Small pool of attorneys qualified to handle death-penalty cases

HOLLIDAYSBURG – When Blair County President Judge Jolene G. Kopriva appointed attorneys to represent Aaron Wilson Dishong on what likely would be a capital case, she was surprised to learn there were only two Blair County attorneys outside the Public Defender’s Office who were qualified to try a death penalty case.

The office had a conflict that prevented it from representing the 62-year-old Dishong, an East Freedom resident charged with setting fire to a house as an act of retaliation against his ex-girlfriend, Kopriva explained.

The fire killed a 3-year-old boy and injured his sister and mother. The girlfriend was not at the house that was set ablaze.

Dishong hung himself in the Blair County Prison on Dec. 7, bringing an end to the tragic series of events.

At the time, he was represented by two private attorneys appointed by Kopriva, Thomas M. Dickey and Steven P. Passarello, both having many years of experience in handling of death penalty cases.

Common problem

The lack of death-qualified lawyers in Blair County is not atypical in Pennsylvania, according to the state Supreme Court.

Fewer attorneys are maintaining their certifications to try death penalty cases.

The problem became so severe in Philadelphia that the Supreme Court authorized a study late last year.

The issue Philadelphia County Judge Bernard Lerner addressed in his February report was a request by attorneys for several clients asking that the state’s highest court declare the fees paid for death penalty representation in Philadelphia so inadequate that it could be presumed the representation was ineffective – thus unconstitutional.

Such a ruling would have eliminated the death penalty in the state’s most-populous county.Lerner concluded that ineffectiveness of counsel had to be determined on a case-by-case basis, that not all death penalty counsel in the county was ineffective just because of apparent low pay.

The study found that most defendants are not given the death penalty and many death penalty sentences are overturned on appeal – an indication that many attorneys are doing a competent job.

But “the Philadelphia capital defense fee schedule is grossly inadequate,” the report stated.

Another finding was that the number of death-qualified lawyers has declined precipitously during the last 10 years.

Many attorneys who represented clients in death cases were older, suffering from illness or in the process of making career changes. But the most significant reason for the lack of death-qualified lawyers was the compensation structure, according to the judge.

In Blair County where attorneys are paid a flat fee of between $5,000 and $7,500 for representing defendants facing the death penalty, the numbers are down, a point made by Kopriva as she sought representation for Dishong.

Blair County has four death-qualified attorneys: Dickey, Passarello, Public Defender James DiFrancesco and Assistant Public Defender John Siford, according to the Pennsylvania Continuing Legal Education Board.

No death-qualified attorneys are listed for Huntingdon or Bedford counties.

While the list includes 15 death-qualified attorneys in Blair and surrounding counties, Allegheny County, the state’s second largest county, has only 18 certified attorneys.

The Allegheny list includes David DeFazio, who teamed with Dickey this year to represent Nicholas Horner of Altoona, charged with killing two people in 2009. Horner received two life sentences.

Philadelphia County has 94 death-certified attorneys but also has a backlog of death-penalty cases.

Lots of work, study

The issue of death-penalty representation is more complex and goes much deeper than just the fee structure, attorneys said.

In the state’s smaller counties, like Blair, trying a death penalty case can be a burden, said attorney Timothy Burns, who emphasized that lawyers in those counties have a general practice, handling all types of cases.

Burns handles criminal and death penalty appeals from Blair County.

To take weeks to prepare for and try a death penalty case detracts from attorneys’ private practices, Burns explained.

Lawyers must take courses annually to be qualified, Dickey said. These are seminars that teach attorneys how to investigate, prepare strategy, select a jury and other unique issues associated with death penalty cases.

A death penalty case is a lot of work, Dickey said.

Jules Epstein, associate professor of law at the Delaware campus of Widener University, said that it takes a great deal of training and “double the hours” for an attorney to prepare to try a death penalty case as opposed to a non-death-penalty murder case.

“Many lawyers recognize that death penalty litigation is the brain surgery of criminal law. We may be doctors but we may not be brain surgeons. A whole lot of law and trial strategy has to be done,” said Epstein, who teaches courses needed for death penalty trial certification.

The death penalty lawyer must be very experienced to even get into the field, Epstein said. Not only must they take time each year to take courses but they also must have background that includes trying “significant cases,” such as homicide, manslaughter and other felonies, before a jury.

Not ‘public friendly’

Attorneys are also not going into the death penalty field because they receive criticism from the public and become unpopular, Dickey said.

They are representing people charged with atrocious crimes, murders that the average person has trouble comprehending, such as the Dishong case.

Taking on a death penalty case doesn’t have to do with money, Dickey said. Representing someone in a death penalty case is among the highest callings in the law, he said.

He said the death penalty lawyer “has to know his stuff” – whether the issues are drugs, guns, electronics, psychology or arson – inside and out.

The death penalty lawyer goes through all of this “because there’s a certain obligation we have to the criminal justice system. We have to make sure the justice system works,” he said.

Defending the Constitution

Dickey said he likes being the buffer between the citizen and the law.

“You are their last hope,” he said. “It’s all about defending the Constitution. It’s those ugly, nasty cases where the Constitution is put to the test.”

Burns made the same point as to why he takes on death penalty appeals.

“You have an obligation to the Constitution,” Burns said. “Here we have a system that allows the government to take your life. What else is there to say?”

The state is housing 199 inmates on death row, including three from Blair County: William Wright, Andre Staton and Miguel Padilla.

Assistant Public Defender John Siford said that death penalty cases are “time-consuming [and] intense,” but he added “as a criminal defense lawyer, they are the most significant cases you can have.”

Mirror Staff Writer Phil Ray is at 946-7468.