Kentucky Department Of Public Advocacy Files Lawsuit Against General Assembly.

Here is the press release:

Public Defenders Seek Permanent Resolution to Unethical Caseloads

Civil Action Filed and Services Reduced until Funding and Caseload Crisis are Resolved

FRANKFORT, KY (June 30, 2008) - - - The Department of Public Advocacy, the Louisville and Jefferson County Public Defender Corporation, attorney Frank Mascagni III, and his client John Doe have filed a petition for a declaratory judgment in Franklin Circuit Court, Lewis, DPA, et al. v. Miller, Hollenbach, et al. The lawsuit was filed one day before DPA and the Louisville Metro Public Defender's Office will implement plans to reduce public defender services in courts throughout Kentucky.

“It is with considerable disappointment that DPA is forced to file this petition today and to reduce services tomorrow. These actions are necessary, carefully measured and entirely reasonable under the circumstances. Our agency’s mission under KRS Chapter 31, as well as the Kentucky and U.S. Constitutions, requires DPA to effectively represent all indigent defendants in the Commonwealth. Our professional and ethical responsibilities mandate that we represent defendants with competence and diligence. This can only be achieved when we attain ethical caseloads. My long-term goal is to achieve equal justice under the law for poor people who stand accused and are presumed innocent, and to permanently resolve DPA’s chronic unmet need for sufficient funding, once and for all,” states Ernie Lewis.

Dan Goyette, Chief Public Defender for Louisville and Jefferson County, points out that, “This crisis has been building for well over a decade. Study after study has confirmed the need for a significant infusion of resources into the public defender system in order to avert what is now occurring. As recently as last December, the Governor’s Transition Team warned that excessive caseloads and the long-term neglect of the budgetary requirements of indigent defense in the Commonwealth would have dire consequences if not immediately addressed. Unfortunately, their report proved prophetic. Not only are the lives and liberty of some of our most vulnerable citizens at risk, but the fairness, reliability and credibility of the criminal justice process are rightly in question. We can ill-afford a loss of public confidence in our adversary legal system and with it respect for the rule of law.”

Frank Mascagni, an attorney in private practice who handles conflict cases for the public defender and serves as lead plaintiff for the over 160 conflict attorneys, says, “I just find it unconscionable that defendants facing years in prison, most on serious felony charges, have to choose between continuing to be represented by a public defender with a potential conflict of interest and an excessive caseload, or a private lawyer practically working pro bono. The time has arrived for Kentucky to fund conflict-free counsel for poor defendants, and to provide fair compensation so that qualified counsel is in a position to devote the time necessary to defend these cases properly without jeopardizing his or her own practice. Pro Bono representation is not the answer. At best, it’s only a temporary, partial solution, and not a very realistic one at that given the demands of these cases. It is also rife with practical, ethical and legal problems that have been recognized and cautioned against in both established case law and ethics opinions. Prompt and decisive action is necessary to avoid regressing into the totally inadequate and deplorable appointed counsel approach of the past in indigent cases that pre-dated the creation of the full-time public defender system.”

The petition for a declaratory judgment is necessary because of the crisis created when the 2008 Kentucky General Assembly failed to provide sufficient funding to the DPA. The Commonwealth’s enacted budget for fiscal year 2008-09 funds DPA at $37.8 million for FY09. This is a $2.3 million cut from DPA’s amended FY08 budget of $40.1 million and will result in a reduction in staffing by as many as 75 positions, including 60 trial attorney positions.

The relief and resolution the Plaintiffs in this case are seeking include a declaration from the court that public defender lawyers in the Commonwealth may, consistent with their ethical, constitutional and statutory obligations, legally decline to accept certain appointments to represent indigent criminal defendants when to do so would result in excessive caseloads that compromise effective representation. The petition also asks for a declaration that, when DPA cannot provide a lawyer, the court must appoint a qualified lawyer and the court may order the Commonwealth to pay the appointed lawyer. In the alternative, the petition seeks a declaration that the General Assembly must appropriate adequate funds by a date set by the courts, after which charges against persons deprived of counsel would be dismissed if adequate funds had not been appropriated by that date.

Specifically, the petition states,

“As a result, caseload levels for public defender lawyers have reached the point where the heads of Kentucky’s public defender offices have the ethical obligation to take immediate action to address this situation in order to keep Kentucky’s public defender lawyers in compliance with their duty under the Kentucky Rules of Professional Conduct to provide diligent and competent representation and in order to safeguard indigent criminal defendants’ right to have competent defense counsel appointed to represent them.”

“I believe these steps are necessary and reasonable. The Board of Governors of the Kentucky Bar Association agrees. The Public Advocacy Commission agrees. The only options given this funding crisis were to shut our doors in the last quarter of the year, thereby putting all defendants at-risk, or managing the crisis through a responsible service reduction plan designed to represent defendants who are at the greatest risk of serving jail or prison time, and attempt to avoid as much disruption as possible in the Court of Justice. We made the difficult but responsible choice that will help us achieve ethical caseloads while this critical issue is being litigated and properly resolved," stated Ernie Lewis.

The plaintiffs are represented, pro bono publico, by Charles E. English, Sr., Jon L. Fleischaker and Sheryl G. Snyder.