The Berks Barrister Winter 2017 - 8

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PA High Court Takes Unprecedented Action
To Support Public Defenders.
Now, How About Supporting Civil Gideon?
By Donald F. Smith, Jr., Esquire

M

ore than ten years ago, in my role as president of
MidPenn Legal Services at the time, I visited the
fourteen MidPenn offices, meeting staff at each. On
the same day of my visit I would host a meal with that particular
county's bar leadership as a means to foster good relations.
On such a visit to Gettysburg we had dinner with the
president of the Adams County Bar Association who was an
assistant public defender at the time. She shared that a local
newspaper reporter had recently asked a county commissioner
why the funding of the public defender's office was so significantly
less than the funding for the district attorney's office.
His response: "That's easy. The public defenders are not
attorneys."
The fact that a public official would demonstrate such
ignorance was shocking and distressful. Adding to the distress
is the fact that Pennsylvania is the only state that provides no
funding for the defense of poor criminal defendants. Instead,
meeting the obligations imposed by Gideon v. Wainwright, 372
U.S. 335 (1963) is totally up to the individual counties-leading
to sixty-seven varieties. Scary.
Of course, the issue is not whether funding of the PD offices
is identical to that for DA offices but, rather, is the PD's funding
adequate for that office to comply with the U.S. Constitution's
Sixth Amendment's mandate, as applied to the states by the
Fourteenth Amendment, that "[i]n all criminal prosecutions, the
accused shall...have the Assistance of Counsel for his defense."
When a commissioner believes his county only needs
to fund the work of non-lawyers and not an office staffed by
lawyers, one has to believe that the PD office in that county is,
or was, terribly underfunded. The fear that such underfunding
could be commonplace is why this writer was pleased with the
Pennsylvania Supreme Court's recent decision in Kuren, et al v.
Luzerne County, 58 MAP 2015 (9/28/16).

8 | Berks Barrister

PA Supreme Court Rocks the Boat
It is a landmark decision in which the Court held, with
no dissents but with one justice concurring in the result, that
the inadequate funding of Luzerne County's Office of Public
Defender (OPD) constituted a constructive denial of the Sixth
Amendment right to counsel and that the OPD had averred
sufficient facts to support a claim for injunctive relief.
Those facts included the following:
1. OPD attorneys assigned to capital cases had to pay out of
their own pocket to attend the CLE required for capital-qualified
attorneys.
2. Due to lack of funds, the OPD was prevented from
assigning attorneys to assist clients at initial arraignments, the
critical stage at which the right to counsel attaches.
3. OPD had to postpone hearings because of a heavy
caseload, resulting in clients spending more time in jail than they
would otherwise.
4. The criminal court's caseload created trial schedules that
required substituting attorneys on the eve of trial who were not
informed about the client or the case.
5. OPD was only able to employ three investigators to handle
the 4,000 cases that came to the OPD every year.
6. OPD attorneys were frequently required, given
the caseload, to enter into plea negotiations without a full
understanding of the cases.
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Table of Contents for the Digital Edition of The Berks Barrister Winter 2017
