By Amaris Elliott-Engel
Of the Legal Staff
The First Judicial District, according to a notice authored by Philadelphia Common Pleas Court Judge John W. Herron, the chair of the First Judicial District’s Administrative Governing Board, is raising the flat fees paid to private counsel on an interim basis in the wake of a fact-finder’s report that the pay for private lawyers handling death penalty cases is “grossly inadequate.”
As a result of a petition by defendants who face the death penalty, Philadelphia Common Pleas Court Senior Judge Benjamin Lerner was ordered by the state Supreme Court to examine if the guaranteed fee system was unconstitutional. Lerner concluded, in a report filed Tuesday, that the constitutionality would have to be decided on a case-by-case basis but that the fees paid to lawyers are so low that the number of lawyers willing to do the work is tiny and is resulting in a backlog in homicide cases. For example, lead capital defense attorneys are paid only $2,000 for pretrial work, but the fee is reduced to $1,333 if the case is resolved because of their clients taking a plea or the case is dismissed for any reason.
Until the Supreme Court acts, “private counsel appointed in capital cases shall be paid a flat fee of $10,000 (lead counsel) and $7,500 (penalty phase counsel), irrespective of whether the case is tried to verdict or otherwise disposed and resolved,” said Herron, administrative judge of the Common Pleas Court's trial division, in a notice released today.
“As Judge Lerner noted, the scheduling of these cases is hampered not by a lack of trial judges but rather by the lack of qualified counsel interested and available to take such assignments; presently only 12 in number,” Herron said. “Recognizing that these capital cases are a community nightmare involving the most horrific murders and the killing of police officers in the line of duty, the court takes this interim action in order to more expeditiously address the devastating consequences of these crimes to the victim’s family and the other parties involved.”
The petition that spurred Lerner’s report was filed by the Atlantic Center for Capital Representation, a nonprofit death penalty resource center serving Pennsylvania and Delaware.
Marc Bookman, executive director of the center, said in an interview today that, while he disagrees with Lerner’s conclusion that the guaranteed fee system is unconstitutional on a global basis, he is cautiously optimistic that Lerner’s report will be acted upon by the Supreme Court and capital representation will be improved in Philadelphia.
With Lerner’s recommendation that capital defense counsel be paid $90 an hour, “court-appointed lawyers aren’t coming out of this driving a Mercedes Benz. They’re coming out of this driving a Buick. But at least it’s not a Model T Ford,” Bookman said.
Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.
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