The Beat Goes On

It would be easy to say that a perfect storm hit Philadelphia’s justice system yesterday – an extremely aggressive and often reversed prosecutor rolls over an inept defense attorney whose clients often seem to end up on death row, and then both of them run into the outraged federal judge who orders a new trial for the unjustly convicted accused after 20 years of wrongful incarceration. And indeed all of that happened yesterday – except that we wouldn’t call it a perfect storm, because a perfect storm implies that the factors making the storm rarely come together, and that would not be the case. The truth is that the James Dennis case is more like a routine summer shower than a perfect storm.

First let’s cover the facts: After a short trial and an even shorter penalty phase, James Dennis was sentenced to death for the brutal and pointless murder of Chedell Williams in 1991. The evidence against him was not strong, largely three very tentative eyewitness identifications and some clothes allegedly seized by the police and then “lost” by them before trial. Even the eyewitness testimony identifying Mr. Dennis suggested a reasonable doubt – the descriptions were almost uniformly of a man 5’9” or 5’10”, while Dennis is a very small 5’5”, 130 pounds. In addition, the Commonwealth failed to reveal that four other eyewitnesses did not identify Mr. Dennis at all.

And that wasn’t all the Commonwealth failed to reveal. There was a receipt given to the police by an alibi witness that somehow only turned up 10 years after trial. (Seth Williams, the present District Attorney of Philadelphia, complained that the Judge accepted a “newly concocted alibi defense,” but Mr. Williams has apparently never read the transcript of the trial or the opinion in the Dennis case, since the alibi defense was presented at trial.) The Commonwealth also buried a series of documents in which a witness presented compelling evidence that others committed the crime; that witness named names, provided corroborating evidence, and was taken by police on a drive-along to identify various relevant locations aimed at solving the crime. Yet these six documents were never revealed to the defense until Mr. Dennis had spent a decade on death row.

And what might the defense have done with all these documents? An effective defense team would have made a compelling case for innocence. But Mr. Dennis did not have an effective team; in fact, he barely had a lawyer. A competent lawyer would have interviewed all the eyewitnesses – had this lawyer done so, he would have learned that many of the witnesses had failed to identify Mr. Dennis, and that one had actually identified someone else. A competent lawyer would have prepared Mr. Dennis’s alibi witnesses, thus learning about the missing receipt that would have been strong corroboration. Mr. Dennis’s lawyer didn’t do any of these things – indeed, it is unclear what in fact this lawyer did do, other than appearing in court every day to collect his $400 per diem.

Once again the city of Philadelphia is embarrassed by its justice system. Ironically, its court administration believes that it has improved representation by hiking its fees a meager amount. But the same lawyers – not screened for merit, not trained for improvement – continue to receive appointments to our most serious murder cases. In fact, the lawyer in James Dennis’s case has been appointed to a very serious murder case going to trial in the near future in…Philadelphia.

It would be nice to think that our District Attorney, seeing reversals like this one over and over again, might form a real Wrongful Convictions Unit to examine past mistakes and rectify real injustices? Many District Attorney offices, in Dallas and Brooklyn and Manhattan and other jurisdictions, have done so. Instead Seth Williams doggedly defends the outrages of the past, accusing the judge in the Dennis case of accepting “slanted factual allegations.” 

And the beat goes on. It is easy to believe that things have improved, that we are not living in a time where such injustices could occur. In fact nothing at all has improved; and as sure as I’m typing this I am certain that similar injustices will be found 20 years from now, because we have done nothing to prevent them.





An ACCR Perspective on the Trayvon Martin Case

Many people are outraged by the Trayvon Martin case – they perceive racial motivations behind the actions of George Zimmerman, a wannabe police officer drawing stereotyped conclusions about a young black man in a hoodie, acting illegally on his assumptions, and covering up through a transparently false story. They see the state’s feeble and inept investigation and presentation of the case; and they see not-so-subtle prejudices behind Florida’s gun and self-defense laws. Many of those same people are outraged by the George Zimmerman verdict. Consider me in the former group but not the latter.

Florida has created an atmosphere of vigilantism that leads predictably to confrontation and excessive violence. The entire country is now aware that George Zimmerman was a volunteer of his local town watch, but Town Watch is not called Town Act, and for a very good reason. We hire and train policemen to act, and we are all grateful when volunteers are willing to watch our neighborhoods for possible criminal problems; but we do not hire these volunteers to police our streets or make the myriad decisions necessary to ferret out crime. The key word is “watch” – we may never fully know what prompted George Zimmerman to leave his car when the police dispatcher suggested there was no need to follow Trayvon Martin, but is there the slightest question that an unarmed Zimmerman might well have acted differently? Town Watch volunteers should not be armed; if the use or threat of force becomes necessary, they have walkie talkies to alert people who are hired and trained to know how and when to do so.

Adding to the casual arming of the civilian population, Florida has passed a law known as Stand Your Ground. In essence, this new law makes one significant change to the law of self-defense. Traditionally, and in Pennsylvania, you do not need to retreat when faced with life-threatening violence unless you can do so in complete safety. This makes complete sense – no matter what circumstances you are facing, if you can escape the situation without harm to yourself or anyone else, that is obviously preferable to any other scenario. Stand Your Ground changes this centuries old understanding of self-defense – under this law, you may use deadly force when confronted with deadly force, even if you could leave the confrontation safely. The Zimmerman defense team did not utilize the Stand Your Ground law; they opted instead to argue that Zimmerman could not escape in complete safety. But laws change perceptions – how else to explain the condemnation of drunk driving after the many years that it was considered socially acceptable and even humorous? The passing of Stand Your Ground in Florida sends the very clear message to the population that violence in the context of self-defense is acceptable even when it’s not absolutely necessary.

Am I outraged by the killing of Trayvon Martin when it could so easily have been avoided? Of course. Am I outraged that the state of Florida allows a wannabe cop with a racist attitude to walk the streets with a loaded gun? Certainly. Am I outraged by the atmosphere of violence fostered by the Florida legislature in its gun and self-defense laws? Without question. Am I outraged by the verdict in State vs. George Zimmerman? No.

I was a public defender in Philadelphia for 27 years. I know that our law says that no one can be convicted of any crime unless proven guilty beyond a reasonable doubt, and I know that many people have been convicted on less evidence than that standard requires. I know, beyond any doubt whatsoever, that if we start to complain that the high burden of proof for conviction was met when there wasn’t enough evidence under the law, those who suffer will be poor people accused of crime. And many of them will be people of color.

I was not present at the trial; nor did I rush home every night to watch the replay on television. But I followed it closely enough to say this – the Zimmerman trial was not the Rodney King case. This was not a crime captured on video, with a jury that bent over backwards to ignore the evidence and give police officers an outrageous verdict. Rather, huge amounts of evidence that might be expected in a murder conviction – an eyewitness, a confession – were missing from the case entirely. Juries are told that a reasonable doubt arises from the evidence or the lack of evidence – in the Zimmerman case there was a significant lack of evidence. While the state’s medical examiner was confused and ruffled, the defense’s expert (one of the leading medical examiners in the world, and author of a seminal text in the field) was professional and confident. Is it reasonable to complain that the state’s expert should have been better prepared and more accomplished? Yes. Should the state have put greater and more prompt effort into evidence gathering? No doubt. Did the jury reach the wrong verdict considering the evidence that was given to them? It would appear not.

It is silly to believe that we are living in a post-racial era, Barack Obama’s presence in the White House notwithstanding. The same legislators who are dismantling our gun laws and creating an atmosphere of violence in our laws are climbing over each other to repress minority voting, so that they might continue to dismantle our gun laws and create an atmosphere of violence. We must protest these outrages at the tops of our lungs, just as we must continue working to expose the racism that lies just beyond the silhouette of a hoodie.  But we should be very careful not to complain that the evidence was sufficient to convict when it clearly wasn’t. In other words, we should be careful what we complain about.   



The Terry Williams Case in Retrospect – A Canary in the Coal Mine

In looking back over 2012, it seems a good time to revisit the case that now stands for everything wrong with the death penalty in Pennsylvania: Terry Williams. His tale, occurring under the shadow of imminent execution, involves a badly abused young man, an inept trial lawyer, an unscrupulous prosecutor, a District Attorney’s Office “Inspector Javert”-like in its single-minded pursuit of execution; and finally, a judge brave enough to uncover the truth, and tell the story fairly.

As in many death penalty horror stories, this one begins with an incompetent court-appointed defense attorney, who first met the 18-year-old Terry Williams on the literal eve of trial. Later disbarred, the lawyer had not even bothered to familiarize himself with his young client’s prior third degree murder conviction, and did not know that the victim in that case, as in the case wherein Mr. Williams received a death sentence, was a known sex abuser of young boys. Thus, when the prosecutor argued that two innocent men had been killed, and that Mr. Williams had no reason to commit such crimes, the defense attorney did not know enough to respond. Partly, of course, this was because he did not know the facts of his own client’s prior case. To a far greater extent, however, it was because the prosecutor had hidden crucial evidence from the defense.

Prosecutors are obligated by law and ethics to provide all information that in any way might be deemed exculpatory to the defense, either at trial or at sentencing. As it turned out, the lead prosecutor and the detectives who worked on the case knew very well that the victim had a long history of sexually abusing young boys; and they had good reason to think that he was sexually abusing the young Mr. Williams as well. But they violated the Constitution by hiding all the evidence about it. For starters, the assistant district attorney’s handwritten notes documented sexual allegations against the victim by other young boys – perhaps even more outrageously, full and detailed statements of the abuse were sanitized from witness statements before being provided to the defense. The scrupulous cleansing of the victim’s sexual proclivities with young boys from all police documents made it safe for the prosecutor to argue to the jury that the victim was an innocent man murdered for no reason at all. Safe, but completely untrue.

When the allegations did arise – just around the time Mr. Williams had lawyers who hadn’t been disbarred – the District Attorney’s Office, in appeal after appeal, ridiculed the claims. Rather than look through its own files, recognize that an injustice had been done, and take steps to rectify the error, the District Attorney himself claimed that the sex abuse had been made up by Mr. Williams to escape execution. Indeed, in the face of more than 350,000 signatures calling for clemency and a majority vote to spare the condemned man by a very conservative Pardons Board, the District Attorney accused Mr. Williams “of manipulative and malevolent behavior” and called his claims of molestation “a last ditch effort to escape punishment for his crime.” Given the overt fraud perpetrated by the prosecutor, this might fairly have been labeled enabling behavior by the District Attorney.

Thankfully, the story did not end there, though in many courtrooms it would have. Indeed, Mr. Williams’s story could not have been told were it not for the events that occurred in Courtroom 507 of the Criminal Justice Center and the judge who presided there. Earlier we referred to her as brave, but that’s only in comparison – in reality, she was doing what all judges should do, which was to make absolutely certain that the process was as fair as human beings could make it. She ordered the District Attorney and police files to be turned over to the defense; and then she found as a fact that the prosecutor was incredible in her explanation of the hidden material, that the Commonwealth had perpetrated a fraud on the jury, and that a new and fair sentencing was mandated.  Judge Sarmina’s Opinion

In retrospect, justice seems so obvious in the Terry Williams case: a young man, barely eighteen and sexually abused his entire life; a disbarred lawyer who hadn’t seen his client and hadn’t investigated his case; a victim who had sexually molested Terry Williams and many other young men. But mix in other ingredients: a prosecutor who wanted to win so badly that she hid compelling evidence, a District Attorney blind to his own office’s misdeeds, a police department that rewrote its own statements to protect the reputation of a dead victim over a live defendant. It is reasonable to think that we might learn from the Terry Williams case, and it is necessary that we do so. But only time will tell if we will.


A View from the Fiscal Cliff of Philadelphia’s Death Cases

Almost two years ago the Atlantic Center for Capital Representation embarked on an effort to improve the absurdly low fees paid to court-appointed counsel in death penalty cases in Philadelphia. After two dismissals from the Philadelphia Court of Common Pleas – apparently we were not adept at properly numbering our paragraphs – the Pennsylvania Supreme Court accepted the matter, ordered hearings to make findings of fact, and sent the matter back to the Philadelphia courts. But things don’t always go smoothly when money is on the table – three days of hearings abruptly became one, and the special master recommended a very moderate hourly rate of $90 for court-appointed counsel handling our most serious cases. That recommendation sat in the Pennsylvania Supreme Court, gathering dust, for a gestation period of nine months – until in early December the Court asked for an update based on the fee schedule currently in place. You see, the Philadelphia courts went from $2000 and $400/day of trial to $10,000 and zero/day of trial. Both are hopelessly inadequate, the first because the numbers are so outrageously low that lawyers spent no time in preparation; and the second because, while the numbers are still far below every other major city in the country, lawyers now have no incentive to go to trial at all. Nationally respected ethicist Lawrence Fox, Yale Law Professor and partner at Drinker Biddle and Reath, called the current system “unconstitutional, unethical and embarrassing.”

Judge Lerner, who recommended the $90/hour rate in the first place and concluded in his initial recommendation to the Supreme Court that the Philadelphia fee schedule was “grossly inadequate,” noted the other day that the city paid $200,000 for capital defense services in 2010, and that the $90 hourly rate would require the city to spend $340,000 more per year. What he failed to mention was that the $200,000 figure was for more than 20 cases – the average amount of money spent for a SINGLE federal death penalty trial is $465,000! And for those who love the idea of saving money on the backs of poor people accused of our most serious crimes, keep in mind the recent conclusions from the Yale Law Journal’s How Much Difference Does the Lawyer Make: The Effect of Defense Counsel on Murder Case Outcomes by James Anderson and Paul Heaton – the lawyering prompted by such outrageously low fee schedules has cost the taxpayer in incarceration rates alone over $200 million in 11 years.

It appears that the Pennsylvania Supreme Court will take another look at Philadelphia’s system of representing poor people in capital cases. One only hopes that the Court does the constitutional, ethical, fiscally sound, and morally right thing – establishing a reasonable hourly rate so that competent attorneys can properly represent their clients in the most serious cases we have. And at the same time, Philadelphia can cease to be a national embarrassment.