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Public defenders in ACLU's sights Venango could face suit, as Allegheny did
Sunday, June 10, 2001 By Jan Ackerman, Post-Gazette Staff Writer
Across the nation, providing free legal services to poor defendants is mandated by the law but disdained by taxpayers.
Consequently, politicians don't want to spend a lot of money helping supply free lawyers to accused criminals.
Last week, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers announced that they were formally demanding that rural Venango County, about 85 miles north of Pittsburgh, either beef up its public defender program or face a lawsuit, as happened in Allegheny County in 1996.
The Venango commissioners responded in a prepared statement.
"The ACLU demands, if fully implemented, would cost the taxpayers of Venango County hundreds of thousands of dollars every year. Our first duty is to safeguard our taxpayers -- and we intend to do that vigorously," the Venango commissioners said.
Their solicitor, George Thompson, disputed claims made by a national consultant on indigent services who visited their county for one day in March. He said Venango was a county of "limited resources," but he believed that its public defender program met the standards required by law.
Pennsylvania is one of two states in the nation that provides no budgeted state money for legal services for the indigent, according to the Spangenberg Group, a nationally recognized consulting firm in West Newton, Mass., that specializes in ways to improve legal defense systems for the poor.
Each of Pennsylvania's 67 counties must devise its own method of paying for public defenders for those who don't have money to hire a private lawyer.
Witold "Vic" Walczak, executive director of the American Civil Liberties Union of Greater Pittsburgh, said the right of indigent defendants to the assistance of an attorney is guaranteed under the U.S. Supreme Court's 1963 declaration in Gideon v. Wainwright. That decision creates an absolute obligation on the part of government to fund public defenders offices.
"This is not a discretionary service that can be eliminated when there is a budget crisis," said Marvin Schechter, a New York lawyer who is co-chair of the Indigent Defense Committee of the National Association of Criminal Defense Lawyers.
But the law doesn't spell out how exhaustive a public defender program must be. Programs vary widely from state to state and county to county.
'One of the worst'
In some states, statewide agencies were established to provide indigent defense. Other states placed the responsibility on the counties while paying for some of the costs. There are no clear opinions about whether one is better than the other, but public defender programs that are allegedly inadequate have spawned lawsuits in Connecticut, Georgia, Illinois, Mississippi and New York.
"We see many terrible things, many cases of severe underfunding," said Schechter, who travels the country studying public defender systems. "Venango is one of the worst we have ever seen," he added.
Some public defender systems are good, said Scott Wallace, director of defender legal services for the National Legal Aid and Defender Association in Washington, D.C.
"Minnesota has a good system that is adequately funded, with a statewide public defender appointed by the governor," Wallace said.
"Florida has elected public defenders, and they have some of the better-run systems. San Diego has an innovative program. They invented homeless court because they were getting a lot of cases involving homeless veterans," he said. Across the nation, however, "Excessive caseloads and inadequate funding have put public defender systems in a crisis state."
In studying the nationwide impact of public defender programs, the Spangenberg Group found that only Pennsylvania and South Dakota budget no state money for indigent defense, although the Pennsylvania Commission on Crime and Delinquency awards grants to the state public defenders association for public defender training.
The Administrative Office of the Pennsylvania Courts does not keep statewide statistics on public defender offices, said Art Heinz, a spokesman.
"It is a county function," he said.
So it's hard to compare public defender programs around the state.
In Greene County, with a population of 40,672, there's just one public defender, Harry J. Cancelmi Jr., who technically works part time. He has a full-time secretary, and the county contracts with two other attorneys for overflow cases, but Cancelmi flies solo most of the time. The office budget for this year is $182,000.
"The problem is trying to be two places at a time," said Cancelmi, who's handled 119 cases since the beginning of the year. He might have to be at a hearing before a district justice scheduled at the same time as a proceeding in the courthouse 15 minutes away. "Like the airlines, you have to kind of double-book. Sometimes it's a battle to get to all the places you have to be.
"The compensation is not bad. And our court has been responsive in significant cases to get an expert investigator appointed."
The county commissioners have provided funds for training seminars and helped better equip the office, he said. "When I started there was no library, no computer equipment."
'It is really too much'
In Beaver County, with a population of 181,412, Wayne Lipecky is the director of the public defender's office. He is one of eight part-time attorneys in the office; there also are four full-time attorneys, two full-time investigators, a full-time office manager, three full-time clerical employees and a paralegal. The budget for this year is $797,319.
"We're much better than we used to be," said Lipecky, who has been there for 27 years. "Over the last few years, we have increased our staff. Of course the cases keep on coming in. I think if we had three additional people -- probably one clerical and two professionals -- we'd be in very good shape."
In Venango County, with a population of about 57,000, two full-time public defenders, working with a secretary and part-time paralegal/secretary, are trying to handle almost 1,200 cases a year -- everything from an attempted homicide to a spouse who doesn't want to pay child support. They often meet their clients only moments before a hearing is supposed to begin. The budget this year was $200,722, according to a report by Marshall Hartman, a nationally recognized expert on the rights of indigent defendants.
"I told them the burnout factor was tremendous," said Virginia Sharp, who resigned as Venango's chief public defender in March after years of working 40 to 50 hours a week in what had been one of three part-time lawyer jobs on the staff.
"It is quite a bit. It is really too much," said James Blackwood, 60, a former Erie prosecutor, who took over the chief job, which now is classified as full-time.
According to American Bar Association standards, the annual caseload of a public defender should not exceed 150 felonies or 400 misdemeanors or 200 juvenile cases or 200 mental commitments or 25 appeals.
Hartman found that a defendant who gets arrested in Venango County without enough money to hire a lawyer can sit in jail for three to 10 days without ever talking to legal counsel. He said 90 percent of the defendants were not interviewed by the public defender until the day of the preliminary hearing.
Hartman also found that all inmate applications for public defender services were reviewed by the county jail warden before they were forwarded to the public defender office. Thompson disputed that claim, but Walczak said four inmates interviewed last week plus a public defender validated Hartman's findings.
A political decision
In a June 4 letter the ACLU and Association of Criminal Defense Lawyers demanded that Venango officials hire more public defenders, an investigator and a social worker, and that they provide training.
In a prepared statement, the Venango officials said that while the Hartman report offered "a somewhat useful overview" of their criminal justice system, the demands made by the ACLU would force the commissioners to raise taxes by as much as 10 percent.
If Venango officials don't make some changes, the county could find itself facing a lawsuit similar to the one filed against Allegheny County's public defender office in 1996.
In early 1996, shortly after Republican commissioners Bob Cranmer and Larry Dunn won the majority on the three-member board in Allegheny, the commissioners decided to cut $1 million out of the $3.9 million public defender's budget. Those cuts led to the filing of the suit by the ACLU, which charged that the county had neglected its program to the point where indigent criminal defendants were not receiving proper legal representation.
The ACLU found Allegheny County's public defender's office offered no training, no law library, no desks and few investigators.
They had examples of cases in which imprisoned defendants didn't see their attorneys until the day of trial; in which a man was held in jail for 84 days because his public defender was too busy to investigate his problems; and in which a young man facing his first criminal charge sat in jail for 15 months without seeing a lawyer.
The suit was finally settled in 1998 with a plan that called for the county to spend an additional $2.6 million over the next five years to provide legal services to the poor.
How well things are going at this point is difficult to determine.
M. Susan Ruffner, director of the public defender's office, said she continued to hire staff and had a total of 103, including about 70 lawyers. She said 46 of those lawyers were full-time employees. Her budget was $4.84 million for 2000. It was increased to $5.72 million for 2001, according to the county Budget Office.
Robin Dahlberg, senior attorney for the ACLU in New York, called the Allegheny County public defender's program "a work in progress."
Even Pennsylvania's highly touted program to unify its state court system and transfer the costs to the state does not call for funding the public defender's program at the state level. But the ACLU is not suing the state.
Walczak said the ACLU believed that the state's continuing refusal to fund indigent defense contributed to the constitutional deficiencies in public defender representation.
"But we also do not believe that the Sixth Amendment requires the state to provide the funding. It only requires that the government provide a lawyer -- it doesn't say which government," he said. The Sixth Amendment requires criminal defendants to have the assistance of legal counsel in preparing a defense.
"Who is ultimately responsible is a political decision," Walczak said. "Our concern is that the end product comports with the Constitution."
Post-Gazette staff writer Lillian Thomas and Lisa Thompson, a reporter for the Oil City Derrick, contributed to the story.
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