Report says Pa. failing the poor in courts

Counties that need public defenders most can least afford them

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A draft of a report to be released next month calls for the creation of a statewide office in Pennsylvania to oversee the representation of poor people in the criminal justice system, concluding that the current system "labors under an obsolete, purely localized system, a structure that impedes efforts to represent clients effectively."

Although the draft, 151-page report is highly critical of the current state of indigent defense in the commonwealth -- Pennsylvania is the only state that provides no funding to defend the poor -- it suggests that the statewide office incorporate the current county-by-county structure of the public defenders' offices.

"[A] statewide office with Commonwealth support would help ameliorate the disparities in the quality of representation across counties and help equalize the resources allotted to PD and [district attorney] offices," the report said.

The report -- a result of a 2007 Senate resolution requiring the study of the Pennsylvania indigent defense system -- was provided Thursday to the Post-Gazette by Allegheny County Chief Public Defender Michael Machen, who serves on a task force advisory committee.

Lawrence Feinberg, staff attorney for the Joint State Government Commission, said he would not talk about the report until it is formally released.

The Pennsylvania task force includes Sen. Patrick M. Browne, R-Allentown; Sen. Jim Ferlo, D-Highland Park; Sen. Wayne D. Fontana, D-Brookline; and Sen. Stewart J. Greenleaf, R-Montgomery.

Calls to Mr. Ferlo and Mr. Fontana were not returned Friday.

The advisory committee that drafted the report includes 16 people from across the state, most of them attorneys.

The others from Allegheny County are Lisette McCormick, executive director of the state Interbranch Commission for Gender, Racial & Ethnic Fairness, and Witold Walczak, ACLU of Pennsylvania legal director.

Ms. McCormick would not comment on the unfinished report.

"No commission member wants to talk about the report because it's not ready for public release," Mr. Walczak said. "It should not have been [released]."

The draft report recommends that the newly created office administer its program by following the Ten Principles of a Public Defense Delivery System, approved by the American Bar Association and released in 2002.

Some of those principles include:

• Ensure that the public defender's office is an independent agency, free from undue political or judicial influence.

• Ensure that the public defender's workload is controlled to permit quality representation.

• Provide supervision and review to ensure quality and efficiency among the attorneys.

• Have vertical representation, with the same attorney continuously representing a client through completion of a case.

• Ensure that the defense attorney's ability, training and experience match the complexity of the case.

David Carroll, director of research for the National Legal Aid & Defender Association, said that generally, Pennsylvania fails at all 10 ABA principles.

"Pennsylvania is as far behind the curve in national standards as you can get," he said.

The system of indigent defense in Pennsylvania places the responsibility representing the poor entirely on individual counties, even though it is a federal requirement under the 1963 U.S. Supreme Court opinion in Gideon v. Wainwright.

Mr. Carroll, who spoke before the committee, said with the sagging economy, indigent defense is getting worse.

"Our constitutional rights are not allowed to be abandoned in poor economic times," Mr. Carroll said. "The counties that most need indigent resources can least afford it."

Several years ago, he led a study of the Venango County system. The conclusion was that those working in the system wanted to do things right, but without state funding, it was impossible.

"It's quite clear to me in the state of Pennsylvania that the quality of justice one receives is completely dependent on what side of the county line you're on when your crime is committed," Mr. Carroll said.

The committee recommendations suggest that the state govern services in every county except Philadelphia, where indigent defense is operated as an independent, nonprofit corporation governed by a board of directors.

Here are some of the issues outlined in the report:

• Interference in individual county indigent defense systems from county administration and judiciary.

• Lack of standardized training, supervision and accountability for public defenders.

• Lack of resources for effective representation, including investigators, experts and private work space.

• Inadequate salaries for public defenders, which are often below salaries of prosecutors.

• Excessive caseloads that prohibit effective representation.

In some places where caseloads have become overwhelming, public defenders' offices have filed litigation against their state governments. That has happened in Knoxville, Tenn., as well as in Minnesota and Missouri, Mr. Carroll said.

"Public defenders have an absolute ethical duty to only take the number of cases they can properly represent," he said.

Although improving indigent defense can be a tough sell because it is essentially asking legislators to dedicate money to those charged with a crime, it can be a bipartisan issue, Mr. Carroll said.

"You don't make it about criminals. It's about all of our rights as Americans," he said. "It's about fairness."

There have been success stories in other jurisdictions in recent years, Mr. Carroll said, including a complete overhaul of indigent defense in Montana in 2005 and a 400 percent increase in state funding in Louisiana in 2008.

On Thursday, the governor of Michigan issued an executive order to create a commission to draft new legislation to overhaul its right-to-counsel system.

Mr. Carroll believes that if the public understood what's at stake, there would be more drive to do it better.

"It is a core value that we as Americans hold in common -- whether we be conservative or liberal, white or black, rich or poor," he said. "When Pennsylvania policymakers realize how far off the mark they have fallen from the Sixth Amendment, I fully expect them to come together to fix these issues."

He suggests a public information campaign highlighting the number of cases that have been overturned based on newly discovered evidence in recent years.

"If we're not getting it right in the most high-profile cases, where resources aren't an issue, then what's happening at the bottom of the system?" he asked.

The report did not criticize the individual attorneys working in indigent defense.

"The problem is not the PDs themselves, but the system in which they work," it said. "Most PDs are hard-working, committed, and competent professionals. The problem is that they must work against daunting obstacles: inadequate training and oversight, severely limited resources, and unmanageable caseloads."


Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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