Systemic Litigation & Federal Investigations

The Sixth Amendment Center does not offer legal advice, paid or un-paid, nor do we represent individuals in criminal or civil trials, appeals, or post-conviction matters. If you believe your appointed lawyer is not zealously defending in your stated interests, you may consider notifying your state or local bar association to file a complaint. It is also the policy of the 6AC not to actively participate in litigation alleging indigent defense deficiencies unless requested by a court to act as an independent expert.

Across the country, there are many law firms and public interest organizations that litigate on behalf of indigent defendants when their rights are violated. Often this litigation takes the form of a direct appeal or a post-conviction proceeding on behalf of an individual indigent defendant following conviction. These cases are important – many of them have led to crucial decisions about the types of cases in which the right to counsel must be provided and what defines effective assistance of counsel – but they are far too numerous and individualized to follow unless they reach the U.S. Supreme Court. (The Civil Rights Litigation Clearinghouse at the University of Michigan Law School maintains an extensive searchable database of civil rights litigation including cases of individual indigent defendants.)

There is another type of litigation, though, that is brought against cities, counties, and states on behalf of indigent defendants who have not been convicted. These lawsuits seek to ensure that from the very outset indigent defendants will receive the effective assistance of counsel required by the Sixth Amendment as their cases proceed through the justice system. They frequently allege that the public defense system responsible for providing counsel to an indigent defendant is not properly equipped to do so, such that not even the best lawyer working within that system can provide effective assistance of counsel. This is known as systemic litigation.

Additionally, the federal Department of Justice sometimes initiates investigations or litigation where it appears that a particular jurisdiction is violating defendants’ constitutional rights.

In an effort to keep policymakers informed about the types of systemic challenges brought against jurisdictions, the issues involved, and how governments can avoid being sued by ensuring that their public defense systems fulfill the Sixth Amendment, the 6AC provides this frequently updated summary of Department of Justice actions and systemic indigent defense lawsuits brought in each state.

See the list of systemic litigation lawsuits in a particular state by clicking on the name of that state. Read about a particular lawsuit within a state by clicking on the name of the case. Or [Expand All] to see and print from one location all of the systemic litigation in the country, then [Collapse All] to get back to the list of states.

Phillips v. California

Case:                                      Phillips v. California, No. 15CECG02201 (Cal. Super. Ct. Fresno County)

Geographic Defendant(s):      State of California and Fresno County

Named Defendant(s):             State of California; Edmund G. Brown Jr., Governor of California; and County of Fresno

Plaintiff Attorney(s):                American Civil Liberties Union, Criminal Law Reform Project; American Civil Liberties Union, Foundation of Northern California, Inc.; ACLU Foundation of San Diego & Imperial Counties; ACLU Foundation of Southern California; Paul Hastings, LLP

Status:                                    Pending

Date Filed:                              July 14, 2015

Synopsis:   The complaint alleged that the state is responsible for providing indigent defendants with meaningful and effective assistance of counsel, but that California “has delegated its constitutional duty to run indigent defense systems to individual counties” and does not provide any oversight to ensure those county systems actually provide constitutionally required representation. In particular because the state requires the counties to bear the cost of providing representation to indigent people and at the same time “places strict limits on the ability of cities and counties to raise revenue,” “indigent defense services vary widely across the state, and some counties with the highest percentages of indigent defendants – like Fresno County – also have the lowest levels of per capita funding due to an impoverished tax base.” The lack of oversight and funding, according to the lawsuit, has resulted in a severe shortage of attorneys and support to provide representation to the poor, meaning that attorneys do not “have adequate time and resources to meet with and counsel their clients, investigate, conduct legal research, file and litigate appropriate motions, and take cases to trial when their clients wish to contest the charges.”

          The trial court denied the pleadings of the state and county when they asked to dismiss the lawsuit. The court first found that “[t]he State cannot disclaim its constitutional responsibilities merely because it has delegated such responsibilities to its municipalities . . . [n]or can the State evade its constitutional obligation by passing statutes” – “the State remains responsible, even if it delegated this responsibility to political subdivisions.” Then, the court held that “[s]ystemic violations of the right to counsel can be remedied through prospective relief,” noting that the lawsuit does not challenge individual convictions, but instead “claim[s] that the State systematically deprives Fresno County indigent defendant of the right to counsel,” and that “mere token appointment of counsel does not satisfy the Sixth Amendment right to counsel.” Therefore, “plaintiffs need not plead and prove the elements of ineffective assistance as to specific individuals in order to state a cause of action” for prospective relief.

          On January 7, 2020, the plaintiffs entered into a settlement agreement with the State of California. Without admission of fault or wrongdoing, California agreed to expand the mission of the Office of the State Public Defender (OSPD). Originally created in 1976 as a statewide appellate defender office under the judicial branch of government, OSPD was defunded in the 1980s and handles direct representation for only a limited number of post-conviction death penalty cases each year. Under the settlement agreement, OSPD will provide support for California counties’ local trial-level, non-capital public defense systems, that may include but not be limited to: training for trial-level attorneys; indigent defense structure technical assistance to counties; and “efforts to identify further steps that could be taken to improve California counites’ provision of trial-level indigent criminal defense.” Although such expansion of OSPD’s mission is contingent on legislative approval and appropriation of necessary funding, the agreement binds the Office of the Governor to a good faith effort to advocate for these policies. (Indeed, the Governor’s 2020-21 budget, announced January 10, 2020, included $4 million dollars for these purposes, and the Governor publicly committed to a minimum $3.5 million annually thereafter for OSPD’s expanded mission.)

          The following day, on January 8, 2020, the plaintiffs entered into a separate no fault settlement agreement with Fresno County. Fresno County commits to a minimum budget for the county public defender office of $23,285,662 for the current fiscal year (2019-2020) and an increase in the two subsequent years to $23,500,000 (2020-21) and $24,000,000 (2021-22). The county must thereafter maintain the 2021-22 public defender budget as a minimum for the remain three-years of the agreement thereafter. By comparison, the public defender budget for FY2015-16 (the time period when the lawsuit was filed) was just $14,586,433.

          The new monies will be dedicated to lowering Fresno County public defender caseloads while increasing supervision. The agreement binds the county to ensuring that the public defender office promulgates written sets of standards and policies within six months of the signing that aligned with prevailing American Bar Association norms and then monitors and enforces them thereafter. Agreed upon standards and policies include: attorney performance standards; use of resources for immigration consequences; workload standards; utilization of social workers and other non-lawyer staff policies; uniform case-management information policies; training policies; attorney advocacy policies regarding fines and fees imposed at sentencing; and attorney performance standards in death penalty cases. The county also agrees to quarterly, detailed uniform reports to the plaintiffs on open cases, new assignments, dispositions, motions, etc., by case-type. And, despite the status of the chief public defender as an at-will county employee, Fresno County recognizes the chief public defender’s obligation to refuse cases above what can be ethically handled by the office without fear of reprisal. Finally, the county agreed to pay $400,000 of the plaintiff’s legal fees.

Learn more at:                        Pleading the Sixth, “Why the State of California is responsible for the public defense crisis in Fresno County”

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Colorado Criminal Defense Bar v. Hickenlooper

Case:                                      Colorado Criminal Defense Bar v. Hickenlooper, No. 10-CV-02930-JLK-BNB (D. Colo. May 30, 2013)

Geographic Defendant(s):      State of Colorado

Named Defendant(s):             Bill Ritter, Jr., Governor of Colorado (subsequently amended to John Hickenlooper); John W. Suthers, Attorney General of Colorado; Douglas K. Wilson, Colorado State Public Defender; Scott Storey, First Judicial District District Attorney; Mitchell R. Morrisey, Second Judicial District District Attorney; Frank Ruybalid, Third Judicial District District Attorney; Dan May, Fourth Judicial District District Attorney; Mark Hurlbert, Fifth Judicial District District Attorney; Todd Risberg, Sixth Judicial District District Attorney; Daniel Hotsenpiller, Seventh Judicial District District Attorney; Larry Abrahamson, Eighth Judicial District District Attorney; Martin Beeson, Ninth Judicial District District Attorney; Bill Thiebaut, Tenth Judicial District District Attorney; Thom Ledoux, Eleventh Judicial District District Attorney; David Mahonee, Twelfth Judicial District District Attorney; Robert E. Watson, Thirteenth Judicial District District Attorney; Elizabeth Oldham, Fourteenth Judicial District District Attorney; Jennifer Swanson, Fifteenth Judicial District District Attorney; Rod Fouracre, Sixteenth Judicial District District Attorney; Don Quick, Seventeenth Judicial District District Attorney; Carol Chambers, Eighteenth Judicial District District Attorney; Kenneth R. Buck, Nineteenth Judicial District District Attorney; Stanley L. Garnett, Twentieth Judicial District District Attorney; Pete Hautzinger, Twenty-First Judicial District District Attorney; Russell Wasley, Twenty-Second Judicial District District Attorney

Plaintiff Attorney(s):                Morrison & Foerster LLP; Husch Blackwell LLP

Status:                                    Settled

Date Filed:                              December 2, 2010

Date Disposed:                       2013

Synopsis:   The lawsuit sought to invalidate Colorado Revised Statute § 16-7-301(4), which required misdemeanor defendants to meet with a prosecutor before receiving appointed counsel — a violation of Rothgery v. Gillespie County. The case was resolved after the Colorado legislature passed a bill removing the requirement and subsequently allocating significant new funding to provide attorneys at initial appearances.

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Rivera v. Rowland

Case:                                      Rivera v. Rowland, No. CV-95-0545629S (Conn. Super. Ct. Hartford/New Britain Judicial District, Aug. 3, 1999)

Geographic Defendant(s):      State of Connecticut

Named Defendant(s):             John Rowland, Governor of Connecticut; Public Defender Services Commission; Carl D. Eisenmann, Chair of Public Defender Services Commission; William A. Genuario, Member of Public Defender Services Commission; E. Curtissa Cofield, Member of Public Defender Services Commission; John F. Kavanewsky, Jr., Member of Public Defender Services Commission; Diane Randall, Member of Public Defender Services Commission; Richard P. Gilardi, Member of Public Defender Services Commission; Linda Kelly, Member of Public Defender Services Commission

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; Connecticut Civil Liberties Union Foundation

Status:                                    Settled

Date Filed:                              January 5, 1995

Date Disposed:                       August 3, 1999

Synopsis:   The complaint alleged that Connecticut failed to provide sufficient funding for public defense services. Public defenders were underfunded, causing excessive caseloads, which in turn led defenders to triage the services provided to clients. The case settled when the state significantly increased spending, creating what is considered today to be a state with some of the strongest structural safeguards to ensure effective representation.

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N.P. v. Georgia

Case:                                      N.P. v. Georgia, No. 2014-cv-241025 (Ga. Super. Ct. Fulton County, Apr. 20, 2015)

Geographic Defendant(s):      State of Georgia, Ben Hill County, Crisp County, Dooly County, and Wilcox County

Named Defendant(s):             State of Georgia; Nathan Deal, Governor of Georgia; W. Travis Sakrison, Director of Georgia Public Defender Standards Council; Georgia Public Defender Standards Council; Ronald Cross, Member of Georgia Public Defender Standards Council; G.S. Hodges, Member of Georgia Public Defender Standards Council; Arch McGarity, Member of Georgia Public Defender Standards Council; Murphy Miller, Member of Georgia Public Defender Standards Council; E. Lee Morris, III, Member of Georgia Public Defender Standards Council; Lamar Paris, Member of Georgia Public Defender Standards Council; Donna Seagraves, Member of Georgia Public Defender Standards Council; W. David Sims, Member of Georgia Public Defender Standards Council; Edward Tolley, Member of Georgia Public Defender Standards Council; Ben Hill County; Ben Hill County Board of Commissioners; Bennie Calloway, Ben Hill County Commissioner; Daniel Cowan, Ben Hill County Commissioner; Scott Downing, Ben Hill County Commissioner; Philip Jay, III, Ben Hill County Commissioner; O.D. Netter, Ben Hill County Commissioner; Crisp County; Crisp County Board of Commissioners; Sam Farrow, Jr., Crisp County Commissioner; Larry Felton, Crisp County Commissioner; Clark Henderson, Crisp County Commissioner; Wallace Mathis, Crisp County Commissioner; Arthur James Nance, Crisp County Commissioner; Dooly County; Dooly County Board of Commissioners; Charles Anderson, Dooly County Commissioner; David Barron, Dooly County Commissioner; Eugene Cason, Dooly County Commissioner; Terrell Hudson, Dooly County Commissioner; Harry Ward, Dooly County Commissioner; Wilcox County; Wilcox County Board of Commissioners; David Brown, Wilcox County Commissioner; Arthur Greene, Wilcox County Commissioner; Jowan Johnson, Wilcox County Commissioner; Marvin Keene, Wilcox County Commissioner; Tracy Tyndal, Wilcox County Commissioner; Kristen W. Pack, Cordele Judicial Circuit Juvenile Court Judge; John C. Pridgen, Cordele Judicial Circuit Superior Court Chief Judge; Robert W. Chasteen, Cordele Judicial Circuit Superior Court Judge; T. Christopher Hughes, Cordele Judicial Circuit Superior Court Judge; G. Russell Wright, Member of Cordele Judicial Circuit Supervisory Panel; Robert Sherrell, Member of Cordele Judicial Circuit Supervisory Panel; Timothy Eidson, Cordele Judicial Circuit Circuit Public Defender; Denise Fachini, Cordele Judicial Circuit District Attorney; Cheri Nichols, Cordele Judicial Circuit Assistant District Attorney; Bradford Rigby, Cordele Judicial Circuit Assistant District Attorney; Christian Brown, Cordele Judicial Circuit Assistant District Attorney; Lara Todd, Cordele Judicial Circuit Assistant District Attorney; A. Zachary Faison, Cordele Judicial Circuit Assistant District Attorney; Lauren Warbington, Cordele Judicial Circuit Assistant District Attorney

Plaintiff Attorney(s):                Southern Center for Human Rights; Arnold & Porter, LLP

Status:                                    Settled

Date Filed:                              January 7, 2014

Date Disposed:                       April 20, 2015

Synopsis:   The class action complaint alleged widespread systemic inadequacies in the Cordele Judicial Circuit of Georgia, stating: “Children who cannot afford a lawyer often find there is no public defender available to represent them, but they are processed through the courts nonetheless. Adults who cannot afford a lawyer may languish in jail for months after arrest without seeing a public defender.”

          The U.S. Department of Justice filed a statement of interest in the lawsuit, not evaluating the merits of the case but providing the trial court with a framework to evaluate the juvenile justice claims. A month after the DOJ filed its statement of interest, the defendants agreed to settle the matter by: increasing the size of the public defender’s office staff; requiring public defenders to meet with clients (a) within three days of their detainment to determine indigency and (b) within three days of assignment to their case; and requiring defenders to receive training, including specific training for juvenile defenders. The settlement requires public defenders to advise juvenile defendants seeking to waive their right to counsel what a lawyer could do for them, and also requires the public defender office to comply with the terms of the Georgia Indigent Defense Act of 2003, including by creating a specialized juvenile division.

Learn more at:                        Pleading the Sixth, “Georgia consent decree requires competent counsel for children and adults

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Miller v. Deal

Case:                                      Miller v. Deal, No. 2011-cv-198121 (Ga. Super. Ct. Fulton County)

Geographic Defendant(s):      State of Georgia

Named Defendant(s):             Nathan Deal, Governor of Georgia; Clyde Reese, III, Commissioner of Georgia Department of Human Services; Keith Horton, Director of Division of Child Support Services; Tammy Broome, Manage of Rome Child Support Office; Betty Smith, Manager of Alapaha Child Support Office; Patricia Gunn, Manager of Middle Swainsboro Child Support Office; Cynthia Head, manager of Alcovy Monroe Child Support Office

Plaintiff Attorney(s):                Southern Center for Human Rights

Status:                                    Pending

Date Filed:                              March 22, 2011

Synopsis:   This class action lawsuit was brought on behalf of indigent parents who were jailed in civil contempt proceedings for failure to comply with child support orders, but who were denied the right to an appointed attorney to represent them despite the state being represented by counsel. The Georgia Supreme Court ruled that the case can not proceed as a class action. As the Southern Center for Human Rights explains: “In its opinion, however, the Supreme Court stated that ‘due process sometimes may require the appointment of counsel for an indigent parent in a civil contempt proceeding in which the parent is threated with incarceration.’ The Court further stated that as a matter of U.S. constitutional law ‘perhaps there is even a “presumptive” right to appointed counsel in some such proceedings if the parent is opposed by government lawyers.’ The Court left open the question of whether there is a categorical right to counsel in the circumstances presented in this case under the Georgia Constitution.” The case is now back at the trial court for further proceedings.

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Flournoy v. Georgia

Case:                                      Flournoy v. Georgia, No. 2009-cv-178947 (Ga. Super. Ct. Fulton County, Dec. 14, 2011)

Geographic Defendant(s):      State of Georgia

Named Defendant(s):             State of Georgia; Georgia Public Defender Standards council; Sonny Perdue, Governor of Georgia; W. Daniel Eversole, Director of Georgia Office of Treasury and Fiscal Services; Mack Crawford, Director of Georgia Public Defender Standards Council; Michael Berg, Chairman of Georgia Public Defender Standards Council; Jim Stokes, Conflicts Division Director of Georgia Public Defender Standards Council; Jimmonique R.S. Rodgers, Appellate Division Director of Georgia Public Defender Standards Council

Plaintiff Attorney(s):                Southern Center for Human Rights; Bondurant, Mixson & Elmore LLP; Garland, Samuel & Loeb, P.C.; Martin Brothers, P.C.; Moraitakis, Kushel & Pearson LLP; Stephen R. Scarborough

Status:                                    Settled

Date Filed:                              December 15, 2009

Date Disposed:                       December 14, 2011

Synopsis:   This class action lawsuit contended that nearly 200 indigent defendants had been denied conflict-free counsel to represent them on appeal. Some had been waiting for an attorney for up to three-and-a-half years. The evidence at hearings showed that, between March 2008 and December 2009, the staff of the GPDSC Appellate Division had been cut and funding continually reduced, while caseloads grew.

          Superior Court Judge Baxter, on February 23, 2010, certified the class and mandated immediate relief, by requiring the Governor, GPDSC, and other state official to provide an effective and conflict-free attorney to every member of the class (then estimated at 187 defendants) within 30 days. While the case was pending, the number of indigent defendants unrepresented on appeal grew to more than 800, but the resources needed to represent them did not grow correspondingly. The case settled when the parties entered into a consent decree requiring the GPDSC to continue to abide by the terms of the court’s mandate to provide conflict-free appellate counsel, including hiring additional staff appellate attorneys, monitoring attorney caseloads, and implementing oversight of qualified attorneys.

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Cantrell v. Crawford

Case:                                      Cantwell v. Crawford, No. 09EV275M (Ga. Super. Ct. Elbert County, July 8, 2010)

Geographic Defendant(s):      State of Georgia, Elbert County, Franklin County, Hart County, Madison County, and Oglethorpe County

Named Defendant(s):             Mack Crawford, Director of Georgia Public Defender Standards Council; Bart L. Graham, Commissioner of Georgia Department of Revenue; W. Daniel Ebersole, Director of Georgia Office of Treasure and Fiscal Services; Robert Lavender, Northern Judicial Circuit District Attorney; Barry L. Haston, Elbert County Sheriff; Stevie D. Thomas, Franklin County Sheriff; Mike Cleveland, Hart County Sheriff; Kip C. Thomas, Madison County Sheriff; Mike Smith, Oglethorpe County Sheriff

Plaintiff Attorney(s):                Southern Center for Human Rights

Status:                                    Settled

Date Filed:                              April 7, 2009

Date Disposed:                       July 8, 2010

Synopsis:   This class action case was brought on behalf of indigent defendants who were held in jail prior to their trials but had not received appointed counsel. All of the defendants were people with whom the public defender office had a conflict. From July 1, 2007 to June 30, 2008, the Northern Circuit Public Defenders (CPD) office had contracts with three attorneys to handle conflict cases, but when CPD did not renew their contracts the attorneys stopped representing the indigent defendants, leaving them in jail and without an attorney for months.

          The case settled under a Consent Order requiring the Georgia Public Defender Standards Council to appoint an attorney within one business day after being notified of the need for conflict counsel. The order also established experience qualifications and standards for contract attorneys and placed a cap on the number of cases a contract attorney can handle.

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Stinson v. Fulton County

Case:                                      Stinson v. Fulton County, No. 1-94-CV-240-GET (N.D. Ga. May 21, 1999) (Consent Order entered) and (N.D. Ga. July 27, 2005) (Consent Order amended)

Geographic Defendant(s):      Fulton County

Named Defendant(s):             Fulton County Board of Commissioners; Mitch Skandalakis, Chairman of Board of County Commissioners

Plaintiff Attorney(s):                Maloy & Jenkins

Status:                                    Settled

Date Filed:                              January 28, 1994

Date Disposed:                       May 21, 1999; modified July 27, 2005

Synopsis:   The complaint sought declaratory and injunctive relief against the county’s practice of denying counsel to indigent criminal defendants while they were “bound over” (i.e. incarcerated) in the county jail during the period between a bond hearing and the subsequent indictment or arraignment. Because of the county’s refusal to provide counsel until the point of indictment, many defendants (particularly misdemeanor defendants) had “remained in jail without counsel for periods longer than could have been imposed if they had been convicted and sentenced to the maximum penalty for the offense.”

          In an attempt to procure summary dismissal of the suit, the county voluntarily adopted a pre-trial services program, consisting of officers responsible for assigning counsel to indigent defendants. After the limited reform failed to secure dismissal on procedural grounds, however, the county agreed (at the urging of the district court judge) to settle the case rather than take it to trial.

          Under the terms of the judicially enforceable Consent Order, Fulton County agreed to continue to maintain and adequately fund the pre-trial services program; to ensure that individuals met with a pre-trial services officer within one business day of arrest; to ensure that individuals were provided with legal advice within two business days of meeting with the pre-trial services officer; to provide adequate resources to the public defender program; and to make good-faith efforts to ensure that defender’s offices reduced their caseloads according to a detailed schedule set forth in the Consent Order. In 2005, the court granted a motion to bring the 1999 Consent Order into conformity with the Georgia Indigent Defense Act of 2003 and standards promulgated by the Public Defender Standard Council.

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Tucker v. Idaho

Case:                                      Tucker v. Idaho, No. CV-OC-1510240 (Idaho 4th Jud. Dist. Ct. Ada County), on remand from No. 43922 (Idaho, Apr. 28, 2017), aff’g in part, rev’g in part, and remanding dismissal by No. CV-OC-1510240 (Idaho 4th Jud. Dist. Ct. Ada County, Jan. 20, 2016)

Geographic Defendant(s):      State of Idaho

Named Defendant(s):             State of Idaho; C.L. “Butch” Otter, Governor of Idaho; Molly Huskey, Member of Idaho State Public Defense Commission; Darrell G. Bolz, Member of Idaho State Public Defense Commission; Sara R. Thomas, Member of Idaho State Public Defense Commission; William H. Wellman, Member of Idaho State Public Defense Commission; Kimber Ricks, Member of Idaho State Public Defense Commission; Chuck Winder, Member of Idaho State Public Defense Commission; Christy Perry, Member of Idaho State Public Defense Commission

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; American Civil Liberties Union of Idaho Foundation; Hogan Lovells US LLP

Status:                                    Pending

Date Filed:                              June 17, 2015

Synopsis:   The class action complaint alleged that Idaho’s indigent defense systems lack structural safeguards to protect the independence of defenders, make widespread use of fixed-fee contracts, have extraordinarily high attorney caseloads, and lack standards, training, and supervision, among other things. The complaint stated: “Despite amendments to Idaho’s public-defender statutes that were passed in 2014 through a bill enacted as the ‘Idaho Public Defense Act,’ the current patchwork public-defense arrangement in Idaho remains riddled with constitutional deficiencies and fails, at all stages of the prosecution and adjudication processes, to ensure adequate representation for indigent defendants in both criminal and juvenile proceedings in Idaho.” The action sought declaratory and injunctive relief, on behalf of all indigent persons charged with an offense that carries jail time and who cannot afford an attorney and the necessary expenses of a defense, to remedy the state’s systemic failure to provide effective legal representation.

          Following a hearing, the trial court dismissed the suit, and the plaintiffs appealed to the Idaho Supreme Court. The U.S. Department of Justice filed an amicus brief in the appeal, explaining in detail how and why “[t]he availability of pre-conviction civil actions for systemic denials of counsel, whether actual or constructive, is critical to protecting the fundamental right that Gideon recognized.”

          On April 28, 2017, the Idaho Supreme Court reinstated the lawsuit against the state and the PDC and remanded the case back to the trial court. The court found that indigent defendants “suffered ascertainable injuries by being actually and constructively denied counsel at critical stages of the prosecution, which they allege are the result of deficiencies in Idaho’s public defense system.” Therefore, the case “presents definite and concrete issues” and “a real, substantial controversy” and “there is a present need for adjudication,” particularly in light of the PDC’s failure to exercise its new duties since the 2016 legislation authorized it to do so. Further, the court found that the complaint “demonstrate[d] a likelihood of repeated injury or future harm.” The alleged injuries are “fairly traceable” to the state and the public defense commission, since the state “has ultimate responsibility to ensure that the public defense system passes constitutional muster,” and the public defense commission is responsible for, among other things, promulgating rules governing training, caseload, and workload requirements for public defenders that would bind the counties. The courts, according to the opinion, are capable of providing relief to address the injuries alleged in the lawsuit. “[T]he State has the power – and indeed the responsibility – to ensure public defense is constitutionally adequate. . . . Given that the counties have no practical ability to effect statewide change, the State must implement the remedy.” And, particularly under the expanded authority and duty given to the public defense commission by 2016 legislation, “the PDC can promulgate rules to ensure public defense is constitutionally adequate and, moreover, can intervene at the county level.” Lastly, the court held that the “requested relief does not implicate the separation of powers doctrine. The right to counsel . . . is not entrusted to a particular branch of government.”

          Importantly, the court explained that the two-pronged ineffective assistance of counsel test of Strickland “is inapplicable when systemic deficiencies in the provision of public defense are at issue. The issues raised in this case do not implicate Strickland.” Instead, the claims “alleged systemic, statewide deficiencies plaguing Idaho’s public defense system. Appellants seek to vindicate their fundamental right to constitutionally adequate public defense at the State’s expense,” as required by the federal and state constitutions. “They have not asked for any relief in their individual criminal cases. Rather, they seek to effect systemic reform.” Therefore, the lower court wrongly applied the Strickland v. Washington standard to the lawsuit, because Strickland is inapplicable when systemic deficiencies in the provision of public defense are at issue. Instead, the court held the appropriate standard is that of United States v. Cronic: “[a] criminal defendant who is entitled to counsel but goes unrepresented at a critical stage of prosecution suffers an actual denial of counsel and is entitled to a presumption of prejudice,” and the complaint adequately alleged “actual and constructive denials of counsel at critical stages of the prosecution.”

Learn more at:                        Pleading the Sixth, “The Idaho Supreme Court says Strickland is ‘inapplicable’ to remedying systemic indigent defense deficiencies; reinstates ACLU lawsuit” and “ACLU sues Idaho; statutory changes too slow to implement” and “Idaho empowers state commission with new authority and new funding

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Wilson v. Allen County

Case:                                      Wilson v. Allen County, No. 1:15-cv-00402 (N.D. Ind.)

Geographic Defendant(s):      Allen County

Named Defendant(s):             Allen County; Allen County Council; Allen County Board of Commissioners; Allen County Public Defender Board

Plaintiff Attorney(s):                Christopher C. Myers & Associates

Status:                                    Pending

Date Filed:                              December 31, 2015

Synopsis:   This class action lawsuit was brought on behalf of indigent defendants who are charged with misdemeanor offenses in Allen County. The complaint alleged that the county’s public defender system is “constitutionally and structurally deficient,” in particular because the lowly paid part-time attorneys who work for the county’s public defender office carry excessive caseloads and have virtually no support staff to assist them, all in violation of the county’s own comprehensive plan adopted pursuant to state statutes. For example, the complaint says that during the 31-month period of January 2013 through July 2015, the four part-time misdemeanor attorneys appeared in over 6,250 public and private cases; an average of over 604 cases per attorney per year. As a result, according to the pleadings, indigent misdemeanor defendants are denied their right to the effective assistance of counsel. The lawsuit asks the court to declare that the defendants are denying the rights to counsel of indigent misdemeanor defendants and to enjoin the county from continuing to do so.

Learn more at:                        Pleading the Sixth, “Putting the spotlight on small-town America: Putnam County, Indiana” and “The ‘Indiana Model’ for providing right to counsel services does not work

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Alford v. Johnson County Commissioners

Case:                                      Alford v. Johnson County Commissioners, No. 73D01-1601-PL-000003 (Ind. Super. Ct. Shelby County, Jan. 30, 2017) (previously No. 49D01-15-10-PL-033447 (Ind. Civil Ct. Marion County)); No. 73A04-1702-PL-00223 (Ind. Ct. App., Dec. 29, 2017)

Geographic Defendant(s):      Johnson County

Named Defendant(s):             Johnson County Commissioners (Brian Baird, Kevin Walls, Ron West, Kathleen Hash, Barbara Davis, Amy Briggs); Mark Loyd, Johnson County Circuit Court Judge; Kevin Barton, Johnson County Superior Court 1 Judge; Lance Hamner, Johnson County Superior Court 3 Judge; Cynthia Emkes, Johnson County Superior Court 2 Judge; John P. Wilson, Johnson County Court contract attorney; Michael Bohn, Johnson County Court contract attorney; Andrew Eggers, Johnson County Court contract attorney; John Norris, Johnson County Court contract attorney; Daniel Vandivier, Johnson County Court contract attorney; J. Andrew Woods, Johnson County Court contract attorney; Matthew Solomon, Johnson County Court contract attorney

Plaintiff Attorney(s):                Sutherlin and Associates; Saeed & Little, LLP

Status:                                    Dismissed

Date Filed:                              October 8, 2015

Date Disposed:                       December 29, 2017

Synopsis:   This class action lawsuit alleged systemic denial of counsel in Johnson County. The lawsuit claimed that the county fails to: impose reasonable caseload limits on public defenders; establish a system of oversight and monitoring; adequately fund the indigent defense system; and, provide competent counsel at all critical stages of a case as defined by the U.S. Supreme Court. Specifically, the suit alleged that the county operates a contract system in which lawyers are beholden to the judges presiding over their cases, thus creating a conflict of interest between what the lawyer must do to properly advocate for his client and what he has to do to incur favor with the judge to secure the next contract.

          The trial court dismissed the suit, primarily on the basis of the controlling 1996 Indiana legal precedent of Platt v. State. It issued one order dismissing the claims brought against the county commissioners and the individual public defense attorneys, and it issued a separate order dismissing the suit against the judges. In short, the court declined to consider a pre-trial civil action brought on behalf of indigent criminal defendants challenging the effectiveness of their public representation.

          The trial court reasoned that allowing the suit to go forward would violate the separation of powers doctrine. As the court explained, the Indiana legislature established an indigent defense system that allows public defense to be provided in various ways. County Commissioners can set up a county public defender board, but they are not required to do so; and in the absence of a county public defender board, the judges (who are under the auspices of the state and not the county) are required to either contract with or appoint attorneys to provide public defense. Since the legislature allowed for a choice in how to provide public defense services, the court believed it would violation separation of powers for the court to choose one method over another. The trial court also held, following Platt v. State, that the cases of the named plaintiffs are not yet ripe for review because their cases were active criminal proceedings in the pre-trial stage (other than one plaintiff who pled guilty) and the effectiveness of their trial counsel and the system that provides those attorneys should not be decided until the criminal cases are concluded. As to the judges named as defendants, the trial court also found that they have immunity because all their actions were taken in their judicial capacity.

          The plaintiffs appealed the trial court’s dismissal of the lawsuit, and oral argument was held on December 7, 2017. On December 29, 2017, the Indiana Court of Appeals affirmed the trial court’s dismissal of the lawsuit. The court found that the individual attorneys who contract with Johnson County to provide indigent defense representation are personally responsible to not accept more case assignments than they can handle effectively and there was no claim that the judges or county commissioners were requiring the attorneys to accept too many cases, therefore the complaint failed to state a claim of systematic deprivation of constitutional rights.

Learn more at:                        Pleading the Sixth, “Putting the spotlight on small-town America: Putnam County, Indiana” and “The ‘Indiana Model’ for providing right to counsel services does not work

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Allen v. Edwards

Case:                                      Allen v. Edwards, No. 655079 (La. 19th Jud. Dist. Ct.)

Geographic Defendant(s):      State of Louisiana

Named Defendant(s):             John Bel Edwards, Governor of Louisiana; James T. Dixon, Jr., Louisiana State Public Defender; Zita Jackson Andrus, Louisiana Public Defender Board member; Chris L. Bowman, Louisiana Public Defender Board member; Flozell Daniels, Jr., Louisiana Public Defender Board member; Thomas D. Davenport, Jr., Louisiana Public Defender Board member; Patrick J. Fanning, Louisiana Public Defender Board member; W. Ross Foote, Louisiana Public Defender Board member; Katherine E. Gilmer, Louisiana Public Defender Board member; Michael C. Ginart, Jr., Louisiana Public Defender Board member; Frank Holthaus, Louisiana Public Defender Board member; Donald W. North, Louisiana Public Defender Board member; Moses Junior Williams, Louisiana Public Defender Board member

Plaintiff Attorney(s):                Jones Walker LLP; Southern Poverty Law Center; Lawyers’ Committee for Civil Rights Under Law; Davis Polk & Wardwell LLP

Status:                                    Pending

Date Filed:                              February 6, 2017

Synopsis:   A class action petition was filed on behalf of 13 indigent defendants who are awaiting trial on criminal charges in Louisiana. Though each of the defendants “has had an attorney appointed to represent them in court,” the petition alleges that “the representation they are receiving fails to meet minimum constitutional or professional ethical standards by any measure. Many have never had a confidential meeting with their attorneys. Some have met their attorneys only in passing. None of the attorneys have spoken with their clients in a meaningful way about their defenses or the strength of the case against their client, identified and secured favorable witnesses and evidence, filed appropriate pretrial motions, or provided a voice for their clients in court.” The plaintiffs seek, on behalf of themselves and similarly situated indigent pretrial defendants, a declaration that they are being denied their federal and state right to counsel, an injunction prohibiting Louisiana from maintaining an inadequate public defense system, and a monitor “to supervise the public defense system until . . . Defendants have implemented a system that provides effective representation for the poor state-wide and dismantled the structural barriers to effective representation which exist in Louisiana.” On October 11, 2017, the trial judge denied the defendants’ objections to the lawsuit, allowing it to go forward. In January 17, 2019, the trial judge denied the defendants’ motion for summary judgment (the motion was argued on Nov. 18, 2018), finding that “there are genuine disputed issues of material fact” in the case, including “whether the public defender system in the State of Louisiana violates federal and state constitutional rights of the class plaintiffs,” in letting the case proceed to trial. However, on March 12, 2021, an appellate court reversed the trial court’s grant of class certification, finding that, under Louisiana precedent, “any analysis or review of a particular indigent defendant’s allegation of constitutional violations in connection with claims of systemic ‘structural barriers,’ whether for retroactive or prospective relief, is an individualized analysis reserved for the post-conviction relief procedure. As such, claims of one class representative will not be typical of all class members.”

Learn more at:                        Pleading the Sixth, “Indigent defense progress stunted by outdated funding mechanism in Louisiana” and “Louisiana’s right to counsel problems explained

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Yarls v. Bunton

Case:                                      Yarls v. Bunton, No. 3:16-cv-0031-JJB-RLB (M.D. La., Jan. 31, 2017)

Geographic Defendant(s):      State of Louisiana

Named Defendant(s):             Derwin Bunton, Orleans Parish Chief District Defender; James T. Dixon, Jr., Louisiana State Public Defender

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; ACLU Foundation of Louisiana; William P. Quigley; Anna Lellelid-Douffet; Emily Faye Ratner

Status:                                    Dismissed

Date Filed:                              January 14, 2016

Date Disposed:                       January 31, 2017

Synopsis:   A class action complaint was filed on behalf of indigent defendants facing criminal charges in New Orleans, but who have not received appointed counsel and instead have been placed on a waiting list because of budgetary shortages and excessive caseloads. The complaint alleged that all of this “result[s] from the State of Louisiana’s chronic underfunding of its public defender system.” In an amended complaint, the plaintiffs stated “Louisiana’s dysfunctional funding scheme has forced at least fifteen of its forty-two defender districts to announce severe service restrictions in the past year. The affected districts are spread throughout the state, and include both rural and urban parishes.”

          The federal district court dismissed the case on the basis of comity and federalism (for lawyers, summed up as Younger abstention), as it found itself bound to do by Fifth Circuit precedent. The plaintiffs and the defendants in the lawsuit “agree[d] that Defendants’ actions were in violation of the Constitution,” and the court noted that “Defendants cannot dispute that waitlists violate the constitution, but they use them in an attempt to comply with ethical duties that require them to limit their caseloads.” Faced with this agreement that the plaintiffs’ Sixth Amendment right to counsel is being violated in on-going cases in the state courts of Louisiana, the issue the federal court had to decide was whether it had authority to fashion a remedy. Under Fifth Circuit precedent, federal district courts are precluded from exercising jurisdiction over lawsuits that interfere with ongoing state cases and where the parties can raise their constitutional challenges in the state courts. The court observed that “state courts in Pennsylvania, New York, and Michigan have all held that pretrial ineffective assistance claims are cognizable.” In other words, state courts can get involved in on-going cases of indigent criminal defendants to protect their right to counsel at the pretrial stage. But under Fifth Circuit precedent, the federal district court found itself without authority to involve itself in fashioning a remedy, unless and until a case reaches it through federal habeas corpus after exhaustion of state remedies. Finally, the court said: “It is clear that the Louisiana legislature is failing miserably at upholding its obligations under Gideon. Budget shortages are no excuse to violate the United States Constitution. The legislature must resolve the crisis and locate a stable source of funding. . . . This Court has faith that the state court criminal judges will do their best to uphold the constitutional rights of the defendants on the waitlist. But the judges can only offer temporary relief in this crisis. Lasting relief will only come when the legislature locates an adequate source of funding for public defense offices.”

Learn more at:                        Pleading the Sixth, “Indigent defense progress stunted by outdated funding mechanism in Louisiana” and “Louisiana’s right to counsel problems explained

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Anderson v. Louisiana

Case:                                      Anderson v. Louisiana, No. ________ (La. 19th Judicial Dist. Ct.) (previously No. 2004-005405 (La. 14th Judicial Dist. Ct.))

Geographic Defendant(s):      State of Louisiana

Named Defendant(s):             State of Louisiana; Kathleen Blanco, Governor of Louisiana; Louisiana State Legislature

Plaintiff Attorney(s):                Sutherland Asbill & Brennan LLP; Baker Botts LLP; David L. Hoskins

Status:                                    Pending

Date Filed:                              September 23, 2004

Synopsis:   The lawsuit supported by NACDL alleged deficiencies in the delivery of indigent defense services that result in the denial of the right to counsel. The suit was stayed in 2007 when the Louisiana legislature passed comprehensive indigent defense reform creating the Louisiana Public Defender Board with authority to promulgate and enforce standards related to, among others, reasonable caseloads, attorney qualifications, training, and performance. That stay expired March 3, 2008, and the case remains pending.

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DeWolfe v. Richmond

Case:                                      DeWolfe v. Richmond, No 34, 76 A.3d 1019 (Md. Sept. 25, 2013); case below, No. 24-C-06-229911 (Md. Cir. Ct. Baltimore City, Sept. 30, 2010 and Dec. 28, 2010 and Feb. 25, 2011)

Geographic Defendant(s):      State of Maryland and City of Baltimore

Named Defendant(s):             District Court of Maryland; District Court of Maryland Chief Judge; Maryland District Court Commissioners Coordinator of Commissioner Activity; District Court for Baltimore City Administrative Judge; Baltimore City Administrative Commissioner; Commissioners of District Court in Baltimore City; Paul B. DeWolfe, Jr., Public Defender

Plaintiff Attorney(s):                Venable LLP; Maryland School of Law Access to Justice Clinic

Status:                                    Decided

Date Filed:                              November 13, 2006

Date Disposed:                       September 25, 2013

Synopsis:   This class action lawsuit was brought on behalf of indigent people who were denied the right to be represented by a public defender at bail hearings, which were conducted as part of their initial appearance following arrest. The complaint explained that these initial appearances were not held in a courtroom, were not open to the public, and were not recorded, all making it impossible to review what occurred there. The suit asked the court to hold, among other things, that the initial bail hearing is a critical stage of a criminal prosecution and therefore entitles an indigent defendant to be represented by appointed counsel.

          On appeal from the trial court’s decision in favor of the plaintiffs, the Maryland Court of Appeals (the highest court in the state) determined that then-existing state statutes required the right to counsel at bail hearings and reviews throughout the state. Less than four months later, Governor Martin O’Malley signed legislation requiring police to issue citations for many misdemeanor violations – rather than arresting and detaining alleged offenders – in hopes of decreasing the need for bail hearings altogether and also explicitly stating that representation is not required at the initial appearance. During the same legislative session, the Office of the Public Defender received a $6.3 million increase to hire 68 new employees (including 34 lawyers).

          On reconsideration, the Maryland high court held that, “under the Due Process component of Article 24 of the Maryland Declaration of Rights, an indigent defendant has a right to state-furnished counsel at an initial appearance before a District Court Commissioner.”

Learn more at:                        Pleading the Sixth, “Maryland OPD receives 7.4% budget increase to staff bail hearings” and “Maryland Supreme Court orders attorneys at bail hearings

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Lavallee v. Justices in the Hampden Superior Court

Case:                                      Lavallee v. Justices in the Hampden Superior Court, No. SJC-09268, 812 N.E.2d 895 (Mass. July 28, 2004)

Geographic Defendant(s):      Hampden County

Named Defendant(s):             Massachusetts Supreme Judicial Court; Hampden Superior Court Justices; Chicopee District Court Justices; Palmer District Court Justices; Springfield District Court Justices; Westfield District Court Justices

Plaintiff Attorney(s):                Committee for Public Counsel Services; American Civil Liberties Union of Massachusetts

Status:                                    Decided

Date Filed:                              May 6, 2004

Date Disposed:                       July 28, 2004

Synopsis:   Indigent defendants claimed that the chronic underfunding of the assigned counsel system in Massachusetts — then at rates of $40/hour — resulted in “an insufficient number of attorneys willing to accept assignments.” Although the Court declined to raise compensation rates, it found that defendants were being denied their constitutional right to counsel due to the lack of attorneys willing to serve at the low rates, stating “[w]e need not wait for counsel’s presence or the articulation of a specific harm before we may remedy the denial of counsel in the early stages of a case.” The Court ordered that pre-trial detainees be released after seven days if no counsel was appointed and that charges be dismissed after 45 days against any defendant who was entitled to counsel and had not received one.

          Days after the Lavallee ruling, out of fear that potentially violent defendants were to be released on to the streets, the Massachusetts state legislature passed a bill improving compensation for indigent defense attorneys and establishing “a commission to study the provision of counsel to indigent persons who are entitled to the assistance of assigned counsel.” This resulted in an increase in the CPCS budget of approximately 230% over eight years.

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Arianna S. v. Massachusetts

Case:                                      Arianna S. v. Massachusetts, No. SJ-2004-0282 (Mass. Oct. 30, 2007)

Geographic Defendant(s):      Commonwealth of Massachusetts

Named Defendant(s):             Commonwealth of Massachusetts; Trial Court of the Commonwealth of Massachusetts

Plaintiff Attorney(s):                Holland & Knight

Status:                                    Decided

Date Filed:                              June 28, 2004

Date Disposed:                       October 30, 2007

Synopsis:   This class action suit, on behalf of indigent parents and children who were involved in child welfare cases, alleged similarly to the Lavalee case that the low compensation rates paid to appointed counsel resulted in the denial of the right to counsel to indigent parties. The Court stayed the proceedings to allow the legislature to act and dismissed the case once the legislature substantially increased the compensation rates.

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Duncan v. Michigan

Case:                                      Duncan v. Michigan, No. 07-000242-CZ (Mich. Cir. Ct. Ingham County, July 2013)

Geographic Defendant(s):      State of Michigan, Berrien County, Genesee County, and Muskegon County

Named Defendant(s):             State of Michigan; Jennifer M. Granholm, Governor of Michigan

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; American Civil Liberties Union Fund of Michigan; Frank D. Eaman PLLC; Cravath, Swaine & Moore LLP

Status:                                    Settled

Date Filed:                              February 22, 2007

Date Disposed:                       July 2013

Synopsis:   This class action lawsuit was brought on behalf of all current and future indigent defendants charged with felonies in three Michigan counties. Though the three counties were the focus of the complaint, the ACLU acknowledged that the types of harms suffered by indigent defendants “are by no means limited or unique” to just the three named counties. As the original complaint detailed, the State of Michigan had done “nothing to ensure that any county has the funding or the policies, programs, guidelines, and other essential resources in place to enable the attorneys it hires to provide constitutionally adequate legal representation.”

           The state and counties made a wide variety of claims in a lengthy effort to get the suit dismissed, including lack of standing, governmental immunity, and separation of powers. At stake was the question of whether indigent people charged with crimes and being deprived of their right to counsel have to wait until after conviction and sentence to seek help from a court, or whether they can ask a court to step in and ensure they receive effective assistance of counsel from the outset of a prosecution. The trial court denied the state and counties’ motion, and they appealed. On June 11, 2009 in a detailed 53-page ruling, the Michigan Court of Appeals affirmed the trial court’s decision that the case could go forward, stating:

“[The role of the judiciary in our tripartite system of government entails, in part, interpreting constitutional language, applying constitutional requirements to the given facts in a case, safeguarding constitution rights, and halting unconstitutional conduct. For state and federal constitutional provisions to have any meaning, we may and must engage in this role even where litigation encompasses conduct by the executive and legislative branches. We cannot accept the proposition that the constitutional rights of our citizens, even those accused of crimes and too poor to afford counsel, are not deserving and worthy of any protection by the judiciary in a situation where the executive and legislative branches fail to comply with constitutional mandates and abdicate their constitutional responsibilities, either intentionally or neglectfully. If not the courts, then whom. . . . Constitutional compliance is our only concern; matters regarding the method and manner by which the executive and legislative branches effectuate constitutional demands are not our concern, nor can they be, as long as the branches abide by state and federal constitutions. In that same vein, and with respect to the particular issues raised in this action, concerns about costs and fiscal impact, concerns regarding which governmental entity or entities should bear the costs, and concerns about which governmental body or bodies should operate an indigent defense system cannot be allowed to trump constitutional compliance, despite any visceral reaction to the contrary.”

The Michigan Supreme Court affirmed as well (later vacating and then reinstating the affirmance).

          After more than six years of litigation, the ACLU dismissed the lawsuit as moot after Governor Rick Snyder signed into law comprehensive reform legislation in July 2013 that seeks to balance the scales of justice by creating the Michigan Indigent Defense Commission (MIDC) – a 15-member commission appointed by diverse authorities with the power to develop and oversee the “implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults in this state.” The MIDC now has the authority to investigate, audit, and review the operation of local county right to counsel services to “assure compliance with the commission minimum standards, rules and procedures.” All new money for meeting standards will come from the state, not from counties.

Learn more at:                        Pleading the Sixth, “Michigan Court of Appeals allows class action lawsuit to proceed” and “Michigan passes public defense reform legislation

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Burks v. Scott County

Case:                                      Burks v. Scott County, No. 3-14-cv-00745-HTW-LRA (S.D. Miss., June 27, 2017)

Geographic Defendant(s):      Scott County

Named Defendant(s):             Scott County; Marcus D. Gordon, 8th Circuit Court District Judge; Bill Freeman, Scott County Justice Court Judge; Wilbur McCurdy, Scott County Justice Court Judge; Mark Duncan, 8th Circuit District District Attorney; Mike Lee, Scott County Sheriff

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; ACLU of Mississippi Foundation Inc.; Roderick and Solange MacArthur Justice Center

Status:                                    Settled

Date Filed:                              September 23, 2014

Date Disposed:                       June 27, 2017

Synopsis:   The class action complaint alleged that Scott County routinely detains felony defendants pre-trial without bail while failing to appoint counsel until after formal indictment, which at best does not occur until three to five months after arrest. The plaintiffs alleged this is a violation of Rothgery v. Gillespie County, which states that the right to counsel attaches 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.”

          The trial court declined, on September 30, 2015, to certify the case as a class action and dismissed the plaintiffs’ request for injunctive and declaratory relief on abstention grounds, but allowed the suit to go forward pending the conclusion of the individual plaintiffs’ cases to decide whether they are entitled to recover damages.

           The parties settled the case. The court’s Order found that, “[u]nder Mississippi law, the right to counsel attaches at arrest . . .,” a point earlier than the first formal judicial proceeding at which the U.S. Supreme Court has held that the right to counsel attaches under the Sixth Amendment. Counsel must be appointed promptly following arrest “to protect an indigent arrestee’s fundamental right to pretrial liberty” during the bail determination and the right to counsel at the critical stage of the preliminary hearing. “Delaying the appointment of counsel to indigent defendants until after a grand jury indictment . . . impermissibly risks creating a dual system of justice wherein only arrestees who can afford counsel have meaningful access to the pretrial process, including preliminary and bail hearings, case investigation, and plea negotiation.” “In imposing bail, the judge must determine the least onerous conditions of release that will ensure the defendant’s presence at trial.” In light of these findings, the court ordered that: (1) “[A]bsent a valid waiver, counsel must be provided for indigent defendants prior to indictment, at or promptly after the first judicial proceeding, to preserve an indigent arrestee’s right to a preliminary hearing and meaningful representation at all critical stages before trial.” (2) “[A]n arrestee is entitled to an individualized bail hearing wherein courts must meaningfully consider alternatives other than money bail in determining how best to assure a defendant’s presence at trial.” (3) The “Agreement to Settle All Equitable Claims” is made a part of the court’s Order. The settlement agreement requires: (1) For 24 months, the attorneys for the parties will meet quarterly to ensure compliance with the Agreement. If the counties breach the agreement, the parties can return to court for relief. (2) Within 48 hours of arrest and before the initial appearance, the Scott County Sheriff will provide all arrestees with the application they must complete to request appointed counsel. If the application has not been completed before the initial appearance, the Justice Court must provide the arrestee an opportunity to complete the application at the initial appearance. (3) The Sheriff and/or the Justice Court Clerk must, on a daily basis, forward all completed applications to the individual county’s Circuit Court Clerk, who then must immediately forward the application to the senior circuit court judge and the senior contracting indigent defense attorney. And the Justice Court Clerk must send a copy of the arrestee’s file to the senior contracting indigent defense attorney. (4) Once an arrestee completes the application, “the Senior Attorney . . . shall represent the arrestee” . . . “or assign the matter to one of the other approved Indigent Defense Attorneys.” “The responsible attorney shall meet with the indigent arrestee as required by Rule 7 of the newly-enacted Mississippi Rules of Criminal Procedure and the Mississippi Rules of Professional Conduct.” (5) If at any time the senior circuit court judge finds the arrestee is not indigent, then the judge shall terminate the representation of the arrestee (but until such a finding is made, the designated attorney is representing the defendant).

Learn more at:                        Pleading the Sixth, “ACLU files federal 6th Amendment class action lawsuit against a Mississippi County

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Quitman County v. Mississippi

Case:                                      Quitman County v. Mississippi, No. 2003-SA-02658-SCT, 910 So.2d 1032 (Miss. July 21, 2005) (finding in favor of the defendant state); and Mississippi v. Quitman County, No. 2000-IA-01477-SCT, 807 So.2d 401 (Miss. Oct. 31, 2001) (holding county has standing to sue; related cases held in abeyance pending outcome: Noxubee County v. Mississippi, No 99-0136 (Miss. Circ. Ct. Noxubee County); Jefferson County v. Mississippi, No 99-0169 (Miss. Circ. Ct. Jefferson County); Van Slyke v. Mississippi, No. 00-0013-GN-D (Miss. Chancery Ct. Forrest County))

Geographic Defendant(s):      State of Mississippi

Named Defendant(s):             State of Mississippi; Kirk Fordice, Governor of Mississippi; Mike Moore, Mississippi Attorney General

Plaintiff Attorney(s):                Robert McDuff; Dennis C. Sweet, III; Arnold & Porter

Status:                                    Decided

Date Filed:                              December 17, 1999

Date Disposed:                       July 21, 2005

Synopsis:   In what has come to be known as “the Quitman County case,” three counties and a part-time public defender from a fourth county separately sued the State of Mississippi in an attempt to force the state to fund the cost of indigent defense under the Mississippi Statewide Public Defender System Act of 1998 and relieve counties of the financial burden. After four years of motions, hearings, appeals, and remands, and following a week-long bench trial, the trial court entered judgment in favor of the state and that judgment was eventually affirmed by the Mississippi Supreme Court. Funding for Mississippi’s statewide public defense system was never forthcoming.

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Church v. Missouri

Case:                                      Dalton v. Barrett, No. 17-cv-04057-NKL (W.D. Mo.), on remand from Church v. Missouri, 913 F.3d 736 (8th Cir. 2019), rev’g Church v. Missouri, 268 F. Supp. 3d 992 (W.D. Mo. 2017) (previously No. _____ (Mo. Circ. Ct. Cole County))

Geographic Defendant(s):      State of Missouri

Named Defendant(s):             State of Missouri; Eric R. Greitens, Governor of Missouri; Michael Barrett, Director of Missouri State Public Defender Office; Riley Bock, Chair of Missouri State Public Defender Commission; Charles R. Jackson, Vice Chair of Missouri State Public Defender Commission; Craig Chval, Secretary of Missouri State Public Defender Commission; A. Crista Hogan, Member of Missouri State Public Defender Commission

Plaintiff Attorney(s):                ACLU of Missouri Foundation; ACLU Foundation; MacArthur Justice Center at St. Louis; Orrick, Herrington & Sutcliffe LLP

Status:                                    Pending

Date Filed:                              March 9, 2017

Synopsis:   This class action lawsuit was brought on behalf of all indigent adults and juveniles who are charged with any offense that carries the potential for incarceration as a penalty and who are eligible to be represented by the Missouri State Public Defender. The complaint alleges that “[f]or more than two decades, [the State of Missouri has] failed to provide the resources required to adequately represent poor people accused of crime in Missouri, leading to the actual and constructive denial of counsel for, and ineffective representation of, indigent defendant across the State.” Specifically, the plaintiffs say the budget for indigent defense is “shockingly inadequate,” leading to attorneys handling too many cases and devoting too few hours to each case. And this leads to many poor people needlessly sitting in jail for prolonged periods until their public defender has time to work on their case, while they have little to no communication with their appointed attorney. The complaint alleges many ways in which the state is actually or constructively denying the right to counsel at critical stages of cases, including: absence of attorneys at arraignments and hearings to set bond; attorneys appearing unprepared to effectively advocate for a client; attorneys failing to meet and talk with clients, preventing indigent defendants from meaningfully participating in their own defense; failure to investigate; and failure to obtain and review discovery. “The lack of funding for MSPD has created an environment in which no public defender in [Missouri] can provide constitutionally adequate representation for all of their clients,” states the complaint. The lawsuit asks the court to declare that Missouri’s public defense system is unconstitutional and to order the defendants to take the steps “necessary to bring the system into compliance with federal and state law.”

           The case was removed to federal court on April 7, 2017. The U.S. District Court for the Western District of Missouri, Central Division found that the state waived sovereign immunity, a decision that was reversed by the Eighth Circuit Court of Appeal on January 10, 2019. As a result, both the state of Missouri and its governor were dismissed as defendants to the litigation. Subsequently, on February 26, 2019, the U.S. District Court denied class certification and ordered the parties to mediation. Following the January and February 2019 rulings, the only remaining parties to the litigation are the individual named plaintiffs and members of the Missouri State Public Defender Commission as named defendants.

           On May 13, 2019, the parties proposed a consent judgement with the aim of ensuring that the Missouri State Public Defender (MSPD) can prospectively provide effective representation to all defendants at every critical stage of each and every criminal and delinquency cases. While not admitting fault, the parties agreed that “MSPD is grossly overburdened, and that the burden under which it operates routinely and systematically harms indigent criminal defendants by depriving them of competent counsel, there is a high likelihood that Plaintiffs would be able to prove their constitutional claims against the MSPD.” Thus, the parties agreed to annual caseload limits established by the American Bar Association’s Missouri workload project (limiting attorneys to no more than 173.3 hours of casework per month). The time limits permit public defenders, among others things, to provide: “timely and frequent client communication; meaningful representation of indigent defendants at initial appearances, bail and bail reduction hearings, and preliminary hearings; timely review of discovery; sufficient case investigation in order to determine the relative strengths and weaknesses of the state’s case; retention of qualified experts whenever necessary to provide effective representation; robust pre-trial motion practice; timely and thorough preparation for trial; timely and thorough preparation for sentencing; and competent direct appeal advocacy.” Finally, the parties proposed the appointment of a monitor to “assess, on an ongoing basis, the extent to which the MSPD complies with the terms of this Consent Judgment, and to advise the Court on any compliance issues that may arise.”

           The next day, with the State of Missouri and governor previously dismissed as defendants to the litigation, the Missouri Attorney General moved to intervene on the parties’ proposed consent judgement. Although the trial court denied the Missouri Attorney General’s motion to intervene, the court permitted the Missouri Attorney General to file an amicus brief on the matter, which the Attorney General did on July 26, 2019.

           On January 27, 2020, the U.S. District Court denied the joint motion for consent judgement for two primary reasons highlighted in the Attorney General amicus. First, the proposed consent judgement would potentially bind other parties not a subject to the lawsuit. Specifically, because public defenders do not control their own workload the consent decree would not “prevent a state court from ordering the MSPD to represent an indigent defendant even if such representation violates the consent decree. The MSPD would then have to choose between being subject to contempt for violating the consent decree in this Court or being subject to a penalty for failing to represent an indigent defendant as ordered by the state court.” Second, since no class was certified, the trial court ruled that the remedy should be appropriately aimed at remedies for only the named plaintiffs, whereas the proposed consent judgement would impact all prospective MSPD clients. According to the U.S. District Court, the “parties have not explained how such an expansive remedy is needed to address the rights of the named Plaintiffs or how as a practical matter such a consent decree applicable to so many indigents in the state criminal justice system could effectively be enforced.” In conclusion, the trial court expressed its “sympath[y] to the difficult position the MSPD system and its attorneys are in. Ultimately, the staffing problems identified in the record may result in specific state criminal convictions being set aside because of Sixth Amendment violations and/or additional ethics complaints against public defenders, even though the public defenders are not at fault for the staffing problems. Nonetheless, the proposed consent decree is not the vehicle to ensure that the MSPD and the State of Missouri meet their legal obligation to provide constitutionally adequate representation to indigent defendants.”

           The lawsuit is still pending before the federal court.

Learn more at:                        Pleading the Sixth,”Missouri Governor shows why indigent defense crisis will not be fixed without defender independence” and “An Open Letter to the Next Missouri Governor

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DOJ Investigation of St. Louis County Family Court

Case:                                      DOJ Investigation of St. Louis County Family Court

Geographic Defendant(s):      St. Louis County

Plaintiff Attorney(s):                United States Department of Justice, Civil Rights Division

Status:                                    Settled

Date Filed:                              November 18, 2013

Date Disposed:                       December 14, 2016

Synopsis:   “Protecting the constitutional rights of all children appearing in court is critical to achieving our goals of improving juvenile courts, increasing the public’s confidence in the juvenile justice system and maintaining public safety,” stated Acting Assistant Attorney General for the U.S. Department of Justice, Civil Rights Division, Jocelyn Samuels as she announced the launch of an investigation into claims that the St. Louis courts fail to provide “constitutionally required due process to all children appearing for delinquency proceedings.” Several recent studies had shown that Missouri’s ongoing indigent defense caseload crisis results in a high number of kids going unrepresented. The July 31, 2015 results of the investigation showed that the family court denies due process to children in delinquency cases and discriminates particularly against black children. On December 14, 2016, the DOJ entered into a Memorandum of Agreement with the St. Louis County Family Court to resolve the systemic violations of juveniles due process rights, requiring among other things that: the court double the number of juvenile defense attorneys available to represent indigent children; ensure that all juvenile defenders receive appropriate training; and also ensure that defense attorneys are appointed to represent children in a timely fashion.

Learn more at:                        Pleading the Sixth, “US DOJ investigating St. Louis family courts

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White v. Martz

Case:                                      White v. Martz, No. CDV-2002-133 (Mont. Dist. Ct., Jan. 25, 2006)

Geographic Defendant(s):      State of Montana, Butte-Silver Bow County, Flathead County, Glacier County, Lake County, Missoula County, Ravalli County, Teton County

Named Defendant(s):             Judy Martz, Governor of Montana; Rick Lewis, Montana Supreme Court Administrator (subsequently amended to James Oppedahl); Todd Hillier, Appellate Defender Commissioner; Dorothy McCarter, Appellate Defender Commissioner; Beverly Kolar, Appellate Defender Commissioner; Michael Sherwood, Appellate Defender Commissioner; Randi Hood, Appellate Defender Commissioner; Karla Gray, Member of District Court Council; Katherine R. Curtis, Member of District Court Council; Thomas McKittrick, Member of District Court Council; John McKeon, Member of District Court Council; Ed McLean, Member of District Court Council; Missoula County Board of Commissioners; Glacier County Board of Commissioners; Teton County Board of Commissioners; Flathead County Board of Commissioners; Lake County Board of Commissioners; Ravalli County Board of Commissioners; Judy Jacobson, Butte-Silver Bow County Chief Executive; Barbara Evans, Missoula County Commissioner; Bill Carey, Missoula County Commissioner; Jean Curtiss, Missoula County Commissioner; Allan Lowry, Glacier County Commissioner; William Icenoggle, Glacier County Commissioner; Raymond Salois, Glacier County Commissioner; R.F. Sam Carlson Teton County Commissioner; Mary Sexton, Teton County Commissioner; Arnie Gettel, Teton County Commissioner; Marc Buyske, District Court Judge; Dale Williams, Flathead County Commissioner; Howard Gipe, Flathead County Commissioner; Robert Watne, Flathead County Commissioner; Mike Hutchin, Lake County Commissioner; Barry Baker, Lake County Commissioner; Dave Stipe, Lake County Commissioner; Jack Atthowe, Ravalli County Commissioner; Alan Thompson, Ravalli County Commissioner; Betty Lund, Ravalli County Commissioner

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; American Civil Liberties Union of Montana; Gough, Shanahan, Johnson & Waterman; Cravath, Swaine & Moore

Status:                                    Settled

Date Filed:                              February 14, 2002

Date Disposed:                       January 25, 2006

Synopsis:   This class action lawsuit alleged that indigent defense services in seven counties were constitutionally deficient. The parties formally stipulated “that a properly funded state-wide public defender system with sufficient administrative and financial resources is necessary to ensure that indigent criminal defendants receive constitutionally and statutorily adequate legal representation,” and so agreed to put off a trial to allow the legislature time to act. The case settled after the state legislature passed, and the Governor signed into law, a statewide public defense bill in 2005 creating the Montana Public Defender Commission (MPDC) – an 11-person independent commission authorized to promulgate uniform standards for the delivery of indigent defense services.

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Davis v. Nevada

Case:                                      Davis v. Nevada, No. 170C002271B (Nev. 1st Jud. Dist. Ct. Carson City)

Geographic Defendant(s):      State of Nevada

Named Defendant(s):             State of Nevada; Brian Sandoval, Nevada Governor

Plaintiff Attorney(s):                American Civil Liberties Union of Nevada; Law Office of Franny Forsman, PLLC; O’Melveny & Myers LLP; American Civil Liberties Union Foundation

Status:                                    Pending

Date Filed:                              November 2, 2017

Synopsis:   This class action lawsuit was filed on behalf of all people in the 11 rural Nevada counties of Churchill, Douglas, Esmeralda, Eureka, Lander, Lincoln, Lyon, Mineral, Nye, Pershing, and White Pine, who are charged with any offense that includes the possibility of incarceration as a penalty and who cannot afford to hire their own attorney. The complaint alleges that “[t]he State of Nevada is failing, on a systemic level, to meet its foundational obligations under Gideon to indigent defendants in its rural counties.” According to the lawsuit, the state has abdicated its constitutional responsibilities and does not provide any oversight or funding of indigent defense services in the 11 named rural counties, leaving the counties to contract with private attorneys “who lack the time, staff, and incentives to meaningfully” provide representation to poor defendants. Though lawyers are appointed to represent indigent people in the rural counties, “the representation they are receiving fails to meet minimum constitutional standards” under both the Nevada and U.S. constitutions.

          The lawsuit alleges, as an example of systemic failures, that “at least eleven” rural counties secure counsel to represent poor defendants through flat fee contracts, in violation of the Nevada Supreme Court’s Order ADKT No. 411, issued July 23, 2015, that prohibits the use of a totally flat fee contract. Under these contracts, attorneys are paid the same amount without regard to the number of cases they handle in a year, the number of hours they devote to those cases, or the seriousness of the charges. The contracts do not provide separate funding for experts, investigators, or other litigation support and out-of-pocket expenses, so contract attorneys must pay for these expenses out of their contract funds if they are to be available in their clients’ cases and they rarely do so. This results, according to the complaint, in a conflict of interest between the contract attorneys and their clients, because attorneys spend as little time and money as possible on each case in order to maximize their own compensation. Additionally, the attorneys with whom the rural counties contract most often operate their own private law offices where they represent an unlimited number of paying clients, whose cases they prioritize over those of their indigent clients. The contracts typically do not require attorneys to have any minimum qualifications, beyond a license to practice law in Nevada, and do not require the attorneys to obtain ongoing training. The rural counties do not supervise or evaluate the contract attorneys. Finally, the complaint says the attorneys appointed in the rural counties “are subject to both political influence and excessive judicial involvement.”

          According to the complaint, the attorneys under contract in the rural counties routinely fail to appear on behalf of their clients at the initial appearance where bond is determined and typically do not meet with their clients for days or weeks after being appointed, causing unnecessary pretrial detention and often leading to guilty pleas in exchange for release from jail despite innocence of the charged offenses. The attorneys fail to adequately communicate with their clients, sometimes for months at a time, denying defendants the ability to meaningfully assist in their own defense. The terms of the flat fee contracts “disincentivize” attorneys from adequately preparing for trial.

          The plaintiffs say the state of Nevada and its Governor are responsible for the serious structural deficiencies “that have created a patchwork approach to indigent representation and rendered access to justice a function of geography,” because they have known about the deficiencies and failed to remedy them despite having a duty to do so. Suing under 42 U.S.C. § 1983, the Nevada Constitution, and the U.S. Constitution, the parties seek: a declaration “that the constitutional rights of indigent criminal defendants in the rural counties are being violated” and that the defendants are responsible for providing a meaning right to counsel to indigent criminal defendants; an injunction requiring a plan for a statewide public defense system that ensures accountability and allows for monitoring of effectiveness, and that prohibits flat fee contracts; and attorney fees.

Learn more at:                        Pleading the Sixth, “Nevada establishes statewide right to counsel commission” and “Nevada Chief Justice: ‘We must do better at providing representation to rural defendants’” and “Nevada Supreme Court bans flat fee contracting” and “Nevada Supreme Court issues order on early case resolution” and “Nevada Justice calls for state to fix rural right to counsel services

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New York
Hurrell-Harring v. New York

Case:                                      Hurrell-Harring v. New York, No. 8866-07 (N.Y. Sup. Ct. Albany County, Mar. 11, 2015)

Geographic Defendant(s):      State of New York, Ontario County, Onondaga County, Schuyler County, Suffolk County, Washington County

Named Defendant(s):             State of New York; David Paterson, Governor of New York (subsequently amended to Andrew Cuomo)

Plaintiff Attorney(s):                New York Civil Liberties Union Foundation; Schulte Roth & Zabel LLP

Status:                                    Settled

Date Filed:                              November 8, 2007

Date Disposed:                       March 11, 2015

Synopsis:   This class action lawsuit, filed on behalf of indigent criminal defendants who were or would be represented by public defenders, legal aid lawyers, and assigned counsel, argued that the State of New York’s failure to provide adequate funding, resources, and oversight to the public defense system in five New York counties threatened to deprive indigent defendants of their constitutional right to meaningful and effective assistance of counsel. As the complaint explained, “the failings in [the five sued counties] and the types of harms suffered by the named plaintiffs [were] by no means limited or unique” to those counties, but instead were statewide problems.

           The trial court denied a motion to dismiss the lawsuit, but an intermediate court granted the dismissal. In 2010, the New York Court of Appeals reinstated the lawsuit. The court found that the complaint alleged claims of both outright denial of the right to counsel and constructive denial of counsel where attorneys were appointed in name only and were unavailable to assist their clients, thus “stat[ing] cognizable Sixth Amendment claims.”

“This complaint contains numerous plain allegations that in specific cases counsel simply was not provided at critical stages of the proceedings. The complaint additionally contains allegations sufficient to justify the inference that these deprivations may be illustrative of significantly more widespread practices . . .. These allegations state a claim, not for ineffective assistance under Strickland, but for basic denial of the right to counsel under Gideon.

           “Similarly, while variously interpretable, the numerous allegations to the effect that counsel, although appointed, were uncommunicative, made virtually no efforts on their nominal clients’ behalf during the very critical period subsequent to arraignment, and, indeed, waived important rights without authorization from their clients, may be reasonably understood to allege non-representation rather than ineffective representation. Actual representation assumes a certain basic representational relationship. . . . It is very basic that ‘if no actual “Assistance” “for” the accused’s “defence” is provided, then the constitutional guarantee has been violated. . . .’

. . .

          “Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood to be incompatible with Strickland. These are not the sort of contextually sensitive claims that are typically involved when ineffectiveness is alleged. The basic unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met it obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.”

Quoting Strickland, the Court went on to note that “’[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.’” New York’s high court held that the allegations contained in the class action lawsuit “state claims falling precisely within this described category. . . . Given the simplicity and autonomy of a claim for non-representation, as opposed to one truly involving the adequacy of an attorney’s performance, there is no reason . . . why such a claim can not or should not be brought without the context of a completed prosecution.” Further, the court observed: “the right that plaintiffs would enforce – that of a poor person accused of a crime to have counsel provided for his or her defense – is the very same right that Gideon has already commanded the States to honor as a matter of fundamental constitutional necessity. There is no argument that what was justiciable in Gideon is now beyond the power of a court to decide.”

          The case settled on the eve of trial after seven years of litigation, with the State of New York agreeing to pay 100% of all indigent defense costs in the five counties that were named defendants and ensuring, among other things, that all indigent defendants are represented by counsel at their arraignment and caseloads for all attorneys are accurately reported. Importantly, one of the reasons for settlement was that the U.S. Department of Justice filed a statement of interest in the case detailing what constitutes a “constructive” denial of counsel under the Sixth Amendment. As opposed to an “actual” denial of counsel that occurs when no attorney is present at a critical stage of a criminal or delinquency proceeding, a “constructive” denial of counsel occurs when certain systemic impediments exists such that defendants receive what amounts to no representation at all, despite the physical presence of a defense attorney.

          In short, the DOJ statement established that a court does not have to wait for a case to be disposed of and then try to unravel retrospectively whether a specific defendant’s representation met the aims of the Sixth Amendment. Rather, if state or local governments create structural impediments that make the appointment of counsel “superficial” to the point of “non-representation,” a court can step in and presume prospectively that the representation is ineffective. The types of governmental interference enunciated in the DOJ Statement of Interest include (but most assuredly are not limited to): “a severe lack of resources;” “unreasonably high caseloads;” “critical understaffing of public defender offices;” and/or anything else making the “traditional markers of representation” go unmet (i.e., “timely and confidential consultation with clients,” “appropriate investigations,” and adversarial representation, among others). The lawsuit settlement sparked greater advocacy for the state to pick up 100% of all indigent defense costs in the remaining upstate counties.

Learn more at:                        Pleading the Sixth, “State of New York to provide full state funding of 6th Amendment right to counsel” and “US DOJ enters Statement of Interest in NYCLU class action lawsuit

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New York County Lawyers' Ass'n v. New York

Case:                                      New York County Lawyers’ Ass’n v. New York, 763 N.Y.S.2d 397 (N.Y. Sup. Ct., Feb. 5, 2003); appeal withdrawn, 2 A.D.3d 1489 (N.Y. App. Div., Dec. 2, 2003)

Geographic Defendant(s):      State of New York and City of New York

Named Defendant(s):             State of New York; City of New York

Plaintiff Attorney(s):                Davis Polk & Wardell

Status:                                    Settled

Date Filed:                              April 3, 2000

Date Disposed:                       December 2, 2003

Synopsis:   A legal association brought suit alleging that New York’s failure to increase compensation rates for assigned counsel violated the 6th Amendment right to counsel of indigent clients. After hearing from 41 witnesses and reviewing 435 exhibits, the trial court concluded that: 1) assigned counsel are necessary; 2) there were an insufficient number of them; 3) the insufficient number resulted in denial of counsel, delay in proceedings, excessive caseloads, and inordinate intake and arraignment shifts; further resulting in rendering less than meaningful assistance of counsel and impairment of the judiciary’s ability to function; and 4) the assigned counsel compensation scheme – the rates, the distinction between the rate paid for in- and out-of-court work, and the monetary caps on per case compensation – “violate[d] the constitutional and statutory right to meaningful and effective representation.”

          The state and city appealed, but the parties settled after the state legislature increased the assigned counsel rates and the maximum amounts they could be paid per case.

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Kuren v. Luzerne County

Case:                                      Kuren v. Luzerne County, No. 04517 (Pa. Ct. C.P. Luzerne County), on remand from Kuren v. Luzerne County, No. 57MAP2015 (Pa. Sept. 28, 2016), rev’g in part and aff’g in part Flora v. Luzerne County, No. 2072CD2013, 103 A.3d 125 (Pa. Commw. Ct. Oct. 14, 2014), aff’g Flora v. Luzerne County, No. 04517 (Pa. Ct. C.P. Luzerne County, Oct 22, 2013)

Geographic Defendant(s):      Luzerne County

Named Defendant(s):             Luzerne County; Robert C. Lawton, Luzerne County Manager

Plaintiff Attorney(s):                American Civil Liberties Foundation of Pennsylvania; Dechert LLP

Status:                                    Pending

Date Filed:                              April 10, 2012

Synopsis:   This class action lawsuit alleged that the county “failed to allocate sufficient resources to provide constitutionally adequate representation for indigent adult criminal defendants . . . resulting in the provision of sub-constitutional representation to many indigent criminal defendants and the complete deprivation of representation to many others.” In particular, lack of funding by the county meant there were not enough attorneys to represent everyone who was entitled to public counsel, and for those who did receive an attorney, that attorney did not always have knowledge of the relevant law, was not always provided in a timely fashion and was not always present at all critical stages of a case, was often unable to investigate the facts, frequently failed to consult with clients to ensure the ability to make informed decisions, and was often unable to provide representation with reasonable diligence and promptness. The lawsuit asked the court to compel the county to provide adequate funding.

          After an October 22, 2013 dismissal by the trial court was affirmed by the intermediate court a year later, the case went to the Pennsylvania Supreme Court on appeal. The Department of Justice filed an amicus brief in the appeal, making clear its position that a civil constructive denial of counsel claim is an “effective way for litigants to seek to effectuate the promise of Gideon” and that “[p]ost-conviction claims cannot provide systemic structural relief that will help fix the problem of under-funded and under-resourced public defenders.”

          On September 28, 2016,Pennsylvania’s high court reversed the dismissal and ruled that indigent defendants have the right to prospectively challenge “systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office,” at the outset of a case before having to suffer from denial of counsel. The court said it was “obvious” that “the mere existence of a public defender’s office and the assignment of attorneys by that office” was not sufficient to satisfy the right to counsel, because “[i]t is the defense itself, not the lawyers as such, that animates Gideon’s mandate.” If the appointed lawyers cannot provide a defense, “the promise of the Sixth Amendment is broken.” The court observed that “Strickland does not limit claims asserting Sixth Amendment violations to the post-conviction context,” and it found that the Strickland test of ineffective assistance of counsel should be used by courts in evaluating post-conviction claims, but that “[a]pplying the Strickland test to the category of claims at bar would be illogical.” Prospective relief “is available, because the denial of the right to counsel, whether actual, or as here, constructive, poses a significant and tangible threat to the fairness of criminal trials and to the reliability of the entire criminal justice system.” The court concluded:

“The right to counsel is the lifeblood of our system of criminal justice, and nothing in our legal tradition or precedents requires a person seeking to vindicate that right to wait until he or she has been convicted and sentenced. To so hold would undermine the essentiality of the right during the pretrial process. It would render irrelevant all deprivations of the right at the earliest stages of a criminal process so long as they do not clearly affect the substantive outcome of a trial. If the right to counsel is to mean what the Supreme Court has consistently said it means, this view cannot prevail. A person has the same right to counsel at a preliminary hearing as he or she does at a sentencing hearing. It would confound logic to hold that the person can only seek redress for the latter stages of the criminal process.”

          The case is now back at the trial court.

          (In a related case, the county’s chief public defender sued in federal court to prevent the county from firing him in retaliation. The parties settled under an agreement that the public defender’s job was not in danger.)

Learn more at:                        Pleading the Sixth, “Pennsylvania Supreme Court recognizes indigent defendants’ right to sue before receiving ineffective representation

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Doyle v. Allegheny County Salary Board

Case:                                      Doyle v. Allegheny County Salary Board, No. 96-13606 (Pa. Ct. Common Pleas Allegheny County 2005)

Geographic Defendant(s):      Allegheny County

Named Defendant(s):             Allegheny County Salary Board; Lawrence Dunn, Allegheny County Commissioner; Bob Cranmer, Allegheny County Commissioner; Michael Dawida, Allegheny County Commissioner; Kevin Sasinoski, Chief Public Defender; Allegheny County

Plaintiff Attorney(s):                American Civil Liberties Union Foundation; ACLU/Greater Pittsburgh Chapter; Healey, Davidson & Hornack; Jere Krakoff

Status:                                    Settled

Date Filed:                              September 18, 1996

Date Disposed:                       2005

Synopsis:   The class action suit alleged that the county failed to provide constitutionally adequate right to counsel services. At the time the suit was filed, Allegheny County operated under the public defender model it had adopted shortly after Gideon. In Pennsylvania, responsibility for implementing, controlling, and funding public defender offices was delegated to bodies of elected county commissioners. The state thus provided no funding or oversight of the Allegheny County public defense system, which had historically been subject to underfunding by the county commission.

          The lawsuit alleged that the County had failed to abide by its duties under the state and federal constitutions and existing state statutes, in that it allowed the public defender system to devolve into one with unmanageable caseloads, inadequate resources and facilities, deficient policies and procedures (including the lack of standards and oversight), and inadequate training. On the eve of trial, the parties agreed to settle, with the county required to increase funding and staffing (line attorneys, support staff, and management) and implement national standards. As part of the settlement, the court retained jurisdiction over the case until the end of 2003. When the plaintiffs alleged in 2003 that the defendants were not in compliance with the agreement, the court’s oversight was extended. In 2005, the county won a finding that it was in “substantial compliance” with the terms of the Settlement Agreement, and the court’s jurisdiction over the case finally ceased.

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South Carolina
Bairefoot v. City of Beaufort

Case:                                      Bairefoot v. City of Beaufort, No. __________ (D. S.C.)

Geographic Defendant(s):      City of Beaufort and Town of Bluffton

Named Defendant(s):             City of Beaufort; Town of Bluffton

Plaintiff Attorney(s):                American Civil Liberties Union Foundation of South Carolina; American Civil Liberties Union Foundation Criminal Law Reform Project; Nelson Mullins Riley & Scarborough LLP

Status:                                    Pending

Date Filed:                              October 12, 2017

Synopsis:   This class action lawsuit challenges the practices in two of South Carolina’s municipal courts of denying counsel to indigent defendants who are then sentenced to jail, in violation of the Sixth and Fourteenth Amendments; practices believed to be widespread throughout the 212 municipalities in the state that choose to operate their own municipal courts. The suit is filed on behalf of all indigent defendants who are “convicted and sentenced to incarceration in Beaufort and Bluffton Municipal Courts without the assistance of counsel” and “without having been advised of their right to appointed counsel and . . . could not have practicably sought habeas relief while in custody because of the brief periods of actual confinement.”

          The complaint alleges that municipalities in South Carolina may, though they are not required to, establish municipal courts. In municipal courts, if a defendant faces a charge for which a sentence of incarceration is likely to be imposed, the South Carolina court rules and laws of criminal procedure require the municipal judge to “[a]dvise the accused of his right to counsel and his right to the appointment of counsel by the court, if the accused is financially unable to employ counsel,” and if the person is determined to be financially unable to retain his own attorney, “then counsel shall be provided . . . unless such person voluntarily and intelligently waives his right thereto.” Municipalities, like Beaufort and Bluffton, that choose to operate their own municipal courts are responsible for “provid[ing] adequate funds for representation of indigents.”

          According to the lawsuit, the Beaufort and Bluffton Municipal Courts have not made any arrangements to secure an attorney to serve as a public defender for indigent people facing incarceration, since at least 2009. The clerks of these courts do not maintain any records of requests for appointed counsel made by defendants. It claims that municipal court judges do “not sufficiently or individually advise[] [defendants] of their right to counsel, or of the numerous risks of self-representation, when they appear on their individual cases.” Nonetheless, indigent defendants “are routinely sentenced to jail,” as shown by records from the Beaufort County Detention Center where people convicted in the two municipal courts are housed when sentenced to jail time. The lawsuit observes that municipal court defendants are sometimes transferred to state prison if their municipal court sentence exceeds 90 days.

          The suit seeks monetary damages on behalf of the class members “to compensate them for each day of their wrongful confinement” and for their resulting “physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity.”

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DOJ Investigation of Shelby County Juvenile Court

Case:                                      DOJ Investigation of Shelby County Juvenile Court

Geographic Defendant(s):      Shelby County

Named Defendant(s):             Shelby County Mayor; Shelby County County Attorney; Juvenile Court of Memphis and Shelby County

Plaintiff Attorney(s):                United States Department of Justice, Civil Rights Division

Status:                                    DOJ oversight concluded

Date Filed:                              August 11, 2009

Date Disposed:                       October 19, 2018

Synopsis:   Beginning as early as January 15, 2007, the DOJ received complaints about the due process received by children in the Juvenile Court of Memphis and Shelby County. The DOJ launched a formal investigation, and on April 26, 2012 it released the report of its findings. On December 17, 2012, the DOJ entered into an agreement with Shelby County, Tennessee to usher in major reforms of the county’s juvenile court system and the method for representing children in delinquency proceedings. Sweeping changes currently being implemented include such systemic safeguards as “independence,” “reasonable caseloads,” “attorney performance standards,” and “training” for the juvenile defense function, among others.

Learn more at:                        Pleading the Sixth, “DOJ announces an agreement with Shelby County, Tennessee (Memphis) to reform juvenile justice system

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Heckman v. Williamson County

Case:                                      Heckman v. Williamson County, No. 06-453-C277 (Tex. 277th Judicial Dist. Ct. Williamson County, Jan. 14, 2013)

Geographic Defendant(s):      Williamson County

Named Defendant(s):             Williamson County; John Christian Doerfler, Williamson County County Judge (subsequently amended to Dan A. Gattis); Suzanne Brooks, Williamson County County Court at Law No. 1 Judge; Tim Wright, Williamson County County Court at Law No. 2 Judge; Donald Higginbotham, Williamson County County Court at Law No. 3 Judge (subsequently amended to Doug Arnold); William Thomas Eastes, Williamson County Magistrate Judge

Plaintiff Attorney(s):                Texas Fair Defense Project; Keller Rohrback L.L.P.

Status:                                    Settled

Date Filed:                              June 12, 2006

Date Disposed:                       January 14, 2013

Synopsis:   Five indigent defendants facing misdemeanor charges in Texas that could lead to up to a year’s incarceration brought a civil class action lawsuit in 2006 claiming they had been or would be denied their right to counsel. The complaint alleged that the county failed to “inform persons accused of crime of their right to counsel,” provided “inaccurate and misleading information about the right to appointed counsel in order to discourage requests for counsel,” encouraged defendants “to waive their right to counsel and speak directly to prosecutors,” and threatened defendants who “asserted the right to counsel” with financial sanctions, while delaying or denying appointment of counsel to individuals who were “eligible for court-appointed counsel under Texas and federal law.” The indigent defendants sued the county and several of its judges, seeking injunctive and declaratory relief to stop the violation of their right to counsel and that of all similarly situated indigent misdemeanor defendants.

          The trial court denied a motion to dismiss the lawsuit, but a court of appeals reversed and granted the dismissal. On review in 2012, the Texas Supreme Court reinstated the lawsuit. First, the court held that the indigent defendants had standing to bring their claims in a civil lawsuit because they had plead facts demonstrating that they were being denied their right to counsel, that the denial of their right to counsel was fairly traceable to the county and its judges, and that the requested relief would remedy the denial of the right to counsel. By the time the Texas high court considered the case, all of the named individuals had been appointed counsel and all of their criminal cases had ended. The court held, though, that this did not mean the case must end, because the denial of the right to counsel was “inherently transitory” – that is, it is of short duration and it was likely that other people would also be denied their right to counsel. Importantly, the court said:

“[W]e cannot at this time adjudicate the merits of plaintiffs’ complaint. We note, however, the gravity of their allegations: The U.S. Supreme Court has described the right to counsel as ‘indispensable to the fair administration of our adversary system of criminal justice.’ In the words of one learned commentator, ‘[t]here is no more important protection provided by the Constitution to an accused than the right to counsel.’ Like all participants in our judicial system, and indeed all members of our society, we take seriously an allegation that any person or entity is systematically depriving others of such a fundamental right.”

The Texas Supreme Court remanded the case back to the trial court for it to determine whether changes in the practices of appointing counsel in Williamson County guaranteed that future indigent misdemeanor defendants would not be deprived of their right to counsel.

          The case settled when Williamson County agreed to put in place procedures ensuring defendants will not be encouraged to waive the right to counsel or communicate with prosecutors prior to the court ruling on their requests for appointed counsel. The committing magistrate must report all requests for counsel to the county court of law within 24 hours and provide every defendant with written information on how to contact the indigent defense office to obtain information about their request for counsel. Attorneys representing defendants must now be provided with a defendant’s contact information so that the attorney may make every reasonable effort to contact the defendant no later than the end of the first working day after the date the attorney is appointed.

Learn more at:                        Pleading the Sixth, “Williamson County TX settles ‘no counsel court’ lawsuit

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Remick v. Utah

Case:                                      Remick v. Utah, No. 2-16-cv-00789 (D. Utah) (previously No. 160903921 (Utah 3rd Jud. Dist. Ct. Salt Lake County))

Geographic Defendant(s):      State of Utah

Named Defendant(s):             State of Utah; Sean D. Reyes, Utah Attorney General

Plaintiff Attorney(s):                American Civil Liberties Union of Utah; Holland & Hart LLP

Status:                                    Dismissed

Date Filed:                              June 21, 2016

Date Disposed:                       March 23, 2018

Synopsis:   The class action lawsuit alleged that the State of Utah fails to provide constitutionally adequate legal representation to indigent adults accused of crimes in Utah’s District and Justice courts for which there is a possibility of incarceration. It seeks to remedy: the state’s failure to supervise and oversee the system for providing representation to the indigent; the state’s failure to adequately fund, by instead forcing counties and municipalities to foot the bill for indigent defense; the use of low-bid and fixed flat fee contracts that create a conflict of interest for public defense attorneys; lack of policies or guidelines regarding the selection, qualifications, and compensation of counsel; and both the actual and constructive denial of counsel.

          The case was removed to federal court on July 13, 2016. On March 23, 2018, the federal district court dismissed the lawsuit. Noting that the complaint was “rife with generalized and conclusory allegations,” the court held that the pleadings did not allege concrete facts about the circumstances of the named plaintiffs or the desired class sufficient to establish a cause of action over which the federal court had jurisdiction to grant declaratory relief.

Learn more at:                        Pleading the Sixth, “Utah reforms indigent defense with first-ever state dollars for trial representation” and “A reason for optimism for the right to counsel in Utah and lessons for achieving the best paradigm of justice everywhere” and “In wake of 6AC report, legislative changes are already afoot in Utah” and “Utah’s right to counsel deficiencies

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Cox v. Utah

Case:                                      Cox v. Utah, No. 2:16-cv-53 (D. Utah, Nov. 7, 2016)

Geographic Defendant(s):      State of Utah and Washington County

Named Defendant(s):             State of Utah; Gary Herbert, Governor of Utah; Greg Hughes, Speaker of the Utah House of Representatives; Wayne Niederhauser, President of the Utah Senate; Washington County; Alan Gardner, Washington County Commissioner;
Dick Schonter, Washington County Commissioner; Victor Iverson, Washington County Commissioner; Does 1-20

Plaintiff Attorney(s):                Studebaker Legal Services P.C.

Status:                                    Dismissed

Date Filed:                              January 22, 2016

Date Disposed:                       November 7, 2016

Synopsis:   Filed to protect the federal and state constitutional rights to counsel of all indigent defendants charged with crimes in Washington County, this class action complaint alleged that the state of Utah has delegated to its counties the responsibility for providing the right to counsel, provides no state funding for indigent defense, and has set no standards for nor exercises any oversight of the county indigent defense programs. According to the complaint, “indigent defense counsel do not or are unable to perform even the most basic tasks necessary to provide adequate representation to their clients” as a result of insufficient funding, insufficient number of attorneys and support staff, excessive workloads, lack of training, inadequate standards for attorney qualifications, and inadequate standards for contracts, among other things.

           The federal trial court judge dismissed the lawsuit. The court did not reach the question of whether a pretrial cause of action can be brought for the constructive denial of counsel. Instead, the court found that the complaint did not contain sufficient factual allegations showing widespread and systemic deficient performance by the indigent defense attorneys and how that harmed indigent defendants. Further, because the named plaintiffs were represented by counsel in on-going criminal cases, a traditional Strickland claim of ineffective assistance of counsel was premature.

Learn more at:                        Pleading the Sixth, “Utah reforms indigent defense with first-ever state dollars for trial representation” and “A reason for optimism for the right to counsel in Utah and lessons for achieving the best paradigm of justice everywhere” and “In wake of 6AC report, legislative changes are already afoot in Utah” and “Utah’s right to counsel deficiencies

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Davison v. Washington

Case:                                      Davison v. Washington, No. 17-2-01968-34 (Wash. Super. Ct. Thurston County)

Geographic Defendant(s):      State of Washington

Named Defendant(s):             State of Washington; Washington State Office of Public Defense

Plaintiff Attorney(s):                ACLU of Washington Foundation; Stokes Lawrence, P.S.

Status:                                    Pending

Date Filed:                              April 5, 2017

Synopsis:   This class action lawsuit was filed on behalf of all juveniles who have the constitutional right to appointment of counsel in juvenile delinquency cases in Grays Harbor County.

          According to the complaint, even though lawyers are appointed to represent children, “the absence of advocacy and adversarial testing” by those lawyers is “the functional equivalent” of “no right to counsel at all.” The complaint alleges that the representation provided to children in juvenile delinquency cases lacks necessary independence and is performed by attorneys who are compensated under contracts for a set flat fee that do not take into account the number of cases those attorneys are handling, rendering the attorneys unable to provide effective representation to each child they represent. Further the plaintiffs say attorneys begin work too late in the cases to be effective, do not communicate with their child clients adequately and confidentially, do not protect the children’s rights through motions and trials and expert witnesses, and often advise children to plead guilty “even when meritorious defenses or legal motions are available, with inadequate investigation, and with inadequate understanding of the consequences of conviction and options available to ameliorate those consequences.” Children are harmed because, among other things, they are “routinely held in detention on bail amounts that are not challenged,” “receive harsher sentences than the facts of their cases warrant,” and in some instances are incarcerated for longer than state laws allow. All of this violates national and state standards for the effective assistance of counsel, according to the plaintiffs. “And taxpayer funds are being spent on an unconstitutional public defense system.”

          The plaintiffs say the state of Washington and its state public defender office are responsible for the violations of children’s rights to counsel in the Grays Harbor County juvenile court because they have known about the deficiencies in the provision of counsel and have not remedied them. The lawsuit asks the court to declare that juveniles’ federal and state constitutional rights to effective assistance of counsel are being violated and that the state of Washington and the state public defender office are responsible for those constitutional violations.

Learn more at:                        Pleading the Sixth, “New ACLU lawsuit: Washington State fails to ensure effective delinquency representation” and “Indiana stands as a cautionary tale for other states with similar indigent defense system models

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Wilbur v. City of Mount Vernon

Case:                                      Wilbur v. City of Mount Vernon, No. C11-1100-RSL, 989 F. Supp.2d 1122 (W.D. Wash. Dec. 4, 2013) (formerly No. 11-2-01156-1 (Wash. Super. Ct. Skagit County))

Geographic Defendant(s):      City of Mount Vernon and City of Burlington

Named Defendant(s):             City of Mount Vernon; City of Burlington

Plaintiff Attorney(s):                Terrell Marshall Daudt & Willie PLLC; Scott Law Group; ACLU of Washington Foundation; Perkins Coie LLP

Status:                                    Decided

Date Filed:                              June 10, 2011

Date Disposed:                       December 4, 2013

Synopsis:   This class action lawsuit was filed on behalf of indigent people charged in the municipal courts of the defendant cities and who received appointed counsel. According to the complaint, the two cities had jointly contracted with two attorneys to provide all public defense representation in the cities’ municipal courts, in exchange for which they were paid a flat annual fee. The attorneys were responsible for bearing all defense costs, including investigation and experts. The cities allowed each attorney to handle up to 1,200 indigent cases per year and placed no limits at all on the number of private cases the attorney could also handle. The suit alleged that all of this resulted in the systemic denial of the right to counsel to indigent defendants.

          Following a bench trial, the DOJ filed a Statement of Interest in the case laying out the United States’ express position that, to ensure quality representation, “a public defender must have the authority to decline appointments” above a set caseload limit. The DOJ also called for an independent monitor to ensure the cities’ compliance with any court order.

          The U.S. District Court found the two Washington cities responsible for the systemic deficiencies that deprive the indigent accused of their constitutional right to meaningful representation. In granting injunctive relief, the court determined the steps needed to ensure that the criminal justice system is appropriately adversarial. The court required the cities to hire a supervisor to ensure their defense system complies with constitutional standards, and the court kept jurisdiction over the case for three years while reforms proceed. Of note, the court also required the cities to pay the legal fees and reasonable expenses of the plaintiff attorneys, in the total amount of $2,212,150.20.

Learn more at:                        Pleading the Sixth, “Federal Court orders Washington cities to remedy willfully deficient right to counsel services

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Best v. Grant County

Case:                                      Best v. Grant County, No. 04-2-00189-0 (Wash. Super. Ct. Kittitas County, Apr. 26, 2013)

Geographic Defendant(s):      Grant County

Named Defendant(s):             Grant County

Plaintiff Attorney(s):                Columbia Legal Services; American Civil Liberties Union of Washington; Garvey Schubert Barer; Perkins Coie LLP

Status:                                    Settled

Date Filed:                              April 4, 2004

Date Disposed:                       April 26, 2013

Synopsis:   In response to a class action lawsuit seeking effective assistance of counsel for indigent people accused of felonies in Grant County, the state trial court determined in a pre-trial ruling that the indigent accused charged with felonies in the Grant County Superior Court had a “well grounded fear” that they would receive ineffective assistance of counsel due to excessive caseloads, a lack of effective supervision, and undue interference of prosecutors when defense counsel sought funding for experts and investigations.

          With trial just days away, the parties entered into a court-enforced Settlement Agreement requiring the county to hire supervising attorneys to ensure “caseload controls,” “attorney performance standards,” and “attorney qualification standards,” among others. As a unique incentive for compliance, the settlement required the county to pay plaintiffs $1,100,000 in attorneys’ fees and court costs and provided that, for each of the six years the county engaged in full compliance with the settlement, $100,000 of the fee award would be forgiven.

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