DA wants Pa. Supreme Court to strike down state's death penalty

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978

By Julie Shaw
The Philadelphia Inquirer

PHILADELPHIA — In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.

“Because the death penalty has repeatedly been handed out in an unreliable and arbitrary manner, it cannot survive the state Constitution’s ban on cruel punishments,” the brief signed by District Attorney Larry Krasner and filed Monday night said in asking the state’s high court to “hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution’s ban on cruel punishments.”

Philadelphia District Attorney Larry Krasner speaks during a news conference in Philadelphia, Wednesday, March 6, 2019. (AP Photo/Matt Rourke)
Philadelphia District Attorney Larry Krasner speaks during a news conference in Philadelphia, Wednesday, March 6, 2019. (AP Photo/Matt Rourke)

The online news website The Appeal reported about the DA’s brief Monday night.

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.

The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.

The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court.

As recently as May, asked to elaborate on the office’s stance on death-row appeals, a then-spokesperson for Krasner, Ben Waxman, contended that post-trial decisions about whether to pursue the death penalty were considered by a committee in the DA’s Office and that each matter was considered “individually.”

An analysis by The Inquirer in May showed that Krasner has taken steps or signaled a willingness to overturn more than one-third of the death sentences for the then-45 Philadelphia convicted murderers on death row. In the remaining cases, the DA’s Office did not yet have to respond to sentencing appeals or its responses were pending.

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.

After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance. The court consolidated the two cases in December.

In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty.

“Although the system was intended to apply only to the worst of the worst, arbitrary factors, such as geography, poverty, mental illness, and race, best predict who ends up on death row,” Shawn Nolan, one of the federal defenders, wrote in the February petition.

The defense attorneys asked the high court to vacate not only the death sentences for Cox and Marinelli, but the other death sentences in Pennsylvania as well, “to order that all condemned prisoners be resentenced to life imprisonment” and “to hold that, unless and until the Legislature repairs the system’s deficiencies,” the state’s capital punishment system be deemed in violation of the state Constitution.

The DA’s Office response to the defense petition was initially expected in March. City prosecutors three times requested a deadline extension. The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli.

The DA’s Office said in its filing that it studied 155 cases in which a Philadelphia defendant received a death sentence between 1978 and Dec. 31, 2017. Its study “revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged defendants — particularly those indigent defendants who were represented by under-compensated, inadequately supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).

“Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them black,” the brief said. “Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case.”

The office’s brief added: “When nearly three out of every four death sentences have been overturned — after years of litigation at significant taxpayer expense — there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires.”

The Pennsylvania Attorney General’s Office says the issue should be resolved in the state legislature and not the courts. “King’s Bench review is inappropriate” in this case, the office wrote in a response filed Monday night in Marinelli’s case.

“Because Marinelli raises policy questions that are in the legislative domain, not constitutional issues for the judiciary, review should be denied,” wrote Hugh Burns Jr., senior appellate counsel in the AG’s Office. Burns had previously served as chief of the Appeals Unit in the Philadelphia District Attorney’s Office.

In an emailed statement Tuesday, AG’s Office spokesperson Jacklin Rhoads said: “As the Attorney General’s brief makes clear, the narrow legal question at hand is whether the [Joint State Government Commission] Report is justification for overturning a sentence handed down by a jury and changing current state law.

“The important questions raised by the JSGC report are legislative and should be thoroughly considered and resolved by Pennsylvania’s General Assembly — not through the judicial process. Our brief makes clear the Office of Attorney General’s position that policy decisions should remain the responsibility of the Legislature, and that these issues should be a priority.”

The latest Philadelphia inmate removed from death row was Laquaille Bryant, now 37, who had received two death sentences for the 2008 fatal shootings of a federally protected witness, Chante Wright, 23, and her friend Octavia Green, also 23. Bryant was resentenced to life in prison without parole by Common Pleas Court Judge Jeffrey Minehart at a June 6 resentencing hearing after the DA’s Office, represented in court by Paul George, assistant supervisor in the DA’s Law Division, agreed to relief on one of his claims.

The victims’ mothers had not been informed of the hearing, in violation of the state Crime Victims Act. They learned of Bryant’s resentencing from an Inquirer reporter the next day.

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978. The last person executed was Gary Heidnik of Philadelphia in 1999.

©2019 The Philadelphia Inquirer

McClatchy-Tribune News Service

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