Kevin Harden of Ross Feller Casey. Kevin Harden of Ross Feller Casey.
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Last month's $6.25 million settlement between the city of Philadelphia and Terrance Lewis—the highest-ever settlement in an exoneration case in Pennsylvania that did not involve DNA evidence—may signal, and possibly even spur, increased interest by the plaintiffs bar in bringing more wrongful conviction civil claims.

But lawyers familiar with these types of cases warn that they're not for the faint of heart—or the ill-prepared.

"I guess it's a business so I wouldn't be surprised if more [lawyers] got involved, but I'd caution them to know what they're doing," said Riley Ross, a partner at Mincey Fitzpatrick Ross in Philadelphia.

Nor are exoneration cases likely to become a major practice focus for plaintiffs attorneys.

Robert Levant of Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig in Philadelphia said that while most plaintiffs attorneys would be interested in pursuing a post-exoneration wrongful incarceration claim that came across their desk, these aren't the type of cases firms could necessarily build a practice area around.

"Of course, myself, Feldman Shepherd, where I am of counsel, and other plaintiffs firms would be interested, but these are not cases that come along frequently," Levant said, adding that these civil claims are typically steered to plaintiffs attorneys by the criminal defense lawyers who handle the underlying cases, so it's also not the type of litigation that firms can necessarily advertise for.

Ross said it made sense for Kevin Harden of Ross Feller Casey in Philadelphia, who represented Lewis, to take on that case, given that he has a background as a prosecutor and was instrumental in getting Lewis' conviction overturned on the criminal side.

"I was not surprised to see him take it over the finish line. That's who he is," Ross said.

And these are not cases attorneys can merely dabble in.

"You have to have a real inside knowledge of the system like Kevin Harden does," Levant said. "He did a phenomenal job turning the screws both from a litigation standpoint and a publicity standpoint" to compel the city to settle the case.

Teri Himebaugh, a veteran Philadelphia criminal defense lawyer, said she began her career as a civil rights attorney and still handles civil claims for her clients. She said she's careful to lay the groundwork in the criminal cases she handles so that she can later pursue civil rights claims on those clients' behalf.

Himebaugh said she makes sure to include the language "patterns, practices and customs" when alleging government misconduct in her Post-Conviction Relief Act petitions because that's what's required for a civil Monell claim, which is brought under 42 U.S.C. Section 1983 to hold municipalities liable for civil rights violations.

A lot of criminal defense attorneys "don't look at these cases in the same kind of context that I do because I started as a civil rights attorney," she said.

Ross said bringing these claims involves untangling a lot of procedural knots, and failing to properly do so could result in further harm to that client.

"The worst that can happen is someone who lost their freedom is injured again by someone who takes on that case and tries to win a civil verdict for them and doesn't know what they're doing," Ross said, noting that technicalities can often present major hurdles in these cases. (For example, in Lewis' case, a federal court determined in 2010 that, based on newly discovered evidence, it was likely Lewis was innocent. However, because of pending state court proceedings, the federal judge did not order Lewis' release.)

Still, as complex and relatively infrequent as these claims may be, attorneys said there are a few factors driving an uptick in exoneration cases in Philadelphia.

Harden said that although this is the first settlement from Ross Feller, the firm is looking to handle more cases and has a roster of clients, and the practice is one the firm is looking to devote significant time and resources to.

Historically, he said, Pennsylvania has not had many exonerations, in large part due to the many legal hurdles attorneys and litigants encounter. However, with recent changes in the law and an increased willingness of the courts to fully vet innocence claims, this has begun loosening up some.

The Lewis settlement came about six months after what had previously been the largest-ever settlement by the city of Philadelphia in a non-DNA exoneration case. In January, Shaurn Thomas, who served 24 years in prison for a murder he did not commit, secured a $4.15 million settlement with the help of a pro bono team from Dechert.

Ross said having a Conviction Integrity Unit in the Philadelphia District Attorney's Office with teeth has also helped bring some of these cases forward. As an example, there have been 14 overturned convictions during Philadelphia District Attorney Larry Krasner's administration.

Levant, who obtained a $10 million jury verdict in 2018 against a Philadelphia police officer on behalf of a man who was acquitted after a wrongful arrest, said exoneration cases can be attractive for plaintiffs attorneys where prosecutors have conceded that there was some wrongdoing on the part of law enforcement.

"When you have an exoneration that is supported by public pleadings from the DA's Office recounting a series of systemic breakdowns within the police department and its own office that led to the conviction of an innocent person, that is a tailor-made civil rights claim," he said. "The reason being that the city is left to have to consider defending the case when its own arm of law enforcement has taken the position that there was a complete and utter breakdown."

But Himebaugh noted that, even with an active CIU under the current DA administration, getting prosecutors to stipulate or concede to a pattern and practice of wrongdoing is not easy. That's in part due to the CIU being understaffed, but also because the CIU and the office's PCRA unit are often at odds on how to proceed, she said.

Meanwhile, the difficulty of exoneration cases, coupled with the stakes involved, can take a toll on both attorney and client.

"I think that's the most significant part of the case for me," Harden said. "For lawyers to understand that when you have one of these cases or are working to free someone from prison and the numerous obstacles, it can become a traumatizing experience and can be very stressful on the attorney client relationship."

Ross described these cases as "a heavy lift" emotionally.

"You are fighting against a system that makes it very difficult to undo prior convictions," he said.

But the fight is necessary, attorneys said.

David C. Williams, president of the Barristers' Association of Philadelphia and a partner at Kline & Specter, said Lewis' settlement "is remarkable and is a testament to the good work of his attorneys, particularly Kevin Harden."

"This result is particularly meaningful because Pennsylvania, unlike the majority of states, does not compensate wrongfully convicted persons," Williams added. "While no amount of money will ever make Mr. Lewis whole, this is a start. In the wake of the renewed and sustained focus on the ugly and unequal application of law enforcement and criminal punishment in America, lawyers should carefully review and prosecute more of these cases."

Ross also noted that, while there are jobs and housing programs for those who've been rightly convicted and served their time, there is no such assistance for those who've been wrongly convicted.

"You can't just say, 'Go enjoy your life,'" Ross said. "This person has been robbed of decades of their life. There has to be compensation for that, so that's what we're seeing."

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