RULE 801 RESOLUTION
WHEREAS, Pennsylvania does not provide any state resources for indigent defense services in state-court capital proceedings and the Pennsylvania Supreme Court Committee and Racial and Gender Bias in the Judicial System (1) has found that "virtually every" county public defender office it surveyed in Pennsylvania "showed serious deficiencies in its ability to deliver services to capital defendants;" and
WHEREAS, the American Bar Association's Guidelines for the Appointment and Performance Of Defense Counsel in Death Penalty Cases recognize the appropriateness of pro bono capital post-conviction representation by law firms that specialize in civil practice but that have committed to providing high quality capital post-conviction representation in accordance with the defense standards set forth in those standards, (2) and the American Bar Association's Death Penalty Representation Project actively encourages and recruits such representation; and
WHEREAS, the Philadelphia Bar Association also has long encouraged such pro bono post-conviction representation by major civil law firms that have the resources and dedication to undertake these difficult cases; and
WHEREAS, many major civil law firms have responded to Pennsylvania's crisis in capital representation by providing Pennsylvania death row inmates high quality pro bono representation in state and federal post-conviction proceedings, to date reversing nineteen unconstitutional capital convictions and/or death sentences, including fourteen reversals in Pennsylvania's state post-conviction courts; and
WHEREAS, the commentary to new Rule 801 of the Pennsylvania Rules of Criminal Procedure, which establishes experience and CLE-attendance requirements for trial and appellate defense counsel in capital cases, may jeopardize or limit the availability of such high-quality post-conviction representation by arguably preventing pro bono counsel from entering an appearance in capital post-conviction proceedings unless they satisfy the criminal experience requirements of Rule 801, even though Rule 801 itself does not explicitly apply to post-conviction proceedings; and
WHEREAS, prosecutors have already invoked this reading of the commentary in seeking to prevent lawyers in primarily civil law firms from entering their appearances or continuing pro bono representation in Pennsylvania capital post-conviction cases; and
WHEREAS, both the American Bar Association Death Penalty Representation Project and the Pennsylvania Association of Criminal Defense Lawyers have asked the Supreme Court of Pennsylvania not to apply Rule 801 to limit the pro bono involvement of civil law firms in capital post-conviction representation.
NOW THEREFORE, BE IT RESOLVED that the Board of Governors of the Philadelphia Bar Association hereby urges the Supreme Court of Pennsylvania to clarify that the criminal case experience requirements of new Rule 801 of the Pennsylvania Rules of Criminal Procedure do not apply to the entries of appearances of pro bono capital counsel who have committed to provide high quality capital representation in accordance with the defense standards set forth in the American Bar Association's Guidelines for the Appointment and Performance Of Defense Counsel in Death Penalty Cases who comply with the yearly educational requirement of Rule 801.
AND BE IT FURTHER RESOLVED that the Chancellor and his or her representatives are authorized to work with the Supreme Court of Pennsylvania and relevant committees established by the Supreme Court of Pennsylvania to alleviate the impact of the experience requirements of Rule 801 insofar as they prevent experienced, capable and committed counsel who primarily have civil experience from appearing in capital proceedings.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: APRIL 28, 2005
1. Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System, Chapter 6, Racial and Ethnic Disparities in the Imposition of the Death Penalty at 210-13 (Delivery of Counsel Services to Indigent Defendants).
2. American Bar Association Guidelines for the Appointment and Performance Of Defense Counsel in Death Penalty Cases, Guideline 5.1 - Qualifications of Defense Counsel, commentary.