Phila. judge orders changes relating to court-appointed capital case defense attorneys

The administrative judge overseeing the civil trial division at Philadelphia’s Common Pleas Court issued an order Feb. 27 temporarily suspending operation of the court’s Homicide Appointment System Committee.

In the order, Judge John W. Herron said the move was necessary to increase the number of qualified criminal defense attorneys willing to take on court appointments to represent indigent defendants in capital cases in the First Judicial District, which is Philadelphia’s court system.

The Homicide Appointment Committee’s approved panel consists of 12 lawyers, “a number which is insufficient to meet the immediate needs of the Court,” the order states.

“Reliance solely on the approved panel would exhaust the list after the first six new capital cases requiring court appointed private counsel,” the order states. “Inevitably, this would lead to multiple capital case appointments for attorneys on the panel, which is a major part of the problem this Court is working to correct.”

The order comes on the heels of a report written by Philadelphia Common Pleas Court Judge Benjamin Lerner that was recently submitted to the Pennsylvania Supreme Court that highlights the problems with regard to court-appointed attorney compensation in Philadelphia death penalty cases.

The Philadelphia Inquirer recently reported that the assignment given to Lerner stemmed from the fact that many such death penalty cases have been reversed by appellate courts or sent back for new hearings because of defense attorney errors.

Low pay was identified as a key factor in leading to the problems.

The Inquirer reported that in Philadelphia, less than 30 out of 11,000 lawyers are willing to take capital-case appointments for indigent clients, and that Philadelphia pays less than any other Pennsylvania county in court-appointed death penalty cases.

“The existing compensation system unacceptably increases the risk of ineffective assistance of counsel in individual cases and is primarily responsible for the First Judicial District’s growing inability to attract a sufficient number of qualified attorneys willing to accept court appointments in capital cases,” Lerner had written in his report.

Herron’s judicial order states that the Administrative Governing Board has since increased the fees for indigent capital case representation by the private bar pursuant to a notice issued by on Feb. 22.

The Homicide Appointment Committee’s current application and review process, as well as its application, however, will not allow for an increase in the number of attorneys available for appointment in these cases within the time frame necessary to deal with this issue, the order states.

The order states that attorneys who are added to the capital trial panel through this application process will be expected to be available for appointment through Dec. 31, 2012.

“It is anticipated that no attorneys added to the panel through this process will be asked to accept appointment in more than two capital cases during this calendar year, and attorneys may limit their acceptance of appointments to one capital case per year,” Herron’s order states.

During this time period, the order states, the Homicide Appointment Committee will review its procedures and notify the bar when it is prepared to accept new applications for court appointments to be made beginning on Jan. 1, 2013.