For the Defense - Volume 2, Issue 4 - 2017 - 5

Commonwealth v.
Jerome King and Beyond:
Trial Counsel's Obligation to Cooperate with
an Ineffective Assistance of Counsel Claim
Thomas J. Farrell

I

n the last issue of For the Defense, Professor
Jules Epstein brought to our attention
the recent Superior Court decision in
Commonwealth v. Jerome King.1 In King, the
Superior Court explained that since the scope
of a defendant's privilege waiver in bringing an
ineffective assistance of counsel claim is narrow
and indeterminate, trial counsel should not
meet with the prosecutor alone to discuss his
representation. While King's holding is narrow,
close analysis of its reasoning and of the relevant
ethical standards and case law compel the conclusion that discharged counsel has an affirmative
duty to cooperate in the ex-client's claim that the
attorney was ineffective. This article explores the
extent of that duty.

The King Facts and Rulings
Jerome King's 2006 trial ended with a murder
conviction and a sentence of life imprisonment
plus twenty years. Direct appeal yielded no
relief. The facts of the PCRA proceeding warrant
some elaboration, for while the detailed record
that was made is unusual, trial counsel's conduct
was not.
King's filing of a pro se PCRA petition caused
the court to appoint counsel. Before amending
the petition, PCRA counsel wrote trial counsel
to ask to discuss the issues he intended to raise
in the amendment. Trial counsel's epistolary
silence led to a phone call from PCRA counsel
and this response from trial counsel: "You're

nuts if you think I'm gonna help you."2 PCRA
counsel wrote again and (1) asked trial counsel
to reconsider and (2) advised trial counsel that his
continuing duty of loyalty to King forbade him
from speaking to or sharing information with any
Commonwealth representative.3 Eventually, trial
counsel responded with a letter that stated, "Be
advised that I will not be cooperating with you in
preparing the above matter. If there are further
questions, contact the Philadelphia District
Attorney's office."4
After various rulings and two appeals, the
Superior Court remanded for an evidentiary
hearing on a single issue: whether trial counsel
provided ineffective assistance by failing to
request a limiting instruction as to other bad acts
evidence.5
Unflagging in his persistence, PCRA counsel
wrote trial counsel again shortly before the
hearing and asked if he had a strategic reason
for the failure to request a cautionary instruction.
Trial counsel adhered to his non-responsiveness,
to this letter, to two phone messages, and to a
follow-up letter.6
PCRA counsel turned to the court next and
filed a motion to preclude the Commonwealth
from interviewing trial counsel ex parte in
order to prevent trial counsel from disclosing
privileged or confidential information. The
District Attorney responded with an email stating
that she already did contact trial counsel. The
formal response to the motion further explained

Vol. 2, Issue 4 | For The Defense

5



Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017

Table of Contents
Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
Changes in the DUI Landscape: Acts 33 and 30
Police Misconduct Resulting in Arrest: Weighing the Options
Dying with Dignity: Compassionate Release in Pennsylvania
Amicus Matters
Attorney Discipline
Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 1
For the Defense - Volume 2, Issue 4 - 2017 - 2
For the Defense - Volume 2, Issue 4 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 4 - 2017 - 4
For the Defense - Volume 2, Issue 4 - 2017 - Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
For the Defense - Volume 2, Issue 4 - 2017 - 6
For the Defense - Volume 2, Issue 4 - 2017 - 7
For the Defense - Volume 2, Issue 4 - 2017 - 8
For the Defense - Volume 2, Issue 4 - 2017 - 9
For the Defense - Volume 2, Issue 4 - 2017 - 10
For the Defense - Volume 2, Issue 4 - 2017 - United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
For the Defense - Volume 2, Issue 4 - 2017 - 12
For the Defense - Volume 2, Issue 4 - 2017 - 13
For the Defense - Volume 2, Issue 4 - 2017 - 14
For the Defense - Volume 2, Issue 4 - 2017 - 15
For the Defense - Volume 2, Issue 4 - 2017 - 16
For the Defense - Volume 2, Issue 4 - 2017 - 17
For the Defense - Volume 2, Issue 4 - 2017 - Changes in the DUI Landscape: Acts 33 and 30
For the Defense - Volume 2, Issue 4 - 2017 - 19
For the Defense - Volume 2, Issue 4 - 2017 - 20
For the Defense - Volume 2, Issue 4 - 2017 - 21
For the Defense - Volume 2, Issue 4 - 2017 - Police Misconduct Resulting in Arrest: Weighing the Options
For the Defense - Volume 2, Issue 4 - 2017 - 23
For the Defense - Volume 2, Issue 4 - 2017 - 24
For the Defense - Volume 2, Issue 4 - 2017 - 25
For the Defense - Volume 2, Issue 4 - 2017 - 26
For the Defense - Volume 2, Issue 4 - 2017 - 27
For the Defense - Volume 2, Issue 4 - 2017 - 28
For the Defense - Volume 2, Issue 4 - 2017 - Dying with Dignity: Compassionate Release in Pennsylvania
For the Defense - Volume 2, Issue 4 - 2017 - 30
For the Defense - Volume 2, Issue 4 - 2017 - 31
For the Defense - Volume 2, Issue 4 - 2017 - 32
For the Defense - Volume 2, Issue 4 - 2017 - 33
For the Defense - Volume 2, Issue 4 - 2017 - 34
For the Defense - Volume 2, Issue 4 - 2017 - Amicus Matters
For the Defense - Volume 2, Issue 4 - 2017 - 36
For the Defense - Volume 2, Issue 4 - 2017 - 37
For the Defense - Volume 2, Issue 4 - 2017 - 38
For the Defense - Volume 2, Issue 4 - 2017 - 39
For the Defense - Volume 2, Issue 4 - 2017 - Attorney Discipline
For the Defense - Volume 2, Issue 4 - 2017 - 41
For the Defense - Volume 2, Issue 4 - 2017 - 42
For the Defense - Volume 2, Issue 4 - 2017 - 43
For the Defense - Volume 2, Issue 4 - 2017 - Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 45
For the Defense - Volume 2, Issue 4 - 2017 - 46
For the Defense - Volume 2, Issue 4 - 2017 - 47
For the Defense - Volume 2, Issue 4 - 2017 - 48
For the Defense - Volume 2, Issue 4 - 2017 - 49
For the Defense - Volume 2, Issue 4 - 2017 - 50
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