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David Rudovsky discusses the latest PA Supreme Court ruling on funding public defender offices

October 24, 2016

Penn Law Senior Fellow David Rudovsky is one of the nation's leading civil rights attorneys.
Penn Law Senior Fellow David Rudovsky is one of the nation's leading civil rights attorneys.
In Kuren v. Luzern County, the Pennsylvania Supreme Court recently ruled that public defender clients have the right to sue counties that do not provide adequate funding to their public defender offices. David Rudovsky explains the repercussions for public defender offices throughout Pennsylvania.

In Kuren v. Luzerne County, the Pennsylvania Supreme Court recently ruled that public defender clients have the right to sue counties that do not provide adequate funding to their public defender offices. Penn Law Senior Fellow David Rudovsky talked with Penn Law Communications about his involvement with the case, the origins of the suit, and the repercussions for public defender offices throughout Pennsylvania.

Penn Law: Can you describe Kuren v. Luzerne County and the importance of the case?

David Rudovsky: Kuren v. Luzerne County is a class action challenge to the underfunding of the public defender office in Luzerne County. The issue of funding, caseloads, and adequacy of counsel appointed to represent indigent defendants has been of national concern since the Supreme Court’s decision in Gideon in 1963. The Court has ruled that counsel must be appointed in virtually all criminal cases and that under the Sixth Amendment, the defendant is entitled to “effective assistance of counsel.”

Of course, given the explosion in the number of criminal prosecutions in this country, the Gideon mandate is a very costly proposition. For example, the Philadelphia Defender Office, which in the years immediately following Gideon had a staff of about 30 lawyers for both state and federal cases, today has a combined staff of over 300 lawyers. And while the Philadelphia Defender provides excellent services, most public defender offices around the country are severely underfunded, leading to very high attorney caseloads and inadequate defense resources. As a result, in many if not most cases, defender lawyers simply do not have the time or the resources to provide even the most minimal elements of effective criminal representation: interviewing clients on a timely basis, investigating the case, filing the appropriate motions, securing necessary forensic and other expert evidence and testimony, and having the time to actually take the case to trial. And perhaps most problematic, in a system in which over 95 percent of cases are resolved without a trial as a result of plea negotiations, these lawyers often do not have essential discovery, investigation results, or defense witnesses to properly negotiate pleas.

The Luzerne County litigation was prompted by the courageous actions of the appointed defender, Al Flora, who had been rebuffed by the County Commissioners in his attempt to secure a budget that would be adequate for defense representation. Mr. Flora was able to document the systemic underfunding and how that basic flaw deprived many of his clients of their right to effective assistance. With that information, a team of lawyers from the ACLU, Dechert, and my law firm agreed to represent Mr. Flora on a pro bono basis, and to proceed on the theory that the Sixth Amendment right to effective counsel, which is normally an issue raised after a conviction, could be vindicated pre-trial, on a class basis by showing structural or systemic underfunding of defender offices.

The usual course for a claim of ineffectiveness of counsel is a post-conviction, case-by-case petition on which the defendant has to show both the lawyer failed to provide a defense consistent with professional standards and that the defendant suffered prejudice, and that with competent representation there is a reasonable probability that the result of the trial would have been different. As applied by the courts, these standards, which are very deferential to choices made by defense counsel, do not provide an effective remedy, and they fail to address the largest underlying problem of systemic faults in defender systems.

We argued that the issue could be raised pre-trial on the theory that systemic underfunding would surely lead to a number of convictions flawed by ineffective counsel and that a court has the power to prevent such constitutional violations in advance. A number of courts had done so, including the highest state courts in New York, Florida, and Missouri. Still, the theory was untested in Pennsylvania. In our case, the lower courts dismissed the lawsuit on the ground that the only remedy for ineffectiveness of counsel was the post-conviction proceeding. We took the case to the Pennsylvania Supreme Court, and in a ruling in September, the Supreme Court unanimously held that we had standing to bring the lawsuit and to injunctive relief if we could prove our allegations at trial. The case will now go back to the trial court in Luzerne County where we are prepared to prove that systemic underfunding has led to structural ineffectiveness of counsel.

PL: Does this decision have anything to do with the recent changes in the Pennsylvania Supreme Court?

DR: Yes — this is a different Court. Over the past three years, five of the seven justices have left the bench, a result of scandals over e-mails and election practices and mandatory age retirement. It is possible that we could have prevailed in the former Supreme Court, but the current Court was unequivocal in its opinion: government has a constitutional duty to provide necessary funding and resources to defender offices. It is noteworthy that Pennsylvania is the only state in the country in which the state provides no funding to counties for indigent defense services. Under our system each of the 60 counties must provide full funding for their defender operations. Some do it well, and some do it very poorly.

PL: Going forward, what do you think the effects of this ruling are for public defenders in Pennsylvania?

DR: This ruling gives Defenders and their clients significant leverage in litigation on issues of effectiveness of counsel and in securing better representation for indigent defendants in Pennsylvania. The usual remedy of post-conviction review has had no impact on the central problem of underfunding. The remedy provided by the Kuren ruling is systemic in nature and, if properly implemented, will compel adequate funding and resources in Pennsylvania.