Over 300 Eligible Individuals Facing Criminal Prosecution Without Legal Representation
PHILADELPHIA - The American Civil Liberties Union of Pennsylvania filed a class action lawsuit today against Luzerne County, alleging that gross and chronic underfunding of its Office of the Public Defender (OPD) has led to widespread violations of poor criminal defendants' constitutional right to adequate counsel. The lawsuit requests a preliminary injunction to allow the OPD to continue to decline representation until caseloads reach manageable levels, to lift a hiring freeze to allow the OPD to fill numerous vacancies, and to order the county to pay for private counsel to represent over 300 indigent criminal defendants who are currently without a lawyer.
This past December, faced with limited resources after Luzerne County commissioners repeatedly refused his requests to authorize adequate funds, Chief Public Defender Al Flora, Jr., determined that overwhelming caseloads were preventing his lawyers from providing representation that met constitutional and professional standards. To remedy the problem, he began restricting new cases to only the most serious ones, such as murder, sex and other felonies, that resulted in pre-trial detention -- leaving many individuals to face criminal prosecutions without lawyers. To date over 300 eligible individuals have been turned away.
"The right to adequate legal representation applies to everyone in this country - not just those who can afford it," said Reggie Shuford, executive director of the ACLU of Pennsylvania. "Luzerne County's failure to meet even the most basic constitutional standards for legal representation has life-long consequences for those who must rely on the Office of the Public Defender for their defense."
Flora is suing his employer, Luzerne County, to compel sufficient funding to enable his lawyers to provide legal representation that meets constitutional and professional standards. Flora's fellow plaintiffs in this lawsuit are three individuals who have been charged with crimes but denied legal representation.
"Flora's decision to risk his job and career by suing his employer is a courageous one," said Witold "Vic" Walczak, legal director for the ACLU of Pennsylvania. "Few public defenders around the country have had the fortitude to take the fight for the rights of their indigent clients to this level, and Flora should be commended for doing so here.".
According to the lawsuit, Luzerne County has refused to adequately fund the OPD for many years and provides over twice as much funding to the Luzerne County District Attorney's Office. A report issued in December 2011 by a state legislative commission studying indigent defense blamed, in part, the so-called "kids for cash" scandal, in which judges accepted money for sending juvenile defendants to private, for-profit detention facilities, on the fact that the OPD did not provide adequate representation to juveniles due to a lack of resources. State records show that 50 percent of juveniles appearing in Luzerne County Juvenile Court appeared without benefit of counsel - nearly 10 times the state average. Virtually all of the unrepresented youths were convicted and sentenced to detention.
In May 2010, in the wake of the "kids for cash" scandal, Flora took over as Chief Public Defender. The following month he provided the Luzerne County commissioners with a status report on the OPD that detailed the significant problems with office operations, including caseloads for attorneys that far exceeded the national maximum caseload standards, too few attorneys to meet caseload demands, a lack of clerical staff and investigators, and severely inadequate information technology. In the conclusion of the report, Flora warned that his office could not continue on such a small budget and would have to begin declining applications for representation if the county did not increase staffing.
In both his 2011 and 2012 budgets, Flora recommended, as a first step, hiring two appellate lawyers, as none of the trial lawyers on staff had appellate experience, and filling open vacancies. Both times his requests were denied. On December 12, 2011, Flora sent a letter to the President Judge of the Luzerne County Court of Common Pleas stating that the OPD would start declining eligible defendants for counsel due to a lack of resources. In February 2012, the county cut Flora's budget even further and then instituted a hiring freeze, which prevented the replacement of three attorneys who have left the office.
"The right to counsel means more than having a warm body with a law degree assigned to you," said Walczak. "Under our system of justice, defense lawyers must have the time and resources to counter the prosecution with equal vigor. This is not happening in Luzerne County."
According to the lawsuit, the woeful lack of resources for the OPD has resulted in:
- Missed deadlines in appeals because attorneys with no appellate experience are handling these cases;
- No representation of clients at preliminary arraignments;
- Repeated requests for continuances due to overwhelming attorney caseloads, resulting in defendants remaining in jail much longer than needed before their trials;
- Little consultation with clients throughout the process, resulting in attorneys without a full understanding of a case;
- Attorneys spending valuable time on clerical matters as the Adult Unit has no paralegals or trial assistants; and
- Inadequate investigation in cases as the OPD only employs three investigators to assist twenty-one attorneys.
The American Bar Association has stated that full-time attorney caseloads must not exceed 150 felonies, 400 misdemeanors, 200 mental health cases, or 25 appeals per year. As documented in the complaint, the OPD's caseloads exceed these numbers, even for the lawyers who work only part-time.
The United States Supreme Court recognized the constitutional right to counsel in Gideon v. Wainright (1963). In Gideon, the court held that, whenever a person is accused of a state crime for which jail time might be imposed and that person cannot afford an attorney, the state is obligated to appoint and pay for an attorney who can provide an "effective" and "adequate" defense against the charges.
Pennsylvania is now the last state in the nation that does not provide state funding to the counties' public defenders offices. Under the state's Public Defender Act, every county in Pennsylvania (except Philadelphia) must appoint a public defender to provide representation for indigent criminal defendants prosecuted in its county.
Three other plaintiffs in this case are individuals who have since December been charged with crimes and who have been turned down under the OPD's case cap. Well into the criminal-defense process, these individuals have been forced to proceed without lawyers, a clear constitutional violation. They ask that the court certify the case as a class action on behalf of the other individuals for whom Luzerne County has failed to appoint counsel.
This is the ACLU of Pennsylvania's second lawsuit challenging the adequacy of a public defender's office. In 1996, the ACLU-PA sued Allegheny County on a similar claim that inadequate resources resulted in overwhelming caseloads that led to systemic constitutional violations. That case was settled on the eve of trial in 1998, with an agreement that the county would double the office's budget and staff. The ACLU nationally has ongoing lawsuits to improve public defender's offices in New York, Michigan and Washington states.
The lawsuit is Flora, et al. v. Luzerne County. Flora and the class of eligible individuals who were turned down by the OPD for legal counsel are represented by Stephen McConnell, Alicia Farley, Nathan McClellan and Sean McConnell of Dechert LLP in Philadelphia; David Rudovsky of Kairys, Rudovsky, Messing & Feinberg, LLP in Philadelphia; Kimberly D. Borland of Borland & Borland, LLP in Wilkes Barre; and Walczak, Mary Catherine Roper, and Hilary Emerson of the ACLU of Pennsylvania.