Amicus Brief — Ferri v. Ackerman

f Supreme Court, U. ay

FILED

a

wUN 8 1979

IN THE

Supreme Cort of the United Dieetew: rooan, ie, cure

OCTOBER TERM, 1978

No. 78-5981

FRANCIS RICK FERRI,

Petitioner,

V.

DANIEL ACKERMAN,

Respondent.

On Writ of Certiorari to the Supreme Court

of Pennsylvania

BRIEF OF COMMITTEE OF PENNSYLVANIA

PUBLIC DEFENDERS AS AMICUS CURIAE

DANTE G. BERTANI

Westmoreland County Public Defender

302 Courthouse Square

Greensburg, PA 15601

(412) 834-2191 Ext. 3342

BLAKE E. MARTIN, JR.

Franklin County Public Defender

Courthouse

Chambersburg, PA 17201

(717) 264-4125

Counsel for Committee of Pennsylvania

Public Defenders as Amicus Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

OI I I nis acchaeaqapndacepeacccten III

INTEREST OF COMMITTEE OF PENNSYLVANIA

PUBLIC DEFENDERS AS AMICUS CURIAE.......

ieee Becta disach et dincihcoedinsnhivernncntiacepeednssnese’ 3

I. ABSOLUTE IMMUNITY SHOULD BE AC-

CORDED THE GOVERNMENT-SPONSORED

CRIMINAL DEFENSE LAWYER ..................... 3

A. Common Law Immunity Accorded the

Government-Sponsored Criminal Defense

AED co PSEA CER 3

B. The Justifications for Absoiite Immunity

for Judges and Prosecutors Apply With

Equal Force to Immunize the Government-

Sponsored Criminal Defense Lawyer ............. 4

1. The judge, the prosecutor and the defense

lawyer are equally essential to the admin-

istration of criminal justice .........00000....... 4

2. Where the function performed is in the

judicial phase of the criminal process,

the immunity granted the participant is

absolute ............. BAS EE ET OT ON 5

II. PUBLIC POLICY CONSIDERATIONS CALL

FOR ABSOLUTE IMMUNITY FOR GOVERN-

MENT-SPONSORED CRIMINAL DEFENSE

a cl le tgeheciadniidacenaceeepposemenaanipmsqencceers 8

‘ A. The Position of the Government-Sponsored

Criminal Defense Lawyer is Significantly

Different from Privately Retained Counsel... 9

B. Suits Against Government-Sponsored Crimi-

nal Defense Lawyers Would Deflect the Law-

EN a acess gicndecmcnewcnsedaor Seb asunes 10

Q

| Recruitment Would Be Hindered .................... 11

| a ee ee See 11

Il

TABLE OF CONTENTS—Continued

Page

E. The Existence of Other Remedies Reduces

the Need for Private Damage Actions ........... 13

Ce iid ticdesedinbeureseunenanenauahene 14

APPENDIX A (List of 60 Members of the Committee

of Pennsylvania Public Defenders joining Brief)...... la

Ill

TABLE OF CITATIONS

Cases: Page

Bradley v. Fisher, 138 Wall. (80 U.S.) 335 (1872).. 6,12

Brown Vv. Joseph, 463 F.2d 1046 (3d Cir. 1972),

cert. denied, 412 U.S. 950 (1978) 0.00.00... 3, 11, 12, 18

Butz v. Economou, 438 U.S. 478 (1978).......... 3, 5, 6, 12, 18

Gregiore Vv. Biddle, 177 F.2d 579 (2nd Cir.), cert.

denied, 889 U.S. 949 (1949) ............,-....0...02.c00c0.-- 12

Imbler v. Pachtman, 424 U.S. 409 (1976) ........ 3, 5, 6, 7, 8,

11,18

John V. Hurt, 489 F.2d 786 (7th Cir. 1973) ........... 12

Jones V. Warlick, 364 F.2d 828 (4th Cir. 1966)...... 3

Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977)...... 3

Minns V. Paul, 542 F.2d 899 (4th Cir. 1976), cert.

denied, 429 U.S, 1102 (1977). ccc 3

Pierson V. Ray, 886 U.S. 547 (1967).........0000000 0. 6,9

Robinson Vv. Bergstrom, 579 F.2d 401 (7th Cir.

pe EN ST CIN YR Ose Se a) PEPE SRN Be 4

Sullens v. Carroll, 446 F.2d 1892 (5th Cir. 1971).. 3

U.S. General, Inc. v. Schroeder, 400 F. Supp. 713

SR I ED ica ee 11

Waits v. McGowan, 516 F.2d 208 (3d Cir. 1975)... 3

Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973) ...... 4,9

Miscellaneous:

ABA Standards, The Defense Function (Approved

BOTGEG, DEL) vvcccicscceven RE ee aN Pee eee ee 4

Criminal Justice Act, 18 U.S.C. § 83006A 4

Public Defender Act, Pa. Stat. Ann. tit. 16,

I I NO Goa ar re 2

28 U.S.C. § 2255

IN THE

Supreme Cot of the Wuited States

OCTOBER TERM, 1978

No. 78-5981

FRANCIS RICK FERRI,

Petitioner,

Vv.

DANIEL ACKERMAN,

Respondent.

On Writ of Certiorari to the Supreme Court

of Pennsylvania

BRIEF OF COMMITTEE OF PENNSYLVANIA

PUBLIC DEFENDERS AS AMICUS CURIAE

INTEREST OF COMMITTEE OF PENNSYLVANIA

PUBLIC DEFENDERS AS AMICUS CURIAE

The ad hoc Committee of Pennsylvania Public De-

fenders was formed for the purpose of filing this amicus

curiae brief. The Committee is composed of 60 of the

65 heads of county Public Defender offices throughout

Pennsylvania, and their names and identifications are

listed in Appendix A to this brief. Dante G. Bertani is

the past president of Public Defender Association of

2

Pennsylvania, having served in that capacity for three

years. Blake E. Martin, Jr., is now the President of

the Public Defender Association of Pennsylvania.

The public defender system in Pennsylvania was cre-

ated by the Public Defender Act, Pa. Stat. Ann. tit. 16,

§ 9960.1, et seq. (Purdon). Under the provisions of that

statute, the commissioners of each county appoint a public

defender, and assistant public defenders as may be re-

quired. The public defender is responsible to provide

legal counsel in criminal matters “to any person who,

for lack of sufficient funds, is unable to obtain legal

counsel.” § 9960.6

The Committee of Pennsylvania Public Defenders has

a vital interest in providing utmost freedom to its mem-

bers to furnish a vigorous defense for those accused of

crimes, so that defendants who are indigent receive a

qualify of representation equal to any. The Committee

believes that absolute immunity for all government-

sponsored defense counsel is necessary for the continued

vitality of the judicial phase of the criminal justice sys-

tem. It is further necessary to attract and hold fine and

sensitive lawyers in the low-paying positions as defenders

and thus to discharge the public duty of providing the

best possible defense to those not otherwise able to af-

ford it.

The members of the Committee of Pennsylvania Public

Defenders are government-sponsored defense counsel who

daily perform advocacy functions in our criminal justice

system. The members are in the unique position of deal-

ing daily with those accused of crime and of knowing

their attitudes and the attitudes of the other participants

in the criminal courtroom. The Committee believes that

this knowledge and understanding will provide some as-

sistance to the Court in making a determination of the

important issues so critical to the vitality of the public

defender system.

3

Both parties have consented to permit the Committee

of Pennsylvania Public Defenders to file this brief.

ARGUMENT

I. ABSOLUTE IMMUNITY SHOULD BE ACCORDED

THE GOVERNMENT-SPONSORED CRIMINAL DE-

FENSE LAWYER

The criterion established by this Court for determin-

ing the applicability of the immunity doctrine, in each

case, is to undertake “a considered inquiry into the im-

munity historically accorded the relevant official at com-

mon law and the interests behind it.” Imbler v. Pacht-

man, 424 U.S. 409, 421 (1976); Butz v. Economou, 438

U.S. 478, 508 (1978). In deciding whether a government-

sponsored criminal defense lawyer is entitled to absolute

immunity, inquiry must be made into relevant case law

and consideration must be given to the public policy

reasons supporting immunity.

A. Common Law Immunity Accorded the Government-

Sponsored Criminal Defense Lawyer

The requirement of government-sponsored defense coun-

sel for indigents accused of crime is of relatively recent

origin. Nonetheless, the history of common law on the

issue of absolute immunity for the government-sponsored

criminal defense lawyer, though brief, has produced more

than a few decisions. This considerable body of law is

instructive, and leads to the important conclusion that

absolute immunity has been accorded by every federal

appellate court which has considered the issue. Jones v.

Warlick, 364 F.2d 828 (4th Cir. 1966); Sullens v. Car-

roll, 446 F.2d 1392 (5th Cir. 1971); Brown v. Joseph,

463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S.

950 (1973); Waits v. McGowan, 516 F.2d 203 (3d Cir.

1975) ; Minns v. Paul, 542 F.2d 899 (4th Cir. 1976),

cert. denied, 429 US. 1102 (1977) ; Miller v. Barilla, 549

4

F.2d 648 (9th Cir. 1977); Robinson v. Bergstrom, 579

F.2d 401 (7th Cir. 1978); Walker v. Kruse, 484 F.2d

802 (7th Cir. 1973).

No federal appellate court has denied immunity for the

government-sponsored defense lawyer.

The cases make it clear that, so far as immunity is

concerned, there is no distinction made among govern-

ment-sponsored defense lawyers whether they be court-

appointed, public defenders, or panel attorneys under the

Criminal Justice Act, 18 U.S.C. $3006A. Even the

NLADA amicus curiae brief supports the position that

no distinction should be made. NLADA Brief 3. The

panel attorney under the Criminal Justice Act, 18 U.S.C.

§ 3006A, should be treated the same as the public de-

fender; in fact, absolute immunity has been given to

both.

B. The Justifications for Absolute Immunity for

Judges and Prosecutors Apply With Equal Force

to Immunize the Government-Sponsored Criminal

Defense Lawyer

1. The judge, the prosecutor and the defense lawyer

are equally essential to the administration of

criminal justice

The ABA Standards, The Defense Function (Approved

Draft, 1971), $ 1.1(a) makes it clear that “[c]ounsel for

the accused is an essential component of the administra-

tion of criminal justice,” and that a properly constituted

court is a “tripartite entity consisting of the judge...

counsel for the prosecution, and counsel for the accused.”

In providing representation for the indigent accused

of crime, the government-sponsored defense lawyer per-

forms a public function as critical and important as the

function performed by the prosecutor and the judge. He

must be free to provide a vigorous and fearless defense

5

of the accused. Frequently, the courtroom climate is

hostile to his efforts, especially when he represents an

unpopular person or one accused of a heinous crime.

When he provides the criminal defense at the behest of

his government and in compliance with constitutional

mandate, he performs an important public duty indis-

pensable to the effective operation of the criminal justice

system.

In the criminal courtroom, the judge, the prosecutor

and the government-sponsored counsel for the accused all

strive to achieve substantial justice within our judicial

system. The judge and the prosecutor both have absolute

immunity from civil liability. The defense counsel should

also have absolute immunity.

2. Where the function performed is in the judicial

phase of the criminal process, the immunity

granted the participant is absolute

The criminal process involves investigative activities

and judicial activities. Persons involved in the former

are entitled to qualified immunity (see Imbler v. Pacht-

man, supra, 424 U.S. at 430), while those involved in the

judicial phase are accorded absolute immunity. The

Imbler case held a state prosecutor absolutely immune

in his role as an advocate because his “activities were

intimately associated with the judicial phase of the crimi-

nal process, and thus were functions to which the rea-

sons for avsolute immunity apply with full force.” Jd.

Butz v. Economou, supra, 438 U.S. 478, involved var-

ious federal participants in agency hearings. While some

of the officials were granted only qualified immunity, all

those involved in the judicial process were given absolute

immunity. The federal hearing officer was absolutely

immune because his role was “functionally comparable”

to that of a judge, 4388 U.S. at 513; the official who

decided to initiate the administrative proceeding was

6

granted absolute immunity by analogy to prosecutorial

immunity, 438 U.S. at 515-16; finally, and most signifi-

cantly, the agency lawyer who presented the evidence

was held absolutely immune, 538 U.S. at 516-17. This

Court reasoned that the nature of the officials’ responsi-

bilities determined the immunity, and since the respon-

sibilities were judicial in nature, immunity would be

granted even in the administrative setting. The Court

explained the necessity for absolute immunity:

The cluster of immunities protecting the various

participants in judge-supervised trials stems from

the characteristics of the judicial process rather than

its location. As the Bradley Court suggested, 13

Wall. (80 U.S.), at 348-349, 20 L.Ed. 646, contro-

versies sufficiently intense to erupt in litigation are

not easily capped by a judicial decree. The loser in

one forum will frequently seek another, charging the

participants in the first with unconstitutional ani-

mus. See Pierson v. Ray, supra, at 554, 18 L. Ed.2d

288, 87 S. Ct. 1213. Absolute immunity is thus neces-

sary to assure that judges, advocates, and witnesses

can perform their respective functions without

harassment or intimidation. {Emphasis supplied]

438 U.S. at 512

The prosecutor’s absolute immunity in Jmbler was based

not only on the function of initiating prosecutions, but

upon the prosecutor’s conduct of the trial. 424 U.S. at

424

Attaining the system’s goal of accurately determin-

ing guilt or innocence requires that both the prosecu-

tion and the defense have wide discretion in the con-

duct of the trial and the presentation of evidence.

[Emphasis supplied] 424 U.S. at 426.

Petitioner argues that the function of the defense

lawyer is uniquely dissimilar to that of the judge or

prosecutor, and he should therefore be denied immunity.

Pet. brief at 36-38. The judge, the prosecutor, and counsel

7

for the accused all work within the judicial phase of the

criminal justice system. Of course, all three have dif-

fering functions. The mere fact that the prosecutor does

not perform the same duties as a judge does not deprive

him of absolute immunity; nor should absolute immunity

be denied defense counsel because he does not act as a

prosecutor or judge.

The specific function performed is not the test; rather,

it is that the participant’s immunity in the judicial phase

be supported by policy considerations. The prosecutor

does not have immunity because he acts like a judge; he

enjoys absolute immunity because the justification for it

“is based upon the same considerations that underlie the

common-law immunities of judges.” Imbler v. Pachtman,

supra, 424 U.S. at 422-423. For the prosecutor, absolute

immunity is granted for policy reasons similar to those

which underlie the judge’s absolute immunity; namely,

that “harassment by unfounded litigation” would cause

him to deflect his energies from his duties, and “the

possibility that he would shade his decisions instead of

exercising the independence of judgment required by his

public trust.” Id. at 423.

The identical policy considerations employed in Jmbler

to provide absolute immunity for prosecutors apply with

equal force to the government-sponsored defense lawyer.

Harassment by unfounded litigation would deflect him

from his important public duties, and his independent

judgment during the course of a criminal trial might be

shaded by the threat of his own liability.

Judicial and prosecutorial immunity are necessary to

the healthy functioning of the criminal justice system.

Society is benefited by judicial and prosecutorial im-

munity. The essential judicial functions served by the

judge and prosecutor are fundamentally the same as

those of the government-sponsored defense lawyer. All

are “intimately associated with the judicial phase of the

8

criminal process.” Imbler v. Pachtman, supra, 424 U.S.

at 430. All should be treated alike in the determination

of their civil liability.

Amicus curiae NLADA argues that the three partici-

pants in the criminal courtroom should be treated alike,

but because it has concluded that the government-spon-

sored counsel for the accused should not have immunity,

it is foreed to advocate the position that the doctrine of

absolute immunity for judges and prosecutors should be

abrogated. NLADA brief at 14-16. The NLADA position

is ratiunally indefensible. No judicial system could long

exist if judges and prosecutors were liable to lawsuits

for acts within the jurisdiction of their positions. Abro-

gation of absolute immunity for judges could cripple and

ultimately destroy the effectiveness of the criminal jus-

tice system.

II. PUBLIC POLICY CONSIDERATIONS CALL FOR

ABSOLUTE IMMUNITY FOR GOVERNMENT-

SPONSORED CRIMINAL DEFENSE LAWYERS

The prosecutor is given absolute immunity “based upon

the same considerations that underlie the common-law

immunities of judges.” Imbler v. Pachtman, supra, 424

U.S. at 422-423. A considered examination of the policy

considerations supporting prosecutorial and judicial im-

munity leads to the conclusion that government-sponsored

defense lawyers should be absolutely immune for similar

policy reasons.

Absolute immunity for the criminal defense lawyer

benefits the broad interests of the indigent client. Coun-

sel for the accused is free to exercise his independent

judgment without fear of the consequences of a civil suit

from a dissatisfied client. Recruitment of lawyers to rep-

resent indigents is facilitated, thus providing for wider

participation of the bar in the public duty of represent-

ing the poor.

9

Just as judicial immunity is “for the benefit of the

public, whose interest it is that judges should be at liberty

to exercise their functions with independence and without

fear of consequences,” Pierson v. Ray, 386 U.S. 547,

554 (1967), so absolute immunity for the criminal de-

fense lawyer serves the broad interest of the client and

the judicial system. “The reasoning which provides im-

munity for various public officials . . . is also applicable

to the performance by private citizens of public services

which play such a significant role in the administration

of justice.” Walker v. Kruse, supra, 484 F.2d at 802,

804.

A. The Position of the Government-Sponsored Criminal

Defense Lawyer is Significantly Different from

Privately Retained Counsel

The circumstances surrounding the representation of

indigent clients accused of crime create a climate in

which unfavorable results are more likely to occur than

with paid representation. In the highly charged atmo-

sphere of a criminal courtroom, where the state is exercis-

ing its power to deprive a citizen of liberty, emotions

frequently erupt into unfounded charges of malice or lack

of competence of the defense lawyer.

Where a client is able to pay for his private counsel,

he is also able to select the lawyer he wants. He has a

higher regard for his lawyer, who was probably chosen

because of reputation or by referral from a trusted

friend. The private lawyer is in a position to decide

whether to represent the client, and is free to decline

a client he considers troublesome. Even after repiesnta-

tion begins, he is generally freer to withdraw if dif-

ficulties arise.

On the other hand, as perceptively observed by amicus

curiae NLADA, “indigent defendants have a fundamental

distrust” of government-sponsored counsel. NLADA brief

at 10. The indigent does not have the right to choose his

10

counsel, and the government-sponsored attorney generally

cannot refuse representation. The indigent does not pay

for legal services, and as in other aspects of life, anything

easily obtained is lightly regarded. The government-spon-

sored lawyer must continue to represent troublesome or

uncooperative clients, and is frequently called upon to take

over the representation of such a client after private

counsel has withdrawn. Giving a troublesome client who

has a “fundamental distrust” of his lawyer the right to

sue his lawyer will certainly not remedy his distrust, and

will not accomplish anything to improve the lawyer-client

relationship.

When an adverse decision is reached against the de-

fendant and he faces conviction or imprisonment, he often

seeks retaliation against the society which has denied him

his freedom. He neither risks anything nor loses any-

thing if he vents his anger in an action for damages

against his own defense lawyer. After all, his counsel, if

he is denied absolute immunity, will be the only partici-

pant in the judicial proceedings against whom action could

be brought.

B. Suits Against Government-Sponsored Criminal De-

fense Lawyers Would Defiect the Lawyer’s Energies

The caseload cf the government-sponsored criminal

defense lawyer is heavy. His duty to provide legal rep-

resentation to the poor imposes great demands on his

time and energy.

Any civil action against a government-sponsored crim-

inal defense lawyer would deflect his energies from his

main task of defending indigents accused of crime. If he

is called upon to justify actions taken long ago, to pre-

pare pleadings in his defense, to submit to discovery and

even to trial, obviously he will have less time to provide

services to his indigent clients.

ll

-

“{A] deflection of the prosecutor’s energies from his

public duties” provides an important policy considera-

tion to support absolute immunity for the prosecutor.

Imbler v. Pachtman, supra, 424 U.S. at 423. The same

policy consideration justifies absolute immunity for the

judge. It should likewise support absolute immunity for

the government-sponsored defense lawyer.

C. Recruitment Would Be Hindered

“To deny immunity to the Public Defender and ex-

pose him to this potentiai liability would not only dis-

courage recruitment, but could conceivably encourage

many experienced public defenders to reconsider present

positions.” Brown v. Joseph, supra, 463 F.2d at 1049.

Government-sponsored defense lawyers are underpaid and

overworked. The additional threat of civil liability at

the suit of the client for whom he labors could be the

very factor that would discourage the lawyer from per-

forming the vital function of representing the poor.

By analogy, who would want to be a judge if he could

be sued by a dissatisfied litigant? Without absolute im-

munity, who would choose to be a prosecutor? Is it not

reasonable that a criminal defense lawyer would hesi-

tate to represent an indigent if such representation

might culminate in an action for civil damages?

D. The Chilling Effect

“(I]f an attorney must work in constant fear of

civil liability, it is the rights of the public that will

suffer. Any such threat of liability visits an obvious

chilling effect upon the attorney’s enthusiasm to vig-

orously defend his client’s position.” U.S. General,

Inc. V. Schroeder, 400 F. Supp. 713, 717 (E.D.

Wisc. 1975).

The “chilling effect” created by the threat of civil

liability manifests itself in several ways. The govern-

12

ment-sponsored defense lawyer, faced with the threat

of potential liability, will lose his independence to control

the technical aspects of defense strategy. Because he

had so much at stake personally, he will tend to accede

to the many demands of his client for the filing of mo-

tions or subpoenaing of witnesses whether or not such

tactics would be best indicated by circumstances. See

Brown V. Joseph, supra, 463 F.2d at 1049; John v. Hurt,

489 F.2d 786, 788 (7th Cir. 1973).

Judge Learned Hand described the chilling effect as

the “constant dread of retaliation” when he proffered

it as a policy consideration to provide the prosecutor

with absolute immunity. Gregiore v. Biddle, 177 F.2d

579, 581 (2nd Cir.), cert. denied, 339 U.S. 949 (1949).

The threat of civil liability would “dampen the ardor

of all but the most resolute, or the most irresponsible,

in the unflinching discharge of their duties.” Jd.

An indigent accused of crime is constitutionally en-

titled to an effective defense. The lawyer must be free

to exercise independent judgment in the management of

the defense without, even subconsciously, shading his de-

cisions with a view toward avoiding potential liability.

The “chilling effect” consideration supporting absolute

immunity for a judge was expressed in Butz v. Economou,

supra, 438 U.S. at 509:

If a civil action could be maintained against a judge

by virtue of an allegation of malice, judges would

lose “that independence without which no judiciary

could either be respectable or useful.” [Bradley v.

Fisher, 13 Wall. (80 U.S.) 335, 347 (1872) ].

A civil action against a defense lawyer would be cost-

ly to him in terms of time, money and damaged reputa-

tion. The natural tendency would be to do whatever is

necessary to avoid such a threat. The lawyer would

tend, for example, to document every strategy meeting

13

with the client in which trial tactics were discussed,

lest the meeting be later denied by the client. The prac-

tical experience of Pennsylvania public defenders sug-

gests that the tendency would be to spend more time

representing and trying to satisfy the most trouble-

some clients to the detriment of other indigents in need

of defense services. The courts themselves might shade

their decisions on post-conviction relief, even subcon-

sciously, if the civil liability of the defense lawyer were

at stake, as recognized by this Court in granting absolute

immunity to prosecutors. Jmbler v. Pachtman, supra,

424 U.S. at 427, 428.

E. The Existence of Other Remedies Reduces the Need

for Private Damage Actions

Other effective remedies are available to the criminal

defendant complaining of his lawyer’s representation.

He may assert his claim “by direct appeal, by state

post-conviction remedies, and by federal habeas corpus

petitions.” Brown v. Joseph, supra, 463 F.2d at 1049.

In Butz, this Court supported judicial immunity by con-

sidering “the correctibility of error on appeal,” 438 U.S.

at 512, and stated that “the safeguards built into the

judicial process tend to reduce the need for private dam-

age actions as a means of controlling unconstitutional

conduct.” Id.

The availability of other effective remedies was re-

viewed as a policy consideration in the Jmbler case to

support absolute immunity for the prosecutor; this Court

concluded: ‘

These checks undermine the argument that the im-

position of civil liability is the only way to insure

that prosecutors are mindful of the constitutional

rights of persons accused of crime. 424 U.S. at 529.

At the time of Ferri’s criminal trial out of which this

action arose, he was serving the last 8 years of a prison

14

term on a prior conviction. App. 8. In the indictment

at issue, Ferri was sentenced for 20 years on bombing

charges, Pet. brief at 7b, and he is not contesting that 20

year sentence. He is contesting, however. the additional

10 year sentence to commence after the expiration of the

20 year sentence. Ferri contends that a 3 year statute

of limitaticns barred the prosecution on the revenue

charges for which the 10 year sentence was imposed.

If Ferri is correct that the 3 year statute of limita-

tions applies, then he has an adequate and complete

remedy under the federal habeas corpus provisions of

28 U.S.C. $2255. The failure of a lawyer to assert a

statutory bar to prosecution, under any test, would entitle

Ferri to have the additional 10 year sentence vacated.

A curious aspect of this case is that Ferri knows that

he is entitled to apply for habeas corpus relief under

§ 2255 and has deliberately chosen not to do so. His

brief explains that an unfavorable result might cause the

dismissal of his civil action as collaterally estopped. Pet.

brief at 42, n.23. He has elected not to apply for the relief

which would be adequate and complete as it relates to the

10 year sentence not scheduled to begin until 20 years

from the date of sentencing. He has chosen, rather, to

seek money damages against his lawyer.

CONCLUSION

The government-sponsored criminal defense lawyer

serves an indispensable public function in our criminal

justice system. The same compelling public policy con-

siderations which support absolute immunity for judges

and prosecutors apply to justify absolute immunity for

the government-sponsored defense lawyer. Together in

the same criminal courtroom, they strive to achieve sub-

stantial justice for all.

15

The judgment of the Supreme Court of Pennsylvania

should be affirmed.

Respectfully submitted,

DANTE G. BERTANI

Westmoreland County Public Defender

802 Courthouse Square

Greensburg, PA 15601

(412) 834-2191 Ext. 3342

BLAKE E. MARTIN, JR.

Franklin County Public Defender

Courthouse

Chambersburg, PA 17201

(717) 264-4125

Counsel for Committee of Pennsylvania

Public Defenders as Amicus Curiae

APPENDIX

la

APPENDIX A

MEMBERS OF THE

COMMITTEE OF PENNSYLVANIA PUBLIC DEFENDERS

Adams County

Clayton R. Wilcox, Esq.

Public Defender

Courthouse

Gettysburg, PA 17325

Armstrong County

Kenneth G. Valasek, Esq.

Public Defender

Courthouse

Kittanning, PA 16201

Beaver County

Wayne S. Lipecky, Esq.

Public Defender

Courthouse

Beaver, PA 15009

Bedford County

Richard W. Lins, Jr., Esq.

Public Defender

Courthouse

Bedford, PA 15522

Berks County

William F. Ochs, Esq.

Public Defender

Courthouse

Reading, PA 19601

Blair County

John Woodcock, Jr., Esq.

Public Defender

Courthouse

Hollidaysburg, PA 16648

Bradford County

Leonard J. Frawley, Esq.

Public Defender

Courthouse

Towanda, PA 18848

Bucks County

John M. McClure, Esq.

Public Defender

Courthouse

Doylestown, PA 18901

Butler County

Michael M. Mamula, Esq.

Public Defender

Courthouse

Butler, PA 16001

Cambria County

Lawrence L. Davis, Esq.

Public Defender

Courthouse

Ebensburg, PA 15931

Cameron County

Russell F. D’Aiello, Jr., Esq.

Public Defender

Courthouse

Emporium, PA 15834

Carbon County

Thomas S. McCready, Esq.

Public Defender

Courthouse

Jim Thorpe, PA 18229

Centre County

Gary A. Delafield, Esq.

Public Defender

Courthouse

Bellefonte, PA 16823

Clarion County

William Kern, Esq.

Public Defender

Courthouse

Clarion, PA 16214

Clearfield County

Richard H. Milgrub, Esq.

Public Defender

Courthouse

Clearfield, PA 16830

Clinton County

Peter P. Griffin, Esq.

Public Defender

Courthouse

Lock Haven, PA 17745

Columbia County

Cleveland C. Hummel, Esq.

Public Defender

Courthouse

Bloomsburg, PA 17815

Crawford County

Louis D. Musica, Esq.

Public Defender

Courthouse

Meadville, PA 16335

Cumberland County

Taylor P. Andrews, Esq.

Public Defender

Courthouse

Carlisle, PA 17013

Dauphin County .

Robert N. Tarman, Esq.

Public Defender

Courthouse

Harrisburg, PA 17101

Delaware County

Richard L. Steinberg, Esq.

Public Defender

Courthouse

Media, PA 19063

Elk County

David Whitney, Esq.

Public Defender

Courthouse

Ridgway, PA 15853

Fayette County

Thomas P. Ruane, Esq.

Public Defender

Courthouse

Uniontown, PA 15401

Forest and Warren Counties

Joseph A. Massa, Jr., Esq.

Public Defender

Courthouse

Tionesta, PA 16553

Franklin County

Blake E. Martin, Jr., Esq.

Public Defender

Courthouse

Chambersburg, PA 17201

2a

Fulton County

James M. Schall, Esq.

Public Defender

Courthouse

McConnellsburg, PA 17233

Greene County

John A. Stets, Esq.

Public Defender

Courthouse

Waynesburg, PA 15370

Huntingdon County

Joseph W. Mullin, Esq.

Public Defender

Courthouse

Huntingdon, PA 16652

Indiana County

Donald R. Marsh, Esq.

Public Defender

Courthouse

Indiana, PA 15701

Jefferson County

Clifford Schenkemeyer, Esq.

Public Defender

Courthouse

Brookville, PA 15825

Juniata County

Steven V. Manbeck, Esq.

Public Defender

Courthouse

Mifflintown, PA 17059

Lackawanna County

John J. Dunn, Sr., Esq.

Public Defender

Courthouse

Scranton, PA 18503

Lancaster County

Theodore S. Danforth, Esq.

Public Defender

Courthouse

Lancaster, PA 17602

Lawrence County

Norman A. Levine, Esq.

Public Defender

Courthouse

New Castle, PA 16101

PES nents in

Lebanon County

Joseph C. Mesics, Esq.

Public Defender

Courthouse

Lebanon, PA 17042

Lehigh County

Thomas Wallitsch, Esq.

Public Defender

Courthouse

Allentown, PA 18101

Luzerne County

Michael J. Cefalo, Esq.

Public Defender

Courthouse

Wilkes-Barre, PA 18711

Lycoming County

Gregory V. Smith, Esq.

Public Defender

Courthouse

Williamsport, PA 17701

McKean County

John Yoder, Esq.

Public Defender

Courthouse

Smethport, PA 16749

Mercer County

Michael J. Wherry, Esq.

Public Defender

Courthouse

Mercer, PA 16137

Monroe County

Ronald E. Vican, Esq.

Public Defender

Courthouse

Stroudsburg, PA 18360

Montgomery County

Samuel W. Salus II, Esq.

Public Defender

Courthouse

Norristown, PA 19404

Montour County

Robert L. Marks, Esq.

Public Defender

Courthouse

Danville, PA 17821

3a

Northampton County

Chester A. Reybitz, Esq.

Public Defender

Courthouse

Easton, PA 18042

Northumberland County

Harry V. Klein, Jr., Esq.

Public Defender

Courthouse

Sunbury, PA 17801

Perry County

Shaubut C. Walz III, Esq.

Public Defender

Courthouse

New Bloomfield, PA 17068

Pike County

Randy Borden, Esq.

Public Defender

Courthouse

Milford, PA 18337

Potter County

Richard S. Lindhome, Esq.

Public Defender

Courthouse

Coudersport, PA 16915

Schuylkill County

Frank R. Cori, Esq.

Public Defender

Courthouse

Pottsville, PA 17901

Snyder County

Harry L. Wilcox, Esq.

Public Defender

Courthouse

Middleburg, PA 17861

Somerset County

Wilbert H. Beachy III, Esq.

Public Defender

Courthouse

Somerset, PA 15501

Sullivan and Wyoming Counties

David P. Posatko, Esq.

Public Defender

Courthouse

Laporte, PA 18626

Susquehanna County

Charles Aliano, Esq.

Public Defender

Courthouse

Montrose, PA 18801

Tioga County

Earl W. Cabor, Esq.

Public Defender

Courthouse

Wellsboro, PA 16901

Union County

Paul W. Brann, Esq.

Public Defender

Courthouse

Lewisburg, PA 17837

Venango County

Terrance L. Whitling, Esq.

Public Defender

Courthouse

Franklin, PA 16323

4a

Washington County

John P. Liekar, Esq.

Public Defender

Courthouse

Washington, PA 15301

Wayne County

Robert N. Bryan, Esq.

Public Defender

Courthouse

Honesdale, PA 18431

Westmoreland County

Dante G. Bertani, Esq.

Public Defender

Courthouse

Greensburg, PA 15601

York County

H. Stanley Rebert, Esq.

Public Defender

Courthouse

York, PA 17401