Justice Ronald Castille
Justice Ronald Castille ()

In the wake of a federal judge’s criticism of federal defenders for “gaming” death-penalty cases, Pennsylvania Supreme Court Chief Justice Ronald D. Castille—an outspoken critic of the defenders himself—said some of the blame in relation to prolonged death-penalty appeals had to be placed on federal jurists as well.

At the same time, defense lawyers and observers said defenders are well within the parameters of the federal habeas policies imposed upon them when they do everything possible to keep their clients off death row.

In a memorandum opinion issued April 24, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania said lawyers for Seifullah Abdul-Salaam, sentenced to death in 1995 for the killing of a police officer, “are at bottom gaming a system and erecting roadblocks” in an effort to stop the death penalty from being carried out. Jones added that the nearly 20-year appeals process in the case was symptomatic of a greater problem in the federal habeas practice.

Castille said Jones’ criticism of the defenders was on point, albeit “mild,” but said the problem wasn’t necessarily systemic as Jones had asserted.

“It’s not really the mechanics of the system,” Castille said, but the federal judges who put the cases on hold—cases that then come back to the state Supreme Court with “bogus” motions. Castille classified the transferral of capital cases between state and federal court as “a pingpong effect.”

Additionally, Castille said federal defenders are not mandated to practice in state court.

“Someone is going to raise the issue that they didn’t get representation because these people were illegally representing them in state courts,” Castille said, “and that’s going to cause a mess because they’ve been in over a hundred of these cases.”

“I’m just glad that some of the federal judges are taking note of the obstructionism of this group [the defenders],” Castille said.

Jones noted in his memorandum that Abdul-Salaam’s case “amply demonstrates that there is something grievously amiss in both our laws and jurisprudence as they relate to federal habeas practice.”

“For while we admire zealous advocacy and deeply respect the mission and work of the attorneys who have represented Abdul-Salaam in this matter,” Jones continued, “they are at bottom gaming a system and erecting roadblocks in aid of a singular goal—keeping Abdul-Salaam from being put to death.”

Leigh Skipper, chief federal defender of the Federal Community Defender Office for the Eastern District of Pennsylvania, said he could not comment about Abdul-Salaam’s case specifically, but noted that the defenders’ representation of clients is zealous and consistent with the office’s ethical obligations.

“We appreciate that Judge Jones noted his deep respect for the work of the attorneys who represent Mr. Abdul-Salaam in this case,” Skipper said in an email to The Legal. “We are bound by the procedural requirements for obtaining federal habeas review of our clients’ claims. These are requirements that we did not create.”

Wesley Oliver, professor and criminal justice program director at the Duquesne University School of Law, said Jones’ criticism appeared to focus more on the system than the federal defenders themselves.

“I think Jones said that these lawyers manipulated a system that federal habeas rules allowed them to manipulate,” Oliver said. “He’s saying that he respects the lawyers, but he’s saying they shouldn’t have been able to do this.”

The fact that the defenders are using the system to the advantage of their clients, Oliver noted, is not inherently inappropriate.

“If a civil lawyer writes a response, instead of interrogatories, in a way that makes the issue seem more baffling to the opponent, he’s gaming the system and we expect that,” Oliver said.

The Abdul-Salaam case has seen numerous petitions for relief, stays of execution and has been sent to the state Supreme Court several times for different issues in its nearly two-decade span.

But Oliver noted that Jones offered no indication as to what specifically was wrong about the defenders’ handling of the case, nor did he offer any suggestions on how to improve the system.

“He doesn’t really seem to describe what was procedurally improper. … What would fix this system for Judge Jones? What exactly did these lawyers do in his mind?” Oliver asked. “When you drop something that provocative, you need to identify a little better what it is that needs to be fixed.”

Federal criminal defense lawyer Hope Lefeber said the defenders are known for zealous advocacy and adhere to the strictest ethical principles.

“They’re excellent attorneys and they fight hard for their clients, given the limited resources they have,” Lefeber said. “I’ve only known them to conduct themselves to the highest ethical and professional standards.”

Lefeber said 20 years is a long time for a death-penalty case to be in the system, but added that there may have been valid issues in the Abdul-Salaam case that needed to be addressed.

Defendants “get sentenced to death and everyone wants to see their heads cut off immediately,” Lefeber said. “We all assume the prisoner has no further rights and we ought to do away with them. But, presumably there were a lot of issues that had to be dealt with.”

Louis Natali, a professor of criminal law and death-penalty litigation at Temple University’s Beasley School of Law, said Jones’ comments were “fairly bland and innocuous. I doubt that anyone would disagree with his general sentiments.”

Regarding Jones’ comments that Abdul-Salaam’s and his victim’s families would be unable to gain closure as long as the appeal persisted, Natali said that “closure” in that context was a meaningless word.

“We all must deal with the fact that life is not a movie that stops when we leave the theater,” Natali said in an email to The Legal. There is no ‘The End’ and it’s illusory to think so. True closure could come when the state stops trying to kill people to teach others that killing is wrong.”

Jones explained in his memorandum that Abdul-Salaam was attempting to flee the scene of a robbery he had committed with an accomplice when New Cumberland, Pa., police officer Willis Cole arrived. Cole subdued Abdul-Salaam’s accomplice, but was shot through the heart while exchanging gunfire with Abdul-Salaam.

Jones said in his memorandum that the evidence against Abdul-Salaam was “overwhelming” and, citing the state Supreme Court, added, “No less than four eyewitnesses identified [Abdul-Salaam] as Officer Cole’s shooter at trial.”

Cumberland County District Attorney David J. Freed told The Legal after the issuance of Jones’ opinion that his office was pleased with Jones’ ruling.

“It’s been a long haul in this case. In August it’ll be 20 years since Will Cole was murdered,” Freed had said. “We’re not naive enough to think it’ll end here, but we’re happy to have cleared this hurdle.”

Freed had also said that Jones was on point in his critique of the defenders, adding that “federal defenders are absolutely trying to game the system and they can say they’re doing it to save lives,” but their tactics need to be reviewed.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI. •