An interesting article in the Philadelphia Inquirer finds that nearly one third of the death penalty convictions in Pennsylvania have been reversed or sent back for new hearings as a result of attorney error. In hopes of reversing this trend, the Pennsylvania Supreme Court has ordered hearings on the pay scale for court appointed attorneys in death penalty cases. According to the article in Philadelphia, a lawyer who accepts a death-penalty case that goes to trial gets $2,000 for trial preparation. After the first day of trial, the court-appointed lawyer gets a daily fee of $200 for less than three hours and $400 a day over three hours.
The numbers in this Inquirer review are similar to a 2000 Columbia University study which found a 28 percent reversal rate on Pennsylvania death penalty cases on direct appeal. Interestingly, this was actually one of the lower numbers in the study, with other states having reversal rates as high as 67 percent and a national average of 41 percent. The study also found what it described as “serious error” in 68 percent of death penalty cases nationwide.
Criminal cases make up a relatively small percentage of legal malpractice cases, but when a conviction is overturned because of attorney error, a legal malpractice action is likely to follow. Malpractice avoidance requires care in all cases, and the lack of pay commiserate with the work required does not excuse attorney error.