Right to an attorney

The sounds of the early morning in the Blair County Central Court building last Wednesday included the echo of filing cabinets clicking open and slamming shut, conversation and a bit of humor and camaraderie as four assistant public defenders began their day representing clients who are indigent, meaning they can’t afford to hire a private attorney.

The defenders are a lively, almost eager group, that includes attorney Theordore J. Krol, a 23-year veteran of the office, and David L. Beyer, who has 13 years with the Blair County Public Defender’s office.

They are joined by two newcomers to the office: Jason Imler, who has been on the job for only a few weeks, and Julia Burke, who came to the Altoona area after five years of criminal defense experience in New York City.

While she has experience, Burke has served as a volunteer assistant public defender this year because she had to take the Pennsylvania Bar exam before she could be hired.

It was her first day in Central Court as a full-time assistant under Public Defender James R. DiFrancesco, her position having at last been approved on Monday by the Blair County Salary Board.

“I went to law school to be a public defender,” said Burke.

She calls the work of representing the poor “more interesting” than what she experienced working for a private firm in New York City, and she exclaimed what many might think is obvious: working in the Blair County criminal justice system is different than in Manhattan.

In Manhattan, a defense lawyer must deal with any of 250 assistant district attorneys.

Here, the defense lawyers know by name their adversaries on the prosecution side. They know the police officers and judges. Burke enjoys the more personable, familiar relationship among those in the justice system.

But this day, she had little time to talk.

“I have to go,” she said.

Beyer has his private law office in Ebensburg, and while he serves as a part-time assistant public defender in Blair, he also receives court appointments in Cambria and other counties, in addition to his private clients.

He said of his Blair County clients, “Just because they can’t afford an attorney, they should have representation.”

Of his work as counsel to the indigent, he said, “I do enjoy it. I really, really like it. I enjoy fighting for them.”

While public defenders are often depicted as overworked and underpaid, Beyer said his clients do not get slighted.

He said he takes work home at night.

He doesn’t know his caseload, but, he said, “Whatever my caseload, it is heavy. I work extremely hard. I am not afraid of work. If it bothered me, I wouldn’t do it.”

If the enthusiasm for criminal defense work expressed by Burke and Beyer wasn’t enough, Krol, who also is part time and has a private office in Hollidaysburg, said he loves the job because “to some extent I feel it is a public service in the community to do it.”

But, he explained, the job keeps him on top of the latest developments in criminal law, and he loves those Wednesdays in Central Court where the public defenders must handle as many as 70 cases in one day.

Being a public defender is “the best part of my practice,” said Krol. He loves trials, the strategies, the challenge of anticipating where the case is going as it unfolds before a jury.

“I need that invigoration of being in front of a jury defending my clients,” he said.

It’s Krol who gets the group engaged in the morning’s work as the public defenders view a line of orange-clad female inmates brought to a holding area at Central Court. Then come a line of male inmates directed to an adjacent holding area.

Time to get to work, meeting with their clients. Half of the suspects don’t even apply for a public defender until they arrive at Central Court for their preliminary hearings, Krol said.

What that means is the defenders have to get to know multiple clients in one day, assess their cases and their defenses to the criminal charges, then enter into plea discussions with assistant district attorneys and, most times, waive the cases to court. Ninety-five percent of the cases are waived.

In a few cases, Krol said, the defenders decide to have a preliminary hearing. Those begin at 1 p.m. before a magisterial district judge.

Krol tells the defenders it’s time “to go into the war room,” his term for the nearby courtroom where cases are reviewed, discussions held and decisions made.

“I go in there ready for battle. It’s fun,” he said.

Fifty years since Gideon

Just 20 months ago, a report prepared by a Task Force and Advisory Committee to Pennsylvania’s Joint State Government Commission concluded that the public defenders are “hard-working, committed and competent professionals.”

But it went on to say, “The problem is that they must work against daunting obstacles: inadequate training and oversight, severely limited resources and unmanageable caseloads.”

This lengthy study by the commission focused on Pennsylvania’s lack of funding at the state level for indigent defense.

It emphasized Pennsylvania is the only state that does not provide funding for those who represent the poor.

Public defender offices and appointed attorneys who represent indigent criminal defendants are funded through the counties, and the commission concluded state government was not fulfilling it’s Constitutional duty to provide legal counsel for those who can’t afford it.

The title of the study reflects its conclusion – “A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania.”

The report made a recommendation to totally revamp the indigent defense system in Pennsylvania by creating a new office in the executive branch.

It would be governed by a board and would have the power to contract with local public defender offices or other agencies to provide criminal defense for the poor.

The state office would “hire, supervise and fire county [public defenders]” according to the plan.

It would include a division to handle capital case appeals and provide a plethora of other services.

The state agency would work with the counties to “provide fair rumuneration,” which would address the perceived inadequate salaries paid to the public defenders when compared to district attorneys and their assistants.

One of the task force members contributing to the report was Pennsylvania Sen. Stewart J. Greenleaf, R-12th District, serving Montgomery and Bucks counties, who chairs the Senate’s Judiciary Committee and was both a prosecutor and public defender in his past life.

Creating a new state agency at a time when state government is attempting to address so many financial needs might not be realistic, which is why Greenleaf and others have recently given their support to Senate Bill 979, which will at least provide an entry point for the state in aiding the counties and public defenders to provide solid defense for the poor.

The bill would provide funding to create a headquarters or central office for indigent defense, possibly attached to a Pennsylvania law school.

The office would be overseen by a board that would include a public defender, an attorney from the Juvenile Defenders Association of Pennsylvania, a representative of the state’s Interbranch Commission, a representative from the Pennsylvania Association of Criminal Defense Lawyers, representatives of a law school and someone from the Pennsylvania Innocence Project at Temple University.

The governor and chief justice would appoint the members of the board.

The center, as a start, would provide continuing education programs for indigent defense lawyers and would focus on capital case defense skills and criminal defense and juvenile defense training. It would develop a training library.

Greenleaf, in an interview last week, said the Senate bill before his committee would be a start, and he explained why it was needed.

In the summer of 1963, just 50 years ago, the United States Supreme Court decided the landmark case Gideon V. Wainwright. The court ruled that criminal defendants, regardless of their economic status, were entitled to be represented by a lawyer.

It was a memorable case because Clarence Earl Gideon of Panama City, Fla., who was denied an attorney for his trial and sentenced to a five-year prison term for breaking into a pool room and stealing wine and money, sent a handwritten petition to the Supreme Court complaining that he was forced to represent himself in court.

That document was given to attorney Abe Fortas, soon to become a Supreme Court justice, to argue, and in an opinion, Justice Hugo Black wrote, “The right of one charged with crime may not have been deemed fundamental and essential to fair trial in some countries, but it is in ours.”

Gideon was awarded a retrial and, being represented by an appointed attorney, he was found not guilty.

The standard for indigent defense was established by Gideon and public defender offices became the norm nationwide.

When it comes to Pennsylvania’s application of Gideon, Greenleaf said, “We have not been doing a good job of doing that.”

“This is a long-time issue with me,” he said.

Greenleaf said that providing incompetent defense is costly because it means that cases are sent back to the counties for retrial. He said this is why the Pennsylvania Supreme Court and the Third Circuit Federal Court of Appeals in Philadelphia emphasize the need for a competent defense for the indigent.

“The state,” he said, “should be involved in funding and training.”

He said the Senate bill doesn’t include all the recommendations in the Joint State Government Commission Report, but, he said, “we have to start somewhere.”

‘I fight for the Constitution’

In essence, indigent defense attorneys in Pennsylvania suffer from the Rodney Dangerfield “I get no respect” syndrome.

Blair County President Judge Jolene G. Kopriva said one time she asked a defendant, “Do you have an attorney?”

His reply: “No, I have a public defender.”

The former Public Defender of Monroe County, Wiesalw T. Niemoczynski, who is proposing that the Pennsylvania Public Defenders Association receive state support to provide the education and other services suggested by Greenleaf, said in an April 2013 proposal he wrote for the association, “public defenders are often seen as clever villains rather than important public servants with a role in criminal justice co-equal to that of the district attorney.

“Defender resources are often a first target for cutting or reallocation. Asking for more resources to defend indigent persons accused of crime is not popular,” he said.

Niemoczynski said the inadequacy of resources can be masked when it comes to routine cases, but he said, “More resource intensive cases, such as death penalty cases or those cases involving sophisticated, advanced scientific techniques, can readily overwhelm the capabilities of county-funded indigent defense.”

Helen A. Stolinas, the full-time chief public defender of Bradford County and president of the Pennsylvania Public Defenders Association, said there is a “problem with parity” between the public defenders and the district attorneys.

The prosecution has more resources to draw upon, and prosecution attorneys are paid better.

And, because indigent defense is provided at the county level, each county’s services are organized differently, Stolinas stated.

There are no statistics detailing the caseloads of public defenders, and even the definition of what constitutes a case is often debated. If one suspect is charged with three crimes, is that three cases or one case?

“It’s always a challenge. It is a job that has its struggles. I feel it is an important job. If the Constitution is not enforced in our communities, then it is at risk in all the counties of the state,” she said.

“The people we represent often don’t have another voice, don’t have the resources to defend themselves. It is a reward when you get a just result [for an indigent client],” she said.

Because each county’s indigent defense system is set up differently, Court Administrator Janice Meadows was asked to explain how the service is provided in Blair County.

Blair has a public defender, DiFrancesco, three full-time assistants, Edward Ferguson, Imler and Burke, and four part-time assistants, Krol, Beyer, John F. Siford, and Michael S. Emerick.

Often the couty public defenders office can only represent one person in a group of multiple suspects who are arrested, at which point the court appoints “conflict counsel,” who are paid $2,500-per-month by the county. They include Edward E. Zang, Douglas Keating, Warren T. Crilly, the law firm of Joel C. Seelye and Brian H. Grabill, and Mark A. Zearfaus.

Meadows said the county has a list of 29 other attorneys available for appointment to represent indigent clients.

One of those is Altoona Attorney Steven P. Passarello, a death-penalty qualified attorney who has for the past 15 years been appointed in many homicide cases.

He said an attorney is paid $2,000-$5,000 for a homicide case, but most of that money goes for expert witnesses.

Representing a defendant in a death penalty case means “you eat, sleep and drink these cases,” Passarello said.

He said an attorney doesn’t represent clients in these intense cases for the money.

“You have a duty to the court. Where the court is in a situation struggling to find representation, you have a duty to do so. … You just do them,” he said.

Judge Kopriva said she thinks Blair County’s public defender office “is one of the strongest I’ve seen in my 26 years.”

She said that DiFrancesco, a former Cambria County Judge, is a good mentor to the younger attorneys.

“His organizational capacity has assisted us tremendously,” she said.

He helped, for instance, to implement an expedited driving under the influence program, and, she said, “He understands the system, and he sees his role to be a very equal partner at the table.”

DiFrancesco often says, “I am your public defender,” meaning he is concerned not just with the protection of his own clients, but the protection of the Constitution for everyone in society, Kopriva explained.

Known as “Jimmy D.” in the Blair County Courthouse, DiFrancesco, in reviewing his office, focused on some aspects of the Commission report.

The commission stated many public defenders’ offices lack oversight, to which DiFrancesco said, “We don’t have that problem here. I train my young lawyers. … They are held accountable.”

He said his staff handles between 2,700 and 3,000 cases a year, which include mental health reviews, protection-from-abuse contempts, driving under the influence cases while under suspension – which carries a mandatory jail sentence – magisterial district court hearings at six magistrate offices, probation violation hearings and, on Fridays, criminal court guilty pleas.

In his opinion, local public defender clients “get really good service.”

He believes in having good relations with the judges, the probation office and other court agencies.

“It’s a system,” he said.