There’s a reason why the phrase “death is different” was coined: because it is. In many ways, not the least of which is its finality. That irreversible quality and the magnitude of the punishment also renders other aspects of death cases different, namely the resources that are expended and the amount of time that is consumed. Death penalty lawyers often handle a few cases at a time – there are specialized units – and appeals take years to perfect, argue and get decided. Courts have also recognized the need for special treatment: greater number of jurors, repeated extensions of time and the setting of generous page limits for briefs (and when I say generous…I’ve read some that run over a few hundred pages). Post-conviction doesn’t get any better: thanks to the ridiculous rules set in place by AEDPA, state and federal habeas have become the proverbial kitchen sink – and who can blame inmates facing death? You’d want to exhaust every avenue possible and every colorable claim if you were facing the end of your days.
Everyone knows this. Lawyers for the defense, for the state and judges. Which is why this recent spat brewing in Pennsylvania is astonishing. It all started with the PA Supreme Court Chief Justice writing a “concurring” opinion in a capital appeal for one Mr. Spotz. It starts:
I join the majority opinion in its entirety. I write separately to note and address broader issues implicated by the role and performance of federal counsel in purely state court collateral proceedings in capital cases, such as this one.
What follows is a 34-page vituperative rant about perceived sabotage of the death penalty in Pennsylvania. He throws around phrases like “bordering on the perverse” and calling the lawyers’ representation “abusive”. He writes:
The zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania.
It truly is a jaw-dropping example of judicial bullying, coming from the most powerful judge in Pennsylvania. It is not unusual to see snide comments about (almost exclusively) defense counsel thrown into a legal opinion, but to see one entirely devoted to questioning the ethics and professionalism of capital counsel is unheard of.
Because that is precisely what the “concurring” opinion does: it attempts to embarrass and ridicule the defense attorneys whose sole responsibility is to zealous advocacy on behalf of their client – and in capital cases – to prevent the State from killing him.
But nothing I can say will be an adequate response: for that, read the motion filed by the defense attorneys in response to this “concurring” opinion, seeking withdrawal of Castille’s opinion and recusal from another pending capital appeal. After a page or two devoted to the cheeky argument that the “concurring” opinion should be withdrawn because it doesn’t comply with the court’s own rules, the motion moves onto addressing the allegations of the Chief Justice:
The Opinion makes a number unwarranted and unfounded accusations of misconduct against the FCDO and its employees. In this Motion we rebut those accusations, to the extent that we are able to do so in this forum. Chief Justice Castille’s accusations demonstrate a misperception about the role and responsibility of capital post-conviction counsel. Those misperceptions will be addressed in section A, below. Chief Justice Castille also makes specific and unfounded assertions about particular actions taken by FCDO personnel. Those will be addressed in section B, below.
The motion is also a refresher course for those who need it – perhaps the Chief Justice among them – in the role of defense counsel and just what zealous advocacy means:
The federal defenders say they are merely doing what they are paid to do: provide the best representation possible. They cannot choose who deserves the best effort, said Leigh M. Skipper, the chief federal defender based in Philadelphia. “We take the cases as we find them. We can’t differentiate between ‘good murderers’ and ‘bad murderers.’ A lawyer has an ethical obligation.”
The lawyers also sharply rejected Castille’s complaints that they nitpick to deliberately clog the court.
“As a lawyer who is appointed to represent someone, we don’t have the luxury of saying, ‘Well, it’s close; we don’t make this argument,’ ” said David Rudovsky, president of the Defender Association of Philadelphia, which oversees public defenders in state and federal courts. “Frivolous claims are in the eye of the beholder,” he said.
You really should take the time to read it, if you haven’t already. It systematically destroys every item “noted” by the Chief Justice and exposes just how specious his arguments were to begin with.
The most relevant portion is that which notes the real impact of this “concurring” opinion: the chilling effect it could have on capital appeals. Certainly, the well-funded federal defender’s office doesn’t represent all the capital defendants in PA, nor even a majority, I suspect. Most of them would be handled by state public defenders or private lawyers paid by the State, who also have to come before the Supreme Court on behalf of other clients. Having the Chief Justice of the Supreme Court put in writing such a negative view of what is required of post-conviction counsel in State proceedings can only hurt the level of representation that is provided capital defendants.
The idea that a supposedly impartial supreme court justice – an umpire who calls balls and strikes, as it were – would take such an unusual interest in capital appeals and attempt to vilify those defending the condemned individual is stunning. I understand efficiency in the courts and docket management and all that nonsense, but this goes above and beyond that. This is a rant from a man who has let his personal feelings on the death penalty affect his impartiality and neutrality in the most serious of cases.
But surely he sees that.