For the Defense - Volume 2, Issue 3 - 2017 - 10

wealth would not proffer expert testimony and
where the sentencer would not find expert testimony to be necessary."
The need for competent expert witness testimony during a juvenile LWOP proceeding cannot
be overstated. The Pennsylvania Supreme Court
vacated Batts' LWOP sentence in part because
the Commonwealth's expert rejected the scientific underpinnings of the governing U.S.
Supreme Court precedent. Therefore, there was
no evidentiary support for a finding that Batts
was "permanently incorrigible." A competent
expert witness opinion may have negated this
evidentiary gap.
A qualified expert should be familiar with the
recent developments in adolescent brain research
and developmental psychology. He or she should
also be prepared to opine on an offender's capacity for rehabilitation using the "Miller" factors,
and to help rebut an opposing expert's contrary
conclusion.

Request court assistance
in obtaining experts.

It has been said that the only difference between
LWOP and a death sentence is the date on which
you die in prison. Courts have agreed, and
have been required, to spend very significant
monies on mitigation experts and other expert
testimony in death penalty cases. Similar expertise is required for the evaluation, preparation
and presentation of a defense at sentencing in
these cases. It is not yet clear how courts will
respond to this, but we contend, and encourage
you to argue, that similar resources should be
made available to those representing juveniles
in these cases.

Do not fear
the crime.

Finally, do not fear that the ugly or shocking details
of the crime will torpedo your case. Remember
that: (1) only the most egregious of crimes are
subject to LWOP sentences, and (2) no crime, no
matter how cold-blooded, can justify a juvenile
LWOP sentence without an accompanying finding of incorrigibility. Even a horrific act of violence
does not automatically warrant a LWOP sentence

For The Defense | Vol. 2, Issue 3

if the attorney can establish the offender's capacity for rehabilitation. The circumstances of the
crime are really only relevant insofar as they relate
to the offender's amenability to change.
Good Luck!

Notes
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11.
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13.
14.

Miller v. Alabama, 132 S.Ct. 2455 (2012).
Miller, 132 S.Ct. 2455 at 2469.
See Commonwealth v. Batts, No. 45 MAP 2016, 2017 Pa.
LEXIS 1477 (Pa. June 26, 2017).
Vernon Bradley pleaded guilty to two counts of criminal
solicitation and received 20 to 40 years in jail.
See Commonwealth v. Batts, 125 A.3d 33 (Pa. Super. Ct.
2015).
Roper v. Simmons, 543 U.S. 551 (2005).
Miller, 132 S.Ct. at 2464 (quoting Graham v. Florida, 130
S.Ct. 2011, 2026 (2010).
See Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
See Montgomery, 136 S. Ct. 718 at 735.
The Court did not grant allocatur on the third issue
raised in Batts' allocatur petition: "In Batts II, this Court
held that a juvenile with a pre-Miller mandatory LWOP
sentence could not receive LWOP on resentencing. Did
the lower courts err in concluding otherwise?"
See Batts, 2017 Pa. LEXIS 1477, at *56 -*57.
Miller, 132 S.Ct. at 2466.
See Batts, 2017 Pa. LEXIS 1477, at *103. n. 23.
Id.

About the Author
Philip D. Lauer has practiced law in
trial and appeals courts in Eastern
Pennsylvania for over 40 years focusing
on criminal defense matters and a
variety of complex civil matters. In the
past, he served as a solicitor to local
municipalities and currently serves as
a solicitor to the Northampton County
Council. He is a frequent lecturer at legal
education seminars and has served on the
Pennsylvania Supreme Court's Advisory
Committee for the Criminal Rules of
Procedure. He received his juris doctorate
from the Dickinson School of Law and
his undergraduate degree from Lehigh
University.

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 3 - 2017