Justices won’t hear Johnson County public defender suit

The Indiana Supreme Court has denied transfer to a case challenging the constitutionality of Johnson County’s contract-based public defender system, a decision one of the attorneys representing county defendants said was disappointing and cowardly.

The court – excluding Justices Geoffrey Slaughter and Christopher Goff, who did not participate – unanimously denied transfer to Kenneth Alford, et al. v. Johnson County Commissioners, et al., 73A04-1702-PL-223, last week. The plaintiffs in the original 2015 complaint sued Johnson County and its judges and public defenders, alleging they had created a system that allowed public defenders to carry caseloads far exceeding acceptable maximums.

Specifically, the suit alleged many public defenders in Johnson County, and statewide, work part-time for the judges while also maintaining more lucrative private practices. That means the defenders who contract with counties will generally put their private practices first, the suit alleged.

Looking specifically at Johnson County, the suit further argued the county’s defenders do not receive adequate funding, which means their caseloads exceed both state and American Bar Association caseload standards. All of those factors lead to a violation of county defendants’ Sixth Amendment right to effective public representation, according to the complaint.

The plaintiffs, who are either current or former Johnson County inmates, alleged a variety of Sixth Amendment violations, including limited or no meetings with their appointed counsel and forced plea deals. But the Shelby Superior Court dismissed the complaint, finding that the issue of whether it could declare Johnson County’s system unconstitutional was non-justiciable. The trial court also found the plaintiffs’ proposed remedy — compelling the creation of public defender services in the county — was an impermissible “request to rewrite the statutory scheme of public defender services.”

“A Sixth Amendment question of whether a defendant received adequate counsel … is absolutely a question of law,” Indianapolis attorney Jonathan Little, one of the attorneys representing the plaintiffs, said. “It should never be dismissed on a motion to dismiss.”

Jessica Wegg, attorney at Saeed & Little, LLP, where Little practices, made a similar argument before the Indiana Court of Appeals in December. Wegg told the court that under Gideon v. Wainwright, 372 U.S. 335 (1963) and United States v. Cronic, 466 U.S. 648 (1984), prejudice caused by ineffective assistance of counsel can be presumed before the end of a trial when there is no meaningful adversarial testing, which means the Johnson County inmates could bring their claims now. The county posited the opposite theory, relying on Strickland v. Washington, 466 U.S. 668 (1984) to support the position that ineffective assistance of counsel claims can only be brought after a trial is over.

The appellate panel agreed with the county in a Dec. 29 decision, finding the complaint failed to properly raise claims for relief. Judge James Kirsch, writing for the unanimous panel, noted that Indiana’s Rules of Professional Conduct require attorneys to manage their own caseloads, so Johnson County’s entire system cannot be considered systematically flawed.

Further, because the complaint alleged the public defenders failed to provide effective assistance, the claims raised are for individual relief pursuant to criminal trial procedures, Kirsch said. Finally, Kirsch said there was no relief available to the plaintiffs because the only remedy would be to seek additional funds from the Johnson County Commissioners, which the county judges are able to do at any time.

Little called the justices’ decision not to take Alford cowardly and an example of disregard for the rule of law and the U.S. Constitution. He said his team plans to file a writ of certiorari with the U.S. Supreme Court, but he expects the federal courts to weigh in on the issues the complaint raises, even if SCOTUS does not hear the case.

“The federal courts are going to tell us the system is inappropriate and rife with conflict, and eventually it’ll change,” Little said. He cautioned that bringing about court-mandated change will likely be an expensive endeavor.

Problems with Indiana’s patchwork public defender system have been the subject of a critical 2016 report from the Sixth Amendment Center as well as a task force founded last year to address problems, led by retired 7th Circuit Court of Appeals Judge John Tinder.