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New report critical of Indiana’s indigent defense

November 2, 2016
lefstein-norm-mug.jpg Lefstein

Stories of poor people being told to negotiate their pleas to criminal charges directly with prosecutors or denied a public defender because they made bail came as no surprise to Norman Lefstein.

“There’s a lot that’s unacceptable, but there’s nothing surprising to me,” Lefstein said of a critical 228-page report on Indiana’s indigent defense services released Oct. 24 by the Sixth Amendment Center. “The kinds of problems this report identifies in Indiana are what happens when you don’t really have a statewide enforcement system. … It’s a really half-baked system.”

Lefstein, a professor and dean emeritus at Indiana University Robert H. McKinney School of Law, chaired Indiana’s Public Defender Commission for 17 years and has studied, written and lectured extensively on public defense in Indiana and nationally. While he agreed with the report’s findings, he said they “stopped short of saying what really needs to be done, and that’s a statewide public defender system.”

The report found Indiana is failing to equally provide constitutionally mandated effective counsel to indigent people accused of felony, misdemeanor and juvenile offenses. David Carroll, executive director of the Boston-based Sixth Amendment Center, said there’s a crisis in indigent defense nationally, but Indiana is among the states most in need of help. Lefstein said past studies put Indiana in the bottom 10 states for per capita spending on public defenders.

The report doesn’t advocate wholesale overhaul of public defense but recommends increasing funding, standards, training and oversight for public defenders. Carroll said the model Indiana selects isn’t as important as accountability and ensuring the right to a lawyer in criminal cases is met throughout the state.

“That’s really what we’d like to see come out of this, is for one or all three branches of government to come together,” he said. “This isn’t going to be an easy fix.”

Indiana Public Defender Council Executive Director Larry Landis agreed but called for significant change. “We need to overhaul this system, not just make tweaks or minor adjustments. … There’s really no accountability for quality built anywhere into the system.”

Nothing standard

Indiana offers to pay counties 40 percent of the cost of providing lawyers for indigent defendants facing felony charges, but to get the money, counties must meet certain quality requirements set forth by the public defender commission. It’s been this way since 1990, Lefstein said; prior to that, counties were on their own to provide indigent defense. Some still are by choice. Of the state’s 92 counties, 37 opt out of state reimbursement, so there effectively are no requirements or standards for their public defenders.

Rep. Greg Steuerwald, R-Danville, chairs the Indiana House Judiciary Committee, and said it needs to take a look at the report. “They’ve done a good job of analyzing the situation over a wide variety of counties, and we need to take a look to make sure there’s consistency across counties that provide these services.”

He said it was important to find out why counties are opting out of a state program that reimburses 40 percent of the cost of indigent defense. “There will have to be some detailed data given so that people understand the depth of the issue,” Steuerwald said.

hill-robert-mug.jpg Hill

“A lot of counties try to do this on the cheap, and I think the report is correct in being critical of those counties,” Marion County Chief Public Defender Bob Hill said. He said Marion County participates in the state program, and he agreed with the report’s proposal to increase reimbursement from the state to 50 percent.

“Underlying the whole issue is the problem of trying to do things on the cheap when you’re trying to provide constitutionally required services to poor people,” Hill said. Even with reimbursement from the state, he said public defenders in his office are underpaid and overworked. He noted a third-year defender earns significantly less than a third-year Indianapolis Metropolitan Police Department officer. Among young public defenders who leave, he said more than 90 percent say in exit interviews that low pay is the reason.

The report looked at public defense in eight sample counties — Blackford, Elkhart, Lake, Lawrence, Marion, Montgomery, Scott and Warrick. The counties use a variety of means of providing indigent defense, with some participating in the state program, others using contracted lawyers and some using a combination. The report notes, “What actually occurs during the course of a case can look quite different from one county to another and even from one court to another within a given county.”

The report was commissioned by the National Association of Criminal Defense Lawyers and was prepared for the Indiana Indigent Defense Study Advisory Committee, with representatives from the judiciary, General Assembly, state bar, Indiana Public Defender Coucil and Indiana Prosecuting Attorneys Council, among others.

defenders-breakout.gifMaking change

The report says, “Lake County judges were observed to warn defendants who are in custody at the time of their initial hearing that, even if appointed an attorney at the initial hearing, if they subsequently post bail they have to try to hire their own attorney and their public defender may be removed from their case. One Lake County defender explained that he advises in-custody defendants it is better for them to stay in jail, because if they post bond they will have to pay for their own attorney.”

Marce Gonzalez took over as chief public defender in Lake County just days before the report was issued. A 31-year public defender who received the Indiana Public Defender Council’s Gideon Award this year, he said he’s already moved on those troubling observations. “That procedure has been corrected and amended,” Gonzalez said. “We are implementing a plan such that the judicial officers look past the ability to post bail and to a person’s income, assets, all the criteria, to determine indigency.

“In that respect, I think the Sixth Amendment Center study was helpful in inspiring this change,” he said.

Additionally, he said public defenders in Lake County are intervening earlier in cases, sometimes before being appointed. This helps preserve the rights of indigent defendants, and defenders can screen for people who may qualify for veterans court, mental health resources or other services.

But Gonzalez agreed more change is needed. He said funding is inadequate and stressed continuing legal education and statewide standards are imperative for effective indigent defense. He and others are dubious of practices in some counties where defenders are contracted by courts — pending litigation is challenging such practices in Allen and Johnson counties.

“The public defender has to be totally independent from the judicial branch,” Gonzalez said. “There’s a built-in question of whether the lawyer is zealously defending a client while at the same time looking over his shoulder as far as a paycheck that’s controlled by a judge.”

Landis noted Indiana in a typical year processes roughly 150,000 misdemeanor and 70,000 felony charges, and the state isn’t keeping up with its duty to defend indigent people as the U.S. Supreme Court mandated in the 1963 Gideon v. Wainwright decision.

“We don’t have a system designed to handle that kind of volume,” Landis said.•

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