In re: Commonwealth’s Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia — civil procedure — consolidated cases: affirming some, reversing some — Fuentes
The Third Circuit today rejected the Philadelphia D.A.’s effort to block the Capital Habeas Unit of the Federal Community Defender in Philadelphia (“the CHU”) from representing the CHU’s capital clients in state court. It is a significant win for the CHU and for Pennsylvania’s death-row inmates.
[Full disclosure: I was an attorney in the Philadelphia CHU before opening my current practice, and I continue to represent capital inmates in PA.]
The CHU’s basic mission is to represent capital clients in federal habeas corpus litigation in federal court. In theory, habeas litigation starts after state-court litigation is all over, but in practice it is common for federal habeas litigants to return to state court to exhaust issues that were missed earlier. When federal habeas petitioners return to state court to exhaust their federal claims, the CHU continues to represent them.
And the CHU’s representation has been uniquely effective — PA has a big death row, but not a single capital inmate has been executed against his will since the death penalty was reinstated in 1976. (Three inmates have been executed who dropped their appeals and volunteered for execution.) And that drives some prosecutors bananas.
Those prosecutors (along with recently retired PA Supreme Court Chief Justice Castille) have gone to war to try to block the Philly CHU from appearing in state court. The latest battle in that war is this case. The Commonwealth and various counties asked state judges to block the CHU from representing their clients in state court. The CHU — represented by Wilmer and Pepper Hamilton — fought back, removing the 7 cases to federal court and then asking the federal courts to dismiss. The district courts split.
Today, a unanimous panel held that the CHU’s removal to federal court was proper, that the prosecutors’ efforts to disqualify the CHU were pre-empted by federal law, and that the CHU was entitled to dismissal. If the Commonwealth doesn’t seek cert I’ll eat my keyboard.
Joining Fuentes were McKee and Greenaway. McKee also concurred separately. Arguing counsel were Hugh Burns of the Philadelphia D.A. for the Commonwealth and Paul Wolfson of Wilmer for the CHU.
McKee’s concurrence begins:
Although it does not alter our legal analysis of the issues before us, it is difficult not to wonder why the Commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court. A victory by the Commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden. And it would surely further delay the ultimate resolution of the petitioners’ underlying claims.
And concludes:
Though this dispute has been cloaked in claims of state authority and appeals to principles of federalism, I am unfortunately forced to conclude that this suit actually arises out of simple animosity or a difference in opinion regarding how capital cases should be litigated. Given the costs of capital litigation and the very real stakes for the petitioners in these cases, it is extremely regrettable that this debate has now played out in our judicial forum.
An extraordinary case.
Wolfe v. Allstate Property — insurance — partial reversal — Rendell
The Third Circuit today decided an interesting appeal involving insurance coverage of punitive damages. Under Pennsylvania law, a person cannot insure herself against punitive damages. Here, a person insured by Allstate got drunk rear-ended Wolfe. Wolfe sued, and Allstate made a low settlement offer. At trial, the jury awarded compensatory damages (which Allstate paid) and $50,000 punitive damages (which only the insured owed because the policy did not cover punitive damages). Wolfe agreed not to collect the punitive damages from the insured, and in exchange the insured assigned his rights against Allstate to Wolfe.
Wolfe then sued Allstate for breach of contract and bad faith. The gist of the suit was that Allstate’s lowball settlement offer prevented settlement and therefore wrongly exposed the insured to a punitive-damages judgment. After a trial, the jury awarded Wolfe $50,000 in punitive damages.
Today, the Third Circuit vacated the punitive damages award, predictively applying Pennsylvania law to hold that punitive damages awarded in an earlier personal-injury suit may not later be recovered in a breach-of-contract or bad-faith suit against the insurer.
Joining Rendell were Jordan and Lipez CA1 by designation. Arguing counsel were William Carlucci for Wolfe and Marshall Walthew (a former Sloviter clerk) of Pepper Hamilton for Allstate.
Notably absent from said opinion and concurrence was any mention of the reason why Chief Justice Castille (and at other points, just about every other member of the Pennsylvania Supreme Court) questioned the participation/tactics of the FCDO in the first place.
As US District Judge John E. Jones III said last year in Abdul-Salaam v. Beard:
“For while we admire zealous advocacy and deeply respect the mission and work of the attorneys who have represented Abdul-Salaam in this matter, they are at bottom gaming a system and erecting roadblocks in aid of a singular goal — keeping Abdul-Salaam from being put to death. The result has been the meandering and even bizarre course this case has followed. Its time on our docket has spanned nearly all of our service as a federal judge — almost twelve years. We have given Abdul-Salaam every courtesy and due process, perhaps even beyond what the law affords.”
Judge Fuentes and even more so Chief Judge McKee made it seem as if the issue with the FCDO was the manpower and federal funding behind their efforts, which is absolutely not what Chief Justice Castille, Judge Jones, and various others have taken issue with. What they took issue with was the matter of bouncing things back and forth between state and federal courts by way of attorneys filing PCRA petitions that were without merit, taking advantage of the tendency of local federal courts (particularly PAED) to stay and abey habeas petitions until ALL claims are exhausted in state court. It also seems that the cases in which the FCDO files these successive PCRA petitions are the appeals where there is the lowest chance of a federal court finding reversible error (cases like Abdul-Salaam, Gamboa-Taylor, Williams, Hackett). In cases where there are meritorious issues, the interest of the FCDO seems to be finality, but in cases where there aren’t, the interest appears to be to run out the clock.
I have no skin in the game. I’m simply an observer who pays taxes in Pennsylvania. I’ll also mention that there are big problems with Pennyslvania’s administration of capital punishment from the trial court up and that there’s no doubt that the counsel that the FCDO has are an impressive bunch who likely could be making a lot more money elsewhere. I just think that the tactics in some cases are transparently meant to obstruct rather than extract justice.
It would be an odd sort of zealous advocacy if lawyers representing clients on death row weren’t doing everything they legally could to keep their clients from being executed, wouldn’t it?