The Pennsylvania Supreme Court recently announced its decision in the case of Kuren, et al. v. Luzerne County, et al., 57 MAP 2015 and 58 MAP 2015, finding that indigent defendants can be “constructively” denied counsel where underfunding of the Public Defender’s Office creates “widespread, systematic deficiencies” that “deprive indigent defendants of the traditional markers of legal representation.” Slip op. p. 47. The Court’s decision is expected to result in similar cases filed against other Pennsylvania Counties, putting Counties at risk of being compelled by the courts to increase funding for Public Defender’s Offices.
The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall…have the Assistance of Counsel for his defense.” U.S. Const. Amend VI. A right to counsel is similarly outlined in Article I, Section 9 of the Pennsylvania Constitution. The Supreme Court, in Gideon v. Wainwright, 372 U.S. 335, 342 (1963), held that this right extended not only to federal court proceedings, but also to state court proceedings, and required the states to provide counsel to all criminal defendants who cannot afford to pay for an attorney. Pennsylvania has addressed this obligation by passing the Public Defender Act, 16 P.S. §9960.3, which requires every County to maintain a Public Defender’s office for purposes of compliance with Gideon.
The creation and general operation of a public defender’s office, according to Justice Wecht on behalf of the Court, constitutes a facial attempt to comply with the mandate in Gideon. However, the Court in Kuren found that these offices are “chronically underfunded and understaffed, and are hard-pressed to meet the baseline demands of the Sixth Amendment, raising the disconcerting question of whether counties are complying with Gideon.” Slip op at p. 2. The Plaintiffs’ overarching allegation was that the limited time and resources that the Luzerne County Office of the Public Defender could devote to each case resulted in representation that failed to meet constitutional norms. Slip op. p. 10.
In particular, the Plaintiffs contended that: (1) the OPD could not sufficiently train its employees so that they had adequate knowledge of the relevant areas of the law and therefore attorneys lacked proficiency in relevant areas of the law, (2) limited staffing prevented the office from assigning attorneys to assist clients at initial arraignments, (3) limited staffing along with heavy caseloads and inadequate resources resulted in attorneys routinely postponing hearings or having inadequate time to meet fully with clients before significant case decisions had to be made, (4) time constraints prevented rigorous investigation and review of case materials or witness investigations necessary to challenge the facts alleged by the Commonwealth against the indigent defendants, (5) lack of resources impeded public defenders from being able to maintain regular and sustained contact with the client or conduct meaningful discussions about cases beyond brief interactions immediately prior to hearings, and (6) workloads prevented the performance of work with reasonable diligence and promptness. Slip op. pp. 12-14.
While normally a denial of counsel claim is pursued in a post-conviction motion for ineffective assistance of counsel, requiring proof of failures to file motions, interview witnesses and similar deficiencies, the Supreme Court noted that many courts have held that indigent defendants are entitled to prospective relief as well, given that the right to counsel is relevant at almost every single stage of the criminal case. Slip op. pp. 34-36. Deficiencies that do not meet the “ineffectiveness” standard can nonetheless violate the right to counsel even where they did not affect the outcome of the trial, because a defendant may suffer a prolonged pretrial detention, potentially meritorious motions are not filed, and the like. Slip op. p. 47. For the Court, the presence or absence of prejudice at issue in post-conviction right to counsel cases is only relevant because that impacts a particular remedy – the right to a new trial – rather than speaking to the occurrence or non-occurrence of a violation of the right to counsel. Slip op. p. 37, 46.
The Court upheld the right of indigent defendants to bring such a claim for constructive denial of counsel, with the remedy for a meritorious claim being an injunction to force a county to provide increased funding to a public defender’s office, if they can demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” To prove this “likelihood of substantial and immediate irreparable injury”, the Court advised that indigent defendants must focus on: “(1) when, on a system-wide basis the traditional markers of representation – such as timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case – are absent or significantly compromised; and (2) when substantial structural limitations – such as severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices – cause that absence or limitation in representation.” Slip op. p. 48.
For the Kuren Plaintiffs, the Court held that the allegations of their amended complaint were sufficient to overcome the preliminary objections filed by the County. Slip op. p. 55. The Court’s decision therefore does not find that there was a constructive denial of counsel by Luzerne County, but rather remands the matter to the trial court for discovery and trial on those issues and in accordance with the test announced by the Court. Slip op. p. 53.
The Court’s recognition of a cause of action against Counties for “underfunded” public defender offices will likely result in additional litigation against Counties, a fact that the Court acknowledged in its decision. However, the Court believed that“the burden of this litigation cannot outweigh the Commonwealth’s obligations to provide counsel to indigent defendants as explained by Gideon.” Slip op. p. 56.
In the wake of the Kuren decision and as Counties begin to consider their budgets for 2017, Counties should consider carefully the requests and recommendations made by their Public Defender’s Offices. Reports of staffing challenges, increasing caseloads, the challenges of funding for experts and investigators, and in particular commentary on the cost and burden of capital cases, all will become fodder for potential class actions for denial of the right to counsel – particularly if those reports go uninvestigated or unaddressed within the budget process. With the DA’s office and national standards the likely comparison points in litigation, Counties would do well to begin looking at those issues sooner rather than later.
While it’s clear that there will be repercussions for Counties as a result of the Supreme Court’s decision, the Supreme Court’s decision suggested that the Commonwealth may have some exposure as well. Noting that Pennsylvania is the only state where public defenders are funded exclusively at the local level and not by the state, the Court stated:
This funding structure necessarily leads to variations in the availability and quality of indigent representation from one county to the next. At the most fundamental level, compliance with Gideon should not – cannot – depend upon the county in which a crime is alleged. It is no surprise that statewide funding is “at the core of nearly every reform recommendation” pertaining to improving the quality of indigent defense.
Slip op. p. 57. With this admonition from the Court, it would not be surprising to see increased discussion about such reforms.