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


COMMONWEALTH OF PENNSYLVANIA, :             No. 657 CAP
                              :
                Appellee      :             Appeal from Order entered on 4/4/12 in
                              :             the Court of Common Pleas of
                              :             Montgomery County, Criminal Division, at
          v.                  :             No. CP-46-CR-0002785-2005
                              :
                              :
JOHN EICHINGER,               :
                              :
                Appellant     :             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 to misuse, to fund the

obstructionist agenda by appellant’s counsel, the Federal Community Defender’s Office

(“FCDO”).1 There is no colorable question respecting appellant’s guilt 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 contest the charges against him, and

stipulated to the evidence. Thus, this is another matter 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 three 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.
FCDO, which burdened first the PCRA2 court, and now this Court, with an avalanche of

issues obviously seeking primarily to cause delay.

         As explained by the Majority, the FCDO sought appointment by the U.S. District

Court for the Eastern District of Pennsylvania three weeks after the U.S. Supreme Court

denied certiorari on appellant’s direct appeal, and was appointed to represent appellant

for purposes of federal habeas corpus review. The FCDO then used the ruse of that

appointment to enter its appearance in state court. The FCDO stalled the collateral

review process by filing a 144-page amended PCRA petition nearly two years later,

raising twenty-seven claims of error with numerous sub-issues. 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 appellant’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 memorialize here:

         If ever there were a criminal deserving of the death penalty it is John
         Charles Eichinger. His murders of three women and a three-year-old girl
         were carefully planned, executed and attempts to conceal the murders
         were employed. There is no doubt that Appellant is guilty 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 right to zealous
         advocacy at all stages of their criminal proceedings. A lawyer has a
         sacred duty to defend his or her client. Our codes of professional
         responsibility additionally call upon lawyers to serve as guardians of the
         law, to play a vital role in the preservation of society, and to adhere to the
         highest standards of ethical and moral conduct. Simply stated, we all are

2
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.



                                [J-52-2013] [MO: Eakin, J.] - 2
       called upon to promote respect for the law, our profession, 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 between a zealous
       defense and an agenda-driven litigation strategy, such as the budget-
       breaking resource-breaking strategy on display in this case. Here, the
       cost to the people and to the trial Court was very high. 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 Defender came with
       two or three attorneys, and usually two assistants. They flew in witnesses
       from around the Country. Additionally, they raised overlapping 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 PCRA trial level. After the

PCRA court denied relief, the FCDO filed an abusive Statement of Issues on Appeal,

listing twenty-seven claims of error in a case in which there 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 caseload to prepare a 129-

page opinion responding to the prolix, abusive claims, many of which were abjectly

frivolous. For example, appellant falsely claimed that the appointment of trial counsel

less than three weeks prior to trial amounted to a constructive denial of counsel. In

forwarding his argument, appellant notably ignored the fact that counsel was appointed

two days after his trial arraignment and six months prior to trial, and was fully prepared

to litigate the guilt and penalty phases of the trial.   Counsel believed, however, an

additional lawyer would be helpful and asked the court to appoint another lawyer to aid

him in litigating the case. The trial court granted the request. It is the appointment of

the second lawyer that, the FCDO averred, amounted to a constructive denial of



                              [J-52-2013] [MO: Eakin, J.] - 3
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, appellant raised overlapping issues: for

example he raised two separate issues challenging the same 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 appeal, 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 was filed late, raising a dozen principal

claims, including thirty-one prolix footnotes in single-space type. Following the filing of

the Commonwealth’s response, the FCDO filed a reply brief, but only after being

granted another extension of time.      The FCDO then had the temerity to begin its

argument on appeal with a claim that the PCRA court had denied appellant “full, fair and

reliable PCRA review,” an outrageous allegation given 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 appellate courts. See Commonwealth v.

Spotz, 99 A.3d 866, 875 (Pa. 2014) (Single Justice Opinion on Post-Decisional Motions

by Castille, C.J.); Commonwealth v. Spotz, 18 A.3d 244, 329-30 (Pa. 2011) (Castille,




                              [J-52-2013] [MO: Eakin, J.] - 4
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, continuing agenda. The time is past

due to consider removing the organization from state capital matters.




                             [J-52-2013] [MO: Eakin, J.] - 5
