Future unclear for Allegheny County Public Defender Michael Machen

Fitzgerald says changes are coming, and may include personnel moves

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Within days of the November election, Allegheny County Chief Public Defender Michael Machen had already told people within his office that he was being asked to leave.

New Democratic County Executive Rich Fitzgerald would not confirm then that Mr. Machen is out, but some local foundations have pledged to donate money to conduct a national search for the next public defender.

"We're going to be making changes within the office," Mr. Fitzgerald said. "Some of these changes may be personnel, and the way the office operates -- tracking, case management, etc."

He expects to make an announcement this week.

When a new person is chosen, experts say that the chief public defender will face myriad problems in 2012 and beyond, including budget cuts, low morale among attorneys within the office, as well as a bad reputation nationally.

"It's got to be someone who understands where the office is and has a vision for where they want to take it," said David Carroll, director of research for the National Legal Aid & Defender Association. "Someone that's going to be inspirational and move past this reputation.

"It's seen as a struggling system."

In 2008, the Allegheny County solicitor requested a study on the public defender's office after judges complained that attorneys in the indigent defense system were requesting too many continuances.

The study, completed in October 2008 by the Institute for Law and Policy Planning, revealed a number of problems in the system, including a culture of delay, lack of training for attorneys in the office, bad management, poor preparation and even lost case files.

Those problems were highlighted in a series of Post-Gazette stories in October, as well as a report by the American Civil Liberties Union of Pennsylvania. At the time, Mr. Fitzgerald said he understood that public sentiment may not be in favor of helping criminal defendants, but that it is constitutionally required.

"We need to do it. We need to do it right," he said. "Some of the items in the report are disturbing, and I do take them seriously."

The search

National searches have been conducted for a variety of public service positions over the years in Allegheny County, including for the director of Children and Youth Services in 1995, for the new jail warden in 2004 and for the superintendent of the Pittsburgh Public Schools in 2005.

In hiring Marc K. Cherna in 1996 to lead what is now Children, Youth & Families -- the only one of the three hires who remains in the region -- the then-Allegheny County commissioners created a 12-member committee to lead the search.

It was co-chaired by Jim Roddey, who later served as the first county executive.

He supports the idea of conducting a national search, even if the person eventually hired for a position is local.

"It validates the fact that they are justified [in choosing a local candidate,]" Mr. Roddey said. "Hometown talent is sometimes not appreciated."

But doing a national search also means bringing in new ideas.

"They're not bound by the parochialism of the Pittsburgh region," Mr. Roddey continued.

In 2004, newly elected county executive Dan Onorato created a 17-member advisory panel to do a national search to find a warden for the Allegheny County Jail.

The search was led by an executive search and human resources firm and cost $35,000. Of that amount, $25,000 came from private foundations.

Mr. Fitzgerald said that he is currently working "with experts in the field, including foundations, giving us guidance and expertise about how model offices operate."

In choosing a public defender for Allegheny County, Mr. Carroll believes the most important thing is "establishing a tradition of independence.

"The hiring process can go a long way toward doing that," said Mr. Carroll, a nationally recognized expert on right-to-counsel systems.

He suggests the creation of a search committee, consisting of private criminal defense attorneys, judges, civil attorneys, law school professors and community activists.

An advisory committee could help define the public defender position, its role in the criminal justice system and its expectations.

If the selection process goes well, Mr. Carroll said, the committee could also turn into a permanent oversight board.

Having private foundations donate money toward a public defender candidate search is not common, Mr. Carroll said, but it is a good idea.

"It professionalizes the search," he said. "You're making decisions based on the most qualified person vs. the cost of bringing them in to interview."

Further, Mr. Carroll continued, "it makes the whole process more open and transparent, because you're making the decision solely on the qualities of the candidate."

Mr. Roddey sees no problem with donated funds being used either, "as long as the foundations aren't trying to dictate the kind of person" to be chosen.

"As long as they aren't putting any conditions on a person, I think that's fine," he said.

Like Mr. Carroll, Mr. Roddey believes the most important quality of a new public defender will be independence.

"You need someone that will ignore the politics. That really starts at the top. You hire people to do the job, and you don't interfere with it," he said. "They set the tone. They can immediately take the politics out of it."

In his assessment, at least some of the problems in the public defender's office now are political, Mr. Roddey said.

"I think the problems have been political, that the public defender has not provided the kind of leadership he needed to provide," he said. "It's a tough position."

Supporters of Mr. Machen have complained that many of the problems within the public defender's office stem from the micromanagement of Mr. Onorato's county manager Jim Flynn, who will stay on at least temporarily with Mr. Fitzgerald.

The 2008 report that was critical of the PD's office -- as well as existing American Bar Association standards -- specify that indigent defense systems must be free of undue political influence.

"When a public defender makes decisions about how much time to put in on a case or whether to file motions based on his own job security rather than the best interests of the client, the Bill of Rights is subverted," Mr. Carroll said.

In leading the candidate search, Mr. Roddey said it's essential to find someone who is passionate about defending people and their right to quality counsel.

He suggests looking at communities that have good public defender offices and target either the top person -- if it's a smaller city -- or the second in command -- if it's a bigger city.

"You need someone that knows how to manage people," Mr. Roddey said.

The candidate for chief public defender is not automatically going to be the most flashy defense attorney, Mr. Carroll said.

"It's not necessarily the best trial lawyer that makes the best leader of an office. You need to be a consensus builder, to explain the Sixth Amendment and its necessities to policy makers."

The challenges

Allegheny County is not the only place in the state where the public defender system is flawed.

Experts believe the entire Commonwealth is.

Pennsylvania remains the only state in the nation that provides no funding to indigent defense. Instead, each county functions separately.

"Nationally, Pennsylvania, itself, is seen as one of the most dysfunctional states for the Sixth Amendment," Mr. Carroll said.

And although a statewide interbranch commission issued a report calling for massive overhaul last month, the recommendations are not likely to gain any traction, and the funding problem does not appear to be improving.

Instead, in the 2012 budget approved by Allegheny County Council last month, funding for the public defender's office was cut by $600,000 from what was proposed and by more than $800,000 from what was provided last year.

The amended budget for 2011 was $8.4 million. For 2012, the public defender budget is $7.6 million.

"If funding has been decreased, I don't know that anybody can come in and bring that office up to constitutional norms," said Witold Walczak, the legal director for the ACLU of Pennsylvania.

That could be a problem, he continued.

In 1996, the civil rights organization filed a class-action lawsuit against the county on behalf of indigent defendants. It alleged inadequate representation because of a lack of trained staff and unreasonable case loads.

The lawsuit resulted in a settlement agreement with the county that carried with it a higher attorney-to-client ratio; a nearly two-fold increase of attorneys and support staff and an increase in the number of investigators.

The agreement ended in 2005.

Mr. Walczak said the county could be facing litigation again if current problems within the PD's office aren't corrected.

However, he added that if the county shows a good faith effort to make improvements that his organization would hold off on filing a lawsuit.

Another of the challenges facing Mr. Fitzgerald in finding a qualified candidate is the chief public defender's salary.

Mr. Machen, who has worked in the public defender's office since 1984, earned $98,345 in 2011. That is considered to be in the low range of similar positions. But Mr. Carroll said pay would likely not be the most important factor.

"I would think people wouldn't be looking at the challenge because of a huge step in pay but the challenge of improving a reputation that's gotten bad nationally."

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


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