Atlantic Center for Capital Representation

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The Circle Game

A little more than two years ago, I wrote an op-ed that appeared in the Philadelphia Inquirer. http://articles.philly.com/2012-04-05/news/31294488_1_death-penalty-cases-death-penalty-jury-questionnaire. The piece discussed two distinct but overlapping issues: the atrocious and inept defense of a young man named Derrick White, and the Philadelphia court administration’s refusal to address the crisis in indigent capital representation. The op-ed concluded with the not-so-bold prediction that those facing capital punishment “will continue to be sent to death row until, years later, appellate courts overturn their sentences. This is the well-worn path of most of Philadelphia’s capital cases.” For Derrick White, the path was shorter than usual.

This was a case where no pretrial motions were filed, no capital voir dire was conducted, no jury questionnaire was employed; and the defense expert called in the sentencing phase did not think that Mr. White, barely twenty at the time of the crime and with a history of being passed from foster home to foster home due to the substance abuse problems of his parents, had any real mitigation to tell the jury about. The jury quickly returned a death sentence. But it did not take long for our courts to realize that Mr. White had not been accorded the rights guaranteed him by the Constitution – indeed, he hadn’t been given the due process we might normally expect when fighting a traffic ticket. A little more than a year after going to death row, Derrick White was back in the trial court – the Commonwealth had agreed to a hearing on “clear ineffectiveness of counsel at penalty phase.” Last week, and again without opposition from the Commonwealth, Mr. White was granted a new sentencing.

Let’s take a second to understand what has happened here. Ordinarily a case is appealed to the Pennsylvania Supreme Court, where briefs are filed by both sides, arguments are heard, and a decision rendered. If the conviction and sentence are upheld, the case moves into post-conviction, where a close examination of the quality of the defense is undertaken. This ordinarily takes years. In the White case, the incompetence of the defense was so apparent that…they skipped all of the formalities and just decided to do the sentencing again. Now, sometime in the future, another jury will be brought together. The defendant, his family, and his witnesses will appear again, as will the Commonwealth’s witnesses and the victim’s family. The process will rewind and start over. As people used to say before the Republicans tried to defund public transportation, this is no way to run a railroad.

It goes without saying – though of course I will say it anyway – that the White case is emblematic of all that is wrong with the death penalty in Philadelphia. But it would be wrong to blame all of the moving parts. The District Attorney’s Office surely did the right thing in agreeing to a new sentencing, and the Pennsylvania Supreme Court seems to have recognized almost immediately how substandard the defense was. The fault lies in one place – the abject refusal of court administrators to take the necessary steps to prepare and resource a capital defense team to do it right the first time.

Even now, after the White case has shown us exactly how not to proceed, irony abounds. Although it seems safe to say that a new sentencing might have been granted for any number of reasons, the case was specifically reversed because the defense failed to properly pursue Mr. White’s youth as a mitigating circumstance. White’s new attorney is the same lawyer who, several years ago, failed to realize that his own client was under 18 years old at the time of the crime, and thus not eligible for the death penalty. As Joni Mitchell once said, the painted ponies go up and down. And until we make some necessary changes, we’ll continue to be captive to the carousel.    

Akeem Davis