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The Journal Gazette

Thursday, December 15, 2016 10:00 pm

State's public defender system bashed

Virginia Black | South Bend Tribune

Two civil rights attorneys call for Indiana’s Supreme Court to oversee the state’s public defender system on the heels of a report that questions the "Indiana model" of hit-and-miss legal representation of poor people.

Indianapolis lawyer Michael Sutherlin and Fort Wayne lawyer David Frank planned to file a "petition for rule-making" today. The petition asks the state high court to ensure that training, payment systems and oversight of the state’s 92 counties are not only consistent but also meet constitutional requirements.

The 200-page report by a national nonprofit, the Sixth Amendment Center, was prepared for the Indiana Indigent Defense Study Advisory Committee. That committee includes representatives from the General Assembly, the Supreme Court, the state bar and judges associations, the Indiana Public Defender Council and Indiana Prosecuting Attorneys Council.

"The Right to Counsel in Indiana" highlights a number of issues, with inadequate funding and oversight a common theme. Among the most serious findings:

• Indiana provides a percentage of funding for public defenders. But counties are allowed to opt out of that state money, and many do, sometimes even cherry-picking for which cases to accept money. That means the state has no standing to review how well those counties are reviewing the activities of those public defenders.

• Nothing is in place to ensure that misdemeanor defendants are represented well, although the consequences of unfair convictions and plea agreements can be dire. The petition to the Supreme Court describes cases in which defendants see their defenders only briefly during court hearings.

• Some counties ask their public defenders – many of whom are part time and must also balance the needs of their more lucrative private clients – to log the time they spend on their indigent clients. But many also pay flat fees for those cases, which the report says encourages attorneys to spend as little time as possible.

• Public defenders are generally overloaded and lack access to training and investigatory help, meaning those attorneys are often left to assess a case based only on a police narrative of events.

• Even if Indiana’s system required more oversight of the quality of representation, the Public Defender Commission has only two staff members and cannot keep track of the hundreds of state courts, including town courts, juvenile courts and criminal courts.

To examine the system, the report’s writers studied eight counties of various sizes between February and October 2015: Elkhart, Blackford, Lake, Lawrence, Marion, Scott, Montgomery and Warrick. They collected data, observed courtrooms and interviewed many in the system.

Elkhart County was among six counties they found provided no training or supervision over public defender work.

In addition, "the estimated number of cases assigned to each Elkhart County public defender office attorney in 2014, applying the commission standards without adequate support staff, are startlingly high – in some instances more than 5 times the maximum allowed for an attorney in a year," the report says.

"The Right to Counsel in Indiana" points out that the system’s flaws do not mean all public defender representation is flawed. But if the system is designed to essentially offer poor people representation "in name only," it is constitutionally deficient – "an apt description of the constitutional right to counsel in Indiana today."