As a frequent reader will recall, we have blogged on an appointed Post Conviction Relief Act case involving James Hugney, Sr. The science clearly shows that he is innocent. You can read all of the details about the case here:
- The Burning Bed- Has an Innocent Man Been Locked up for 35 Years for an Arson that Never Happened? and also
- An Update: The Burning Bed- Has an Innocent Man Been Locked up for 35 Years for an Arson that Never Happened?
As mentioned in the earlier posts, President Judge Todd Hoover issued an email stating that the Hugney case specifically would be reassigned as part of a “cost efficiency” measure. I did not share the email publicly, but now it is time for transparency. To give the emails their fair context, the following has to be known. In the period leading up to this email, another case we were appointed to involving a Juvenile LWOP case went months without being paid. I attempted to find out the reason. After many communications, I learned it was with the President Judge and the hold up was his approval of the invoices. Also at this time, a motion for funds for expert in the Hugney case existed. That motion for appointment of funds in the Hugney case was filed on January 13, 2014 and remains unanswered today. Here in full is the President Judge’s email to me:
I just reviewed your 2 PCRA bills on [name redacted, and not James Hugney]. I sent those bills back to Deb Freeman to be paid.
In February of this year, after reviewing 2 years of PCRA billings, I identified 11 experienced PCRA counsel who efficiently provided PCRA services at a reasonable cost to the taxpayers. I asked the criminal court Judges who they appointed to PCRA’s and most appointed those on the approved PCRA counsel list created in February. Only those approved on that list may receive PCRA Court appointments and payment from the County Court. If a Judge appoints anyone not on the approved list they will be pro bono or not paid.
I have never questioned the quality of your work, the accuracy and advocacy you bring to the Court and for your client. My responsibility to the taxpayers, Court, and client is to provide appropriate legal representation at a reasonable cost.
There is one matter still pending that is with your firm. I am going to appoint PCRA counsel from the approved list to take over the Com. v James Hugney case.. Brian DePowell [N.B., Bryan DePowell is employed at Crisp and Associates, a firm that the Judge’s son is also a member of] had prior contact with that case. Please bill for that case and send it to Deb Freeman.
Thanks for your service over the past years,
I immediately responded to the Court.
President Judge Hoover,
Please pardon the informal email method as I tried to call the Court again, but was not allowed to connect. If I had, this is what I would have told the Court.
Pursuant to your email below, I have taken the liberty of inventorying and placing status with our remaining appointed for fee cases that our office has with Dauphin County in the attached chart.
I thought this may help the Court in re-assigning the cases. As I mentioned in a prior email, we will be keeping Mr. Hughney’s case which leaves the appointment of funds for experts still with the Court as it has been since January. I just finished my pro bono death penalty case in Franklin County; so I have plenty of time and interest.
As there are current orders of court providing for court appointment at the previous terms of payment, and as the Office of Disciplinary Counsel (ODC) and appellate courts in particular have made it abundantly clear in the past that these clients must be ethically represented in a forthright fashion, we will continue to work on the attached cases until formally relieved by Order of the Court. Once we have transferred the files to successor counsel, we will send in our final bill.
If the court wishes to reassign these remaining cases to others, as is its prerogative, then this chart will likely help.
It was an honor to have the trust of Judges Evans and Curcillo in their appointments. We are sad to see these cases go. They involve important issues involving very vulnerable clients, many of whom were appointments of last resort when prior counsel had been PCRA’d successfully on appeal, and/or the clients had “fired” prior counsel, and/or had sued their prior counsel and/or the Public Defender’s Office, and/or had physically threatened or actually assaulted prior counsel, and/or had severe mental illness. We are proud of our tenure of never having a complaint (even an informal one) made to a judge overseeing these cases, the ODC or to the Court regarding our representation. We have never been PCRA’d pursuant to our representation or a single PCRA allegation claimed in a successor PCRA filing. We provided clean records, and clean Finley letters that have never been appealed or overturned by the Superior Court. We pledge to make smooth the transition to other counsel of the Court’s choosing.
We saw these activities as more or less a community service and were proud to do so. They certainly were not a profit center. But they were and continue to be important cases, especially those appointments of last resort.
For what it is worth, I would like to address the “cost-conscience” and “efficiency” comments in the Court’s email. While I wish to be totally respectful of the Court and truly do respect my relationship with your honor and appreciate the kind words in the below and take them to heart, I think that I would like the opportunity of fair reply.
We all understand costs in these times and are appreciative of taxpayer’s money. All of my 23 employees are taxpayers within Dauphin County. As taxpayers my employees, their families and myself appreciate that aspect of your charge.
In terms of fair reply I would like it to be known the following aspects that factor majorly into costs:
1. I personally have suggested for years a simple post-sentencing right colloquy be implemented at the time of the GP/sentencing similar to the form that every surrounding county has filed with every single case. If this simple suggestion was implemented, it is likely that over 1/2 of the overall PCRA litigation would be moot in Dauphin County. But the suggestion has not been implemented. In this office, we have implemented it on our own in Dauphin County for over 7 years. I have our version which I would gladly share with the Court as I have offered to several of the judges over the years. However, these types of cases (the GP cases) were not the typical types we were appointed to handle. But again, I wish to join in the Court’s admirable cost cutting measures. This seems to me to be an excellent place to start.
2. It should be noted that a majority of the expenses involved in the litigation of these cases might have been avoided if the case law were different.
2.1. As the Court knows, in Pennsylvania, if a defendant requests an appeal, one must be done pursuant to current case law. It is not like the days when I first started to practice back in 1999 when lawyers were allowed the professional discretion of determining something was frivolous and therefore no further action need be done. This is not our creation, but that of binding case law. To ignore that would invite further litigation in the form of a successful successor PCRA and a letter of inquiry by the ODC.
2.2. The ODC is requiring an unprecedented level of communication with clients. According to my most frequent discussion with ODC counsel in representing an attorney up on charges of lack of communication, all phone calls are to be returned within 2 business days and all correspondence (even seemingly meaningless) within 3 days or they see it as an issue.
2.3. Further, in order to successfully survive a pro se appeal after a dismissal by the Court following a Finley/Turner letter, the Superior Court has made what should be a very easy task now more complicated. Gone are the days of simply sending a letter and stating that the PCRA litigant is untimely and meets none of the statutory exceptions. Instead, it is the duty of the PCRA counsel to investigate the underlying claims and with specificity address each even if there is a patent time bar. Again, this is a feature external to us and adds to costs.
3. But there is an additional dimension that must be explored. It is important to note that all of our appointed cases were of more serious nature such as LWOP cases or ones involving multiple victims and reams of evidence. So judging apples to apples, I think we did well on efficiencies.
4. Particularly frustrating to us is that it seems as if our litigation was not as cost-conscience as the Court would like. We sadly agree. An important part of the litigation costs would involve a more cost conscious District Attorney’s Office. While I have stated publicly and do so again in this letter that I am proud to have my family and now my parents live in Dauphin County due in large part to the efforts of Mr. Marsico and his staff in being good shepherds of the public trust, when it comes to PCRA litigation, there is some room for improvement. At times hearings that were scheduled had to be continued because witnesses were not available or subpoenaed. This is a total waste of many resources separate and apart of my office. Also, there are other important factors involved in escalating costs based upon that office’s litigation strategy. It has often left me to openly wonder about the efficiency of it all. Every single brief that was ordered at the trial court level was suggested at the DDAs request and a lot of appellate work (such as Mr. Barnes’s successful appeal) could have been avoided rather than litigated to the inevitable conclusion that the Superior Court came to recently, if the compelling case law had been considered.
Thank you for reading this. Although I am disappointed in the outcome, I want to emphasize that my office is available for future appointment should the need arise as we see it as community service.
I have taken the liberty of cc’ing Judge Evans and Curcillo with this email so that they may be in the proverbial loop with the Court’s decision and our stated desire to cooperate with the transition.
Again, it is a great deal of respect that I thank the Court and in particular Judge Evans and Curcillo.
/s/ Justin J. McShane, JD, F-AIC
The McShane Firm, LLC-The Science Attorneys
3601 Vartan Way
Harrisburg, PA 17110
President Judge Hoover accessed that email that very day. There was no response. The Court knew that we would keep the Hugney case pro bono. We have entered our private appearance. The day after I received the email, I sent a letter to Mr. Hugney asking if he wanted us to continue or have it be reassigned. This is a letter from Mr. Hugney asking The McShane Firm to continue on in our efforts.
Despite knowing all of this, President Judge Hoover unilaterally reassigned the Hughney case against Mr. Hugney’s wishes. Here is the order that we received just today in the Hugney case:
President Judge Hoover not only did this, but he also issued orders reassigning this firm’s entire appointed docket. That was over 13 cases.
What it all means
Some might say that the actions of the President Judge are suspicious. They ask the following question: By reassigning new counsel to this large case (several bankers boxes of materials and outstanding motions involving technical aspects of science that few attorneys understand), is there any possibility of cost savings at all to the taxpayers? How much time will it take new counsel to even skim the entire voluminous record? Certainly there can be no cost savings by such a move. Certainly, some would say that there is no cost savings when new counsel is appointed to all 13 of these cases where the attorneys have to start from scratch, can there be?
Yet others have suggested that this is tied into the procedural posture of the Hugney case. The Court, and specifically the President Judge, is now forced to address the question of appointment of funds for experts in this case. The issue that has remained open and not acted upon since January 13, 2014. Some had asked if the reassignment of the case would lead to new counsel to simply withdraw the motion, issue a Finley letter (no merit letter) and close the case despite the evidence?
Myself, I don’t know where the truth lies. I don’ t know what to believe. I am not a conspiracy guy. I have a great deal of respect for the Court in general and this particular jurist. He has overseen important cases such as the state ethics charge cases. He has always been respectful to me and my associates. I have asked for a civil discussion with the President Judge over all of this. My requests have been ignored. I even sent a letter to the court before the court’s email to me that is above reminding the court of the outstanding motion.
We filed a motion for a conference to try to discuss funding for the Hugney case. It was filed on or about April 21, 2014. Shortly thereafter, the Court reassigned the case despite our known intention to keep the case with Mr. Hugney’s blessing as a pro bono project. There has been no response to any of these things. Some might say there has been a response: re-assignment of all cases.
Is this a frustration of justice or just a bunch of unrelated circumstances? You have the data. You can decide. I just don’t know.
[And yes, Mr. Hugney has granted specific written permission for me to share all of this and all aspects of his case: