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COA hears challenge to Johnson County public defender system

December 8, 2017

As a statewide task force begins the process of analyzing deficiencies in Indiana’s indigent defense services, a group of Johnson County criminal defendants sought to keep alive a lawsuit against their court-appointed public defenders. The defendants Thursday urged the Indiana Court of Appeals to reinstate their suit alleging ineffective assistance of counsel before their cases have concluded.

Appellants Kenneth Alford, Terry Hasket, Richard Daniels, Richard Bunton, Keith Nye, Wardell Strong and Anthony Owens sued their Johnson County public defenders, as well as the county judges and commissioners, in October 2015, alleging the county officials and employees violated their Sixth Amendment rights to counsel. Specifically, the appellants argued the public defenders had caseloads far exceeding acceptable maximums, resulting in forced plea deals, rare in-person meetings with their lawyers and general ineffective assistance of counsel.

The appellants further argued the judges and commissioners knew of the excessive caseloads, yet had done nothing to mitigate the situation, thus violating their constitutional rights to counsel. They sought a judgment declaring Johnson Country’s public defense system inadequate, but a special Shelby Superior Court judge dismissed the case on ripeness and separation of powers grounds, among other reasons.

Counsel for the appellees used similar logic to urge the Indiana Court of Appeals to affirm the grant of their motion to dismiss during oral arguments Thursday in Kenneth Alford, et al., v. Johnson County Commissioners, et al., 73A04-1702-PL-223. Kyle Hunter, counsel for the judicial appellees, pointed specifically to the case of Strickland v. Washington, 466 U.S. 668 (1984), to argue the case is not yet ripe for judicial review.

Strickland sets for a test for determining whether a litigant received ineffective assistance of counsel, but the relief offered through Strickland if counsel is found to be ineffective is only available once a case has concluded, Hunter said. Thus, the appellants’ claims are premature, he said.

But Jessica Wegg, counsel for the appellants, said Strickland doesn’t apply here and instead supported her position with the cases of Gideon v. Wainwright, 372 U.S. 335 (1963) and United States v. Cronic, 466 U.S. 648 (1984). Those decisions support the idea that prejudice can be presumed before the end of a trial when there is no meaningful adversarial testing, Wegg said, enabling her clients to bring their claim now.

From a separation of powers standpoint, William Barrett, counsel for the commissioners, said the appellants’ claims would require the court to intervene in a legislative function.

Under Indiana Code section 33-40-7-3(a), county executives are given the option of establishing a public defender board that determines how indigent defense services will be administered. The appellants put forth the creation of such a board as a possible remedy to Johnson County’s alleged public defense flaws, but Barrett said an injunction requiring the creation of a public defender board would be an impermissible judicial intervention in the Legislature’s discretion.

Wegg, however, said the primary goal of her clients’ litigation would be to receive a judgment declaring Johnson County’s public defense system unconstitutional. While the creation of a public defender board is a suggestion they put forth as a possible remedy, she said any remedies beyond the declaratory judgment could be determined by allowing county legislators to look to best practices across the country.

Judge Edward Najam was the most vocal judge on Thursday’s appellant panel, which also included judges Elaine Brown and James Kirsch. Najam had numerous questions for the attorneys, many related to what remedies are or could be available to the appellants.

Hunter stressed that under Strickland, the appellants could seek relief in the future by filing ineffective assistance of counsel claims at the end of their cases. He also noted Indiana Supreme Court precedent has said an excessive caseload does not constitute per se ineffective assistance of counsel.

Wegg, however, said she was advocating for the ability to conduct discovery and take the case to trial in the hopes of reaching the desired remedy of a declaratory judgment.

The appellants also raised a breach of contract claim, arguing the public defenders breached their contract with the county judges by providing ineffective assistance of counsel, thus affecting the appellants as third-party beneficiaries. But Barrett said the claims raised in the complaint address legal malpractice and, thus, sound in tort law, not contract law.

The full oral arguments can be viewed here.

As the appellate court considers the local Johnson County case, a group known as the Task Force on Public Defense is evaluating statewide indigent defense practices to develop a plan for improvement. The task force was formed after the Sixth Amendment Center released a 228-page report criticizing several aspects of Indiana’s public defense system.  

The task force, led by retired 7th Circuit Court of Appeals Judge John Tinder, met earlier today and will hold its next meeting on Feb. 9.

Read more about efforts to improve public defender systems in the Dec. 13 Indiana Lawyer.

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