Intro: 0:15

The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation. An institution shaped by the skilled attorneys who argue before it. Welcome to The Standard of Review.

Corrie Woods: 0:31

Hi, everyone, and welcome to The Standard of Review by SCOPAblog. I'm your host Corrie Woods. Today we're back to kick off the second season of the podcast with Attorney Michael Wiseman of Wiseman and Schwartz, a Philadelphia firm practicing in the areas of criminal defense, appeals, post conviction cases and civil rights actions. Attorney Wiseman recently won a groundbreaking victory in the Pennsylvania Supreme Court in the case of Commonwealth vs. Bradley, which held that petitioners in post conviction actions who get new appellate counsel can raise claims of ineffective assistance of post conviction counsel for the first time on appeal. The decision overruled earlier cases that effectively left petitioners with a right to the effect of assistance of postconviction counsel, but no meaningful mechanism to vindicate it. Bradley is a step in the right direction, but frankly, an incomplete one, as it applies only to the narrow group of petitioners who managed to find a new lawyer for appeal. We talked about the path to Bradley, what it fixes, and what it doesn't. Let's listen. Our guest today is Attorney Michael Wiseman, a partner at Wiseman and Schwartz. Attorney Wiseman practices criminal law at trial, on appeal and in post conviction actions with an emphasis on capital criminal defense. Prior to entering private practice, he was chief of the capital habeas corpus unit of the federal community defender office for the Eastern District of Pennsylvania. Before that Michael was a senior staff attorney for the Pennsylvania post conviction defender organization. Attorney Wiseman has also served as the secretary treasurer of the Association of Legal Aid attorneys, a staff attorney for the Prisoners Rights Project of the Legal Aid Society of New York, and a staff attorney for the Legal Aid Society of Nassau County. He's a graduate of the State University of New York at Buffalo School of Law. Attorney Wiseman, welcome to The Standard of Review. And can I say, go Bills?

Michael Wiseman: 2:20

Oh, yes, you can. Although I'm a Giants fan. I'm glad to be here. Thank you for having me.

Corrie Woods: 2:27

Before we get into Bradley, I like to start out with a pretty common question. How did you know that you wanted to be a lawyer? And how did your practice evolve over the years?

Michael Wiseman: 2:37

That's an interesting question. I think unlike a lot of folks, I kind of knew I wanted to be a lawyer when I was pretty young, I think in what we called in New York City, junior high school, not Middle School. And I found that I was a good arguer, I guess, and I wouldn't shut up. So I guess that led me on my path. I grew up at a time I came of age, I guess at a time when Law and Social Justice were sort of merging coming out of the 60s and 70s. And I went to law school and I graduated in 1981. And being in Buffalo, I was exposed to a lot of sort of criminal justice, social justice issues, particularly because of what some would call the Attica rebellion of the early 70s 1971, I believe, and there was criminal trials going on when I was in law school arising from that. And so I, I took a real interest in prisoners rights and criminal defense. And I've always saw them merging with larger issues of race and social justice. And so when I graduated from law school, I wanted to be a public defender. And that's pretty much the path I've been on although at some points I've been in private practice.

Corrie Woods: 3:51

And as I said, at the beginning, you were actually chief of the capital habeas unit for the FCDO - which I'm not even gonna bother to try to pronounce again - for a long time, that's an organization that's gotten a lot of praise from advocates who don't like the death penalty, and a lot of ire from from advocates who do at least one retired judge does for being very tenacious in its advocacy. Can you talk a little bit about your time there and what you thought the FCDO brought to bear for your clients and for Pennsylvania more broadly?

Michael Wiseman: 4:23

Sure. You know, it was a very difficult job to be in. And it got a little bit easier as we grew larger. But we always saw it as trying to even the playing field between the most scorned people in society, namely capital condemned prisoners, and those who would seek their their execution. So we didn't see ourselves doing anything differently or more than what we expected lawyers to do, who were properly funded and properly motivated to represent their clients, particularly in capital cases. So yeah, we we made a lot of bad law, certainly, but we think we made a lot of good law as well. I think we were responsible for the elimination of the old relaxed waiver doctrine, because I think the courts realized that was at some tension with the concept of finality, but on the whole, we were able to point out the errors in multiple dozens of capital cases, both in penalty, as well as at the trial stage. And we were fortunate to, to get a lot of folks off the row. And actually, some folks who are eventually released from prison, either because they were innocent or able to cut advantageous agreements after relief was obtained.

Corrie Woods: 5:41

I never really got the criticism that the attorneys are being too tenacious. I mean, I remember during my work for the Court reading, you know, briefs from the- you were gone by then- but reading briefs from the FCDO and saying, "Well, this is no more tenacious than- if you want something more tenacious, look at a civil case with a lot of very high powered attorneys on either side," you know, and I guess I never saw the real basis for that.

Michael Wiseman: 6:08

Yeah, well, I think that, you know, and I don't want to project too much into what some of our opponents were thinking. But I do think that it was something that many local prosecutors were not used to encountering, namely, vigorous and properly funded opposition. Most capital defendants are, of course, indigent. And they were represented by either appointed counsel or various county public defenders. And, you know, without the real experience and knowledge to prosecute these post conviction cases, it's a very refined skill, it's not one that comes to mind, I certainly didn't know it before I started practicing in Pennsylvania, New York didn't have a death penalty when I was there. And it was a whole new world for me. But once I learned it, and experienced it I appreciated just how specialized it was. And it wasn't something that even a very good non capital criminal defense lawyer could just pick up in regards to penalty phase of these cases. Most people who are charged with capital murder, have some significant mental health history, it's either documented or not. But I've always sort of thought that, you know, people don't just go out and do sort of dastardly things without having some some mental health motivation behind it. And I guess people could disagree with that. Some people think people are evil and just do evil things, I don't ascribe to that. So I always saw our work as- and still do- see our work as as presenting the mental health and background and evidence about a particular person that helps explain their actions. And that's what the Eighth Amendment calls for, you know, to present all extant mitigating evidence. And that's what we did. And you know, we did it vigorously. And we did it the way it should be done.

Corrie Woods: 8:03

Yeah, I think there's- colloquially people say, "Well, how could they do that?" And then a lot of times, they don't want the answer. And I think that organization was really good at providing the answer. And I think criminal defense more broadly, could could use that kind of funding and that kind of advocacy. But let's talk about Aaron Bradley. That's that's kind of why we're here today. What are the essential facts of Mr. Bradley's case? And how did it come to your office?

Michael Wiseman: 8:31

Well, Mr. Bradley was convicted of killing the suitor- well the would-be suitor- of his girlfriend, who he was sort of on the outs with, and a lot of cell phone evidence in the case and his ex girlfriend had some evidence to provide but Mr. Bradley maintained that he didn't do it, and maintains that to this day. He hired me to represent him on an appeal of what was then a recent denial of his PCRA petition, which I was happy to do. And of course, you know, going into the case, and reading the record and reading the really abysmal representation and post conviction, I ran into the problem that many people run into, which is that the, the PCRA lawyer was grossly ineffective, did a miserable job. And I was stuck with this idea that nothing, nothing could be raised on appeal of the denial of his PCRA. So I can't say I thought about it for the first time then, as I had been trying to raise claims of ineffective assistance of post conviction counsel a couple of times before that, but never successfully because of what the court now agrees, was an inadequate system for raising such claims.

Corrie Woods: 9:48

So let's back up a little bit. And maybe we can talk just briefly about what Pitts and the decisions that came after it required a petitioner to do, to say, "Hey, my PCRA counsel, my post conviction counsel, I have a right to have an effective one." How do I vindicate it under sort of the old regime?

Michael Wiseman: 10:07

Yeah, well, I'll add to what you just said by saying not only does a Pennsylvania prisoner have a, a right to an effective lawyer, but the Pennsylvania Supreme Court has repeatedly said it's an enforceable right. Unfortunately, there was no way to enforce it. So under the old system- or the last permutation of the system- the petitioner would have to raise the ineffectiveness of his PCRA counsel in response to a Rule 907 Notice. And for those who are less familiar with a Rule 907 Notice is a notice the court issues when it determines that there are no material facts in dispute, and they are going to dismiss the case without a hearing. So it's a notice of intention to dismiss.

Corrie Woods: 10:56

And really, with usually within 21 days.

Michael Wiseman: 10:59

20 days actually.

Corrie Woods: 10:59

Oh, excuse me.

Michael Wiseman: 11:01

If I'm not mistaken. Yeah, 20 or 21, it wasn't a whole long time. And of course, the problem with that system, which I pointed out in my briefing to the Superior Court, and in my leave petition, as well as in my merits briefing, that it's just not a workable system, the you know, the system, at best required the lawyer who's arguably was ineffective to raise their own ineffectiveness in the 907 Notice. That is, of course, precluded as a matter of state case law. And there is a United States Supreme Court case called Christensen V. Roper, which, which also says you can't expect the lawyer to raise their own ineffectiveness because that's a conflict of interest. So then the petitioner is in a position of having to either go pro se, and raise claims of PCRA counsel ineffectiveness, pro se, or else hire a new lawyer all within that 20 day window. And so you know, it was not hard to write the section of my brief that pointed out that that's simply not a workable system. And we can't, there's lots of great language in Pennsylvania case law about how critically important PCRA is to the integrity of the criminal justice system. It's a person's last chance, at least in state court to raise claims of trial counsel ineffectiveness, oftentimes, which you know, go to innocence or, you know, if someone was overcharged or improperly sentenced, then you, you can't put something that important in the hands of a pro se litigant. And so the other I think, problem is that, and I know this case, a lot to the contrary, but particularly in Philadelphia, where Bradley came from, many judges were simply issuing these 907 notices on a form. And I get that the system is congested, and has lots of cases, but you can't put a person's liberty on a form. You know, I used to think to myself, this is like, a simpler form than you see it at PennDOT, you know, it's like, a check box, you know, your claims are without merit without any indication as to why or how. So it's simply an unworkable system in theory, as well as in practice.

Corrie Woods: 13:19

And so they get a vague form with a checkbox in the mail.

Michael Wiseman: 13:23

Exactly.

Corrie Woods: 13:24

And let's be clear, in probably 14 days, given the current mail system in the Department of Corrections. So they've got-

Michael Wiseman: 13:34

Even if the mail was zipping along, it's just not a lot of time. I mean, you know, there's chronic problems with with prison mail, and, you know, one never knows if their clients are going to get stuff on time or, you know, at all. And, you know, then there's the problem of the prisoner having to communicate back and, you know, sometimes that's easier to do than other times, but it's not the kind of system that I mean, 20 days isn't a lot of notice, even for someone with a lawyer who's working on all cylinders, and, and wants to vindicate their clients rights. It's just a short period of time.

Corrie Woods: 14:10

So you get the case, and you see the system in front of you, you know it's terrible. What do you do?

Michael Wiseman: 14:16

Well, you know, this was a real- I mean, I didn't plan it this way. It just turned out this way. It was a case where the flaws in the system as a theoretical point really came into focus on the specific facts of the case, the post conviction attorney's failure. So when the trial court issued the 907 Notice, the lawyer didn't even file a response. A day after the response was due, we filed a boilerplate motion to continue, which the court never even ruled on because the next day it simply dismissed the petition. In addition to that it was easy in this particular case, although it's not always easy to identify some some record base claims that this PCRA lawyer missed claims of of trial counsel ineffectiveness, and instead of raising meritorious claims, the lawyer raised a bunch of previous previously litigated claims. And so it was very, I won't say was fishing in a barrel. But it was, it was a pretty easy argument to make that, you know, not only is the system not set up to do what it's supposed to, but in this case, it failed on the facts of the case. I mean, you know, if you're expecting this lawyer to file a claim against himself of ineffectiveness, he didn't even do that. He simply blew the time to do it. Yeah, I just wanted to draw the larger point about this, though, and draw it out a little bit to the, to the larger set of issues, which is that we all know that the criminal justice system as a general proposition, in almost every jurisdiction I've ever seen, and I've practiced around the country, is overburdened, it's underfunded, appointed counsel usually get paid miserably. Public Defenders are overworked. And I've been a public defender, so I have the greatest respect for their jobs. But um, you know, they, I guess they do the best they can. But it's, it's just a system that, in so many ways is not designed to be fair, and to reach a just result. Sometimes it does, I would even say most times it does. But in vast numbers of cases it doesn't. And as I said at the beginning, these are issues of, of social and racial justice. And given who we see, you know, populating our criminal justice system. And so the idea that lawyers would be ineffective at trial is of critical concern. And the way the law has developed over the years in the US Supreme Court, the only opportunity to really vindicate a person's rights to an effective trial lawyer is to have an effective PCRA lawyer or state post conviction attorney. And that's really the larger set of issues here. I mean, Mr. Bradley, for example, told his PCRA lawyer he had an alibi. And his PCRA lawyer pled for them without attaching any proof or the outline, no certifications, no witness statements, nothing. And so the claim was, was doomed from the start. So we're, you know, we're talking about an alibi, the most fundamental, basic example of innocence that there can conceivably be, and the lawyer didn't properly present the claim to trial counsel, was ineffective for not presenting the alibi. So-

Corrie Woods: 15:40

So I guess the first hurdle you're facing is you're in Superior Court, which is obliged, purportedly, to apply the law as it is, and you're sort of seeking change in the law. So what does the Superior Court do?

Michael Wiseman: 17:48

Well, I actually was pleasantly surprised by the Superior Court's opinion, because they basically, obviously summarizing here, they basically say, "We get it, we agree with you, there should be a better way to do this, but we're constrained by recent Pennsylvania Supreme Court decisions that say you can't raise a claim of ineffective assistance of post conviction counsel for the first time on appeal." So obviously, that was a significant leg up in trying to convince the Pennsylvania Supreme Court to grant relief. You know, there were three dissenters, in I think the Pitts case, who are on the Court, who, you know, recognize the flaws in the system. So I knew that there was a, at least some audience out there that had an appetite for perhaps changing that system.

Corrie Woods: 18:35

I want to touch on very briefly, in your petition for allowance of appeal. How did you deal with the fact that there's clear precedent that applies here, and we want to change it. How did you develop your argument to get around that?

Michael Wiseman: 18:47

Well, I took the really the same approach throughout, which was to simply point out the the multiple ways in which the system couldn't work in theory, and didn't work in actual practice in this case. That's why this was a good case. I can't- I'm not an impact litigation law firm where I'm looking for the perfect case. I just happened to find one that had all of those criteria, you know, some some good claims that were on the record, that weren't presented some previous litigated claims that were presented, the late response of the 907 Notice. And, you know, and some, you know, some claims of innocence. I mean, the alibi claim, there were a couple of others that were also fairly compelling. That's the one I think that jumps out. So yeah, I think, you know, I always feel guilty when I'm writing a merits brief in the Pennsylvania Supreme Court that looks so much like my allocatur petition or Superior Court petition, but there really wasn't much more to say. I had said it all before in the Superior Court. So it kind of wrote itself.

Corrie Woods: 19:53

I always try to emphasize to folks because I've seen a couple of allocatur petitions in my day that saying, "Oh, it's wrong," that's probably not enough to get you there. And even though you may have an audience, you know, you need to give them a reason to say it's wrong plus x. Yeah, yeah. And you know, allocatur by its nature is a- not a long pleading. So it forces you to sort of be super concise and just lay out exactly where the problems lie. And I can't remember now in my relief petition if I proposed a solution. But I certainly did in a merits briefing. So great segue. What are the solution or solutions that you proposed to replace Pitts with?

Michael Wiseman: 20:35

Well, look, I was, of course, gratified, as were the amici who supported me, that we got something from the Court and it's certainly a big step in the right direction. And that is that you can raise it for the first time on appeal if you have new counsel. So it's sort of the for those who go way back, it's sort of the Hubbard rule used to be which was you could raise claims of ineffectiveness of prior counsel at the first opportunity upon a change of counsel. So that's the remedy that the Court struck. I think the- what's going on, I would think, in the minds of the justices, and certainly in the minds of many prosecutors is that the balance between finality and fairness to the defendant. And the finality concept, which is, of course, a legitimate one, I get it. But I think that it sort of won out in terms of not expanding the remedy, beyond that narrow, and by that what I mean is not permitting people to raise claims of prior counsel ineffectiveness retrospectively, and in second petitions or third petitions. Successive petitions. There's a footnote in Bradley that sort of says you can't do that. That's regrettable, although it didn't affect my client. And so I was happy for my client. But you know, because there's going to be many people who have appointed counsel in PCRA, who then represent them in the appeal of the PCRA. And obviously, they can't raise their own ineffectiveness so by the time you have a change of counsel, you're already in a position of having to vindicate your rights in a successive petition. And unfortunately, a case that I lost in the year 2000. Commonwealth vs. Gamboa Taylor says that a claim of prior counsel ineffectiveness is not cognizable in a successive petition. So I mean, that that would be another area that I would have liked to see the Court maybe- and maybe they will in the future- will afford people a remedy. All of this also has become far more prominent after the recent United States Supreme Court decision in Shinn in 2000. Well- start at the beginning- in 1991, the Supreme Court decided Coleman V. Thompson. And that was a case where a Virginia capital defendant was barred from raising any of his post conviction claims because his state post conviction lawyer was three days late on filing a notice of appeal. And the Court, the US Supreme Court said, Well, you know, you don't have a claim of ineffective assistance of counsel for that, to cover that that error because you don't have a federal constitutional right to counsel in state post conviction. And that's still the law. But in 2012, the Supreme Court decided the Martinez case, which was a real step- more than a step in the right direction, it really allowed people to overcome deficient performance of state post conviction counsel by allowing a defendant in federal habeas to overcome the procedural default of a claim of trial counsel ineffectiveness. So if you're putting it in English, if your PCRA lawyer didn't act effectively, you could overcome that waiver of the federal claim by showing that the PCRA lawyer was himself or herself ineffective.

Corrie Woods: 24:05

But you need a record to do it. Yeah, yeah, you need a record, right. And that's where Shinn comes in. Shinn basically said, "Well, Martinez still exists, but you can't get a federal hearing." And so another enforceable right without a mechanism to enforce it. If you can't have a federal hearing it all kind of is meaningless, or in many cases, it'll be meaningless. So at the time I litigated Bradley, I even got some criticism from some of my colleagues. You know, what's this going to do to Martinez? Not my problem. My client has a claim of appellate counsel ineffectiveness, which is not covered by Martinez, so I need to litigate this. Then Shinn comes along, and now I'm a hero, in some eyes. Yeah, so it's all- I guess the reason I'm talking about this is that it's my hope that as we go forward, the Pennsylvania Supreme Court will realize that because of the current composition of the US Supreme Court and the Shinn decision, I think the handwriting is on the wall, that federal habeas is going to become less and less accessible to people. And that will mean that the vindication of important rights will not only be primarily decided by the state supreme court, but perhaps entirely. Yeah, I'll join that brief. One thing I wanted to ask it's just something that it's occurred to me as someone who does appointed post conviction work myself, if I have lost before the PCRA court in the first instance, what are my obligations to the clients to give him or her another bite at the apple? If I'm appointed, should I step aside and say, "Hey, maybe I messed up, let's give get you another counsel." And what is the PCRA court's obligation if I ask them to do that?

Michael Wiseman: 25:50

Yeah. Well, my personal practice is to advise clients in that type of position. And that would be, for example, a person I represent on direct appeal, who says, "Can you do my PCRA now?"

Corrie Woods: 26:02

Yeah.

Michael Wiseman: 26:02

And I feel obliged to point out the inherent conflict, because if I was ineffective in some way, I can't raise it. And so if I do, my policy is not to stay with cases in that posture. But if I do, I get a written waiver, so to speak. It's always uncomfortable to ask your client to waive a right, that is arguably in your own, you know, self serving for you. But I think people who I would do that with have a basic trust in me. Nonetheless, I get it in writing. You know, it wouldn't be out of line to to ask for the appointment of Bradley counsel? Did I just invent something? You know, to appoint someone else to look over the record to see "Yeah, maybe you did make a mistake. Maybe you missed something or didn't argue it properly."

Corrie Woods: 26:50

In my next motion, it will be a motion for Bradley/Wiseman counsel, rest assured. So footnote one of the decision, which I think was in part a response to Justice Mundy's view in dissent that this was a rulemaking decision that should go to the rulemaking bodies of the Supreme Court said, Well, sure this decision is quote in the nature of rulemaking and went on to say, Well, hey, we can also send this to the rulemaking bodies and find a way to sort of enact this in a way that is more legislative or quasi legislative. Do you have sort of a wish list of what that would be?

Michael Wiseman: 27:27

Well, yeah, I mean, I let me just back up and say that I think the among the prosecution amici everyone was in agreement- all amici were in agreement- that the system needed to be fixed. If I'm not mistaken, the Attorney General's amicus brief said, "Yes, it should be fixed, but it should be fixed by the Rules Committee." Yeah, I mean, if we were to have, you know, some codification of, you know, to fix this mess, and it's still a bit of a mess, if not a big mess, it would be to fashion a way to allow people to file claims of ineffectiveness in successive petitions because that's really going to capture the people who are left behind by Bradley. So that would be I think, number one on my list. I appreciate the competing concerns of, you know, endless litigation. But you know, it's a hard balance. But I think, you know, certainly in serious cases, people should have an opportunity to test the validity and the effectiveness of their PCRA lawyer who, in turn was supposed to question and litigate the effectiveness of trial counsel.

Corrie Woods: 28:35

So and this is important, where does Mr. Bradley and where does his case stand today?

Michael Wiseman: 28:39

Well, Mr. Bradley went back to the Superior Court who didn't require any additional briefing but issued a short opinion that said, "Yes, PCRA counsel was ineffective." And it remanded the case to the trial court for presentation of just the claims that were litigated in the PCRA appeal, which was a little disappointing to me, because I mean, you know, even in the context of public proceeding, I felt very crunched time-wise to do any extra record investigation for him. So I'm not sure that I've captured everything in that appellate brief that that's out there for him. And I may raise those claims anyway, even though I was told that they won't be considered, because I can ask the Supreme Court to, at least in theory to to revisit that limitation imposed by the Superior Court. So he's back in the trial court and I have an amended petition that's due in a couple of months that's going to raise the claims I raised on appeal, as well as the ones that I was told not to raise. Of course I'll properly note that. They're not properly before the court, but I'm raising them to preserve my client's rights to litigate them.

Corrie Woods: 29:52

As I understand it, Bradley creates sort of two kinds of claims that you can raise you can raise on the one hand ineffectiveness that is apparent on the record or is adjudicable on the record, or you can ask for a remand to do what you've done and go down and file your amended petition and so on. My reading of the Superior Court cases so far has been a little stingy with remands. And I wonder if you had any thoughts on that?

Michael Wiseman: 30:19

You know, it's funny, I just filed a Superior Court brief where I kind of felt like, "Huh, I wonder if they're going to grant this?" It was a case where I, in my 1925 statement on appeal, I was new counsel, I raised a number of ineffectiveness claims. The trial judge, in his opinion, said, these are all boilerplate claims, and they're not developed. And I'm thinking to myself, how are you supposed to develop a claim in a 1925 statement, which is titled concise statement of errors?You're told you have to be concise, but you know, this judge wanted me to further develop it so and plus, you can't go outside the record in a 1925 I can't just start bringing things in, I can't produce documents into that record, so I think there's more litigation and more thought that has to be given to this question by the appellate courts. And I don't know what the answer is. But my advice would be, you know, be as fulsome as as you can be, given the constraints that you're working under- both time constraints and, you know, just like 907 wasn't a perfect vehicle, a 1925 statement is not a very good vehicle either for, you know, presenting a well developed non boilerplate claim of ineffective assistance. So yeah, it's still a flawed system, but it's a little better than it was.

Corrie Woods: 31:41

Thank you, Attorney Wiseman. Thank you for your work on the case. And thanks for joining us today on The Standard of Review.

Michael Wiseman: 31:47

Okay, a lot of fun. Thank you.

Corrie Woods: 31:48

And that's all for today's first episode of the second season of The Standard of Review, by SCOPAblog. If you want to hear more, make sure to like or follow Woods Law Offices PLLC on Facebook, Twitter, or LinkedIn, and subscribe to The Standard of Review with your pod catcher of choice. You can also sign up for our newsletter at our website, WoodsLawOffices.com and get email notifications of new podcasts as well as SCOPAblog's monthly docket reviews, right in your inbox. Thanks for joining us today, and we'll see you next time on The Standard of Review.

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