PHILADELPHIA, PA – Veteran attorney Jules M. Epstein, in an essay that’s part of a White Paper being submitted to the International Academy of Trial Lawyers in support of a motion calling for the abolition of the death penalty, charges the death penalty doesn’t just fail occasionally—it has never functioned justly.
After more than three decades in Pennsylvania’s capital punishment system, Epstein writes, “I will not call the death penalty process a broken system, as that implies it once worked. None of those (essential legal safeguards) has ever been a condition that exists in Pennsylvania.”
Epstein has represented people, he said, in death penalty cases since the early 1990s, spanning trial, appellate, and post-conviction stages, often fighting for those assigned attorneys lacking the training, resources, or competency needed for high-stakes litigation.
Despite reforms, Einstein argues the system is still plagued by inadequacy.
Training for capital defense attorneys was virtually nonexistent when Epstein began his work, he said, noting he and a small group of attorneys had to build their own instructional materials from scratch. Though continuing education requirements now exist, Epstein notes there is “no quality assurance that they are accurate or sufficient.”
Further compounding the issue is a lack of qualified attorneys, adds Epstein, citing The Eagle, which states: “A 2017 investigation by The Legal Intelligencer and the Reading Eagle revealed shocking statistics: of 312 capital cases examined since 1980, 25 percent of the attorneys had criminal records, and 58 percent had faced disciplinary action prior to being appointed.”
Alarmingly, Epstein noted, 83 percent of accused represented by these troubled lawyers were Black or Latino.
The situation is worse than a simple matter of underperformance, adds Epstein.
“You get the death penalty not for committing the worst crimes, but for having the misfortune of being assigned the worst lawyer,” said Stephen Bright, president of the Southern Center for Human Rights, highlights Epstein.
Epstein said disciplinary action often correlated with ineffective representation. Epstein refers to The Eagle, that found two-thirds of disciplined attorneys were later deemed ineffective in at least one death penalty case they handled.
As of late 2014, more than 250 capital convictions or death sentences in Pennsylvania had been overturned, reports Epstein. Of those, Epstein notes, over 145 were due to ineffective legal counsel—most often the result of failing to investigate the defendant’s background or mental health, according to Robert Dunham, then-Executive Director of the Death Penalty Information Center (DPIC).
And sometimes, Epstein adds, even when the system admits its failures, justice comes too late.
Epstein, referring to the DPIC again, said 13 individuals have been exonerated from Pennsylvania’s death row as of June 2024, noting it’s a sobering reminder of the irreversible nature of capital punishment.
Epstein’s personal caseload offers grim case studies.
In 1994, Epstein reports, he represented Al Jasper, whose death sentence was overturned not once, but twice—both times due to incorrect jury instructions from different judges. The sentence was never legally imposed despite repeated attempts, reports Epstein.
Another Epstein client, Freeman May, went through three separate sentencing hearings, writes Epstein. The first death sentence was overturned due to judicial error, and the second failed because his attorney had not presented mitigating evidence about May’s background, writes Epstein.
By the third, Epstein states, he took over the appeal and described the case before the Pennsylvania Supreme Court as “a perfect storm—anything that could go wrong in a capital case did go wrong here.”
Still, Epstein states the court refused to address the errors due to procedural technicalities. It took nearly 30 years to resolve May’s case, ultimately removing the death penalty, reports Epstein.
Today, the situation remains dire, notes Epstein.
Epstein states Pennsylvania continues to underfund capital defense, forcing counties to scramble for minimally qualified lawyers and often leaving defense teams inadequately resourced.
As Epstein notes, “The problems of competent and well-resourced counsel remain today.”
Even the judiciary has voiced concern, said Epstein, noting a 2012 concurring opinion in which Justice Saylor of the Pennsylvania Supreme Court wrote, “We have seen more than enough instances of deficient stewardship to raise very serious questions” about assuming defense counsel was adequate in capital cases.
Epstein closes with a bleak, but determined reflection, stating, “In a system plagued endemically by inadequate counsel along with problems of racial bias, I see no reason to suggest that matters are improved.”
