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Petition to Supreme Court seeks statewide public defender system

December 15, 2016

Advocates for reforming Indiana’s patchwork approach to public defense for indigent Hoosiers announced they have petitioned the Indiana Supreme Court for a statewide system to remedy what they describe as an unfair, unequal and underfunded system.

Civil-rights lawyers and experts in public defense staged a Statehouse news conference Thursday to announce a petition with the court for rulemaking to create a statewide public defender system.

The push comes after an October report from the Sixth Amendment Center that Indiana University Robert H. McKinney School of Law dean emeritus Norman Lefstein called “a damning indictment” of the state’s failure to meet its obligation to provide counsel to poor people charged with a crime. Lefstein chaired the Indiana Public Defender Commission for 17 years.

“I am here today to state the model Indiana created to provide for the constitutional right to counsel simply does not work,” said Sixth Amendment Center executive director David Carroll. While the state is obligated to provide defense to the indigent under the U.S. Supreme Court’s landmark 1963 Gideon v. Wainwright decision, 37 of 92 counties don’t participate in a state reimbursement program. Carroll said the state has no mechanism to ensure its obligation to provide counsel is being met.

Indiana’s system “both institutionalizes and legitimizes counties’ choices not to fulfill the minimum parameters of effective representation required by the U.S. and Indiana constitutions,” Carroll said.

Even those counties that do participate in the state reimbursement system lack the proper support to sufficiently meet their obligations, lawyers said. They said the Indiana Public Defender Commission has just two staff members and little enforcement power over counties that do participate in the state reimbursement program.

Indianapolis attorney Michael Sutherlin and Fort Wayne attorney David Frank have filed lawsuits targeting public defense provision in Johnson and Allen counties, respectively. The suits challenge local public-defender practices that they say fail to provide an adequate defense for indigent people charged with crimes.

Sutherlin and Frank contend current systems in some counties where public defenders are arranged by contracts overseen by judges, for instance, carry built-in conflicts. Sutherlin said many public defenders are overburdened with unmanageable caseloads, prosecutors have greater power in such arrangements, and in some cases indigent defendants languish in jail until they accept a plea bargain.

The 228-page Sixth Amendment Center report studied public defense in eight representative Indiana counties. It found varied problems such as defendants being encouraged to negotiate their own pleas directly with prosecutors and being told they could not be appointed a public defender if they could afford bail.
 
But it also found a system where the quality and availability of public defenders varies from county to county and even court to court within the same county.

“Many courts use non-uniform indigency standards to deny counsel to defendants who would otherwise qualify for counsel in a neighboring county,” Carroll said. “The public defense systems in many Indiana counties have undue judicial interference, undue political interference … that produce conflicts between the lawyer’s self-interest and the defendant’s right to effective representation.”

“Public defense in America faces a crisis. Indeed we’ve been in a crisis for decades,” Lefstein said. “It has long been an unfunded mandate and states by and large have never developed the systems nor appropriated the adequate funding necessary to provide the kind of defense services that would guarantee that the poor are well-represented by effective and competent advocates.

“What needs to happen in Indiana?”  Lefstein said. “… Getting to the kind of reform we need is the challenge. But I think it lies in having a statewide public defense system.” He recommended a system governed by an independent commission whose members are chosen by various appointing authorities and whose members select a state chief public defender. Among other things, such a commission could set qualification and caseload standards for public defenders.

Sutherlin said lawyers and academics familiar with public defense in Indiana “can see the flaws, can see the solutions, we just need to see the political will.”

 

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