Commonwealth v. Eichinger, J., Aplt

[J-52-2013] [MO: Eakin, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 657 CAP
:
Appellee : Appeal from Order entered on 4/4/12 in
: the Court of Common Pleas of
: Montgomery County, Criminal Division, at
v. : No. CP-46-CR-0002785-2005
:
:
JOHN EICHINGER, :
:
Appellant : ARGUED: June 19, 2013
CONCURRING OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: December 31, 2014
I join the Majority Opinion as well as the Concurring Opinion by Mr. Justice
Stevens. I write separately because this state capital case is another example of the
consequences of federal taxpayer money being diverted to misuse, to fund the
obstructionist agenda by appellant’s counsel, the Federal Community Defender’s Office
(“FCDO”).1 There is no colorable question respecting appellant’s guilt for the brutal
murders of three women and a three-year-old infant. At the guilt phase of his bench
trial, appellant did not offer a defense, did not contest the charges against him, and
stipulated to the evidence. Thus, this is another matter where the claims on collateral
review should have been limited. But, enter the self-appointing and well-financed
1
In the court below, appellant was represented by three FCDO lawyers: Michael
Wiseman, Esquire, Hunter Labovitz, Esquire, and Maria K. Pulzetti, Esquire. The FCDO
Briefs on appeal were prepared by Attorneys Labovitz and Pulzetti.
FCDO, which burdened first the PCRA2 court, and now this Court, with an avalanche of
issues obviously seeking primarily to cause delay.
As explained by the Majority, the FCDO sought appointment by the U.S. District
Court for the Eastern District of Pennsylvania three weeks after the U.S. Supreme Court
denied certiorari on appellant’s direct appeal, and was appointed to represent appellant
for purposes of federal habeas corpus review. The FCDO then used the ruse of that
appointment to enter its appearance in state court. The FCDO stalled the collateral
review process by filing a 144-page amended PCRA petition nearly two years later,
raising twenty-seven claims of error with numerous sub-issues. The PCRA court then
conducted twenty-two days of hearings, during which the FCDO had two or three
lawyers present each day, and presented no less than five mental health experts.
In response to the FCDO’s scorched-earth attack upon appellant’s trial counsel
and the Commonwealth’s final judgment, the PCRA court set aside its other cases and
senior judges were enlisted to keep the court running. The PCRA court detailed the
effect of the FCDO agenda in its opinion, which I memorialize here:
If ever there were a criminal deserving of the death penalty it is John
Charles Eichinger. His murders of three women and a three-year-old girl
were carefully planned, executed and attempts to conceal the murders
were employed. There is no doubt that Appellant is guilty of these killings.
There is overwhelming evidence of his guilt, including multiple admissions
to police, incriminating journal entries detailing the murders written in
Appellant's own handwriting and DNA evidence.
We recognize that all criminal defendants have the right to zealous
advocacy at all stages of their criminal proceedings. A lawyer has a
sacred duty to defend his or her client. Our codes of professional
responsibility additionally call upon lawyers to serve as guardians of the
law, to play a vital role in the preservation of society, and to adhere to the
highest standards of ethical and moral conduct. Simply stated, we all are
2
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
[J-52-2013] [MO: Eakin, J.] - 2
called upon to promote respect for the law, our profession, and to do
public good. Consistent with these guiding principles, the tactics used in
this case require the Court to speak with candor. This case has caused
me to reasonably question where the line exists between a zealous
defense and an agenda-driven litigation strategy, such as the budget-
breaking resource-breaking strategy on display in this case. Here, the
cost to the people and to the trial Court was very high. This Court had to
devote twenty-two full and partial days to hearings. To carry out the daily
business of this Court visiting Senior Judges were brought in. The District
Attorney's capital litigation budget had to have been impacted. With
seemingly unlimited access to funding, the Federal Defender came with
two or three attorneys, and usually two assistants. They flew in witnesses
from around the Country. Additionally, they raised overlapping issues,
issues that were previously litigated, and issues that were contrary to
Pennsylvania Supreme Court holdings or otherwise lacked merit.
Opinion, Carpenter, J., July 25, 2012, at 1-2.
The abuses did not end with the FCDO attack at the PCRA trial level. After the
PCRA court denied relief, the FCDO filed an abusive Statement of Issues on Appeal,
listing twenty-seven claims of error in a case in which there is no doubt that appellant
was guilty and where the aggravators virtually ensured that any responsible jury would
return a sentence of death.
The PCRA court again was required to set aside its caseload to prepare a 129-
page opinion responding to the prolix, abusive claims, many of which were abjectly
frivolous. For example, appellant falsely claimed that the appointment of trial counsel
less than three weeks prior to trial amounted to a constructive denial of counsel. In
forwarding his argument, appellant notably ignored the fact that counsel was appointed
two days after his trial arraignment and six months prior to trial, and was fully prepared
to litigate the guilt and penalty phases of the trial. Counsel believed, however, an
additional lawyer would be helpful and asked the court to appoint another lawyer to aid
him in litigating the case. The trial court granted the request. It is the appointment of
the second lawyer that, the FCDO averred, amounted to a constructive denial of
[J-52-2013] [MO: Eakin, J.] - 3
counsel. The PCRA court dismissed the claim noting that “[a]ppellant wasn’t left without
an attorney up until three weeks before trial, as [his] argument seems to suggest.
Appellant was ably represented first by [trial counsel] and then by a team of competent
trial counsel.” Id. at 59. In a similar vein, appellant raised overlapping issues: for
example he raised two separate issues challenging the same expert testimony. Id. at
72-79. Appellant also contended that his waiver of a jury was not knowing, but then
separately argued, in the next issue, that he made an uninformed agreement to a bench
trial. Id. at pp. 52-56. I offer these as but a few examples of the frivolous and
duplicative issues pursued by the FCDO.
Not content to end the abuse with the PCRA court, the FCDO then fixed its
attention on this Court. After filing a notice of appeal, the FCDO filed three requests for
extensions of time to file its brief, and subsequently asked for an additional three-day
extension (which was never granted), as well as a request to exceed briefing page
limitations. Ultimately, a seventy-five page brief was filed late, raising a dozen principal
claims, including thirty-one prolix footnotes in single-space type. Following the filing of
the Commonwealth’s response, the FCDO filed a reply brief, but only after being
granted another extension of time. The FCDO then had the temerity to begin its
argument on appeal with a claim that the PCRA court had denied appellant “full, fair and
reliable PCRA review,” an outrageous allegation given the time and resources the
judiciary and the Commonwealth had to devote in the face of this federal attack – all in a
case where guilt is not an issue.
As I have stated elsewhere, the FCDO’s strategy has taken a substantial and
unwarranted toll on the state trial level and appellate courts. See Commonwealth v.
Spotz, 99 A.3d 866, 875 (Pa. 2014) (Single Justice Opinion on Post-Decisional Motions
by Castille, C.J.); Commonwealth v. Spotz, 18 A.3d 244, 329-30 (Pa. 2011) (Castille,
[J-52-2013] [MO: Eakin, J.] - 4
C.J., concurring); Commonwealth v. Roney, 79 A.3d 595, 644-46 (Pa. 2013) (Castille,
C.J., concurring), cert. denied, 135 S. Ct. 56 (2014). Pennsylvania is not obliged to
indulge the FCDO’s obstructionist and unethical, continuing agenda. The time is past
due to consider removing the organization from state capital matters.
[J-52-2013] [MO: Eakin, J.] - 5