Five decades after the U.S. Supreme Court’s landmark Gideon v. Wainwright decision, Pennsylvania is the only state in the nation that fails to assist counties in fulfilling the ruling’s mandate, state Sen. Stewart J. Greenleaf, R-Montgomery, told colleagues Tuesday at a state Capitol hearing on criminal defense for the indigent.
Greenleaf, who is sponsoring a measure to establish a statewide agency to train public defenders for “effective indigent defense,” made the statement at a hearing before the Pennsylvania Senate Judiciary Committee, where he was joined by members of Pennsylvania’s legal community lending their support to the proposed legislation.
Greenleaf is the chairman of the committee.
The session focused on SB 979, which would create the Pennsylvania Center for Effective Indigent Defense Legal Representation. According to the bill, the center would offer training for attorneys across the state, enhance capital-defense skills, and appropriate additional funding for criminal defense.
Phyllis Subin, executive director of the Pennsylvania Coalition for Justice, said her organization fully supported the bill. In addition to upholding the principles guaranteeing representation to those in criminal cases who cannot afford it, Subin said the bill aims to cut down the number of cases going through the appeals process due to inadequate representation at the trial level.
“When cases go through the appellate process,” Subin testified, “that costs the victims, but it also costs the county and the court system when we need to be able to do it right the first time around.”
Subin also said the underfunded county public defender’s offices also face greater repercussions for providing ineffective assistance to their clients.
“Defenders can be sued for ineffective assistance of counsel,” Subin said, therefore, “we have a greater burden in terms of effectiveness and those penalties.”
Greenleaf asked Lisette McCormick—the executive director of the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness who testified alongside Subin—what the consequences would be for poorly trained or untrained counsel, particularly in juvenile cases.
McCormick responded that a criminal record, even if expunged, “seriously impacts [a juvenile's] ability to get jobs and increases the risk of recidivism and diminishes loan, grant, and housing opportunities.”
In terms of funding for criminal defense, Pennsylvania Bar Association President Forest Myers in his testimony cited the “kids-for-cash” scandal as an instance where innocent people were incarcerated, due in part to the inadequate resources of the Luzerne County Public Defender’s Office.
Referencing a 2011 Joint State Government Commission report, Myers said, “In the ‘kids-for-cash’ tragedy, there were ’1,866 cases in which juveniles appeared before Judge [Mark] Ciavarella without counsel or where the right to counsel was not properly waived.’ The chief public defender in Luzerne County had given instructions to ‘de-emphasize juvenile cases because of a lack of resources.’”
Myers added that the bill addresses the shortcomings in the state’s indigent defense system and would provide $1 million to fund the proposed center.
Marc Bookman, head of the Atlantic Center for Capital Representation, testified that the need for effective training for lawyers involved in indigent defense is “urgent.” Bookman added that in Pennsylvania, poorly handled death-penalty cases are reversed on appeal more often than not.
An example Bookman gave of inadequate representation was an inexperienced lawyer using the reference of “an eye for an eye” in the closing arguments of a murder case. According to Bookman, the lawyer said the expression only applied in the context of the killing of a pregnant woman, but “since he had not attended the first part of the trial, he didn’t realize his client had been convicted of just that.”
Bookman said the case resulted in a death-penalty conviction that was later reversed. He added that providing well-trained counsel in indigent criminal-defense cases would cut down on appeals and thus constitute “huge” savings for the taxpayer.
Greenleaf asked Bookman what the general cost to the taxpayer was as a result of capital cases being ineffectively handled.
Bookman said that since two-thirds of the state’s death-penalty cases are reversed on appeal, the cost is significant and is a “waste of money.”
Helen Stolinas, president of the Public Defender Association of Pennsylvania, testified that there is a significant disparity between the funding of county public defender offices and district attorney offices.
“In terms of financial support, the [Pennsylvania] District Attorneys Association has resources that dwarf those available for those lawyers who defend the poor,” Stolinas said. “While the provision of training through the center will not completely address this disparity, it is a step in the right direction.”
Conversely, Lancaster County District Attorney Craig Stedman testified that county prosecutors face their own funding difficulties.
While acknowledging the importance of funding public defenders, Stedman said, “Despite the fact that prosecutors carry many more cases and responsibilities, public defenders in Pennsylvania receive large amounts of assistance from their federal counterparts that we do not.”
Stedman added that “large amounts of money” already exist to support the goals of the bill.
Judiciary Committee Minority Chairman Daylin Leach, D-Delaware, asked Stedman if he would agree that if, for example, a prosecutor had two investigators or researchers available to him in a case, a defender should have access to the same amount of support.
Stedman agreed that defenders should have equal access to support, but said that defenders and prosecutors should not have equal levels of funding.
“We have the job of building a sand castle. They have to stomp it. That’s not a criticism,” Stedman said, “but there are more resources that go into prosecuting a case than in the defense.”