Gideon Alert: Pittsburgh symptomatic of Pennsylvania’s right to counsel problems

BY David Carroll on Monday, October 17, 2011 at 11:38 AM

"[D]ysfunctional family life is rarely observed by individual family members, who are so entrenched in the process that they cannot really see it for what it is." Thus concludes Allegheny County Office of the Public Defender Assessment, a report by the Institute for Law & Policy Planning (L&PP). The study, commissioned by Allegheny County (Pittsburgh), explains why it is that public defense attorneys within deficient systems cannot understand the depth and breadth of the on-going, chronic right to counsel problems in their own jurisdiction.  Because of that, public defense attorneys often cannot fix their own systemic problems.  The L&PP report remained hidden from public view for over two years and only came to light through the committed effort of the American Civil Liberties Union of Pennsylvania (ACLU-PA) to get it released under Pennsylvania’s freedom of information laws.

On October 17, 2011, ACLU-PA released their own report, A Job Left Undone: Allegheny County’s Fork in the Road that places the L&PP report in the context of Allegheny County’s well-documented and problematic history of failing to provide competent counsel to poor people facing a potential loss of liberty in criminal proceedings. [Read ACLU-PA press release here.]  That history begins in 1995 when The Spangenberg Group (TSG), working under the auspices of the American Bar Association Standing Committee on Legal Aid & Indigent Defendants (ABA/SCLAID), released A Review of the Allegheny County (Pennsylvania) Public Defender Office, which concluded that the office had suffered from “years of neglect.”  Written seven years before the ABA adopted the Ten Principles of a Public Defense Delivery System, TSG still pin-pointed the root of the Pittsburgh problem as a lack of independence from undue political and judicial interferences (Principle 1), noting: “The County Commissioners’ appointed of the director of the Public Defender office, for at-will employment, creates a clear conflict of interest for the Director and seriously undermines the Director’s ability to make important budget, operations and personnel decisions.  The Director is placed in a position of making decisions based in part upon how the county government will react to those decisions.”
Without “independence” it is nearly impossible to ever meet the remaining nine ABA Principles, as demonstrated in the L&PP report and highlighted in a spotlight series beginning October 16, 2011 by the Pittsburgh Post-Gazette.  [For the Post Gazette’s stories on the lack of continuous representation by the same attorney (Principle 7), click here; the importance of training and supervision (Principles 6 & 10), click here; and, absence of parity (Principle 8), click here.]  If you can only read one article from the Post-Gazette series it should be the client story of Akinjo Akinwale, entitled “One man’s case from start to finish: Five attorneys and five months in jail included”.  Mr. Akinwale’s story shows the inadequacies of “horizontal” representation [i.e., the assembly-line approach to justice in which a different attorney handles each separate part of a client’s case (i.e., arraignment, pre-trial conferences, trial, etc.)].  National standards uniformly and explicitly reject this approach to representation, for very clear reasons, all of which are displayed in Mr. Akinwale’s story: horizontal representation inhibits the establishment of an attorney-client relationship, fosters in attorneys a lack of accountability and responsibility for the outcome of a case, increases the likelihood of omissions of necessary work as the case passes between attorneys, is not cost-effective (demonstrated by Akinwale’s unnecessary incarceration pre-trial, at great cost to taxpayers), and is demoralizing to clients as they are re-interviewed by a parade of staff starting from scratch.  
The L&PP report also accurately details all of the hidden costs being wasted in Allegheny on this approach to the right to counsel.  Because attorneys are not prepared and must, in essence, re-start the case as each new attorney touches the file, Allegheny’s criminal justice system is awash in continuances.  On average, L&PP reports that it is “routine” for every case to have “seven or eight” continuances sought.  “It should be noted,” the L&PP report states, “that the constant postponements drive up the perceived workloads of bailiffs, court reporters, police witnesses, and many, many, others at an overall expense beyond the imagination of most observers. . . .  A high continuance rate greatly debilitates the court and carries enormous hidden costs.  Every person connected to the courtroom must expend some increment of time in preparing, handling, or, at the very least, waiting for and ‘touching’ material for a case; this time and some effort is lost when the case is continued.  This terrible waste occurs each time there is a delay in a case’s movement towards disposition.”
The ACLU-PA’s involvement in Allegheny County’s right to counsel system also dates back to the mid-1990’s.  In Doyle v. Allegheny County Salary Board, the ACLU sued the county for failing to provide constitutionally adequate right to counsel services when county commissioners “not only refused to adopt reforms suggested in the ABA report, but they further cut the OPD’s budget, exacerbating an already dire situation.” A settlement was eventually reached, which called for “increased funding, staffing, training and management, as well as written policies promoting best practices.” And, for all of this, Allegheny tax-payers had to pay a million dollars just in attorneys’ fees to the ACLU.  And, as the flurry of reports and news stories make clear, Allegheny County has never lived up to the agreement.  Or, as the L&PP report states “[m]any of [the problems addressed in the ACLU lawsuit] persist today, contributing to a dysfunctional office culture where normative or even minimal performance expectations do not exist.”
In their new report the ACLU states that Allegheny County fails the ABA Ten Principles’ demand for workload controls (Principle 5), early appointment of meaningful counsel (Principle 3), and having an attorney’s qualifications match the complexity of the case (Principle 6) while calling on the county to implement a series of 30 recommendations first proposed in the L&PP report.
The Post-Gazette makes it clear in a story from October 17, 2011 that Pittsburgh’s persistent problems are symptomatic of the failure on the part of state government to take any responsibility for the adequate implementation of the 6th Amendment.  State government contributes no money to indigent defense services forcing it upon counties as an unfunded mandate.  While a state may delegate obligations imposed by the constitution, it must do so in a manner that does not abdicate the constitutional duty it owes to the people.  In other words, the state has an obligation to ensure that the counties are capable of meeting the obligations and that counties actually do so. Instead, Pennsylvania has no oversight mechanism to ensure its citizens that their constitutional right to counsel is being adequately provided in any of its counties. (Gideon Alerts has documented these failures in past stories here, here and here.)
Interestingly, the Post-Gazette published details of an as yet unreleased state legislative report.  The forthcoming findings and recommendations were hinted at in September 2011 when a similarly-constituted state legislative advisory panel – this one on wrongful convictions – released their report that stated: “An entirely county-based system creates a potentially destructive dependence on the county executive and the court of common pleas of the particular county that may cause the system to deteriorate due to understaffing, high caseload, low professional and support pay, and real or perceived pressure to sacrifice the clients’ interests for fear of incurring retaliation.  At least in some counties, caseloads are so high that it is virtually impossible for defenders to render competent and ethically adequate representation to all clients. Because there is no centralized office, essential data is not collected, professional training is inadequately provided and performance standards may not be formulated and implemented.” The unreleased legislative report on indigent defense, according to the Post-Gazette, calls for the creation of a uniform, statewide, state-funded system that will exclude Philadelphia County from the state system.  
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