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Lawyers: Money matters in death penalty defense

Associated Press, April 6, 2004

The public defender's office in Philadelphia kept an extraordinary streak alive Tuesday when a jury decided that a 20-year-old man should get life in prison for raping and murdering a young girl.

In the 11 years since the Defender Association of Philadelphia began handling capital cases, not one client has been sentenced to death.

Lawyers say the office's track record in a city that annually ranks near the top in use of the death penalty is proof that when it comes to capital punishment, the difference between life and death for a convicted killer can be a matter of dollars and cents.

With 215 attorneys on staff, the Defender Association is equipped with resources usually only available only to prosecutors. Every capital murder client gets 2 lawyers and a private investigator. A team of psychologists and "mitigation experts" hunt for evidence that might sway jurors against a punishment of death.

By comparison, the court-appointed private lawyers who still handle four out of every 5 murder cases in Philadelphia sometimes get as little as $2,000 to defray expenses, plus $400 in fees for each day of trial.

The difference shows on death row. All 61 people condemned to death in Philadelphia since the Defender Association began handling capital cases in 1993 were represented by private attorneys.

"What is going on in Philadelphia is really a model example of what can be done when capital defense is adequately funded," said Terri Mascherin, chairwoman of the American Bar Association's Death Penalty Representation Project.

"In jurisdictions where the public defender receives adequate funding and provides the resources that Philadelphia is able to provide money for investigators, money for experts, money for mitigation experts it makes a striking difference in the quality of defense that is provided," she said.

Opponents of capital punishment have argued for years that defendants facing a potential death sentence often don't get the help they need from overworked, poorly equipped lawyers.

A 2000 study by researchers at Columbia University found that 68 percent of all death sentences imposed between 1973 and 1995 were later overturned. Legal experts said a leading reason for reversals, then and now, are rulings that a defendant's lawyer was ineffective during some phase of the trial.

Some cities and states have responded by bolstering resources for death penalty defense. Several now have centers that provide defense attorneys with training and access to investigators and scientific experts.

Philadelphia reacted to criticism of its handling of death penalty cases in 1993 by modifying rules that had barred the Defender Association from handling capital murder cases.

In a 1992 report, the Washington-based Death Penalty Information Center blamed the frequency of Philadelphia death sentences on a failure to provide suspects with an adequate defense.

The few dozen private lawyers who handled death penalty cases were often ill-trained and ill-prepared, the study said. All were poorly paid. Most had to beg the courts to reimburse them for trial expenses, making it difficult, if not impossible, for the defense to hire forensic experts or private investigators.

"You'd send the court a bill for hiring a psychologist, and the judge would randomly cut it in half," lamented West Chester attorney Sam Stretton, who was part of a group of lawyers who lobbied for the Defender Association to get involved in handling death penalty cases.

The association's streak remained intact Tuesday when a jury could not agree whether Abdul Malik El-Shabazz deserved to be executed for raping and smothering a 6-year-old girl. Under Pennsylvania law, a death sentence must be unanimous.

Jurors split on El-Shabazz' fate after listening to several days of testimony from experts who testified that he was born to a heroin-addicted mother, grew up a victim of physical abuse and was mentally ill.

"This is a perfect example of the kind of mitigation case you can present if you have the resources to do it," said El-Shabazz's public defender, Fred Goodman. "I think that a private attorney without the resources we had might not have been able to save this man's life."

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