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December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 at 10:15 AM | Permalink


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A two pronged reply to Justice Castille:

1) Are not federal attorneys subject to state ethics rules, by federal statute?

2) Is there not a rule mandating the reporting of violations of these rules by any attorney learning of the violations, especially inside a tribunal, by case law and by statute written by his own Supreme Court of PA, the Rules of Conduct? That question is addressed to Justice Castille. Generating $350 million in tax cost makes the violation a "Serious" one. A client reports another attorney stole his money, say $1. You would report that, no? What if the other lawyer stole $millions of from the taxpayer, your client as a prosecutor and as your employer on the Supreme Court, isn't that reportable? Why not?


Lawyer unanswered question. You read of a violation of a rule of conduct by a fellow attorney in your state in the Reading Eagle. Has every lawyer reading the newspaper failed to carry out a duty if they fail to report it to the Disciplinary Counsel, or must one be involved in the matter? Are the 100's or 1000's of lawyers reading this blog now violating Rule 8.3?

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

The exception are, 1) the reporting would be violating client privilege without written consent; and 2) reporting a lawyer in a substance abuse program since federal regulations mandate confidentiality. I do not see trial privilege as an exception in Section c).

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

I am not reporting anyone in this instance. So candor would be appreciated. I already know you think I am an idiot and crazy, so it is candor about the professional responsibility being requested.

Posted by: Supremacy Claus | Dec 26, 2014 11:01:51 AM

Shoot the messenger? I thought they only still did that in Utah.

Posted by: Joe | Dec 26, 2014 1:46:29 PM

Judge Castille's view of the Federal Defenders' Capital Habeas Unit has been consistent.


One of them is apparently being investigated by the Pa. bar for pursuing a cert petition against the client's wishes.

That office has some problems. If you're against the death penalty, you might not mind that a taxpayer-funded organization has done an effective job of sabotaging it in Pennsylvania. If you're for it, or if you don't think that ends necessarily justify means, then Judge Castille makes some reasonable points.

Posted by: guest | Dec 26, 2014 4:59:23 PM

"If you're against the death penalty, you might not mind that a taxpayer-funded organization has done an effective job of sabotaging it in Pennsylvania"

Not sure what the point is here. The word "sabotaging" is questionable -- the word has a negative connotation, one often suggesting illegitimacy. Is there a problem that public defenders are using "taxpayer funds" here? What exactly is their job here?

Should they not try that hard to stop prosecutions or certain punishments deemed wrong or something? Does someone have to agree that the punishment is wrong to think this is sorta of their JOB set forth in the Constitution? Or, perhaps, especially with words like "sabotaging" and the hint that some how it is wrong to use government funds here (Gideon v. Wainwright is nice and all .. but let's not go TOO far), not.

The fact that ONE case is cited where the public defender might have gone too far (noting the at times fickle nature of defendants) doesn't affect my opinion too much here unless it is shown with more info as truly representative. I realize some think it is but not knowing the details enough to say, I'll remain agnostic except to say that both prosecutors and defenders repeatedly strongly promote their side & when the weight of the state is against a solitary person esp. when his or her life is at stake, we -- including those FOR the death penalty (who come in all shades & often support a strong defense) -- should be happy for it.

Posted by: Joe | Dec 26, 2014 6:50:50 PM

"The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys."

This guy really doesn't have any business lecturing anybody about ethics-


Posted by: The Death Penalty Sucks. | Dec 26, 2014 8:54:53 PM

Judge Castillo, the duty of the federal defender is to represent his client with zeal and vigor. With all due respect, have a nice retirement.

Posted by: Michael R. Levine | Dec 26, 2014 9:40:01 PM

Mr. Levine. Please comment on litigation to end the confidentiality of the compoundng of the drug. No evidence of suffering can be shown, even in the falsely reported, not botched execution. The improper motive is to get the name and location, then have thugs beat them up and burn down their pharmacies. The defense lawyer knows that well. Is that zeal and vigor?

I do not blame the defense bar. I blame appellate judges for the rent seeking farce. I hope you also realize what happened in Illinois. They ended the death penalty and hundreds of lawyers were fired. So the Supreme Court has it tuned perfectly to generate the most jobs, litigating just nitpicking that brings opprobrium on criminal justice law.

In fairness credit to me, I have also provided two compelling new arguments for the defense. I am advocate of legality and accuracy (date setting is cruel, and the Werther effect, requiring research, where dozens of people kill others or themselves after an execution, as hundreds did around the world after the execution of Saddam Hussein, appellate review not by lawyer dumbasses, but by seasoned investigators with power to subpoena shady prosecutors, to reduce the now miniscule innocence rate). So these concerns should be viewed as objective, not biased.

If a client kills an innocent guard or other prisoner, or a visitor, as they do dozens of times a year, do you agree with the Supervisor of the guards in one prison who said in seriousness, "Now, he definitely lost his cafeteria privilege," after a lifer killed a female guard who resisted his rape attempt?

Posted by: Supremacy Claus | Dec 27, 2014 8:20:13 AM

The problem isn't the federal PDs--it's what judges let them get away with. And in the Third Circuit, they get away with a lot.

Posted by: federalist | Dec 27, 2014 11:32:36 AM

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