Task force researches improving Indiana’s public defender system

The Indiana Lawyer | December 13, 2017

On the heels of criticism from a national
organization and multiple lawsuits challenging
Indiana’s public defender system, Indiana
lawmakers and legal stakeholders are beginning to
review the state’s public defense mechanisms to
identify strategies for improvement.

Led by retired 7th Circuit Court of Appeals Judge
John Tinder, the 17-member Task Force on Public
Defense was formed to address the concerns about
Indiana’s provision of indigent defense services
outlined in a report released by the Sixth
Amendment Center last year. The extensive
228-page report took issue with the Public
Defender Commission’s lack of oversight over
counties not participating in its reimbursement
program, and its inability to enforce cooperation
with commission-created caseload standards among
counties that do participate. The reimbursement
program offers to pay participating counties 40
percent of the cost of providing indigent defense
services, but due to funding troubles, the
commission has not always been able to reimburse the full amount promised.

As a result, even participating counties have
failed to maintain what the commission has
determined to be reasonable caseload
requirements. The result has been overworked
public defenders and concerns about ineffective
client representation. The task force was created
to examine those and other concerns about the
state’s indigent defense shortcomings and begin
developing a plan to fix the broken system.

“We’re taking a look at the particulars of that
report and other criticisms, and also positive
information about public defense in Indiana,”
said Tinder, who agreed to lead the task force
after the death of its original chair, Senior District Judge Larry McKinney.

“We’re going to hear from a variety of people
including courts and public defenders and those
who utilize public defenders to hear what their thoughts are,” Tinder said.

Getting the facts

The task force so far has met four times and is
still in the information-gathering phase of its
work. One of the central issues the members are
researching is how to exert quality control over
the 33 counties that choose not to participate in
the reimbursement program, said Larry Landis,
executive director of the Indiana Public Defender Council.

Without the promise of state money, there is no
leverage to force those counties to comply with
caseload maximums, Landis said. That problem is
exacerbated statewide with regard to misdemeanor
indigent defense, which is not reimbursed at all.
Thus, one of the task force’s first orders of
business is to find a better model to ensure
there is a level of quality control present in
indigent defense services across all counties, Landis said.

“There’s no constituency that demands high
quality services, and the consumer, the person
being represented, can’t fire their lawyer if
they’re providing poor quality representation,”
he said. “We’ve got a perfect storm in terms of
constitutionally mandated services, but … nobody
else is making sure there’s an adequate quality
of representation provided, and that’s what the task force is looking at.”

At the appellate level, the Sixth Amendment
Center report recommended the creation of a
statewide appellate defender office “as a check
against inadequate trial-level representation.”
Such offices are present in other states, but not
Indiana, said Joel Schumm, a professor at Indiana
University Robert H. McKinney School of Law, who
sits on the task force and chairs the appellate post-conviction subcommittee.

As part of its work, Schumm’s subcommittee has
been evaluating national standards and best
practices in other states to find which public
defense systems enable clients to receive the
most effective representation, he said. The main
goal is to develop an appellate system that
provides a level of consistency across the state,
considering each Indiana county currently has
autonomy to structure its services as it pleases

For example, Marion County has its own public
office, while other counties employ a contract
system in which public defenders who contract
with a court are called in to provide services
when needed. That system was the impetus for a
lawsuit filed in October 2015 against the Johnson
County Commissioners, county judges and a group of contracted public defenders.

Jon Little, an Indianapolis attorney representing
the plaintiffs, who are current and former
Johnson County defendants, said the contract
system has resulted in county public defenders
handling caseloads well over acceptable maximums.
That’s led to forced plea deals and minimal
contact between the defendants and their
court-appointed attorneys, Little said.

After the Shelby Superior Court dismissed that
case in January, it went before the Indiana Court
of Appeals for oral arguments on Dec. 7. Jessica
Wegg, counsel for the plaintiffs, told the panel
of judges Edward Najam, Elaine Brown and James
Kirsch the indigent defense system is
unconstitutional as applied in Johnson County
because the excessive caseloads cause the
defenders to provide counsel that is below the
constitutional requirements. Wegg found support
for the ability to challenge the public defense
system before a final outcome in her clients’
cases in Gideon v. Wainwright, 372 U.S. 335
(1963) and United States v. Cronic, 466 U.S. 648 (1984).

But Kyle Hunter and William Barrett, counsel for
the judges and county commissioners, grounded
their argument in Strickland v. Washington, 466
U.S. 668 (1984), which established a test for
determining whether an attorney provided
ineffective assistance of counsel. The Strickland
test could provide relief for the appellants, but
only once their cases have concluded, the attorneys said.

The Sixth Amendment Center also criticized the
contract system, calling on the state to prohibit
contracts that create conflicts of interests
among public defenders whose income is
contractually based on the number of cases they
hear. Considering the issues raised about
contract-based public defense, Schumm said his
subcommittee is evaluating all options to provide
a consistent method of competent, independent
representation for indigent defendants.

Collaborative effort

One of the greatest strengths of the Task Force
on Public Defense is its inclusion of
stakeholders from varied backgrounds, Tinder
said. The 17 members were selected from courts,
law schools, the Statehouse and other legal
organizations to provide a range of perspectives
that touch on all aspects of the criminal justice system, he said.

Justice Christopher Goff, who sits on the task
force, said the collaborative approach to sharing
perspectives and developing ideas among the
members is reminiscent of similar work he did
while on the Wabash Superior Court bench.

Wabash is one of the 59 Indiana counties
participating in the commission’s reimbursement
program, so he joined the task force with a prior
familiarity of the struggles public defender
offices can face in trying to comply with
commission-imposed caseload maximums.
Additionally, Goff said his county consistently
tried to implement best practices to make the
courts run efficiently and effectively, such as
introducing multiple problem-solving courts.

“What I found in my past job and in this one is
when you work in a collaborative process, it
benefits all parties concerned when you work
toward improving an area of common concern,” Goff said.

Members of the public also will be invited to
work with the task force on public defense
reform. At least three public hearings will be
held that will give stakeholders an opportunity
to express their concerns about the current
indigent defense system, or to offer their ideas for improvement, Landis said.

Additionally, Tinder noted the group is accepting
written comments via email or mail. Information
about hearings and comments will be posted on the
task force’s website,
www.in.gov/publicdefender/2333.htm, as it becomes available.

Looking to the future

Each of the task force members agreed it’s too
soon to predict what the results of their work
will be, though they did offer ideas about what those results could look like.

Landis, for example, reiterated his goal is to
create a system that empowers a state body to
evaluate and ensure compliance with commission
standards. Schumm predicted public defense
systems in other states will likely influence the
recommendations the task force puts forth for a revised system in Indiana.

Landis also emphasized the goal is not to
completely overhaul Indiana’s existing public
defense framework, but rather to take the
components that are working and build on them to
create a more effective system. The task force is
expected to begin turning its research into
recommendations by next summer, when it can then
begin planning to introduce potential legislation
during the 2019 legislation session.•

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