# Amicus Brief — Ferri v. Ackerman

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0464%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 193

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0464%3A7. Public record. Not legal advice.