NAPD Issues Call to Action for the Independence of Public Defense Leaders and Programs

(May 27, 2020) – As the nation’s public defenders, we issue an urgent Call to Action.
 
Many public defense systems suffer from persistent excessive workloads, understaffing, and practices that do not ensure constitutional representation to all clients. 
 
A public defense system that lacks independence and is under resourced will result in the diminution of the adversary process to the detriment of clients because the regular manner of processing cases is done by persons who are blind to the “ordinary injustice”[1] that becomes routine. 
 
In order to have meaningful defense representation, the defense must put the prosecution’s case through the “crucible of meaningful adversarial testing.”[2] For the criminal legal system to “advance the public interest in truth and fairness,” a defense lawyer must serve “the undivided interests of his client.”[3]    
 
In 2017, we issued The National Association for Public Defense Foundational Principles (2017), “Principle 2: Public Defense Must Be Independent of Judicial and Political Control.”[4]
 
Today, in light of ongoing developments, we issue a National Association for Public Defense Policy on Independence[5] that expands on the many reasons why independence is vital, and the National Association for Public Defense urgently calls on:
 
1. State, county and city governments to honor the independence of public defense systems and to create a Public Defense Governing Board that:

• Oversees the delivery of defender services;
• Does not interfere with the individual representation of clients;
• Does not include active prosecutors or judges;
• Has appointees who have staggered terms made by multiple appointing authorities;
• Has the majority of its members who are practicing attorneys and organizations concerned with the problems of the client community;
• Appoints the Chief Defender to a term of years which is renewable with the Chief Defender subject to removal only for good cause after being afforded due process;
• Is nonpartisan.

2. Bar leaders, judges, prosecutors and people desirous of a constitutional legal system to support public defense independence and creation of nonpartisan Governing Boards constructed to ensure the independence of the public defense program and the independent representation of individual clients.
 
Examples illustrate the sinister nature of government terminations

The lack of independence for public defense programs remains a wicked problem in many American jurisdictions. Chief public defenders who advocate vigorously for their clients when they are not structurally ensured political independence too often have lost their jobs or not been re-appointed. The legal landscape is charred with dramatic instances of governments violating the independence of public defense programs by unceremoniously threatening or firing Chief Defenders who act in the interests of meaningful representation of clients by advocating for additional funding, reduced workloads, public policy reform, and whose staff fiercely advocate for clients in courts.
 

• Pennsylvania: Dean Beer and Keisha Hudson were fired for filing an amicus brief, working to reduce unconscionable phone charges for incarcerated juveniles, and other "infractions."[6] “Under Beer and Hudson, the Philadelphia suburb was thought to have one of the most effective public defense offices in the state.”[7] On February 3, 2020, Dean filed an Amicus brief that “documents numerous instances of excessive bail, including an elderly woman given bail of $5,000 for stealing a bottle of wine, an indigent client incarcerated for 64 days because he couldn’t afford a $5,000 bail for marijuana possession, and a nursing teen mother held on $50,000 for a first offense in a jail that offered no accommodations to allow her to pump or preserve breast milk.”[8]
• Texas: Harris County (Houston), Texas Chief Defender Alex Bunin became the county’s first public defender in 2010. He attracted an outstanding team of attorneys, fought improper court fees imposed on defendants, provided representation for mentally ill clients and conducted large-scale reviews uncovering wrongfully convictions. He serves on the Harris County Criminal Justice Coordinating Council and the Texas Indigent Defense Commission. In 2017, Alex was threatened by a Harris County Commissioner (and supported by 4 of 5 Commissioners Court members) because he had assisted the plaintiffs in a lawsuit objecting to the cash bail system in Harris County.  In other words, Alex had stood up for his clients who were being denied bail due to their poverty.  The NAPD Steering Committee endorsed a letter to the Harris County Attorney, Vince Ryan, expressing its “deep concern” about “criticism of Mr. Bunin regarding his advocacy for juveniles and adults who were being denied bail due to their poverty.” [9] The Harris County Public Defender Office has a Board that makes recommendations to Commissioners Court about the hiring and firing of the Chief Defender. It meets quarterly. When Chief Defender Alex Bunin was accused of misconduct, the Board formed an investigatory subcommittee that reported back to Commissioners Court that the Chief Defender had done nothing unethical or illegal and should not be disciplined. There have been changes in Harris County that have advanced independence. Recently, all judges and county officials were removed as voting members of the Board. Three judges are now non-voting members, and may appear through a court administrator. The rest of the Board members are representatives of bar associations, academia and community organizations. 
• California: Monterey County Public Defender Jim Egar filed a class action lawsuit against the county jail which resulted in improved medical and mental health services. The county retaliated against him resulting in his resignation in 2016, a decade after becoming Chief Defender and ten months after the lawsuit was filed.[10] The California Public Defenders Association voted Egar as the California Public Defender of the Year in 2014 for his advocacy to protect inmates’ rights.
• Georgia: Nick White was fired in Houston County, Georgia, after advocating for an increased budget to address workload reductions and warning the county that it could face litigation for having too few attorneys for the work of the office.[11] The dismissal occurred without cause and without a hearing.[12]
• Georgia:  Atlanta Chief Defender Rosalie Joy, who is an appointee of the Mayor, was removed for her independent advocacy on behalf of clients as a result of her vigorous opposition to the incarceration of a client for the failure to pay a fine or fee without the constitutional process and determination of the ability to pay and consideration of alternatives to incarceration, and to seek energetically the appointment of counsel to those who qualify. [13] After serving eight years as the Interim Director, the Mayor’s removal of Rosalie came two months before the end of the Mayor’s term.  Rosalie had filed a habeas corpus against a judge that the Mayor had also appointed.  That judge had failed to comply with the rights of nine in-custody clients to a first appearance hearing within 48 hours of their arrest.  They were scheduled for court on the same day that Atlanta was having a pep rally for the Falcons who were going to the super bowl.  This judge reset the cases of these clients in order to attend the pep rally.  The habeas quickly hit the local news, along with a picture of the judge at the pep rally. Rosalie received a call later that day from an attorney working in the city law department who was irate because she did not handle the situation in a way that protected the city from embarrassment. Despite having reported this to the city ethics department where protections may have been afforded to her through state whistle blower provisions the mayor replaced me without having to explain why or show cause. 
• One chief defender in the Midwest was threatened by her county board for filing aggressive motions in death penalty cases. The motions sought to preclude the state from seeking death based upon the lack of standards to guide local prosecutors in their decisions to seek death, and highlighted the disparity of resources between those prosecuting the accused and those who defend the individuals accused of such crimes.  As a result of filing such motions, a letter of reprimand was placed in her personnel file.
• Illinois: In Cook County, Illinois, the County Board is able to fix “the appropriate number of assistants” but the County Board President cannot select whom to hire, fire or retain.  Burnette v. Stroger, 389 Ill. App. 3d 321 (1st Dist. 2009).  In Burnette, the Public Defender sought the reinstatement and reimbursement of the 34 laid-off employees and an order barring defendants from making further layoffs or terminations “without the independent decision” of the public defender.  389 Ill. App. 3d at 324.  On appeal, the appellate court held in response to several certified questions, that: “[W]e explained that power over the public defender’s staff was divided between the public defender and the county board, with the public defender receiving the power to hire and fire, and the county board receiving the power to fix the compensation and number of assistant defenders and other staff members. . . . . Thus, we find that the president lacked the authority to select whom to hire, fire or retain among the public defender’s staff. See Burnette v. Terrell, No. 106678, 232 Ill. 2d 522, 905 N.E.2d 816, 2009 Ill. LEXIS 307 at |STAR|23, 328 Ill. Dec. 927 (March 19, 2009) (trial judge lacked the authority to select specific defenders to assign to specific cases).”  Burnette, 389 Ill. App. 3d at 336.   While the appellate court affirmed the chief defender’s ability to hire and fire his staff, the county president refused to reappoint the chief defender when his term ended.[14]

These are but a few examples. There is a different way, a better way, the national standard of practice way.

State, County, City, Nonprofit Governing Boards Advance Independence

The longstanding national standard is clear. To ensure the independence of public defense systems, state, county and city governments must create a Public Defense Governing Board that

• Oversees the delivery of defender services;
• Does not interfere with the individual representation of clients;
• Does not include active prosecutors or judges;
• Has appointees who have staggered terms made by multiple appointing authorities;
• Has the majority of its members who are practicing attorneys and organizations concerned with the problems of the client community;
• Appoints the Chief Defender to a term of years which is renewable with the Chief Defender subject to removal only for good cause after being afforded due process;
• Is nonpartisan.

State, county, city governments have established Governing Boards or contracted with nonprofits which have Governing Boards that advance independent public defender representation and have functioned over the years in many ways that have allowed the independent representation of clients.  Numerous Governing Boards have some but not all of the necessary features that national standards identify as essential. The more of the national features, the more independence emerges.
 
We discuss some examples of the varying degrees of independent structures.
 
State boards such as North Carolina Office of Indigent Defense Services[15] and Kentucky Public Advocacy Commission[16] have members appointed from diverse authorities. The Massachusetts Committee for Public Counsel Services has a range of powers of authority.[17] The Michigan Indigent Defense Commission has important oversight powers over local systems.[18] State systems such as Colorado, Missouri, Minnesota, and Kentucky have Governing Boards that provide structures that have staff who are employees of the program and who are trained and supervised by the program. 

Other systems have important features of independence.

Ohio: In counties that have created public defender offices, these offices are overseen by a county public defender commission.  These commissions are made up of five members.  “The commission shall have five members, three of whom shall be appointed by the board of county commissioners, and two by the judge, or the presiding judge if there is one, of the court of common pleas of the county. At least one member appointed by each of these appointing bodies shall be an attorney admitted to the practice of law in this state.”  Ohio Revised Code 120.13(A).  The county public defender commission is then charged with hiring of the county public defender and oversight of the county office.  The county public defender is appointed for a term of up to 4 years, which may be renewed without term limits.  ORC 120.15(A).  During the appointed term, the county public defender may only be removed for cause. ORC 120.14(A).
  
At the state level, Ohio also protects independence of the state public defender office through a commission.  The state public defender commission is made up of nine members.  Four members are appointed by the Ohio Supreme Court and five members are appointed by the Governor, including the chairperson.  Both appointing authorities are also required to choose members, other than the chair, on a bipartisan basis. “Four members shall be appointed by the governor, two of whom shall be from each of the two major political parties. Four members shall be appointed by the supreme court, two of whom shall be from each of the two major political parties.”  ORC 120.01.  The state public defender commission hires the state public defender for an unlimited term, who serves at the pleasure of the commission. ORC 120.03(A). 

Both the state and county public defender commissioners are appointed to 4-year terms with staggered appointments.  These terms are not subject to changes due to an executive change in leadership and commissioners continue to serve out the length of their terms regardless of election changes.  Both systems at the state and county levels have differing combinations of features: appointing authorities, terms of appointment, political bipartisanship, for cause only termination, and clear hiring authority separated from any single individual or branch of government; each combination provides a measure of independence from political or public pressures when serving clients and protecting fundamental rights.

New York City: In New York City there are a number of non-profit public defense providers. The City uses a Request for Proposal (RFP) process and awards six-year contracts after negotiation with each of the winning bidders. Organizational Independence is a non-negotiable, core value for each of the organizations. Each defender provider is a not-for-profit organization, subject to oversight by its own independent governing board.[19]
 
Maryland: The Office of the Public Defender in Maryland is an independent agency in the executive branch of government. The Board of Trustees consists of thirteen individuals, eleven appointed by the Governor, one by the Speaker of the House and one by the Senate President. The Board’s power is limited to hiring the Public Defender and approving the appointment of the Deputy Public Defender and the 12 District Public Defender. Its function is largely advisory (“study”,” observe” and “advise”). The Public Defender serves for a term of six years (may be reappointed) and may only be fired for cause (misconduct in office, persistent failure to perform the duties etc.).[20]

New Mexico: In 2012 the people of New Mexico voted to place the public defender program in its Constitution, moving the organization from the Executive Branch where the governor appointed the Chief Public Defender to the Judicial Branch. The constitutional provision provides that “A ‘public defender department’ is established as an independent state agency….The public defender commission shall appoint the chief public defender.”[21]

Missouri: While the governor appoints all of its members, the Missouri Chief Defender is employed by a Commission that appoints the Chief Defender to four-year terms that are renewable and which provides that there can only be termination for good cause.
 
King County, Washington provides that an Advisory Board recommends names to the county executive and county commissioners and the county appoints the chief defender to a term with removal only for cause and with process.[22]
 
The Jefferson County, Kentucky public defender office is a nonprofit governed by a board of seven members with six members appointed by the Louisville Bar Association and one member by the Mayor. The Board selects the Chief Defender.
 
In addition to being a structural mechanism for protecting the independence of the program, a Governing Board is also a way to ensure compliance with standards of practice and collect and publicly report program data to advance transparency and accountability.

Public defenders with independence can act in the uncompromised interests of their clients
 
When a chief defender operates within a structure that provides her with independence, she can appropriately advocate for her office’s clients on issues including funding, workloads, community engagement, and justice policies with coalitions. This allows the program to create public value. Some examples of systems that have many but not all of the structural aspects of independence demonstrate this proposition.
 
In Missouri, the Chief Defender for the statewide public defender program, vigorously litigated[23] the ethical responsibility of his attorneys to decline case appointments when their workloads prevent them from providing meaningful representation.
 
In Maryland, the Office of Public Defender has a Government Relations team consisting of trial lawyers who during the 3-month legislative session advocate on behalf of the agency and a coalition of community partners and advocacy groups. Committees of public defenders assist the Government Relations team in developing policy and advocating with the legislature and executive branch. 

In Seattle, Washington “One of the most important cases regarding pre-trial release conditions, Butler v. Kato (2007), was decided in an appeal by The Defender Association from the denial of a writ of habeas corpus challenging the District Court's pre-trial requirement that a defendant have chemical dependency evaluation and treatment. The state Supreme Court found that the conditions were not authorized by court rule and violated constitutional rights against self-incrimination and confidentiality.”[24]
 
In Cook County, Illinois, the Cook County Chief Defender has called out the police for their misconduct. Starting from before she was appointed as the Public Defender of Cook County, the Cook County Chief Defender reported to the Department of Justice official misconduct by police in the Chicago suburb of River Forest after discovering they had altered police reports intentionally in order to present an incriminating scenario that did not exist. The client was acquitted and the officers were disciplined. Starting from before her appointment and extending three years into her term as the Public Defender, the Cook County Chief Defender personally litigated Illinois v. Cole, 2017 IL 120997, cert. den., Campanelli v. Illinois, 138 S. Ct. 2652 (2018), arguing that the same conflict of interest rules that prohibit a law firm from representing two clients with divergent interests should apply to public defender offices. Other advocacy by the Cook County Chief Defender in the interest of her clients include sitting on Chicago’s Police Accountability Task Force and pushing for police reform, culminating in a federal consent decree governing the Chicago Police Department; providing documented examples of police abuse to the Department of Justice as the federal consent decree was being formulated; sitting on the Chicago Mayor’s transition team, similarly pushing for police reform and accountability; working with the pushing for enforcement of an Illinois statute that requires a prominent poster, in every place that an arrested person is detained, articulating in large print the rights of an accused, including the right to communicate and consult with counsel; advocating for state legislation that would require an accused be given access to phone and the right to make three phone calls within an hour of arrest; establishment of a police station representation unit, where attorneys are available 24/7 for anyone in custody who requests counsel while in custody; uncovering and leading the charge against secret after-hours Gerstein hearings, where local judges heard unsworn testimony to extend by days the time before an accused had a bond hearing; and yearly battling for a budget sufficient for the needs of defending the indigent in Cook County, a municipality with over 5.5 million people.
 
In New York City, the various providers of public defense services, which operate as nonprofits with independent governing boards, have collectively advocated for progressive, client-centered public policies, including, but not limited to, bail and discovery reform, the closing of Rikers Island, New York City's main jail complex, and the release of inmates for health reasons during the coronavirus pandemic.
 
In Kentucky, an Executive Branch agency generally cannot advocate for funding or a legislative policy that differs from the governor’s budget request or policy position. The public defender department is in the Executive Branch but it is recognized as an independent agency attached to a Cabinet for administrative purposes. There is a Public Advocacy Commission that oversees the public defender department and serves to protect its independence. The head of the department, the Kentucky Public Advocate, serves a four-year term. There is a Memorandum of Agreement between the Kentucky Department of Public Advocacy and the Kentucky Justice and Public Safety Cabinet that addresses the responsibility of the Cabinet to honor the independence of the state public defense program.[25] Its provisions include sections on the constitutionally required independence of counsel, how independence will be assured, the administrative relationship, potential lawsuits, budget and public policy work. As a result of this independence from the Executive, the Public Advocate routinely publicly advocates for adequate funding even when that is contrary to the governor’s submitted budget request.  The Public Advocate publicly seeks or opposes criminal justice legislation based on the interests of clients.  The Public Advocate filed a lawsuit in 2008 to declare his right to decline cases when workloads were excessive. This lawsuit resulted in $3.7 million in additional funding.[26]