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Pennsylvania Public Defenders Rebel Against Crushing Caseloads

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ED OLEXA
Ed Olexa works as a public defender in Luzerne County, Pa., covering Hazleton. He handles a caseload far higher than the American Bar Association's standards for full-time attorneys, but earns only a part-time salary. | John Rudolf

At half past 5 on a cold, cloudy April morning, Ed Olexa kneels by his front door, sorting through stacks of case files for the coming day's hearings. Olexa works as a public defender in Luzerne County in northeastern Pennsylvania, and he's quadruple-booked this morning, which means four clients are scheduled to appear at the same time before different judges.

"My choice last night was to watch 'American Idol' or get my files in order," he says.

Olexa represents nearly 120 clients at a time for the Luzerne County defender's office, the majority of them charged with felonies. It's a typical caseload for the office, which is one of the most troubled in the state, according to a 2011 report commissioned by the Pennsylvania legislature. The report excoriated the state system as a whole, calling it obsolete and ineffective, but singled out Luzerne as a place where inadequate training, funding and supervision of defenders contributed to a "shocking deterioration" in the quality of representation given to some poor people.

Public defenders are infamous as the workhorses of the legal system, charged by the courts with representing poor defendants in criminal matters ranging from misdemeanors to death penalty cases. The pay is low, the hours long and the turnover high. Complaints that they suffer from crushing caseloads and inadequate support staff can probably be heard in any courthouse in the country.

But the situation finally reached a tipping point in Luzerne last December, when chief public defender Al Flora Jr. mutinied against the county government -- his office's sole funding source -- and began turning down hundreds of cases assigned to his attorneys by the court. Three months later, he filed a class-action suit seeking an injunction, forcing the county to provide additional resources to his office.

The move quickly drew the attention of the state's legal establishment. "The problems in Luzerne County are very well known. At some point somebody had to say enough," says Ronald Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers. "I'm hoping that other public defenders will take the courageous stand that Mr. Flora did."

The situation in Luzerne is not an isolated one. As funding falls and cases continue to flood the system, many already-stressed defender programs across the country are being pushed to the very brink of collapse. And with little hope of state or federal action to remedy the problem, a small but growing number of defender offices are rebelling, suing states and counties over excessive caseloads that their attorneys cannot handle without violating their clients' constitutional right to effective representation.

For attorneys like Olexa, the heavy caseloads follow them home. Case files are everywhere in his small home in Trucksville, a small town just outside of Wilkes-Barre, the county seat -- piled on the living room floor, the coffee table, the dining table, the dining room floor. They blanket the backseat of the rusty Subaru in the driveway, which he's borrowing from his mom while his own car is in the shop. In his cramped home office, law books, legal journals and other documents cover the floor and the windowsill, while a printer on his narrow desk churns out more pages.

Olexa, 37, is clean-shaven, with close-cropped wavy brown hair, a boyish face and a slightly crooked smile. He would probably seem younger than his age, if not for the dark circles under his eyes.

"What am I missing?" he mutters to himself, tossing some folders aside and stuffing others into an oversized briefcase. "What am I missing?"

Many public defenders in Luzerne are assigned specific geographic areas, and Olexa covers Hazleton, a blue-collar city of 25,000 about 40 miles south of Wilkes-Barre. The city is distinguished by a once-stately and now badly dilapidated downtown area, built during the region's coal boom a century ago. The coal industry went bust in the 1950s, and economic stagnation set in and never lifted. More recently, the National Drug Intelligence Center identified Hazleton as an emerging regional hub for the state's heroin trade, fought over by Dominican gangs that migrated west from Philadelphia and New York. It's one of the county's tougher jurisdictions.

It's also Olexa's hometown. He graduated from the local high school and his parents live in a quiet neighborhood on the north side. The city used to feel safe, but lately he worries about his mother just taking the dog out for a walk after dark. "One of the saddest things in my life is seeing what has happened to this town," he says.

After three years in the public defender's office, Olexa's well acquainted with Hazleton's dark side. He represents nearly every criminal defendant arrested there who can't afford an attorney, with the exception of juvenile offenders and adults charged with murder. Some clients are homeless drifters, or immigrants come to work in the area's three meatpacking plants. Most are young, in their 20s and early 30s, and virtually all are flat broke. Unable to make bail, they often sit in jail for months as their cases slowly wend through the system.

To handle the caseload, Olexa rises before dawn five days a week and works weekends and late into the night, reviewing police reports and tapping out briefs on his laptop while watching TV with his girlfriend, Anne Marie. He shuttles regularly between Hazleton, where a local magistrate arraigns the newly arrested, and Wilkes-Barre, where the public defender's office, main county courthouses and the county jail are located.

Olexa handled nearly 260 cases last year, with more than half of them felonies -- mostly assaults and robberies and the more serious drug charges. The rest of his clients face misdemeanors, which in Pennsylvania can bring a jail or prison sentence of up to three years. He also files his own appeals, a complicated, time-consuming process. The American Bar Association recommends that full-time public defenders handle no more than 150 felony cases in an entire year.

Olexa's caseload far exceeds those standards, but there's a twist: he technically works only part-time for the county. Like the majority of attorneys in the public defender's office, his salary of about $30,000 is based on the pretext that he carries only half the workload of a full-time attorney, and can earn a second income by taking on private clients. In reality, Olexa works a grueling schedule simply to keep pace with the constant influx of county cases and squeezes in private clients whenever he can, often by working through the weekends.

The volume of cases causes pile-ups in the courtroom. The previous week, Olexa represented 17 clients in a row before the same judge over the course of an afternoon. Authorities brought many over in shackles and orange jumpsuits from the nearby jail, and several pleaded guilty to felonies that would follow them the rest of their lives. Most wanted to discuss their cases and have the proceedings explained to them. But the pace of the hearings made it impossible for Olexa to consult with them for more than a few minutes before his next client was called. And while he'd put hours of work into preparing each case, as the hearings progressed, fatigue set in, and it took all his energy to stay focused on the task at hand.

"It becomes assembly-line justice," he says. "It's like a McDonald's drive-through -- just moving the bodies along. Bottom line, the only way that it gets done right is if I work way more hours than they pay me for and do it on my own time."

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Al Flora Jr., the Luzerne chief public defender and Olexa's boss, says he anguished over his decision to sue the county. For nearly two years, attorneys on his staff -- starting with Olexa -- had come to him asking for help in reducing their caseloads to a manageable level. Some were in over their heads, missing filing deadlines and court appearances. Others were burning out, losing their tempers with clients and in court, and taking unacceptable shortcuts in their work. A few attorneys told him they feared making a serious mistake and putting an innocent client behind bars. The office was also under intense scrutiny in the wake of a major scandal involving its representation of juvenile defendants.

But county officials continually rebuffed Flora's pleas for additional funding, he says.

"It came to the point where I just felt that we couldn't do it anymore," he says. "This had to be stopped."

The county is fiercely contesting the suit, which faces a long, uphill battle in the courts. But advocates for indigent defense reform are watching the case closely. If it succeeds, it may serve as a model for other overburdened offices throughout the country.

"I think that public defenders have to consider this option, and have to study what's going on in Luzerne County and learn from it," says Ed Burnette, vice president of defender legal services for the National Legal Aid and Defender Association in Washington, D.C., and a former chief public defender for Cook County, Ill., the second-largest defender office in the country. "It certainly is going to impact the mainstream."

'THIS REPRESENTS A CRISIS'

America's prisons and jails hold more people, in sheer numbers and on a per-capita basis, than any country on earth, including China, Cuba and Iran. Those prisons and jails are kept full through the ceaseless work of a massive criminal justice apparatus that processes the 14 million people arrested every year, on an average of about 26 every minute, according to the Justice Department. The vast majority of those arrested are poor, often desperately so; many are mentally ill, homeless or addicted to drugs and alcohol. Only a small percentage can afford a private attorney.

The rest are represented by a public defender, free of charge. This extraordinary right dates only to 1962, when the Supreme Court heard the case of Clarence Gideon, a penniless and uneducated Florida man forced to represent himself in a felony robbery case after being denied a court-appointed attorney. In a landmark decision, the court ruled unanimously that denying free counsel to Gideon, who was sentenced to five years in prison, violated his right under the Sixth Amendment to a fair trial. The decision created the nation's public defense system, as legislatures in every state passed laws creating programs to provide all criminal defendants with counsel.

Fifty years later, this public defender system is widely seen as failing, overtaxed by improbably high caseloads, poorly supervised and catastrophically underfunded. Except for the comparatively small number of defendants charged in federal court, the provision of attorneys to the poor is left exclusively to the states, creating a patchwork of 50 autonomous systems functioning without federal oversight. State legislatures fully underwrite many systems; others are supported through a mix of state and local funding. Regardless of where the money comes from, there is never enough to go around.

The problems plaguing the system have been recognized by Congress and at the highest levels of the Obama administration. At a national summit on indigent defense in New Orleans this February, hosted by the American Bar Association, Attorney General Eric Holder called the issue a "key area of focus" for the Justice Department, and himself personally. Legal representation for the poor, Holder said, was hobbled by "insufficient resources, overwhelming caseloads and inadequate oversight." He noted how poor defendants often spend weeks and even months in jail before seeing an attorney, while others are encouraged to waive their right to counsel and plead guilty without understanding their rights, the charges against them or the potential sentences they face.

"You've seen the alarming statistics. And some of you have experienced this harsh reality firsthand, in the communities where you live and practice. So I don't need to tell you that this represents a crisis," he said.

In New Orleans, Holder announced $2.4 million in new federal grants to aid public defender programs and to study problems in the system, and described the Obama administration as providing an "unprecedented level of support" to improve poor people's access to quality legal help. Yet the administration's efforts are dwarfed by the effect of the financial meltdown and recession on states and municipalities, which slashed funds from defender programs, even as the number of prosecutions continued to climb or remained the same.

Federal support for public defender programs also remains miniscule, totaling less than $10 million per year, a pittance compared to the hundreds of millions of dollars in federal aid given to prosecutors and police, according to Christopher Durocher, a researcher with the Constitution Project, a non-partisan legal think tank.

Burnette, with the National Legal Aid and Defender Association, applauds the Justice Department's recent efforts to increase funding, but acknowledges that it isn't nearly enough. "People say it's a drop in the bucket, but it's a drop that we didn't have before," he says. "The defender community is frustrated, because too much has happened that makes the problem worse."

NOTORIOUS FAILINGS

Luzerne County's defenders weren't always so overwhelmed, says Flora, who became chief public defender in 2010. He first took a job with the office in the early 1980s and never left. When he started working there, a first offense for drunk driving was settled with a $50 fine. Today, depending on the circumstances, the same charge can carry a prison term of up to five years. "Back in those days the amount of files you would get was not that much," he says. "You weren't slammed with cases."

Flora sits in the defender's office early on a Friday evening in April. It's quiet and dark, and most everyone is gone for the weekend. He's in his early 60s, with thinning silver hair, and speaks in quiet, measured tones. He's probably the only attorney in the county to successfully argue a case before the U.S. Supreme Court, a death sentence appeal for a convicted mass murderer suffering from severe mental illness.

For most of his career, Flora worked exclusively in homicides and remained uninvolved in the defender office's day-to-day operations. But when he took over as chief defender, he faced immense pressure to tackle systemic failings in the office that had suddenly grown notorious across the state. In 2009, Luzerne County was caught up in one of the largest judicial scandals in Pennsylvania history, involving the handling of poor juvenile defendants. Dubbed "Kids for Cash," the case featured the extraordinary allegation that two sitting Luzerne County judges took $2.8 million in kickbacks from the owner of a private juvenile detention facility leased by the county in exchange for filling those facilities with young offenders through harsh sentencing. The ringleader of the scheme is serving 28 years in federal prison.

The public defender's office wasn't implicated in the corruption, but its reputation took a beating anyway, after it emerged that more than half of the juveniles prosecuted for delinquency in the county over the previous decade appeared in court without legal representation. Parents told a state panel investigating the scandal that they were pressured to sign forms waiving their children's right to counsel without being told the potential consequences. In court, children as young as 11 were badgered into pleading guilty, then hauled away to detention for months at a time for petty misdemeanors involving marijuana possession or fighting. Analysis showed the county sentenced young offenders to detention at 2.5 times the state average.

Basil Russin, Luzerne County's chief public defender since 1980, resigned in disgrace, and county commissioners tapped Flora to fill his post.

He instituted major reforms in juvenile defense, but quickly saw that the office's representation of adult defendants also desperately needed reform. Attorneys in the office, beginning with Ed Olexa, told him they were carrying caseloads that far exceeded the American Bar Association's recommended national guidelines. He began warning county leaders and the courts that a major investment in new attorneys and support staff was desperately needed. In response, the county proposed cutting his budget by 12 percent. It wasn't a particularly surprising reaction.

"Our county probably looks at our office as representing all the scum of the earth," Flora says. "They think that's it's not worth spending money on."

The office's funding dilemma is further complicated by the fact that the Pennsylvania legislature provides zero funding for indigent defense. It is the only state that fails to do so. As a result, county-level politicians throughout the state make crucial funding decisions, even as they hold the power to appoint and remove the chief public defenders charged with making budget requests.

With his requests for additional funding rejected, Flora presented county officials and the county's chief judge with an ultimatum. Increase resources for the public defender's office, he said, or he would begin declining qualified criminal defendants referred to his office by the court on the grounds that his attorneys could not represent them ethically, given their caseloads.

It was an unprecedented move. Defender offices in other states have declined clients due to overwhelming caseloads, but only after asking for a judge's permission first.

"He did it without any formal motion. He simply refused to proceed," says Norman Leffstein, dean emeritus of the Indiana University School of Law, and a national expert on indigent defense. "That really hasn't been done without a prior agreement that it's okay."

The county didn't blink, and in late December 2011, Flora began turning clients away. County officials blasted him in the press. "He just throws things out there," Stephen Urban, a county commissioner, told the Citizens' Voice, a local daily, in reference to Flora's concerns over caseloads. "He is out of line."

After four months of stalemate, Flora, represented by the Pennsylvania branch of the American Civil Liberties Union, filed a class action civil rights lawsuit against the county on behalf of three defendants turned down by his office under the new policy. The county filed a motion attacking the suit as baseless and seeking to have it tossed out of court. "Flora's own dereliction of duties" were responsible for the plaintiffs' lack of representation, the county argued in a brief.

Flora is not far from retirement, and has little to gain from the suit. But he hopes his action will make a difference for the attorneys on his staff, many of whom are just starting their legal careers. He fears that the younger attorneys, like Olexa, are quickly burning out. "Ed carries a heavy burden," he says. "He doesn't have it easy up there in Hazleton, all by himself."

A HEAVY BURDEN

In 2009, Olexa had been an attorney for three years, two of which were spent as an assistant prosecutor in the Luzerne County district attorney's office. The work there was interesting, but the pay was dismal, less than $30,000 a year. Payments on his student loans left him clearing about $350 a week before taxes. He lived at home. "It wasn't getting me out of my parents' basement," he says.

That was when he jumped to the Luzerne County public defender's office, where he thought he'd fare better. He was told he'd earn about the same salary as he did as an assistant prosecutor, work fewer hours and have the opportunity to take on private cases in his spare time. But after a few weeks on the job, he realized he had signed on for more work, not less, and that his aspirations of building a private law practice on the side were fated to be overshadowed by his public defense work.

Just as disturbing was the impact the caseloads had on his ability to function as an attorney. There were too many clients and nowhere near enough hours in the day to do everything that needed to be done. Client communication suffered, as did investigations. For a while, the office had no investigative support staff at all, leaving lawyers to do their own investigative work. Sometimes the secretaries chipped in.

"We sent out secretaries to take statements with no training whatsoever," he says. "They were essentially clerical workers doing investigative work."

After about a year on the job, Olexa put his concerns about excessive caseloads in a letter to Russin, the chief public defender. "This matter cries out for an urgent response," he wrote. "I will await your advice."

Russin ignored the letter, not even offering an informal response. But four months later, he resigned, so Olexa tried again with Flora. Two years later, Flora effectively declared war against the county. Olexa was bowled over. "I didn't think anything was going to happen," he says.

'I'LL NOT BACK DOWN'

Flora's lawsuit seeks an injunction forcing the county to boost funding for his office, and in early May, lawyers for the ACLU and the county meet for a preliminary hearing to argue for and against such a ruling in front of Joseph Augello, a local circuit judge. An injunction provides temporary but immediate relief, in advance of a trial, and is a drastic step that courts rarely endorse. In this case, however, hundreds of poor criminal defendants are in limbo, without legal counsel, because of Flora's new policy, giving his request for an injunction real urgency.

The hearing is in a small auxiliary courtroom on the third floor of a drab municipal building in downtown Wilkes-Barre. The defenders office is one floor down, and all day long, public defenders dip in and out of the courtroom to catch a few minutes of the proceedings. For a while, Olexa watches intently from a seat in the corner. Robert Lawton, the county manager, sits at the defense table.

Flora testifies for nearly four hours. On direct examination, his voice chokes with emotion as he describes the sorry condition of the defender's office and his battles with local officials over inadequate funding. On cross-examination, the county's attorney, Jack Dean, attacks Flora with an almost theatrical viciousness. He waves a copy of Pennsylvania's Public Defender Act and passes it to Flora to review. The act created the state's public defender offices, and mandates that they accept clients who fall below the state's poverty line.

"Show me where it allows you to decline cases for people who cannot afford lawyers," Dean says.

"Specifically in the act, it does not say that," Flora concedes.

Dean moves on, focusing on the county's precarious finances. "You are aware, sir, that other departments in the county have suffered layoffs?" he says. "Is it fair to say that while other offices are being asked to do more with less, you are asking to do less with more?"

Next up is Leffstein, the indigent defense expert, serving as a witness for the plaintiffs.

"I cannot tell you how unprecedented this hearing is," he whispers to a reporter, as he gathers his papers and makes his way to the stand.

Under questioning from the ACLU, Leffstein describes his analysis of caseloads handled by the Luzerne County defenders. Part-time attorneys, he says, handle an average of 74 felony cases -- including homicides and sex offenses -- and 33 misdemeanors at a time, as well as handling their own appeals. The full-time lawyers handle roughly the same amount of cases and appeals, but also hundreds of parole and probation violation cases. The support staff is "woefully inadequate," he says.

"Given the caseloads that they have, they must necessarily fail to deliver competent representation," he says. "When you have over 100 clients who you are simultaneously representing, what occurs is a form of triage, where you deal with only the most immediate problems of the day."

The hearing, which started at 9:30 in the morning, ends at about 7 p.m., with Augello declaring that he is taking the arguments "under advisement." A few days later he orders the two sides to begin negotiations.

In mid-June, the judge issues a remarkable 25-page decision. It broadly accepts as fact Flora's depiction of his office as teetering on the brink of collapse. "To describe the current state of affairs in the Office of the Public Defender as approaching crisis stage is not an exaggeration," he writes. He finds that Leffstein's expert opinion on staffing was "well articulated and persuasive."

Augello orders the county to draw up a report on how it will "meet its constitutional obligations" to poor defendants. He also rules that Flora can no longer refuse representation to poor clients.

For Mary Catherine Roper, the lead attorney for the ACLU on the suit, the decision is a substantial victory. The judge recognized the sorry state of the Luzerne defender's office and ordered the county to figure out how to fix it, she says.

It's a decision she thinks will resonate throughout the state. "Everybody should take notice of this," she says. "Adequacy of counsel is not theoretical. It is something that can be enforced."

"We think it's a very big deal," she says.

Jack Dean, the county's attorney, sees it very differently. In an interview, he says that the judge's order to improve the quality of public defense services might be accomplished through a reorganization of the public defender's office, not necessarily through providing more resources. "I don't think it's in their favor," he says of the ruling. "The county is very happy with this."

But Roper scoffed at the idea that a simple office reorganization could fix the flaws in the defender's office. "If Jack thinks that they can propose a restructuring of the public defender's office that magically enables 20 lawyers to handle 4,000 cases a year, let him come up with the plan," she says.

If the two sides cannot reach a deal, the lawsuit will return to the courts, with uncertain results. Flora will fight it out to the bitter end if necessary. "I'll not back down under any circumstances," he says.

Given the complexity of the case, a full resolution is probably years away, and Olexa isn't sure he can last that long. The job is taking a toll on his health and straining his relationship with his girlfriend, who is tired of him spending more time at the county jail than at home with her. On the other hand, he's inspired by Flora's crusade to reform the defender's office. "I feel like I'm part of a change in the system," he says. "This is why I got into the law in the first place."

"I'm going to stick around as long as I can," he says.


Anna Sanders contributed reporting.

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