A recent review of death penalty cases in Pennsylvania conducted by the Philadelphia Inquirer (see earlier DPIC post) has revealed a pattern of ineffective assistance of counsel leading to extensive delays and reversals of death sentences. When the cases are litigated a second time, now with more competent representation, they frequently do not result in a death sentence. Prosecutors have called the system a great disservice to victims' families. Edward McCann, the first assistant district attorney in Philadelphia, said, "The length of time is unconscionable. To have to make phone calls to people 20 years after the fact and tell them: 'By the way, you know that death sentence you thought was final 20 years ago? We've got to talk to you about that.' I think it's unconscionable to put people through that." And yet, according to the Inquirer's study, "lawyers found to have provided ineffective assistance of counsel are routinely appointed to new cases," and some even become judges. Moreover, "deficient legal work extends to appellate cases, where the very lawyers hired to correct the errors of others themselves prove ineffective." Appellate lawyers have filed legal challenges that cite little or no case law, and have grammatical errors. Some appellate lawyers missed key filing deadlines or failed to appear for court hearings. Jack McMahon, a former homicide prosecutor and now a defense lawyer, pointed to the low pay for attorneys in capital cases as the source of the problem: "The government gives people a constitutional right to an attorney, but by lowering the [lawyers'] fees to pauper's level, they have severely hindered that right," he said. "To me, that's inexcusable, particularly in a homicide case, where the government is either seeking to kill you or put you in jail for the rest of your natural life." Pennsylvania Supreme Court Justice Thomas G. Saylor (pictured) called the legal work in some cases emblematic of the "unconscionable delay, disarray, and inconsistencies" in death-penalty appeals and called "for immediate reform."
Some Georgia death row inmates may soon be without representation for their appeals, potentially delaying the entire death penalty process. The Georgia Bar Foundation has traditionally provided funds to the Georgia Appellate Practice and Educational Resource Center, a twelve-person non-profit organization that represents or assists most of the 90 inmates on Georgia’s death row. Because of the economic downturn, the Foundation’s collections have declined in recent years and their grant to the Resource Center dropped to zero this year. The state legislature has also been providing funds to the Center annually, but the recent budget crisis has forced it to cut funding by more than $200,000. Rob Remar, chairman of the Resource Center’s board, said, “If the Resource Center loses more employees, it will have to take fewer cases, and there will be some inmates who are unrepresented. The likely outcome is that the system will grind to a halt for those people who don’t have lawyers.” State Rep. Jay Powell, a Republican from Camilla, who heads a key House budget subcommittee, agreed: “My feeling is we can be penny wise or pound foolish, because if we don’t pay enough on the front end, we’ll pay more in the back end. If appeals aren’t properly handled, the cases drag on.”
The U.S. Attorney for Western New York has filed more potential federal death penalty cases than most of his colleagues across the country. Since taking office in March 2010, William J. Hochul, Jr. has petitioned the Justice Department to seek the death penalty against 24 people, more than his counterparts in cities like Los Angeles, Chicago, Detroit, Miami or cities in Texas. Only two other federal prosecutors, both from more populous districts than Western New York, have filed as many death cases with Attorney General Eric Holder in the past 2 years. None of Hochul's cases has yet resulted in a capital trial, much less a death sentence, but they have cost taxpayers more than $661,000 just in the past year. This expenditure is more than the combined amount spent by the area's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. Kevin McNally, who heads the Federal Death Penalty Resource Counsel Project said, "I seriously doubt whether any of [Hochul's] defendants will actually face the death penalty at trial." The Department of Justice spends an estimated $86 million a year on federal death penalty cases. Since the reinstatement of the federal death penalty in 1988, three defendants have been executed. David Kaczynzki, a member of New Yorkers for Alternatives to the Death Penalty, said, "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money."
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An upcoming death penalty trial in Ohio will cost three to four times more than the cost of a life-without-parole trial, according to the trial judge, Michael Sage (pictured). The death penalty trial for Hector Alvarenga Retana, scheduled to begin on October 31, is expected to cost Butler County an estimated $250,000, according to the judge, not counting the cost of appeals. He said, “[The cost] is so great we can’t afford to pay for that directly out of our ongoing budget. All the costs associated with that we take directly to the commissioners.” A co-defendant in the case also faced the death penalty but was sentenced to prison for 78-years-to-life. Despite the high costs, defense attorneys are often paid very little. Chris Pagan, who has defended several death penalty cases, recently said he would have to abandon this type of work because of the inadequate compensation death penalty defense attorneys receive: "The [compensation rates] are extremely low compared with the costs in other metropolitan areas. . . . I’m not doing it anymore I can’t afford it. You get 40 bucks an hour and my overhead costs more than that.”
