Catching Up
April 17th, 2020
It’s been too long since we weighed in on the state of affairs regarding capital punishment in Pennsylvania, and there is much to cover. Before we do that, however, it is necessary that we address a more urgent issue - the independence of criminal defense in the Commonwealth, an independence that suffered a huge blow in late February when two hard-working and dedicated friends of our community were unceremoniously fired from their positions as Defender and Deputy Defender of the Montgomery County Public Defender’s Office.
For years the Montco PD was a part-time agency in desperate need of an upgrade. Dean Beer and Keisha Hudson professionalized the office, turning it into a destination for attorneys willing to work hard for that least-appreciated constituency, poor people accused of criminal behavior. By all accounts and our own familiarity with their office, Beer and Hudson were doing an outstanding job. Their firing occurred shortly after they filed a brief in the Pennsylvania Supreme Court documenting injustices involving cash bail in Montgomery County, a filing that apparently upset the President Judge. Lawsuits alleging the impropriety of these dismissals have been filed (an ACCR staff member, acting in a private capacity as a resident of Montgomery County, is a plaintiff in one of the suits), and the last page has not yet been written in this saga. But the firings of these two outstanding public servants remind us all that the independence necessary for a vital Sixth Amendment can vanish at the pique of a President Judge.
Capital punishment continues to plod on in the Commonwealth, even as states such as Oregon (rewriting and greatly narrowing their death penalty statute) and Colorado (abolishing it altogether) have revisited the wisdom of executing its own citizens. For a moment in time, though, it appeared that Pennsylvania might follow the course of Washington and end capital punishment by a judicial ruling. But it was not to be: months after asking for briefing on the unconstitutionality of our death penalty statute, but only two weeks after hearing argument on the issue, the Pennsylvania Supreme Court wrote a short order suggesting that whatever thought they’d given to the issue had led them to conclude that all was well as far as capital punishment was concerned. This was a crushing blow for those of us who were hoping the Court might at least acknowledge the devastating lack of resources for indigent defendants or the failure of the Commonwealth to provide a statewide office for representation.
In the meantime, the death penalty across the state continues to fail. Take, as an example, the Pittsburgh case of Cheron Shelton and Robert Thomas, who were charged with the murder of five people and an unborn child. For the most serious case the state has seen in years, the first trial judge (who subsequently recused himself) decided that he would not waste any money allowing the defense to properly investigate the possible death sentencing, choosing instead to wait until the jury decided on innocence or guilt. It was at this time that the Atlantic Center stepped in, recruited four nationally respected death penalty lawyers and mitigation specialists, and persuaded the judge that the ABA Guidelines for capital representation and countless United States Supreme Court cases required an appropriate and necessarily costly mitigation investigation. Several years later, when the case finally wound its way to trial, one of the defendants had his case dismissed for lack of evidence; the second defendant was acquitted. There is far more to the story, including significant claims of prosecutorial misconduct, than this space allows, but the results speak for themselves: in a case in which the Commonwealth wished to execute two men, it could not muster the evidence to even obtain a conviction. While we might expect more from prosecutors than such a casual approach to a capital prosecution, the case serves as a helpful reminder of how close we can get (and surely have gotten in the past) to the most profound mistake imaginable – the execution of an innocent man.
Which brings us to Walter Ogrod, a man who had been on Pennsylvania’s death row for decades and who everyone – the District Attorney, the defense attorneys, and the victim’s mother – now agrees has been wrongly convicted. The Philadelphia Conviction Integrity Unit, after a thorough and lengthy investigation, has concluded that Ogrod is “likely innocent,” but apparently one person has not agreed – Judge Shelley Robins New, a former long-time prosecutor in the same office that initially convicted Ogrod. According to The Intercept and journalist Tom Lowenstein, New worked alongside Judy Rubino, the attorney who prosecuted Ogrod and is now accused of misconduct leading to the wrongful conviction. New, asked to list the case for Ogrod’s release as quickly as possible, responded through her law clerk: “The courts and the public all have a deep interest in seeing the matter move forward. Even so, after considering her full calendar and the equally compelling interests of other defendants and civil litigants whose cases have long been scheduled, she finds that she is unable to set a date earlier than June 5, 2020.” Yes, those civil litigants must be attended to!!
But let’s end on some good news: last week Federal Judge John E. Jones III gave final approval to a deal struck between the ACLU and the Department of Corrections granting death row prisoners considerably more exercise time, contact visits with loved ones, and greater access to phones and prison jobs. The new agreement also drastically limits what was previously a routine shackling of inmates to showers and legal visits. The settlement is one more small step towards a recognition that we are all human, and deserve to be treated as such. In the words of the great organizer, Saul Alinsky: we will see it when we believe it.