[J-52-2013] [MO: Eakin, J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**JOHN EICHINGER, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 657 CAP**  **Appeal from Order entered on 4/4/12 in the Court of Common Pleas of**  **Montgomery County, Criminal Division, at No. CP-46-CR-0002785-2005** 

**ARGUED : June 19, 2013** 

CONCURRING OPINION

MR. CHIEF JUSTICE CASTILLE DECIDED: December 31, 2014 **I join the Majority Opinion as well as the Concurring Opinion by Mr. Justice**  **Stevens. I write separately because this state capital case is another example of the**  **consequences of federal taxpayer money being diverted t o misuse, to fund the**  **obstructionist agenda by appellant’s counsel, the Federa l Community Defender’s Office**  **(“FCDO”). 1**  **There is no colorable question respecting appellant’s g uilt for the brutal**  **murders of three women and a three-year-old infant. At the guilt phase of his bench**  **trial, appellant did not offer a defense, did not co ntest the charges against him, and**  **stipulated to the evidence. Thus, this is another matte r where the claims on collateral**  **review should have been limited. But, enter the self -appointing and well-financed** 

**1 In the court below, appellant was represented by thr**  **ee FCDO lawyers: Michael Wiseman, Esquire, Hunter Labovitz, Esquire, and Maria**  **K. Pulzetti, Esquire. The FCDO Briefs on appeal were prepared by Attorneys Labovitz**  **and Pulzetti. [J-52-2013] [MO: Eakin, J.] - 2** 

**FCDO, which burdened first the PCRA 2**  **court, and now this Court, with an avalanche of issues obviously seeking primarily to cause delay.**  **As explained by the Majority, the FCDO sought appoin tment by the U.S. District**  **Court for the Eastern District of Pennsylvania three we eks after the U.S. Supreme Court** 

**denied** certiorari

**on appellant’s direct appeal, and was appointed to re present appellant**  **for purposes of federal** habeas corpus **review. The FCDO then used the ruse of that appointment to enter its appearance in state court. Th**  **e FCDO stalled the collateral review process by filing a 144-page amended PCRA petit**  **ion nearly two years later, raising twenty-seven claims of error with numerous sub-i**  **ssues. The PCRA court then conducted twenty-two days of hearings, during which the**  **FCDO had two or three lawyers present each day, and presented no less than five**  **mental health experts. In response to the FCDO’s scorched-earth attack upon appel**  **lant’s trial counsel and the Commonwealth’s final judgment, the PCRA court**  **set aside its other cases and senior judges were enlisted to keep the court running.**  **The PCRA court detailed the effect of the FCDO agenda in its opinion, which I memo**  **rialize here:**

**If ever there were a criminal deserving of the death penalty it is John**  **Charles Eichinger. His murders of three women and a th ree-year-old girl**  **were carefully planned, executed and attempts to conce al the murders**  **were employed. There is no doubt that Appellant is g uilty of these killings.**  **There is overwhelming evidence of his guilt, including multiple admissions**  **to police, incriminating journal entries detailing the murders written in**  **Appellant's own handwriting and DNA evidence. We recognize that all criminal defendants have the rig**  **ht to zealous advocacy at all stages of their criminal proceedings. A l**  **awyer has a sacred duty to defend his or her client. Our codes of pr**  **ofessional responsibility additionally call upon lawyers to serve**  **as guardians of the law, to play a vital role in the preservation of soci**  **ety, and to adhere to the highest standards of ethical and moral conduct. Simply st**  **ated, we all are**

**2 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.** **[J-52-2013] [MO: Eakin, J.] - 3**

**called upon to promote respect for the law, our professi on, and to do**  **public good. Consistent with these guiding principles, the tactics used in**  **this case require the Court to speak with candor. This case has caused**  **me to reasonably question where the line exists betwee n a zealous**  **defense and an agenda-driven litigation strategy, such as the budget**  **breaking resource-breaking strategy on display in this ca se. Here, the**  **cost to the people and to the trial Court was very hig h. This Court had to**  **devote twenty-two full and partial days to hearings. To carry out the daily**  **business of this Court visiting Senior Judges were brought in. The District**  **Attorney's capital litigation budget had to have been impacted. With**  **seemingly unlimited access to funding, the Federal Defen der came with**  **two or three attorneys, and usually two assistants. They flew in witnesses**  **from around the Country. Additionally, they raised o verlapping issues,**  **issues that were previously litigated, and issues that were contrary to**  **Pennsylvania Supreme Court holdings or otherwise lacked merit.**  **Opinion, Carpenter, J., July 25, 2012, at 1-2. The abuses did not end with the FCDO attack at the P**  **CRA trial level. After the PCRA court denied relief, the FCDO filed an abusive S**  **tatement of Issues on Appeal, listing twenty-seven claims of error in a case in which th**  **ere is no doubt that appellant was guilty and where the aggravators virtually ensured**  **that any responsible jury would**

**return a sentence of death. The PCRA court again was required to set aside its caselo**  **ad to prepare a 129- page opinion responding to the prolix, abusive claims,**  **many of which were abjectly frivolous. For example, appellant falsely claimed tha**  **t the appointment of trial counsel less than three weeks prior to trial amounted to a const**  **ructive denial of counsel. In forwarding his argument, appellant notably ignored t**  **he fact that counsel was appointed two days after his trial arraignment and six months pri**  **or to trial, and was fully prepared to litigate the guilt and penalty phases of the tria**  **l. Counsel believed, however, an additional lawyer would be helpful and asked the cour**  **t to appoint another lawyer to aid him in litigating the case. The trial court granted t**  **he request. It is the appointment of the second lawyer that, the FCDO averred, amounted t**  **o a constructive denial of [J-52-2013] [MO: Eakin, J.] - 4** 

**counsel. The PCRA court dismissed the claim noting that “[a]ppellant wasn’t left without**  **an attorney up until three weeks before trial, as [his] argument seems to suggest.**  **Appellant was ably represented first by [trial counsel] and then by a team of competent**  **trial counsel.” Id. at 59. In a similar vein, appell ant raised overlapping issues: for**  **example he raised two separate issues challenging the sam e expert testimony. Id. at**  **72-79. Appellant also contended that his waiver of a jury was not knowing, but then**  **separately argued, in the next issue, that he made an uninformed agreement to a bench**  **trial. Id. at pp. 52-56. I offer these as but a few examples of the frivolous and**  **duplicative issues pursued by the FCDO. Not content to end the abuse with the PCRA court, the**  **FCDO then fixed its attention on this Court. After filing a notice of ap**  **peal, the FCDO filed three requests for extensions of time to file its brief, and subsequently**  **asked for an additional three-day extension (which was never granted), as well as a request**  **to exceed briefing page limitations. Ultimately, a seventy-five page brief w**  **as filed late, raising a dozen principal claims, including thirty-one prolix footnotes in single-sp**  **ace type. Following the filing of the Commonwealth’s response, the FCDO filed a reply b**  **rief, but only after being granted another extension of time. The FCDO then ha**  **d the temerity to begin its argument on appeal with a claim that the PCRA court h**  **ad denied appellant “full, fair and reliable PCRA review,” an outrageous allegation give**  **n the time and resources the judiciary and the Commonwealth had to devote in the**  **face of this federal attack – all in a case where guilt is not an issue.**  **As I have stated elsewhere, the FCDO’s strategy has taken a substantial and**  **unwarranted toll on the state trial level and appell ate courts. See Commonwealth v.**  **Spotz, 99 A.3d 866, 875 (Pa. 2014) (Single Justice Opi nion on Post-Decisional Motions**  **by Castille, C.J.); Commonwealth v. Spotz, 18 A.3d 24 4, 329-30 (Pa. 2011) (Castille,** **[J-52-2013] [MO: Eakin, J.] - 5**

**C.J., concurring); Commonwealth v. Roney, 79 A.3d 595 , 644-46 (Pa. 2013) (Castille,**  **C.J., concurring), cert. denied, 135 S.Ct. 56 (2014). Pennsylvania is not obliged to**  **indulge the FCDO’s obstructionist and unethical, continui ng agenda. The time is past**  **due to consider removing the organization from state capital matters.**