Rudovsky Epstein & Messing is conducting the training session, which will cover the law of mitigation; methods of mitigation investigation, including record gathering, interviewing and working with experts; and a brainstorming session during which attorneys will share their strategies for presenting mitigating factors. Epstein said he also planned to present to participants the recent case of a York County defendant who received the death penalty, and whose father was already on death row, when the jury decided his fate. The attorney said he would ask his colleagues whether the jury should have heard that the defendant’s father had been sentenced to death. “We have to learn as death penalty defense lawyers how to deal with that which is not pleasant and how to explain what may make someone look terrible or scary, or is . . . foreign” to jurors, Epstein said. “That is what we face here.” The program is not just a CLE, Massiah-Jackson said. Effective July 1, court-appointed attorneys who wish to conduct the penalty phases of capital cases must be certified by the Philadelphia Bar Association screening committee and, to be certified, must complete mitigation training. Also effective July 1, penalty-phase lawyers will be required to fulfill the requirements of Philadelphia’s Mitigation Protocol, ordered into being by Massiah-Jackson and drafted by Epstein. Epstein said that historically, Philadelphia capital defendants were being sentenced in case after case in which proper mitigation investigations simply were not conducted. And sadly, he said, the court system had often let that happen. Massiah-Jackson, Epstein said, has worked diligently to end this trend. In response to the shoddy handling of death penalty sentencing phases, Epstein said, the Philadelphia Mitigation Protocol was devised to put in place a minimum – not adequate, but minimum – number of steps required to begin the mitigation phase of a capital case. The attorney said the protocol is essentially a list of steps that penalty-phase counsel must take to investigate his or her client’s background in the same way that he or she would investigate the crime itself. The protocol includes, among other facets, instructions on gathering records, a definition of “mitigation,” a requirement that counsel interview the defendant and his or her family members and other significant individuals, and a requirement that counsel certify to the court that he or she has followed the protocol, Epstein said. George Newman, a defense attorney at Newman & McGlaughlin and the chairman-elect of the bar association’s criminal justice section, told The Legal that having a skilled lawyer who will serve as mitigation counsel is an essential component of a death penalty trial. As lead counsel, Newman said, “I have had mitigation lawyers who have saved my clients’ lives.” “I cannot think of anything more critical than having well-qualified mitigation counsel. . . . It’s life or death. You can’t get a second-stringer in there,” he said. Pennsylvanians for Modern Courts Executive Director Lynn Marks, who sat on the high court’s racial and gender bias committee, said the committee is glad to see the mitigation training taking place. “We’re really glad that they are having a training session because there’s been so much publicity around the committee’s recommendation for a moratorium on the death penalty,” Marks said. According to Marks, some of the committee’s recommendations on handling capital cases were viewed with apprehension because they involved spending money, for example, for court-appointed counsel. “They deserve more, and there should be more,” Marks said. “But we also wanted to highlight recommendations that don’t involve further [spending], and this [training] is one of them.” As did the Supreme Court committee, Newman pointed to funding as a major deficiency in indigent representation in capital cases. When asked to identify some of the major problems Philadelphia’s courts and attorneys have identified in death penalty cases, Newman said he could sum it up in one word: underfunding. Newman said that while he appreciates the increased fees that have been allotted for court-appointed counsel, funding is still too low. “It’s very hard to attract well-qualified, interested lawyers who will zealously represent their clients,” Newman said. He said $1,700 for a lawyer to prepare a death penalty case, and then $200 for the first day of trial and $400 for each day thereafter, is simply not enough. “We need to find ways to increase the funding so that good lawyers are attracted to this kind of work or are at least willing to do it without suffering a huge personal penalty,” Newman said. “There are some good lawyers doing this work and there are some who either need more training or more skills or perhaps shouldn’t do this kind of work. . . . I’m not saying everybody’s heart isn’t in the right place, but there’s an issue of funding and an issue of competence.” Massiah-Jackson said that she had requested increased counsel fees from city council and the mayor two years ago and that in 2002, the FJD’s request was granted to the extent that the district received $1.5 million for increased fees for all indigent defendants. In its report to the high court, the racial and gender bias committee said that all the Pennsylvania counties surveyed had failed to compensate their attorneys adequately. “The court is doing all of this on a tight budget, but with justice as the goal,” Massiah-Jackson said of the capital defense initiative. “Where in law school or in courtroom practice do we get trained in how to save a person’s life?” Epstein asked, addressing the need for mitigation training and certification. “Nowhere.” Indeed, Newman said, death penalty cases are serious business.

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