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The debate over how best to run the defense of indigents who are “conflicted out” of Defender Association representation continues as the Philadelphia Bar Association waits for the common pleas court to issue a position paper as well as its promised request for a proposal for the $7.5 million conflict budget for defense of the indigent. At a recent meeting at Philadelphia Bar Association headquarters, defense attorneys expressed the fear that contracted defense work would result in even less money spent per case. Members of the defense bar have criticized the current system’s funding, with private appointed counsel saying the Guaranteed Fee System doesn’t provide enough for an adequate defense. But the recent skirmish over funding indigent defense services in the First Judicial District isn’t the first time the issue has been addressed in Pennsylvania. Two years ago, the American Civil Liberties Union took on the Allegheny County Public Defender program in the class action Doyle v. Allegheny County Salary Board and won a settlement in the case. Named as defendants, in addition to the salary board, were county commissioners Lawrence Dunn, Bob Cranmer and Michael Dawida and Chief Public Defender Kevin Sasinoski. The case settled in May 1998, and the settlement was approved by the Allegheny Court of Common Pleas in July of that year. The settlement resulted in what Stephen Presser, legal director of the ACLU of Pennsylvania, calls “profound changes” to the system as it existed in Allegheny County. In the two-part settlement, the defendants agreed to provide additional support staff that amounted to 80 percent of the staff at the district attorney’s office, phased in over three years. The office also agreed to promulgate new policies with the advice of a consultant. CLAIMS THAT SYSTEM UNDERMINES RIGHTS The six plaintiffs in Doyle said that Allegheny County’s public defender system undermined the constitutional rights guaranteed to indigent criminal defendants and cited “overwhelming case loads, severe understaffing, inadequate resources, defective policies and procedures, inferior physical facilities and other long-standing systemic problems” as the cause. They claimed they were, at the very least, at “serious and imminent risk” of being deprived of constitutionally and statutorily adequate assistance of counsel. At worst, they said, they were deprived of it completely. Not only were all the attorneys in the public defender Office so pressed for time that they had only a few minutes to talk with their clients before court appearances, all of them worked there on a part-time basis. “Allegheny County’s public defenders, despite their dedication and commitment, frequently are unable to engage in even the most basic functions of representation, such as conferring with clients in a meaningful manner prior to critical stages of their criminal or mental health proceedings, reviewing client files, assisting in the securing of witnesses, conducting pre-trial investigations and preparing for hearings and trials,” the complaint read. Problems were only exacerbated, said the plaintiffs, when the defendants in Doyle cut funding to the public defender by 27.5 percent in February 1996. It was the “deliberate indifference” of the defendants, as well as “inadequate facilities and resources, excessive case loads, defective policies and procedures,” that “produced a program that functions without regard for, and in violation of, constitutional and statutory mandates, Pennsylvania’s Rules of Professional Responsibility and accepted national standards for effective assistance of counsel, attorney workload, attorney training and office resources,” according to the complaint. The complaint named the standards of the American Bar Association, the National Study Commission on Defense Services, the National Legal Aid and Defender Association, and the National Advisory Commission on Criminal Justice Standards and Goals. The plaintiffs sought injunctive and declaratory relief pursuant to 42 U.S.C. Section 1983, the Pennsylvania Constitution, and the Commonwealth’s Public Defender Act, as well as various other provisions of state statutory law. UNHEEDED WARNINGS ABOUT FUNDING CUTS According to the complaint, Allegheny County officials slashed funding to the public defender even after they were warned not to by a private consultant. In November 1995, Allegheny County hired a consultant at the urging of the local ACLU to conduct a study of the county’s public defender system. The consultant’s report found that Allegheny County’s public defender office had fewer resources than virtually any other comparable public office in the United States. “People often have false ideas about what areas of the nation are the worst-funded, because what gets the most media attention are death penalty cases, and those are often in the south,” said Robin Dahlberg, senior staff attorney in the national ACLU office and of counsel on the Doyle case. “The case came to ACLU’s attention through our Pittsburgh office, and after enormous budget cuts were made, when the county government became Republican, and people thought this would be a great way to save money,” she said. “But as a result of that, some people were languishing in jail with improper sentences. Many were pressed into pleading guilty,” she said. The consultant’s recommendations: � Increase the expert budget of the public defender program. � Make public defender positions full-time. � Provide attorneys with continuing legal education. � Increase office space. � Promulgate new written policies and procedures. According to the complaint, the defendants ignored those recommendations and cut the budget of the public defender office from approximately $3.9 million to roughly $2.9 million. The county commissioners then brought in an assistant county solicitor to oversee the restructuring of the office necessitated by the budget cuts, a move the plaintiffs said “raised serious ethical questions,” because the county solicitor’s office appeared in opposition to the public defender office in some juvenile and all mental-health proceedings. The February 1996 budget cuts resulted in the immediate dismissal of 15 of the attorneys, approximately 20 percent of the clerical staff, all of the social-work staff, and all of the investigative staff. It also led to the dismantling of the pre-trial division. As of December 1995, the Allegheny County Public Defender system handled approximately 15,000 cases per year with a staff of 10 administrators or supervisors, 49 part-time public defenders, and 27 support staff. During the ensuing months, the defendants encouraged additional public defender staff to leave under a program designed to reduce the local government payroll. Although some attorneys and support personnel were eventually rehired, as of June 1996 the public defender office had seven administrators and/or supervisors, 38 part-time attorneys, and 20 full-time support staff. A lone legal assistant served the office; there were no paralegals to assist in researching and preparing cases. The plaintiffs’ team of attorneys — Witold J. Walczak of the Greater Pittsburgh chapter of the ACLU and Claudia Davidson of Healey Davidson & Hornack and Jere Krakoff, a Pittsburgh sole practitioner — were prepared to go to trial, but when the county became amenable to a settlement, they began negotiations, Dahlberg said. The case settled on the evening before trial. Would a trial have been better, and set more of a precedent for state standards? “You never know what you’re going to get when you go to trial,” Dahlberg said. “I think we probably would have gotten the same result. But this settlement is also a precedent. “This case showed that courts need to recognize there must be a minimum quality of representation. There needs to be an analysis that ensures there are a sufficient amount of resources for a baseline.” LOOKING BACK Two years later, the plans are still being implemented, although progress is slow, Dahlberg said. “They have a new public defender [Susan Ruffner] there now, who started in February and is committed to making changes. She is implementing a training program but has gotten some resistance from attorneys and judges who are used to doing things the old way. “It’s a process. It’ll be a couple more years until we get what we’re working toward.” Walczak said Ruffner has staffed the PD’s office as outlined in the settlement, but that was an easy task compared to changing the culture of indigent defense in Allegheny County. “The first part, adding more bodies, is coming to an end. Now we’re getting to the difficult part of the reform: changing long-standing bad practices. We need to change the culture,” Walczak said. For example, Ruffner has hired the investigators and social workers required by the settlement, but the lawyers have to learn how to use them effectively. “Cases are not worked up until the eve of trial, when it’s too late,” Walczak said. “The pre-trial motions are all boilerplate, filed without ever talking to the defendant. If a defendant wants a witness, they’re told, ‘Get them yourself,’ and the poor schmuck is sitting in jail. “The good news is that this public defender understands what needs to be done.” MAKING THE SYSTEM WORK What made the difference in quality representation in Allegheny County were both money and oversight, Dahlberg said. In general, she said she does not favor contracting defense work because the most common process simply awards the contracts to the lowest bidder without any other criteria. As a resident of New York City, where contracted defense firms have proliferated, Dahlberg said that “several high-quality legal groups” have entered the system but that the clients of private court-appointed counsel suffer because those attorneys are not well-funded. The New York State Bar Association is involved in a lawsuit over the issue. If Philadelphia is to learn any lessons from Doyle, Dahlberg said, it is the toll that a lack of money and resources take on the system for political reasons. “When you cut back on funding, it throws the whole criminal system into turmoil. People lose faith in the system, and it isn’t just the defendants. They have families. It alienates people in the community who are of the same background as the defendants when they think they can’t get a fair trial.” Walczak said that, despite the current concerns over indigent defense in Philadelphia, advocates in Pittsburgh look covetously at Philly. “The Philadelphia Public Defender is nationally respected, and we’re nowhere close to providing the type of services Philadelphia provides,” he said. “Here, everyone knew indigent defense was a joke, and no one — not the lawyers or the judges — gave a sh–. That’s what gives lawyers a bad name. But that’s not the case in Philadelphia. It has a history of serving the poor.”

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