The Pennsylvania Supreme Court has agreed to decide whether a criminal defense lawyer’s failure to meet face-to-face with a client before a capital murder trial necessarily violated the defendant’s constitutional right to counsel.
A three-judge panel of the Superior Court said in Commonwealth v. Brown that Philadelphia attorney Nino Tinari did not consult with his client, defendant Richard Brown, at all before trial, rendering his representation per se ineffective.
The intermediate appellate court remanded the case for a new trial, reversing a Philadelphia trial judge’s ruling.
But on Feb. 1 the Supreme Court issued a one-page order, agreeing to take up the state’s appeal, which asked the justices to decide whether the Superior Court erred “by dispensing of the requirement that a defendant show prejudice to succeed on an ineffectiveness claim where counsel failed to meet with him.”
According to the Superior Court’s August 2016 opinion in the case, Tinari was appointed by the court to represent Brown in his murder case after his original, privately retained lawyer dropped out because of a family emergency.
While Tinari represented Brown at his preliminary hearing, he never met with Brown face-to-face or had any phone conversations with him to discuss the substance of his case prior to trial, the opinion said.
Following the preliminary hearing, the next time Brown saw Tinari was at trial, though Brown testified that he had unsuccessfully tried to get Tinari on the phone several times before that, according to the opinion.
Before the trial, now-retired Philadelphia Court of Common Pleas Judge Renee Cardwell Hughes had an on-the-record conversation with Brown and the attorneys in the case in which Brown expressed concern about going to trial because he and Tinari had never met to discuss the case, the opinion said.
According to the Superior Court’s opinion, Hughes told Brown that he had to proceed to trial, assuring him that Tinari “‘kn[ew] his case’” and was “‘one of the most successful attorneys in the commonwealth.’”
The Superior Court, however, said the issue was not whether Tinari was a competent trial attorney.
“But rather, where Brown had retained his own counsel and developed a rapport with same, forcing appointed counsel who had not met with Brown even once before trial was an abuse of discretion and forced appointed counsel to be ineffective by court fiat,” Judge Anne E. Lazarus wrote for the panel, which included Judge Mary Jane Bowes and Senior Judge William H. Platt.
Brown was convicted at trial of murder, robbery, kidnapping, criminal conspiracy and carrying a firearm without a license. At the penalty phase of the trial—in which he was represented by his original attorney, not Tinari—Brown was sentenced to life in prison, the opinion said. The jury did not find the aggravating circumstances necessary to impose the death penalty, however.
Brown subsequently filed a Post-Conviction Relief Act petition, which was eventually denied by Philadelphia Court of Common Pleas Judge M. Teresa Sarmina, who said Brown failed to meet his burden of proving ineffectiveness of counsel.
But the Superior Court said Brown was prejudiced simply by Tinari’s failure to meet with him before his trial.
“Instantly, we cannot affirm the trial court’s decision to proceed with a capital murder trial when counsel, albeit reputable and competent, never had any in-person consultation with his client to determine an adequate defense, learn of any potential witnesses or develop any trial strategy,” Lazarus said, pointing to the state Supreme Court’s 2003 ruling in Commonwealth v. Brooks, “the seminal case on this issue.”
The Brooks court found that “the very nature of a capital case, typically quite involved and always subjecting the defendant to the possibility of death, clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins.”
“Without such a meeting, there is little to no hope that the client will develop a fundamental base of communication with his attorney, such that the client will freely share important information and work comfortably with the lawyer in developing a defense plan,” the Brooks court said. “Moreover, only a face-to-face meeting allows an attorney to assess the client’s demeanor, credibility, and the overall impression he might have on a jury.”
Lazarus said the Brooks ruling”essentially announced the minimum action required by counsel to provide what is deemed constitutionally effective representation in capital cases: counsel must conduct at least one face-to-face meeting with his client.”
The state argued that Brown was not prejudiced by his counsel because there was such overwhelming evidence of his guilt presented at trial. Therefore, the state argued, he failed to meet one of the prongs of the ineffectiveness test laid out by the U.S. Supreme Court in its 1984 ruling in Strickland v. Washington.
But Lazarus said that while the Brooks court did not cite Strickland, it did hold that “an attorney who does not meet in person with his client at all prior to a capital trial simply cannot be deemed sufficiently prepared to defend his client’s life.”
“With this precept in mind, the Brooks court presumed that the defendant was prejudiced because ‘a defense to the charge of murder in the first degree’ was not able to be prepared where counsel had never met with his client prior to trial,” Lazarus said.
Lazarus also waved off the state’s argument that Brown was not prejudiced because, unlike the defendant in Brooks, he was not sentenced to death. The judge said in a footnote that the Brooks court held that it’s immaterial whether the death penalty is ultimately imposed because capital cases subject defendants to the possibility of death throughout, thus necessitating an in-person meeting with their defense counsel prior to trial.
Counsel for Brown, Paul M. George of McKinney & George in Wyncote, said it was unclear why the Supreme Court granted allocatur in the case since Brooks would seem to have already settled the issue.
George said it’s possible the justices will simply seek to reinforce and add clarity to the Brooks decision, but noted his concern that the allocatur grant could also be a sign that the court is considering departing from that ruling.
“I hope the court isn’t going to change its mind,” he said.
Hugh J. Burns Jr. of the Philadelphia District Attorney’s Office could not be reached.
Tinari, who is no longer involved in the case, said he was with Brown in court every day during the trial and would sit with him and discuss the case on breaks.
Brown was “personally satisfied” with his representation, Tinari added.
“There was a lot of interaction between him and me,” Tinari said, noting, as the Superior Court did, that the trial judge refused to grant a continuance.
Zack Needles can be contacted at 215-557-2373 or email@example.com. Follow him on Twitter @ZackNeedlesTLI. •