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Commonwealth v. Spotz

Supreme Court of Pennsylvania

September 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARK NEWTON SPOTZ, Appellant

Appellant's Motions to File Post-Submission Communications.

Appellant's Motion for Recusal of Chief Justice Castille.

Appellant's Motion for Withdrawal of Concurring Opinion.

Commonwealth's Answer and Motion for Sanctions.

Appellant's Withdrawal of Motion for Withdrawal of Concurring Opinion and Motion for Recusal.

Commonwealth's Answer, including Request for a Rule to Show Cause.

Commonwealth's Request for Leave to Respond to Verified Statement.

Appellant's Motion to Strike Commonwealth's Response.

OPINION

SINGLE JUSTICE OPINION ON POST-DECISIONAL MOTIONS

MR. CASTILLE, CHIEF JUSTICE

I. Introduction

The central ancillary motion pending here asks that I withdraw my Concurring Opinion because I commented on the conduct and agenda of appellant's counsel, who are affiliated with the Philadelphia-based Federal Community Defender's Office (" FCDO" ). I began my concurrence by noting that the source of the FCDO's funding for its questionable forays into state court capital proceedings was not clear, though it appeared that the Administrative Office of Federal Courts (hereinafter " AO" ) played a central role, and that this federal role in state court capital litigation was implemented without the consultation or involvement of this Court or any other relevant Pennsylvania authority. I noted that:

The federal courts--as well as other federal authorities and the Pennsylvania citizenry generally (who may not even be aware of this unusual federal activity in state courts) -- may not be aware of just how global, strategic, and abusive these forays have become. The federal judicial policy has raised issues that should be known to the federal authorities financing and authorizing the incursions; to Pennsylvania's Senators and House members; and to the taxpayers who ultimately foot that bill. This is an appropriate case to highlight those issues.

Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 330 (Pa. 2011) (Castille, C.J., concurring, joined by McCaffery, J.). I added that I was writing to these global issues involving the FCDO, in part, because the cumulative effect of the FCDO strategy and agenda " has taken a substantial and unwarranted toll on state courts." Id.

Consideration of the post-decisional motions in this case, and intervening developments in other capital matters involving FCDO appearances in state court, have confirmed and heightened the grounded concern with the conduct of the FCDO in this case, and more importantly, with its global agenda in Pennsylvania capital cases. As I will detail below, the incremental insinuation of the FCDO into Pennsylvania capital cases has been remarkable in its stealth and pervasiveness. The FCDO has designated itself the de facto State Capital Defender's Office, involving itself not only in virtually all capital

Page 867

PCRA[1] litigation, but also in direct capital appeals, and even, in one instance, as amicus curiae on behalf of a foreign nation, Mexico, in support of a Mexican national who murdered three people.[2] No authority -- state or federal -- appointed the FCDO to take on this statewide role, and no authority has approved the arrangement. Pennsylvania does not have a statewide capital prosecutor's office; and notably, in a great many capital cases, the chief law enforcement officer of the Commonwealth, the Attorney General, echoed by county prosecutors, has taken the position that the FCDO should not be permitted to continue in Pennsylvania capital cases without proving its specific federal authorization to do so.

In addition to comprehensively involving itself in state capital litigation without any authorization, the FCDO has established its monopoly through means known only to itself. Remarkably, when directed by this Court to provide simple and modest information confirming a claim that it has not supported its private capital case agenda in Pennsylvania with improperly diverted federal funds, the FCDO response -- the response of these officers of the court, to the Court with supervisory authority over the practice of law in Pennsylvania -- has been refusal and the removal of cases to federal court, ensuring yet more FCDO delay in those capital matters.

The circumstances and obstructionist effect of the FCDO's silent takeover of the capital PCRA defense function in Pennsylvania requires that Pennsylvania reassert control over the litigation of state capital matters. Death penalty opponents, such as the FCDO, can then redirect their efforts to the political arena, where they belong. This Court has a responsibility for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair, and evenhanded justice in all cases. We are not obliged to indulge or countenance a group which manipulates and abuses the judicial process in Pennsylvania in the hopes of achieving a global political result that it has failed to secure through the political process.

This restoration of proper authority will leave a void in the short run. But, the void is an opportunity to return capital case advocacy to principled moorings. The restoration will require that Pennsylvania authorities, including this Court, step up and ensure the provision of the funding, training and resources necessary to ensure that capital defense representation in Pennsylvania fully meets Sixth Amendment standards, with competent, properly compensated and dedicated lawyers who act zealously to advance the cause of their clients, but who act ethically as well, mindful of their duties to the courts and the justice system overall. I believe the Commonwealth is up to the challenge.

I do not in the least criticize principled representation of indigent capital defendants; such a principled endeavor represents lawyering in the best tradition of the bar. But, as I explain below, the FCDO continues to pursue an agenda beyond mere zealous representation, one which routinely pushes, and in frequent instances, as here, far exceeds ethical boundaries. FCDO lawyers appear in Pennsylvania courts only as officers of this Court; consequently, they are answerable to the Court. So long as the organization remains unauthorized to pursue its global agenda by any Pennsylvania authority, and

Page 868

so long as the FCDO refuses to be candid with the Court about its authorization and funding, it cannot be permitted to continue its representation of capital defendants in Pennsylvania, absent a specific federal court order authorizing the specific endeavor in state court in an individual case.

Before proceeding to a discussion of the specific Motions pending before me, and to give a sense of the FCDO's conduct as viewed from the perspective of other judges not affiliated with this Court, I begin with but two examples. In Abdul-Salaam v. Beard, 2014 WL 1653208 (M.D. Pa. 2014), the Honorable John E. Jones, III, of the Middle District of Pennsylvania, ended his nearly 200-page memorandum denying habeas corpus relief with the following observation:

Nearly two decades have passed since Officer Willis Cole was murdered. Over nineteen years have elapsed since the trial that resulted in Abdul--Salaam's conviction. And yet this Memorandum and the Order that follows will not end the legal maneuvering that seeks to overturn both his conviction and resulting sentence of death at the hands of a jury of his peers.
It was not until well after the founding of this nation that the federal writ of habeas corpus was extended to prisoners in state custody. But like a rolling freight train, the use of the Great Writ gathered speed in the ensuing decades. It was adopted by the federal courts, codified by Congress, revised, and to some degree limited in certain respects. But the case at bar amply demonstrates that there is something grievously amiss in both our laws and jurisprudence as they relate to federal habeas practice. 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. And yet for the family of Willis Cole, and indeed for Abdul--Salaam and his family as well, there has been no closure. Rather, they have endured a legal process that is at times as inscrutable as it is incomprehensible. Moreover, it will soon take another turn as the Third Circuit Court of Appeals reviews our determination.

[WL] at *78 (emphasis supplied).

The PCRA trial court opinion in Commonwealth v. Eichinger, 657 CAP, which is a matter of public record in a capital appeal pursued by the FCDO currently pending before this Court, begins as follows:

In this capital case, Appellant ... appeals from an Order entered April 4, 2012, dismissing his [PCRA] petition .... If ever there were a criminal deserving of the death penalty it is John Charles Eichinger. His murders of three women and a three-year-old girl were carefully planned, executed and attempts to conceal the murders were employed. There is no doubt that Appellant is guilty of these killings. There is overwhelming evidence of his guilt, including multiple admissions to police, incriminating journal entries detailing the murders written in Appellant's own handwriting and DNA evidence.
We recognize that all criminal defendants have the right to zealous advocacy

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at all stages of their criminal proceedings. A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we all are called upon to promote respect for the law, our profession, and to do public good. Consistent with these guiding principles, the tactics used in this case require the Court to speak with candor. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. This Court had to devote twenty two full and partial days to hearings. To carry out the daily business of this Court visiting Senior Judges were brought in. The District Attorney's capital litigation budget had to have been impacted. With seemingly unlimited access to funding, the Federal Defender came with two or three attorneys, and usually two assistants. They flew in witnesses from around the Country. Additionally, they raised overlapping issues, issues that were previously litigated, and issues that were contrary to Pennsylvania Supreme Court holdings or otherwise lacked merit.

Opinion, Carpenter, J., July 25, 2012, at 1-2.

In Part VI, infra, I will address the FCDO's gravely misguided claim that their litigation strategies, including tactics like those displayed in this case, Abdul-Salaam, and Eichinger, are required elements of the capital defense function.

II. Background

The Court affirmed the denial of PCRA relief in this case and today denies reargument. Disposition of reargument was delayed by ancillary Motions the FCDO[3] filed with the reargument petition, and further pleadings and circumstances occasioned by those Motions.[4] This Opinion and accompanying Order dispose of the FCDO's initial Motions, the Commonwealth's responsive Motions, and FCDO responses.

A. Ancillary Post-Decisional Motions and Per Curiam Administrative Orders

Along with appellant's Reargument Application, the FCDO filed (1) a Motion for my Recusal on Reargument, (2) a Motion for Withdrawal of my Concurring Opinion, and (3) corresponding Motions for Leave to File the Motions as Post-Submission Communications. The FCDO also requested that I refer the primary Motions

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to the full Court for decision. The FCDO Motions focus solely upon objections to my Concurring Opinion. The Commonwealth responded with an Answer and Motion for Sanctions.

The Court as a whole entered a per curiam administrative Order on July 28, 2011, taking the FCDO Motions under advisement pending compliance with a directive contained in the Order, which was necessary to resolve the Motions. The Order noted that the Motion to Withdraw Concurring Opinion asserted as fact that I was " incorrect" to suggest that the FCDO may have misused federal funds by appearing in capital PCRA proceedings. In fact, the FCDO averred, it was in " full compliance with applicable federal administrative rules and regulations and has a separate source of funding to support" all of its non-appointed litigation activities in Pennsylvania state courts. The Order noted that the FCDO did not " provide or cite to those applicable rules and regulations," which the FCDO invoked as proof that the Concurring Opinion was " incorrect." To " properly determine the within Motions," the Court ordered as follows:

Michael Wiseman, Esquire, is hereby directed, as an officer of this Court, to file with the Office of the Prothonotary of the Supreme Court of Pennsylvania a verified " Statement of the FCDO's Involvement in Pennsylvania State Court Litigation of Capital Cases," which shall include the following:
(1) an identification and explanation of all federal authorizations and standards, including statutory and regulatory authority, governing the FCDO's conduct of capital litigation in Pennsylvania state courts;
(2) a listing of all Pennsylvania capital defendants the FCDO is currently representing, whether as primary counsel or through formal or informal assistance to Pennsylvania counsel of record, in Pennsylvania state courts, and whether by formal court appointment or not;
(3) an explanation of how the FCDO's representation came about in each case and, if instances of representation did not arise from formal court appointment, an accounting of the authority under which the FCDO undertakes representation in capital cases in Pennsylvania state courts in which it is not court-appointed.

Order, 7/28/11. Attorney Wiseman was directed to file the verified statement within thirty days. Madame Justice Todd filed a Dissenting Statement, which was joined by Mr. Justice Baer.

Attorney Wiseman neither complied with the order nor sought reconsideration or relief from it. Instead, on August 22, 2011, the Chief Federal Defender, Leigh M. Skipper, Esquire, entered his appearance.[5] Attorney Skipper also did not comply with the order or seek reconsideration or relief, but instead filed a 3-page pleading styled as " Appellant's Withdrawal" of the FCDO ancillary motions (hereinafter " Withdrawal pleading" ). Attorney Skipper asserted, among other points, that, " The FCDO represents capital defendants in post-conviction proceedings in Pennsylvania state courts in order to satisfy the exhaustion of state remedies requirement" of the federal habeas statute, and 18 U.S.C. § 3006A(c) " permits attorneys to represent clients in ancillary matters 'appropriate to the proceedings.'" The pleading

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made no reference to whether the FCDO employed " a separate source of funding to support" those " ancillary" activities to exhaust federal claims. Withdrawal pleading, at 1-2 ¶ 3. The Commonwealth filed an Answer and requested a Rule to Show Cause why the FCDO should not be held in contempt for its non-compliance with the July 28 Order. On October 3, 2011, the full Court entered a second administrative order which provided, in relevant part, as follows:

Neither Attorney Wiseman nor the FCDO sought reconsideration or a stay of the [July 28] Order. But, neither has the FCDO complied with the Order. Instead, on August 22, 2011, the Chief Federal Defender of the FCDO, Leigh M. Skipper, Esquire, entered his appearance and concomitantly filed the instant pleading, styled as a " Withdrawal" of the two FCDO Motions the Court had taken under advisement and already acted upon. The Chief Federal Defender asserts that the Order " call[ed] for an office-wide response" and thus he was responding to the Order with this pleading. Notwithstanding the " Withdrawal" styling, the pleading disputes the propriety of the per curiam Order, contains other argument, and requests action by the Court in the form of vacating our July 28 Order as moot.
The Commonwealth has responded to the " Withdrawal" pleading by requesting the Court to issue a Rule to Show Cause upon the FCDO to explain why presently it should not be held in contempt for its non-compliance with our prior Order. The Commonwealth notes, inter alia, that the primary stated reason for the " Withdrawal" is to enable Appellant to secure relief from his conviction in this Court so as to immediately proceed with federal habeas corpus proceedings; however, the Commonwealth further notes, over two months before filing the instant pleading, the FCDO had already filed a 392-page habeas corpus petition in federal district court on Appellant's behalf. Responding to the argument included in the " Withdrawal," the Commonwealth also notes that the authority the FCDO cites to support its activities in Pennsylvania state capital matters, such as this one, in fact does not authorize its activities; indeed, existing statutory and decisional authority, including authority from the U.S. Supreme Court, indicates that the FCDO's state-court activities are not authorized. The Commonwealth adds that, [" i]t is immaterial whether counsel deems withdrawal to be appropriate," as that decision is for the Court. Moreover, the Commonwealth notes that its Motion for Sanctions, which was occasioned by the FCDO's prior two Motions, remains pending and under advisement, and the Commonwealth is not withdrawing that Motion; for that reason alone, the matter cannot be deemed moot even if the FCDO were authorized to unilaterally withdraw its pending Motions rather than respond to the Court's Order.

Upon consideration of the instant pleadings, it is hereby ORDERED that:

(1) The FCDO's " Withdrawal" is construed by this Court as an Application for Relief seeking Leave to Withdraw the FCDO's prior Motions, and the Application so construed is taken under advisement.
(2) Chief Federal Defender Leigh M. Skipper, Esquire, is hereby directed, as an officer of this Court, to file the verified Statement outlined in this Court's July 28, 2011 Order.
(3) In light of Attorney Skipper's citation to 18 U.S.C. § 3006A(c) in support of his claim that the FCDO's representation of Pennsylvania capital

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defendants in state post-conviction proceedings is lawful, Attorney Skipper is also directed to produce a copy of the federal court order appointing the FCDO to represent Appellant, to which the FCDO's activities in Pennsylvania state court in this case are " ancillary."
(4) The verified Statement and federal court order of appointment shall be filed within ten days of the date of this Order. No tangential pleadings from the FCDO are to be accepted by the Prothonotary in advance of the filing of the verified Statement.
(5) The Commonwealth's request for a Rule to Show Cause why the FCDO should not be held in contempt for its non-compliance with our July 28, 2011 Order is taken under advisement. Attorney Skipper shall file a response to the Commonwealth's request for a Rule to Show Cause within ten days of the filing of the verified Statement.

Order, 10/3/11. Justice Baer filed a Dissenting Statement, which was joined by Justice Todd.

B. FCDO Response and Subsequent Pleadings

Thereafter, Attorney Skipper filed a " Verified Statement in Response to the Court's Order of October 3, 2011" as well as a " Response" to the Commonwealth's Request for a Rule to Show Cause why the FCDO should not be held in contempt.

1. Verified Statement

The Verified Statement first addresses the authority of the FCDO to appear in capital cases in state court. Contrary to the FCDO claim in the Withdrawal pleading, Attorney Skipper no longer verifies that the FCDO's activities in state court are authorized by federal law as activities ancillary to the federal habeas corpus exhaustion requirement. Instead, Attorney Skipper concedes that the FCDO is authorized to represent state and federal death row inmates in federal court only pursuant to 18 U.S.C. § 3599(a)(2), which governs litigation of federal habeas corpus petitions filed under 28 U.S.C. § 2254 (state prisoners) and § 2255 (federal prisoners). Attorney Skipper next notes the federal habeas requirement that state prisoners fairly exhaust their federal claims in state court before pursuing them in federal court. Attorney Skipper states that 18 U.S.C. § § 3006A and 3599 empower federal courts to authorize appointed federal habeas counsel to represent capital defendants in state court. Attorney Skipper quotes Section 3599, which states that appointed federal habeas counsel shall represent the defendant at " every subsequent stage of available judicial proceedings." Id. § 3599(e). The key statutory qualifier is that the activity be " subsequent" to federal habeas review, and indeed, after quoting Section 3599(e), Attorney Skipper cites Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), which held that Section 3599 authorizes appointed federal habeas counsel to represent state capital defendants in post-federal habeas state clemency review. Attorney Skipper notes that, in the course of its clemency discussion, the Harbison Court added a footnote observing that federal courts may determine, on a case by case basis, that " it is appropriate for federal counsel to exhaust a claim in the course of her federal representation." Id. at 1489 n.7. Attorney Skipper cites no federal authority for the proposition conveyed in the Withdrawal pleading, i.e., that federal habeas counsel is authorized, by virtue of that appointment, to proceed to PCRA litigation and comprehensively exhaust claims in state court before pursuing federal habeas relief.

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Attorney Skipper then adverts to -- but does not provide -- a " policy statement" of " the Judicial Conference Committee on Defender Services" predating Harbison by more than a decade which, he says, would approve of federal defender organizations exhausting state remedies for federal claims, " where authorized by the presiding federal judge." Attorney Skipper does not identify the authority under which this Committee operated, its composition, or whether the Committee's opinion had, or now has, actual force and effect; nor does he state whether the policy statement comprises the " applicable federal administrative rules and regulations" to which Attorney Wiseman referred when he declared that the FCDO was in " full compliance" and that I was incorrect to suggest otherwise.

Turning to the other statutory provision invoked to support the FCDO's state court capital activities, Attorney Skipper notes that 18 U.S.C. § 3006A(c) authorizes appointed federal capital habeas counsel to represent capital clients in state court matters " ancillary" to federal habeas proceedings --but again, only when specifically authorized to do so by the federal judge presiding over an active habeas petition.

Attorney Skipper then argues that the restrictions in the federal statutory construct do not apply when the FCDO is " using non-grant [federal grant] funds" to finance its activities. Attorney Skipper states that nothing in federal legislation or AO " policies" prohibits FCDO lawyers from appearing as private lawyers in state court, so long as federal grant money does not finance that FCDO agenda. Attorney Skipper does not address whether the FCDO discloses to Pennsylvania courts when it is acting pursuant to the FCDO's private budget and agenda, rather than as counsel approved for a limited purpose by a federal judge, supported by federal taxpayer funds.

Further explaining the supposed public/private hybrid status of the FCDO, Attorney Skipper says the FCDO receives private contributions and grants to engage in non-appointed activities through its " Pennsylvania Capital Representation Project." Attorney Skipper states that the AO is aware of the FCDO's " nonfederal fund" activities. Attorney Skipper attaches no supporting documentation, nor does he provide an explanation of the manner in which the FCDO'S state court activity in this case -- including the commitment of six FCDO lawyers and numerous experts and investigators below, and preparation of the abusive brief filed on appeal --was funded. In addition, he does not suggest the amount of private funding available to support the FCDO's private capital agenda in state capital proceedings. And, he does not explain the mechanics of the hybrid operation: e.g., are FCDO staff salaried or do they bill (publicly and privately) by the hour; are benefits such as health care, pensions, and leave time allocated between public and private funding, etc. Nor, again, does Attorney Skipper assert that the construct he describes represents the " applicable federal administrative rules and regulations" Attorney Wiseman referred to in asserting the FCDO's full compliance.

Attorney Skipper next states that the FCDO appears in state court capital proceedings under a " range of circumstances." In some cases, he says, a federal court has authorized the activity; no examples or copies of such federal court orders are provided. In other cases, he says, the FCDO is appointed by a federal court for federal habeas purposes and then determines to use nonfederal funds to appear privately in state court to exhaust state court remedies in advance of federal review.

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In other cases, he says, the FCDO makes cost-allocations between private and federal taxpayer funding. Attorney Skipper further declares that in some cases, the FCDO -- using exclusively nonfederal funds -- appears in state court to " protect" the rights of Pennsylvania capital prisoners who, in its opinion, are likely to be entitled to FCDO representation if the case ever proceeded to federal habeas review. Attorney Skipper adds that, in some instances, the FCDO has been appointed to represent capital PCRA petitioners in state court; he does not state under what authority such appointments were secured; in any event, these activities likewise must fall under the FCDO's private agenda, since it would be inappropriate to use federal funds for the endeavor.

Following this summary, Attorney Skipper represents that " [t]he FCDO believes we have properly entered appearances" in the PCRA cases he lists in an accompanying summary of then-open Pennsylvania capital cases in which the FCDO was involved. Moving from the question of entry of appearances to the use of federal funds, Attorney Skipper continues that the FCDO, in conjunction with the AO, " takes steps to ensure that the costs of litigation are properly allocated between federal and other funding sources" and, he declares, as of the time of the Verified Statement at least, " such allocations are proper." No definition of what are deemed to be " costs of litigation" is offered. Nor is any documentation offered in support of this averment, so that its accuracy may be measured here, in the context of the FCDO's allegation that my Concurring Opinion must be withdrawn because, inter alia, it " incorrectly" suggested that the FCDO misused federal funds to support its private state court capital agenda.

Notably, however, Attorney Skipper states that, to discharge his ethical duties, he now " corrects" Attorney Wiseman's absolutist assertion of " the FCDO's 'full' compliance with applicable federal administrative rules and regulations." Attorney Skipper explains that internal reviews of cases " have disclosed situations in the past in which prior allocations of costs were not in full compliance with administrative rules and regulations." Attorney Skipper does not identify these cases where the FCDO violated federal funding restrictions, as measured by the " administrative rules and regulations" he does not provide and within a system of cost allocation that is not described; nor does he explain how pervasive and longstanding the violations were or whether the extraordinary commitment of resources in this case represented one such violation.

Attorney Skipper next advises that the FCDO, along with the AO, is " taking further measures and adding additional safeguards" to ensure compliance with the undisclosed federal rules and regulations. No specifics or supporting documentation are offered to permit an assessment of the FCDO's prior claim of " full compliance," its current position that it was formerly non-compliant, but now is compliant, or its assurance that " new measures" will prevent a continuation or recurrence of the prior violations. Nor, significantly, are any specifics provided that would offer the Court any assurance that, in permitting the FCDO to litigate in Pennsylvania courts where it has not been specifically authorized by federal court order, Pennsylvania courts are not facilitating a continuing, improper diversion of federal taxpayer money to support the FCDO's private capital case agenda. In this regard, it is notable that the FCDO never indicates in its entries of appearance and its pleadings in Pennsylvania courts whether it is appearing in its capacity as purely-privately-funded counsel, or in its capacity as the federally-financed

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" federal defender." The FCDO affiliation by which FCDO lawyers routinely identify themselves gives the impression that the organization's appearances in state court are sanctioned and supported by the federal government.

The Verified Statement next addresses this Court's directive to identify the Pennsylvania capital defendants the FCDO was then representing or assisting, whether the involvement was by court appointment, and how and under what authority the FCDO was involved if not by court appointment. Attorney Skipper first seems to suggest that Congress's restrictions on appointed federal habeas counsel's appearances in state court does not prevent the FCDO from diverting federal funds to investigate prospective federal claims and provide the fruit of that labor to " clients" who may then present the claims in state court. Parenthetically, this is a strange assertion given Attorney Skipper's prior averments. Under Attorney Skipper's own account, federal funds may only be employed in state court with specific federal court authorization. Moreover, the FCDO has no " client" for purposes of federal grant expenditures except when it has been appointed to actively pursue federal habeas corpus relief, which can only occur after the defendant's state court remedies have been exhausted: that is the statutory sine qua non for court-authorized " ancillary" or " subsequent" state court litigation. Attorney Skipper identifies no statute that permits the diversion of federal tax dollars for advance shadow activity in support of a non-client's state court capital pleadings. To the extent the FCDO continues to use federal funding for this sort of activity, the " further measures" and " additional safeguards" Attorney Skipper adverts to do not address the problem.

Attorney Skipper also provides a chart with a list of cases -- cases in addition to the untold number of " fruits of its labor" cases -- in which the FCDO was then providing representation in Pennsylvania state courts to capital defendants, or was consulting with lawyers actually appointed or retained for the purpose. The chart also lists whether the FCDO was appointed and by what court, and if not, how the FCDO became involved.

The chart is a remarkable snapshot of just how thoroughly the FCDO has involved itself in Pennsylvania state capital litigation. According to the chart, FCDO lawyers were then actively providing representation in Pennsylvania state court litigation in 108 relevant cases, 97 of which were capital. (From other notations, it appears that the 11 noncapital matters involve defendants who have or had separate capital convictions; presumably, the litigation was pursued in the hope of generating collateral grounds to attack the capital convictions.) As a preliminary aside, the increasing frequency with which this Court has seen FCDO involvement in Pennsylvania state court capital matters of course was already suspicious. Moreover, it became difficult to ignore the FCDO's abusive litigation tactics in individual cases. See Spotz, 18 A.3d at 340-42, 344-45, 348 (Castille, C.J. concurring, joined by McCaffery, J.) (discussing, inter alia, Commonwealth v. Abdul-Salaam, 606 Pa. 214, 996 A.2d 482 (Pa. 2010); Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (Pa. 2009); and Commonwealth v. Banks, Nos. 461, 505 and 578 CAP (series of per curiam orders in response to FCDO delays and obstruction)). But, I admit that I had little idea just how pervasive the FCDO presence, and the consequent potential for its litigation abuses, had become. It is starkly apparent, from the FCDO's chart and my own review

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of Pennsylvania capital cases, that a group of federally-financed " private" lawyers has managed to insinuate themselves into virtually every Pennsylvania capital case where they can manage the intrusion. Indeed, the FCDO has proven adept at inserting itself into cases even where the defendant has made clear that he does not want FCDO assistance, or to further the FCDO agenda. And, as my discussion below demonstrates, the FCDO's effective self-appointment as a sort of statewide defender in capital PCRA matters has been achieved without the input, much less the approval, of any relevant Pennsylvania authority. The propriety of the unapproved arrangement is beyond dubious, given the FCDO's demonstrated obstructionist private agenda.

The FCDO chart identifies 28 cases from the complement of 108 where FCDO involvement resulted from simply entering its appearance, without appointment or authorization by any court, state or federal.[6] To be lawful, the FCDO's activity in all 28 of these cases must be supported solely by nonfederal funds.

The FCDO chart lists another 63 cases -- including this one -- as instances where its involvement is by " entry of appearance and appointed by federal court." [7] Attorney Skipper does not explain the conjunctive notation. He also does not identify which -- if any -- of these federal court appointments authorized the FCDO to use federal grant funds to litigate PCRA petitions in state court. The specifics of the appointment orders, and the federal habeas status of the cases, would determine whether the activity was authorized and whether federal grant money properly may be employed.

Attorney Skipper does not specifically address whether the FCDO's pursuit of appellant's PCRA petition and appeal was supported exclusively by nonfederal funds. FCDO attorneys here identified themselves exclusively by reference to the FCDO; no suggestion was made that they were appearing in a private " volunteer" capacity, for example, as part of the Philadelphia Defender Association's " Capital Representation Project." As I explained in my Concurring Opinion, the FCDO's commitment of resources in this case was vast, including the deployment of half a dozen FCDO lawyers, numerous experts, investigators, paralegals, etc. in the PCRA court. That commitment of resources was followed by the FCDO's lengthy and abusive brief in this Court, which was filed only after significant delays occasioned by multiple extension requests detailing the enormity of the FCDO's task, and only after flouting this Court's briefing rules.

Notably, in the extension requests, FCDO Attorney Robert Dunham, Esquire, also made reference to his other capital case responsibilities as an FCDO lawyer, drawing no distinction between court-authorized litigation and appearances pursuant to the FCDO's private agenda. Among the responsibilities related was Attorney Dunham's preparation of an amicus

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curiae brief on behalf of the Government of Mexico in support of a Pennsylvania capital defendant. See Commonwealth v. Padilla, 567 CAP, later decision reported at 80 A.3d 1238 (Pa. 2013), cert. denied, 134 S.Ct. 2725, 189 L.Ed.2d 769 (2014). Presumably, the FCDO's provision of lawyering services on behalf of foreign nations to support their citizens who commit capital murders in Pennsylvania is supported by its private funding stream or by the Mexican government. Also, presumably, the AO was aware of and approved of this " nonfederal fund" activity, which caused delays in other Pennsylvania capital cases the FCDO pursued strictly as part of its private agenda.

Notably, the Padilla case is not listed on Attorney Skipper's chart of cases where the FCDO was involved. That is because, not coincidentally, Attorney Dunham withdrew his appearance in Padilla the very day before Attorney Skipper filed the Verified Statement. Attorney Dunham's praecipe in Padilla simply stated: " Kindly withdraw my previously entered appearance as counsel of record for Amicus Curiae, the United Mexican States, in the above-captioned matter and substitute Marc Bookman, who has entered his appearance on this date, as counsel of record for the United Mexican States." No explanation is given for the substitution or its timing; perhaps the Padilla case was one of the (unidentified) cases where the FCDO's allocation of costs was " not in full compliance with administrative rules and regulations." Attorney Bookman's entry of appearance for Mexico identifies him as affiliated with the " Atlantic Center for Capital Representation." The website for the ACCR notes that, in fact, " Prior to becoming the Director of ACCR, Marc Bookman was a public defender for 27 years and worked in the Homicide Unit of the Defender Association of Philadelphia since its inception in 1993." The FCDO, of course, operates under the umbrella of the Defender Association of Philadelphia, which apparently is the ultimate mastermind of this overall capital case agenda.

What is most troubling is that, although Attorney Skipper does not state the fact directly, the necessary implication of the averments in the Verified Statement is that federal tax dollars in fact financed the FCDO's extensive and abusive litigation activities in this case. The Court's October 3, 2011 per curiam order stated that, " In light of Attorney Skipper's citation to 18 U.S.C. § 3006A(c) in support of his claim that the FCDO's representation of Pennsylvania capital defendants in state post-conviction proceedings is lawful, Attorney Skipper is also directed to produce a copy of the federal court order appointing the FCDO to represent Appellant, to which the FCDO's activities in Pennsylvania state court in this case are 'ancillary.'" Attorney Skipper's response does not state that the FCDO's activities here were supported solely by the FCDO's private resources, and were not authorized federal expenditures ancillary to a federal court appointment. Instead, Attorney Skipper advised that he was complying with our directive by attaching the relevant " federal court appointment orders."

The two attached orders, however, reveal that the FCDO was never authorized to prosecute appellant's PCRA petition and appeal with federal funds, as ancillary to its appointment for federal habeas purposes. The orders were issued by the Honorable James M. Munley of the U.S. District Court for the Middle District of Pennsylvania. The first order, dated April 12, 2002, appointed the FCDO in connection with a stay of execution and directed the FCDO to file a federal habeas corpus petition within 120 days. The second order, dated May 10, 2006, was in connection

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with a second stay of execution; the order appointed the FCDO " to represent Petitioner in his to-be-filed habeas corpus petition," and the order directed that the petition be filed within 180 days. Neither order authorized the FCDO to litigate an initial PCRA petition on appellant's behalf, much less to do so by using federal funds. On November 27, 2002, Judge Munley denied the FCDO request to hold appellant's federal habeas proceedings in abeyance while the FCDO pursued PCRA relief; dismissed the federal habeas petition; and directed the clerk to close the case.

A week later, on December 4, 2002, the FCDO filed appellant's PCRA petition, a 275-page " initial" pleading, representing an extensive prior commitment of FCDO resources, all without federal court authorization. The representation that the FCDO's PCRA agenda here was authorized as ancillary to Judge Munley's orders -- a representation that conveys that the litigation was legitimately financed with federal tax dollars -- is contradicted by the attached orders themselves.

The next question, in the context of the FCDO motion claiming that my Concurring Opinion must be withdrawn because it was " incorrect" to question whether the FCDO's private agenda is supported by a misuse of federal taxpayer dollars, is whether the apparent diversion of funds here was an anomaly among the 63 cases where the FCDO says its state capital case activity was by entry of appearance and federal court appointment. Some of the 63 cases involve serial PCRA petitions, and it is possible that a federal judge authorized the FCDO to exhaust a discrete new claim in a serial PCRA petition, pursuant to footnote 7 of Harbison v. Bell. The FCDO does not identify which of the 63 cases involve serial PCRA petitions and which, if any, involve specific federal court authorization to litigate a serial PCRA petition. In fact, my review reveals that 50 of the cases involve initial PCRA petitions, and at least 3 of the 13 remaining cases, which appear to be serial PCRA matters, involve defendants the FCDO previously represented, or attempted to represent, in first PCRA petitions (Commonwealth v. Emanuel Lester aka Ali; Commonwealth v. Antoine Ligons; and Commonwealth v. Ronald Puksar). Thus, at least 53 of these 63 cases involve FCDO litigation of initial PCRA petitions in advance of federal habeas review. Given the federal statutory scheme and Harbison v. Bell -- as the FCDO's pleading here itself describes those restrictions -- the FCDO's pursuit of its private agenda in the 53 cases cannot lawfully be supported by the diversion of a penny of federal funds.

But, the FCDO's averments concerning its authorization in this case suggest that it in fact has routinely diverted significant federal resources to support its private agenda. Again, the FCDO did not respond to this Court's order by claiming that its PCRA activities here were supported solely by its private funds Instead, the FCDO represents -- incorrectly -- that its abusive activities were " authorized" as " ancillary" to a federal court appointment. The 53 first-PCRA petition capital cases identified by the FCDO no doubt present like circumstances, i.e., the FCDO federal appointment was to file a federal habeas petition, with no authorization to improperly use federal tax dollars to pursue initial PCRA petitions in state courts. In short, the Verified Statement has neither claimed, nor documented, that the FCDO's actual litigation of these capital PCRA matters was supported solely by private funds.

While these ancillary matters have been pending, the Court has directed the FCDO to produce its federal court orders of appointment in a number of capital PCRA

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matters, including first-PCRA petition cases the FCDO chart identifies as instances where it is acting pursuant to federal court appointment. The FCDO responses and/or federal orders produced (and the motions generating the orders) corroborate that either no such order exists, or if there is an appointment order, the appointment is for federal habeas litigation only, and not for litigation of PCRA petitions. E.g., Commonwealth v. Johnson, 619 Pa. 387, 64 A.3d 622; Commonwealth v. Mitchell, 617 CAP, Commonwealth v. Tharp, 637 CAP; Commonwealth v. Davido, 638 CAP; Commonwealth v. Montalvo, 639 CAP; Commonwealth v. Powell, 615 Pa. 608, 44 A.3d 1144. See also Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1151 (Pa. 2012) (noting that FCDO was appointed by federal court only to prepare federal habeas petition).[8]

The federal PACER system confirms that FCDO appointments in Pennsylvania capital cases typically follow the plain congressional restriction and the even plainer holding in Harbison v. Bell, in that they are for purposes of federal habeas litigation only; the orders, like Judge Munley's, do not authorize the FCDO to litigate PCRA petitions using federal grant funds. E.g., Commonwealth v. Busanet, 623 CAP (federal appointment order entered 1/20/2004); Commonwealth v. Walker, 480 CAP (federal appointment order entered 3/8/2011 -- notably while Walker's PCRA appeal, litigated by four FCDO lawyers, was pending in state court; in appointing FCDO, court notes FCDO's representation that its lawyers " have represented Petitioner for many years" ).[9] The appointment order the FCDO produced in another case, Commonwealth v. Weiss, 81 A.3d 767, is not an appointment order at all, but an order staying federal habeas review pending exhaustion of state remedies.[10]

The federal court appointment orders in Mitchell and Davido are accompanied by an FCDO acknowledgment that it was appointed only for federal habeas, and not to pursue a PCRA petition. The FCDO in each case then notes that it entered its PCRA appearance pursuant to its private agenda: " [a]s part of a nonprofit organization providing defender services, the FCDO may provide a broader array of defender services than those authorized by a federal appointment as the FCDO's resources permit." Accord Commonwealth v. Terrance Williams, 673, 668, and 669 CAP.[11] This general statement does not

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specifically claim that those " resources" derive strictly from the FCDO's private funding -- although that is certainly the impression conveyed by the reference to the FCDO's nonprofit status, and its ability to provide a " broader array" of services than those actually authorized by Congress.

Notably, this " broader array" position is in tension with Attorney Skipper's stance in this case -- where the question of the FCDO's authority is directly at issue, and the Chief Defender entered his appearance so as to provide an " office-wide response." Attorney Skipper has stated that the FCDO's extensive PCRA litigation activities here were " ancillary" to a federal court order that, in fact, did not appoint or authorize the FCDO to conduct any ancillary activities, much less to redirect federal grant funds. Although the FCDO's overall position is elusive and inconsistent, its core position, and its actual conduct, suggests its belief that it is free to redirect federal tax dollars to its private state court agenda whenever it has, or anticipates, a federal court appointment for purposes of federal habeas review. That position, which would apply to all 53 cases in this class, contradicts what the FCDO has admitted are the plain limitations in the federal statutory scheme and Harbison v. Bell.

It may be that Attorney Skipper, like former FCDO Attorney Wiseman, has made an error; that he realizes that the PCRA litigation in this case could not properly be supported with federal funds; that he further realizes that all 53 of the identified first petition capital PCRA matters involving federal court " appointments" can only be privately funded; and that he meant to convey that, in fact, the FCDO's private activities and agenda in every first petition capital PCRA matter have been funded exclusively with private resources. But, that is not what he has represented in his Verified Statement; and presumably, he did not so represent because he cannot truthfully state that it is so.

Obviously, even aside from Attorney Skipper's averments, it is highly unlikely that the FCDO has subsidized its massive private agenda in capital PCRA cases with purely private funds. It has been reported that the FCDO operates under a federal grant of some $16-17 million per year. It is difficult to believe that the FCDO has an annual private funding stream anywhere near that size, or indeed a funding stream sufficient to support the extensive litigation in this case alone. By the FCDO's own reckoning, it would need private resources sufficient to litigate the other 52 first PCRA matters in which it was involved by appearance and supposed federal court " appointment," the 28 matters where it simply entered an appearance, the 7 additional cases where appointments were made by state court judges, its shadow assistance in the " fruits of its labor" cases, and its activities on behalf of foreign governments in support of their citizens who commit murder in Pennsylvania. And, when the FCDO enters a case, it deploys teams of investigators, paralegals, lawyers and experts, and reams of paper, pleadings, amendments, etc. Notably, on May 15, 2011, immediately after the Court's decision in this appeal, the Philadelphia Inquirer reported that David Rudovsky, Esquire, the President of the Philadelphia Defender Association, which oversees the FCDO, took the same position Attorney Skipper initially did in his Withdrawal pleading: i.e., that the FCDO

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diverts federal grant money to support most of its work in capital PCRA litigation, claiming that federal law allows the diversion in advance of federal habeas review, so as to exhaust claims. The same article indicated that the FCDO's private funding stream was a modest $130,000.[12]

Asked for an explanation of authorization following Attorney Wiseman's allegation, however, the FCDO has now acknowledged that it may lawfully use federal grant funds to support state capital litigation only when specifically approved by a federal judge, and that power exists in a federal judge only on matters ancillary or subsequent to appointment to pursue federal habeas corpus petitions. The statutory authority cited by both parties here, as well as the decision in Harbison v. Bell, corroborates that these in fact are the controlling congressional restrictions on the use of federal funds. There is, in short, a disconnection between what the FCDO properly can do with its federal funding, as federal law provides plain as day and the FCDO itself understands it, and what the FCDO actually has done and continues to do with that funding in pursuit of its private agenda, as the FCDO tells it. In this case and all cases where the FCDO's capital PCRA litigation activities were not approved by a federal court in a federal habeas proceeding to which the PCRA litigation was properly ancillary or subsequent -- and no first PCRA petition can so qualify -- any diversion of federal money to finance the FCDO's private agenda would appear to violate federal law.[13]

While these Motions have been pending, the FCDO has been given multiple additional opportunities to discharge its duty of candor to Pennsylvania courts concerning the propriety of its extensive private capital case agenda, by which it has secretly managed to assume a monopoly role in capital PCRA defense. As I explain below, the organization ultimately has refused to do so. The organization's stance reflects its core political orientation: it insinuates itself into the role of de facto statewide defender in capital cases, claiming to this Court that it is acting solely as a privately-funded entity which need not answer to any Pennsylvania authority, and then claims, when put to the proof, that it is effectively a " federal officer" and cannot be asked for an accounting. The FCDO's contemptuous responses also shed light upon the instant Motions, and in particular, the FCDO's shifting accounts of its activity, authority, and funding. See discussion at subsection (5), infra.

2. FCDO Response to Commonwealth's Request for a Rule to Show Cause

The Court's order of October 3, 2011, quoted earlier, sets forth the Commonwealth's position on its request for a rule to show cause why the FCDO should not be held in contempt for its non-compliance with the order of July 28. Attorney Skipper responds by stating that the FCDO's decision not to comply but instead to file its " Withdrawal" pleading was reasonable

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and made in good faith, and was not in contempt of this Court. I will discuss these pleadings, as necessary, infra.

3. Further Pleadings

The Commonwealth responded to the FCDO's Verified Statement with a Request for Leave to file a Response, to explain why the Verified Statement is non-responsive. The Commonwealth also filed a Response to the FCDO's Answer to the Motion for Sanctions. Counsel with the law firm Pepper Hamilton LLP then entered an appearance as counsel for the FCDO and Attorney Skipper, and on November 29, 2011, filed: (1) a Motion to Strike the Commonwealth's Response to the Answer to the Motion for Sanctions; and (2) a Reply to the Commonwealth's Request for Leave to Respond to the Verified Statement. None of these pleadings are necessary to a proper decision of the primary matters; accordingly, I will deny the Commonwealth's request for leave to respond to the Verified Statement, and I will not consider its response to the FCDO Answer to the Motion for Sanctions. Nor will I consider the FCDO's two responsive pleadings. Finally, I will not burden the Court with a referral of these tangential motions.

4. Tangential Matter at 157 EM 2011, removed to federal court by FCDO

A further complication arose in November of 2011, when the District Attorney of Philadelphia County filed a petition seeking exercise of the Court's King's Bench jurisdiction to more broadly consider the propriety of the FCDO's activities in Pennsylvania state courts. See In Re: Appearance of Federal FCDO In State Criminal Proceedings, 157 EM 2011. The Petition alleged that the FCDO's appearances in Pennsylvania capital proceedings were illegal; that the Court should enforce federal law as well as its exclusive power to supervise the practice of law and the conduct of the courts in the Unified Judicial System; and that the Court should bar the FCDO from participation in state criminal proceedings, except where the FCDO has specifically been authorized to so litigate by a federal court order. The pleading included an extensive discussion of federal law, and offered examples of FCDO conduct in Pennsylvania cases that, the District Attorney claimed, corroborated the concerns with the FCDO agenda that were addressed in my Concurring Opinion. The FCDO requested and was granted an extension of time to respond, noting it had retained outside counsel.

Rather than provide the response, on December 8, 2011, the FCDO filed a single-paragraph " Notice of Filing of Notice of Removal," relating that the FCDO that day had removed the King's Bench matter to the U.S. District Court for the Eastern District of Pennsylvania. The attached federal notice declared that the Commonwealth's petition " asserts claims against [the FCDO] based on and arising under federal law." The federal notice did not acknowledge the Commonwealth's supervisory state law issue involving the practice of law.

Although neither party contemporaneously informed the Court of the development, on December 14, 2011, the Commonwealth filed a notice of dismissal in federal district court per Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, and the removed federal matter is listed as " terminated." As a result, the Supreme Court Prothonotary administratively closed the King's Bench matter listed at 157 EM 2011.

5. Tangential Matters: additional cases involving propriety of FCDO appearances removed to federal court by the FCDO

The Philadelphia District Attorney more recently challenged the propriety of the

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FCDO's appearance in a specific capital PCRA appeal, Commonwealth v. Mitchell, 617 CAP, The District Attorney filed a Motion to Remove Federal Counsel on grounds that the FCDO's activities were not authorized by federal court order. As in 157 EM 2011, the Commonwealth argued that this Court had jurisdiction, had the obligation to enforce federal legislative restrictions on the FCDO, and had separate supervisory authority to determine who may properly appear as counsel in Pennsylvania proceedings.

The FCDO responded, in relevant part, that nothing prevented it from doing more than authorized by a federal court appointment, so long as federal funds were not employed. According to the FCDO, federal law " does not prohibit an attorney from engaging in activities on behalf of a client that fall outside [the governing federal statute] and are not compensable with federal funds." The FCDO added that it had " non-federal resources" to support its nonfederal activities, noting that the Defender Association of Philadelphia had established the " Pennsylvania Capital Representation Project," which " receives private grant funds and contributions to support FCDO activities the federal sustaining grant cannot fund." The FCDO added that the AO ...


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