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By STEVEN A. MORELLI [email protected]
Sunday, December 03, 2000     Page: 1A

Reversals blamed on poorly paid defense systemPennsylvania will continue to
have trouble carrying out executions until the state gives defendants
higher-skilled, better-funded attorneys who are less likely to make appealable
mistakes, experts say.
   
Three of Luzerne County’s five death sentences have been overturned in the
past four years – two because of inadequate counsel. It is the leading cause
of reversals in the state and nation, a recent Columbia University study
found.
    The study, which reviewed death sentences imposed from 1979 to 1995, found
that 68 percent of the sentences nationwide have been overturned on state or
federal appeal. In Pennsylvania, 57 percent of the death sentences have been
overturned.
   
The latest reversal came last week, when the state Supreme Court overturned
the Luzerne County conviction of James L. Strong, convicted of fatally
shooting a motorist in 1983. Although Strong’s attorney was not considered
inadequate by the court, the lawyer said he was given extremely limited
resources to defend the case.
   
“It is regarded as a disgrace nationally,” said Robert B. Dunham, former
director of Pennsylvania’s Death Penalty Resource Center. “It has been known
for a long time that Pennsylvania’s system is badly broken.”
   
Although Pennsylvania has had more than 270 death sentences since 1979, it
has executed only three people, all of whom consented to be killed.
   
“To have a death row of more than 200 people and nobody is dying, what’s
the point of having it?” said Richard C. Dieter, director of the Death
Penalty Information Center.
   
Tim Reeves, Gov. Tom Ridge’s communications director, said the low number
of executions is not evidence of inadequate counsel but rather a system
stacked in favor of defendants. “Those who are opposed to the death penalty
use the courts to thwart the death penalty, the people’s will.”
   
Bob Buehner, president of the Pennsylvania District Attorneys Association,
agreed. “It is because of the endless, endless appeals in Pennsylvania. The
appellate courts go through these cases with the finest-toothed comb.”
   
Pennsylvania, one of 38 states with the death penalty, does not require
attorneys to have any special training to handle capital cases.
   
Some other states are more proactive. Colorado, Connecticut, Kentucky, New
Jersey and New York each have special units that defend people facing death.
Other states have established standards of who can defend capital cases, while
others provide extra funding for the defense.
   
“When states provide money, it is not out of the goodness of their
hearts,” Dieter said. “It’s to make the system be more efficient.”
   
The Columbia University study, released in June, was highly critical of the
quality of legal representation death penalty defendants receive.
   
James S. Liebman, the lead researcher, said if states do not invest in the
defense, there is a high likelihood for a fatal error in the case. The best
way to ensure a case will withstand appeal is to have a strong defense and a
strong prosecution duke it out in court, Liebman said.
   
“Think of it as a production system. If you have a cheap production
process, you need a very, very expensive inspection process.”
   
The expense comes not only in a meticulous appeals process but also in
having to retry overturned cases, Liebman said.
   
Pennsylvania took a first step this year to strike a better balance. For
the first time money was earmarked to train defense attorneys in the appeals
process.
   
Although the $628,000 appropriation was made, the governor’s office has not
spent the money because it is still working out a program, said Reeves, the
governor’s spokesman. The state Office of Attorney General received $614,000
this year for a unit that since 1997 has assisted prosecutors in the appeals
phase.
   
The belief is the training will increase the quality of the defense, which
will make it less likely that attorneys will make mistakes that get the
sentence overturned later.
   
The two Luzerne County cases that were overturned because of ineffective
counsel hinged on errors the attorneys made in the death penalty phase of the
trial – a separate court action in which jurors hear additional testimony to
decide if the penalty will be death or life in prison.
   
In September, Luzerne County Court of Common Pleas Judge Mark Ciavarella
overturned the death sentence of Tyrone Moore, ruling his attorneys were
ineffective because they failed to have Moore’s family testify about the abuse
he suffered as a child. Moore was convicted of the 1982 shooting death
Nicholas Romanchick during a robbery. Prosecutors have appealed Ciavarella’s
ruling to the state Superior Court.
   

   
In 1996, the state Supreme Court overturned the death sentence of Brian
Smith because his attorney did not introduce evidence of his mental illness
during the death penalty phase. Smith was convicted in 1991 in the beating
death of his girlfriend’s infant son. The district attorney at the time later
declined to reseek death and Smith was sentenced to life in prison. .
   

   
In the Strong decision, the Supreme Court overturned his conviction because
prosecutors withheld information about a deal with his co-defendant, James
Alexander. The deal came to light in 1997, when three letters between then
District Attorney Robert Gillespie Jr. and Alexander’s attorney surfaced.
   
Strong’s lawyer, Michael Kostelansky, was appointed because the public
defender’s office was already representing Alexander. He was paid a flat rate
of $12,500 a year whether he got burglaries or a death penalty case, he said.
He had never handled a murder case before.
   
Kostelansky said he had an investigator from the public defender’s office,
but he was hampered by the little funding he was provided. Prosecutors and
police traveled to several states and spent several thousand hours on the
investigation. But Kostelansky’s investigator was not paid to travel. He had
to use the phone, he said.
   
It was Kostelansky’s investigator who told him about the deal Alexander had
worked out, Kostelansky said in testimony during the appeal. Prosecutors
repeatedly denied the deal during the trial.
   
Kostelansky said he did not tell the judge about the source of the
information because he had no other evidence and could have damaged the claim
if it failed. That was the issue that eventually got the conviction thrown
out.
   
“Kostelansky was dealt a bad hand,” said Michael Wiseman, who handled
Strong’s post-conviction appeal.
   
Although Wiseman said he thought Kostelansky was a good lawyer, Kostelansky
should have told the judge about the source, he said. Saying it in court might
have led to the discovery of the letters that would have corroborated the tip,
Wiseman said.
   
Wiseman said this case exemplifies the disadvantage faced by defense
attorneys in death penalty cases.
   
“In other states, they (defense attorneys) are paid well and they get
resources,” Wiseman said.
   
Wiseman noted the Philadelphia’s public defender’s office has the resources
and the expertise. They have not lost a death penalty case, while
court-appointed lawyers in the same city do not have an equivalent record.
   
“It’s penny-wise and pound-foolish on the part of the commonwealth,”
Wiseman said. “Pennsylvania wants to have a death penalty but doesn’t want to
pay for it.”
   
Steven Morelli, a Times Leader staff writer, may be reached at 829-7221.