Citing Report, ACLU and NACDL Say Defense of Poor Is in Jeopardy in Venango County, PA

FOR IMMEDIATE RELEASE

PITTSBURGH–A nationally recognized expert’s review of the Venango County Public Defender Program reveals a system in crisis that is failing to provide adequate counsel to the poor, the American Civil Liberties Union and the National Association for Criminal Defense Lawyers said today.

“The right to effective counsel is at the heart of our criminal justice system,” said Witold Walczak, director of the Pittsburgh chapter of the ACLU. “That right means more than having a warm body sit next to you. It means having a lawyer who has the time and the resources to prepare your defense.”

In a June 6 letter to county officials accompanying the report, the groups urged specific reforms, including the hiring of additional attorneys and para-professional staff, adherence to national standards for public defender systems, and an end to the local warden’s violation of client-attorney confidentiality and interference with defendants’ cases.

After receiving complaints about the program in early 2001, the ACLU and NACDL commissioned Marshall Hartman, a national expert in indigent defense systems, to conduct an assessment of the program.

Hartman concluded that the Venango County Public Defender program is so understaffed and under-resourced that it cannot provide clients with the type of legal representation required by the Sixth Amendment to the United States Constitution, which guarantees a right to counsel (see fact sheet at http://archive.aclu.org/news/2001/n060701b.html).

While the program’s two public defenders are diligent and well-intended, Hartman said, their case loads are so large and varied and their resources so meager that they do not have the time to meet clients before appearing in court, much less to prepare cases in manner required by the Constitution and in keeping with professional norms.

“Even the finest criminal defense lawyers in the country would be unable to provide adequate representation under such circumstances,” said Kate Jones, an attorney with the NACDL.

The ACLU and NACDL have called upon the County’s Commissioners to remedy these deficiencies immediately by hiring additional attorneys and para-professional staff, providing new and existing staff with training and mentoring opportunities, developing a case management system, and eliminating policies that permit the Warden of the County Jail to interfere impermissibly in the public defender application process and impede attorney-client communications.

Today is not the first time the ACLU has been called upon to remedy serious deficiencies in a public defender system in Pennsylvania. In 1996, the ACLU filed a major class-action lawsuit against Allegheny County for failing to give its indigent defense system the resources necessary to provide constitutionally adequate legal representation.

That lawsuit was settled in 1998 on the eve of a courtroom trial with an historic agreement that provided substantial remedies for the problems that plagued the system.

Walczak said that the quality of representation provided to indigent defendants varies widely throughout the state, in part because Pennsylvania provides no funding or oversight for such services. It and South Dakota are the only two states in the nation to take such a “hands-off” approach.

The Hartman report is available from the ACLU national office and its Pittsburgh chapter and from the NACDL offices in Washington.

The letter follows:
____________________________________

June 6, 2001

Robert Murray, Chair
Debra Lutz
Larry Horn
Venango County Board of Commissioners
Courthouse Annex
1174 Elk Street
Franklin, PA 16323

Re: Office of the Public Defender

Dear Commissioners:

The American Civil Liberties Union (“”ACLU””) and the National Association of Criminal Defense Lawyers (“”NACDL””) again write to you to express concern about the resources available to the Venango County Public Defender Office. In our letter dated March 23, 2001, we communicated our initial assessment that the Public Defender Office caseload could not be handled by two full-time attorneys. This assessment has been confirmed by our expert consultant, Marshall Hartman, in “”Report on Public Defender Office, Venango County, Pennsylvania,”” a copy of which is enclosed. Mr. Hartman’s findings demonstrate that the Public Defender Office cannot provide constitutionally adequate representation to poor clients in Venango County at its current staffing and funding levels. We ask that you take immediate action to remedy what we believe is a crisis situation.

As Mr. Hartman’s report makes clear, the caseloads of the two public defenders are so large and of such a varied nature that the attorneys are unable to provide constitutionally adequate legal representation. Although each attorney is dedicated and committed to his clients, both must spend roughly 2500 hours per year on public defender matters to handle all of the cases assigned to the Office. Neither has the time or the resources to confer with clients in a meaningful manner prior to critical stages in their proceedings, to conduct independent investigations of the charges against their clients, or to engage in the type of adversarial advocacy contemplated by the Sixth Amendment to the United States Constitution and Article I, section 9, of the Pennsylvania Constitution.

The Office has only one part-time investigator, who also functions as a paralegal, and one administrative assistant. Its budget of $155,000 is $200,000 less than the District Attorney’s budget, even though the Office handles at least 75% of the cases brought by the District Attorney and many other matters in which the District Attorney is not involved.

The following measures must be taken in order to bring the Public Defender Office in compliance with national standards and the requirements of the federal and Pennsylvania constitutions:

1. Fund and employ six (6) full-time staff public defenders at salaries equal to their counterparts in the District Attorney’s Office.

Mr. Hartman’s report documents the insufficiency of two full-time staff attorneys. Based on the number of hours required to handle the current caseload assigned to the Public Defender Office and the amount of time public defenders must spend in-court, six full-time staff attorneys are minimally necessary to meet the constitutional and statutory requirement of effective representation. Public Defender Office staff attorneys should be paid salaries equal to their counterparts in the District Attorney’s Office.

2. Fund and employ one (1) full-time investigator at the Public Defender Office.

National standards governing the provision of indigent defense services emphasize the importance of conducting a prompt and independent investigation into each case in order to effectively counsel a client on whether to plead guilty, to prepare for trial, or to aid a client at sentencing. A staff investigator conducts investigations when a public defender is in court or otherwise occupied so that time and work pressures do not preclude thorough investigation; brings specialized training and experience to the investigation; and is essential when interviewing witnesses so that there is someone present during the communication who is available to testify at trial. As revealed in Mr. Hartman’s report, the Public Defender Office conducts almost no independent investigation. To remedy this deficiency, the Public Defender Office must have the services of at least one full-time investigator.

3. Fund and employ one (1) full-time social worker at the Public Defender Office.

National standards recognize that the services of a full-time social worker are crucial for ensuring appropriate evaluation and disposition. A social worker assists in the development of a sentencing plan that best suits the needs of the client and the community, including arranging for services to prevent recidivism. A social worker also helps to identify those clients who may best be diverted pre-trial to special programs that save the time and expense of trial and lengthy incarceration. According to Mr. Hartman’s report, the Public Defender Office does not consult with a licensed social worker. A full-time social worker must be employed at the Public Defender Office.

4. Bring all juvenile delinquency cases into the Public Defender Office and use outside private counsel only for conflict cases.

Except in cases of conflict, all indigent defense services should be provided by the Public Defender Office. The provision of such services by one service provider will enable the County to engage in the type of oversight and management necessary to ensure that constitutionally adequate legal representation is provided to all those who are entitled to assigned counsel.

5. Fund the development of a computerized case management system in the Public Defender Office and the conversion of all files in the office to that computerized system.

A computerized system would track case progress, manage attorney assignments and time, and provide accountability to the county for the office’s activities. A computerized system also would ensure that conflicts of interest are identified promptly so that cases are not delayed by the discovery of a conflict long after the initial assignment. The manual case management system currently utilized by the Public Defender Office is inefficient and risks error. The Public Defender Office must convert to a computerized system.

6. Fund a training budget sufficient to provide comprehensive management and trial practice training to staff attorneys.

Mr. Hartman’s report indicates that the Public Defender Office staff attorneys need comprehensive training in areas such as management, trial advocacy, and specialized areas of criminal case representation. The Public Defender Office, with the assistance of an outside consultant, should complete a training needs assessment and develop a plan to provide management and trial skills training to the Chief Public Defender and all staff attorneys that will meet the staff training needs over the next two years. Training should not be limited to the twelve (12) hours of mandatory continuing legal education (“”CLE””) required by the Commonwealth of Pennsylvania and should include attendance at national training seminars.

7. Fund travel expenses for the Chief Public Defender to visit a designated “”mentor office”” and receive training in management practices.

In cooperation with the American Council of Chief Defenders, a public defender office of similar size and caseload should be identified to mentor the Venango County office in developing policies and procedures that ensure both efficiency and effective representation. Funds should be made available for the Chief Public Defender to visit the mentor office at least once. A continuing relationship between the offices can be maintained through regular long-distance communication.

8. End the warden’s involvement in screening for indigency and assigning cases to the Public Defender Office and change jail policies that prevent communication between incarcerated individuals and the public defender.

Currently, the warden of the jail reviews an inmate’s application for a public defender. This practice is unconstitutional and must be ceased immediately. There is no legal reason for the warden to be involved in the indigency screening process, particularly because many clients include confidential information about their cases on the application forms. Additionally, the average three-day delay between completion of a public defender application and receipt of that application at the Public Defender Office violates national standards. Finally, inmates must be permitted to contact their attorney by phone, and public defenders must be able to visit clients in the jail in the evenings.

Approximately one year after recommendations 1-8 have been approved and funded, the County should fund an audit to ensure proper implementation and that the office is in compliance with national standards. The audit should be performed in early 2003 by a mutually agreed upon outside consult.

Because we have concluded that the Public Defender Office cannot provide constitutionally adequate representation at its current staffing and funding levels, this matter requires your urgent attention. We would appreciate the opportunity to meet with you within the next two weeks to discuss possible resolutions. Vic Walczak will contact you to arrange a convenient time.

We hope you will accept our offer to work with you to make the necessary changes listed above. It is our desire, as we are sure it is yours, to avoid costly and time consuming litigation; however, if you have not committed to making these changes by August 1, 2001, we will have no choice but to seek assistance from the courts.

Respectfully,

___________________________
Witold J. Walczak, Esq.
Executive Director
ACLU of Greater Pittsburgh
313 Atwood Street
Pittsburgh, PA 15213

___________________________
Kate Jones
Indigent Defense Counsel
National Association of Criminal Defense Lawyers
1025 Connecticut Avenue NW, Suite 901
Washington, DC 20036

___________________________
Robin Dahlberg, Esq.
Senior Attorney
ACLU
125 Broad Street
New York, NY 10004

___________________________
Marvin Schecter, Esq.
Co-Chair, NACDL Indigent Defense Committee
475 Park Avenue South, Suite 3300
New York, NY 10016

___________________________
James E. Boren, Esq.
Co-Chair, NACDL Indigent Defense Committee
830 Main Street
Baton Rouge, LA 70802

encl
cc: Hon. H. William White
Hon. Oliver J. Lobaugh
Hon. William E. Breene
George G. Thompson, County Solicitor
Joseph J. Liotta III, President, Venango County Bar Association
Jim Blackwood, Chief Public Defender
Virginia Sharp, former Public Defender
David R. Eshelman, President, Pennsylvania Association of Criminal Defense Lawyers (PACDL)
Caroline M. Roberto, Immediate Past President, PACDL