Pleading the Sixth: In January 2011, then-Chief Justice Myron Steele sought to end Delaware’s undue judicial interference in the state’s conflict indigent defense services by transferring responsibility for the administration of the conflict panel from the court to the Office of the Public Defender (OPD). Unfortunately, OPD was in no position to take on the new responsibilities. The result was that an unorganized conflict system was grafted onto an overloaded primary system, without enough care given to needed ethical screens between the two parts of the indigent defense system. In a new report, the Sixth Amendment Center (6AC) exposes how long-standing, systemic deficiencies became exacerbated under the new configuration, preventing both the primary and conflict systems from providing an effective, independent, and zealous advocate to each and every person to whom the constitutional right to counsel attaches.
“Both the primary and conflict indigent defense systems in Delaware fail the vast majority of the American Bar Association (ABA) Ten Principle of a Public Defense Delivery System,” announced Sixth Amendment Center (6AC) representatives at a press conference at the New Castle County Courthouse on February 18, 2014. There, the 6AC released its most recent report, The Crucible of Adversarial Testing – a report funded by the U.S. Department of Justice (DOJ), Bureau of Justice Assistance under a grant specifically designed to “identify gaps” to be addressed by the Ten Principles.
Frequent readers of this blog understand that ABA promulgated the Ten Principles in 2002 to help state governments understand their obligations under the Sixth Amendment. The ten simple tenets are a shorthand method by which to gauge whether or not right to counsel delivery model is set-up to allow attorneys to meet the constitutional threshold for adequacy. The BJA grant is yet another example of the DOJ support for the Principles. Attorney General Eric Holder has said that the ABA Ten Principles are the basic “building blocks of a well-functioning public defender system.” More importantly, the DOJ used the Principles as the basis of an agreement with Shelby County, Tennessee (Memphis) to rectify their deficient juvenile justice system.
The 6AC report concludes that public defense lawyers in Delaware begin substantive work on a case far too late in the criminal justice process to be effective (in violation of Principle 3) and the same attorney does not provide continuous representation to each and every client once appointed through to disposition (in violation of Principle 7). The violations of Principles 3 and 7 are a direct result of attorneys not having sufficient time to handle cases properly, including meeting with clients (in violation of Principle 4), because workload is not controlled to permit the rendering of adequate representation (in violation of Principle 5). Defense counsel, especially on the conflict side, are not supervised nor systematically reviewed for quality against performance standards (in violation of Principle 10), partly because there is no systematic training against such standards so that attorneys know what is expected of them (in violation of Principles 6 and 9).
A brief history of the right to counsel in Delaware
Delaware was one of 35 states that appointed counsel to the indigent accused in felony matters even before the Supreme Court required it under Gideon v. Wainwright. Pre-Gideon, the Delaware courts administered an assigned counsel system. But, within 15 days of the Gideon decision, House Bill 177, “An Act to Create a Public Defender and Making a Supplemental Appropriation,” was introduced into the state legislature. The bill, signed into law in January 1964, created the 100% state funded Office of the Public Defender that subsequently opened their doors later that summer.
But of course not all people who stood accused before Delaware’s courts in 1964 received the benefit of the state’s Office of the Public Defender. For example, a public defender system cannot ethically represent people charged as co-defendants in the same crime because the interests of one of the accused directly conflict with the interests of the other. Just think of one co-defendant pointing a finger at the other as being more culpable of the crime they are both accused of having committed. And so from 1964 onward, Delaware maintained two distinct methods for delivering indigent defense services. One being the primary public defender system and the other being the judge-administered non-system now preserved to provide for conflict representation.
The judicially controlled conflict services in Delaware evolved within each county over the years, largely based on the needs of each court and, as such, the systems varied widely from county to county and even within each court within each county. In fact, decisions that were made within each county had nothing to do with how the system might be evolving elsewhere in the state. Overtime, the conflict services in each court came to rely on flat-fee contracts and, in one county, a flat fee system that required different attorneys to handle different stages of a case. All decisions were local. “Every time the judge changed, the perspective on how the contracts were administered or how the approval of investigators and experts was handled would change as well,” one long-time participant in the conflict program told the 6AC. “So the rules were constantly changing.”
In January 2011, Chief Justice Myron Steele sought to end Delaware’s undue judicial interference in the state’s conflict indigent defense system by transferring responsibility for the administration of the conflict panel to the Office of the Public Defender (OPD). Unfortunately, OPD was in no position to take on the new responsibilities. Back in 1964, a single public defender office could handle the bulk of Delaware’s indigent defense cases with little difficulty. However, the onslaught of cases that began with the extension of Gideon to misdemeanor cases and beyond, and exploded with the “tough on crime” movement of the 1980s and 1990s, required indigent defense systems to adapt accordingly. Delaware’s public defender system, for the most part, did not. As the 6AC report makes clear, OPD started triaging justice incrementally, over time focusing on the Gideon mandate by putting most of its resources into felony representation while neglecting misdemeanor and delinquency cases. In short, in 2011 an unorganized conflict system was grafted onto an overloaded primary system, without enough care given to needed ethical screens between the two parts of the indigent defense system.
One manifestation of this triage approach to justice was the institutionalization of systemic impediments that clear out thousands of defendants each year who should be receiving representation under the Sixth Amendment, but that are not.
When the ABA Ten Principles were promulgated in 2002, Principle 3 insisted upon attorneys being appointed “as soon as feasible” after arrest, and usually with 24 hours. U.S. Supreme Court case law, however, has defined a more rigid standard for the timely appointment of counsel than even that called for by Principle 3. The right to counsel attaches, under Rothgery v. Gillespie County, at “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.”
In Delaware, therefore, the right to counsel attaches in criminal proceedings where nearly all criminal matters begin: the Justice of the Peace Court. Though defendants are advised of the right to the assistance of counsel at their initial appearance, if they do not follow up with the Office of the Public Defender the prosecutors consider them to be pro se. These defendants either face subtle (or sometimes direct) pressure to forego the right to the assistance of counsel, or unwittingly waive that right without knowing the full consequences of doing so. The 6AC report notes numerous instances in which bailiffs were observed telling out-of-custody defendants (including juveniles in delinquency proceedings) to meet with prosecutors to try to work out a deal before getting counsel.
Where defendants have not already relented to pressure to forego the right to counsel by entering into plea negotiations directly with the prosecution, their lawyers are provided too late and with too little time to be the zealous advocate that each defendant has as his right. For example, Delaware practices “horizontal” representation in the Court of Common Pleas – a system in which one attorney handles one part of a case and then passes the client on to another attorney in assembly-line fashion. Horizontal representation is in violation of ABA Principle 7, in part, because it fosters long periods of time where defendants have representation in name only. In New Castle County, for example, public defenders provided at preliminary hearings on felony matters in the Court of Common Pleas file no motions, launch no investigation, interview no witnesses, and only meet with the client in order to convince him to waive his right to the preliminary hearing. Either that, or they often advise him to take the plea being offered by the state, despite meeting the client for the first time that morning. So, for any case proceeding to trial in the Superior Court, the defendant may have had a lawyer assisting him at the preliminary hearing but he certainly did not have someone substantively advocating on his behalf.
In Delaware’s system of pleas, the indigent defense function fails to subject the prosecution’s case to the “crucible of meaningful adversarial testing,” rendering the entire criminal process “presumptively unreliable,” under United States v. Cronic.
The root cause of the deficiencies: A lack of “Independence”
Though indigent defense in Delaware is 100% state-funded, Delaware is not one of the 21 states that have statewide public defender commissions overseeing right to counsel services. Rather, in Delaware – as is the case in Alabama, Alaska, Iowa, New Jersey, Rhode Island, Vermont and Wyoming – the chief executive of the indigent defense system is a direct gubernatorial appointee.
The 6AC was told that Delaware’s previous chief public defender (who served for 39 years) often made budget presentations requesting increased resources as proof that chief defenders in Delaware have always been independent. But those budget requests were not funded, and rather than one big budget battle, the system began devolving over decades by a series of a thousand slices. Without recourse to do anything about it, the chief public defender was continually forced to accept an inadequate amount of resources than the system needed. That is the real test for true independence: Can, and does, the defense function deal with excessive caseloads and underfunding in a manner that does not jeopardize the indigent accused constitutional right to competent representation? In Delaware, the answer is a resounding “no.” When appropriate resources were not forthcoming, rather than refusing cases, the caseloads of individual attorneys simply grew and the triage justice began. Indeed, had the current Chief Public Defender in Delaware been more independent or protected by a statewide commission, he may have resisted the Chief Justice’s request to take on the conflict system unless and until proper resources were made available.
Conclusion: The 6AC recommendations and the path forward
Reforming a system that has such long-standing, deep-rooted deficiencies will not be easy. Rather than enumerating a laundry list of recommendations, The Crucible of Adversarial Testing gives Delaware policymakers four initial recommendations that are necessary to begin to rectify the identified deficiencies:
- Insulate the provision of right to counsel services from undue political and judicial interference, and establish proper ethical screens between the indigent defense system’s chief executive and the primary defender system, and between the chief executive and the conflict defender system.
- The Family Court should adopt a rule prohibiting children in delinquency matters from waiving the right to the assistance of counsel.
- The indigent defense system should adopt and implement regulations requiring that counsel is appointed as soon as possible after “attachment,” as required by Rothgery v. Gillespie County, 554 U.S. 191 (2008), for any defendant facing loss of liberty as a potential sentence under law, and the vertical representation of all clients.
- The indigent defense system should promulgate standards for quality representation, create a comprehensive training program based on such standards, and measure compliance against those standards to demonstrate, on an ongoing basis, the effective use of taxpayer dollars. And the indigent defense system should establish workload limits to permit the rendering of effective attorney performance in all case types.
Keep reading Pleading the Sixth for updates on Delaware’s progress to meet the promise of Gideon.
 Arkansas, Colorado (two separate commissions for primary and conflict services), Connecticut, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Michigan, Missouri, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin. The District of Columbia also operated under an independent commission. Another two states, Florida and Tennessee, publicly elect chief defenders to ensure that they are accountable to the voters and not judges or other elected officials.