Otte: A Casualty Of Allegheny County’s Chief Public Defender

This is a guest post by Joe Otte, a public defender — until June 8th when his resignation is official — in Allegheny County, Pennsylvania, who fought for his clients and colleagues. Not only against the prosecution, but against his Chief Public Defender.

The Allegheny County Office of the Public Defender has a history of gross underfunding, lawsuits, and broken promises.  There has been incremental progress, but many problems persist.  The problems are made worse by the fact that Chief Public Defender Elliot Howsie is shirking his duty to his clients in the pursuit of a judicial appointment.

Mr. Howsie’s decision to place his political ambitions over the best interests of the office, and by extension, his clients, is no secret.  Saying this and proving it, however, are two different things.  Thankfully, Mr. Howsie is making it easier to prove.  In an effort to quell discontent among his attorneys and staff, he has repeatedly claimed that his hands are tied by the county government because “there is no room in the budget.”

This slow growth was only made possible by our office’s failure to actually spend the money that was appropriated to our office. For budget years 2013 to 2017, our office underspent its budget by an average of $443,000 each year. In 2017, our office underspent its budget by an appalling $623,269. These surpluses were only made possible by the decision to delay the replacement of attorneys and staff who left our office. This decision resulted in the workloads of departing attorneys and staff being distributed to already overworked and underpaid colleagues.

Yes, the Chief Public Defender underspent the low-growth budget by almost 5% for the last five years.  But there must be a good explanation for this?  Was the County slashing budgets left and right?  Is this just one example of the harsh realities of an austerity plan?

Meanwhile, the County can take no refuge in the argument that these issues are universal throughout other county departments. From 2011 to 2017, the county operating budget has increased at a rate far exceeding the increases in spending on our office. Further, other departments within the criminal justice system have seen incredible increases to their budgets. From 2011 to 2017— the period in which our office experienced a 9.3% increase in spending— the District Attorney experienced a 28.2% increase, the County Police experienced a 38% increase, the Court of Common Pleas experienced a 25% increase, and the Sheriff experienced a 39.1% increase.

If you’re reading this blog, you’re probably a skeptic by nature.  You probably see that there’s an out.  There’s a fact which, if true, could make all of this not only less egregious, but fiscally prudent!  Could it be?  Is the Allegheny County PD so flush with cash that they owe it to the taxpayers to spend less than they’re budgeted?

Although poor funding for indigent defense is not a problem unique to Allegheny County, at $9.8 million (a number that assumes we actually spent the money that was appropriated to us), not a single similarly-sized county-based public defender office receives so little funding. Despite having nearly identical populations to Allegheny County, Cuyahoga County, Ohio, and Franklin County, Ohio have budgets of $13 million and $14 million, respectively. Another county with a nearly identical population, Hennepin County, Minnesota, puts things into greater perspective: at $16.7 million, the Hennepin County Public Defender’s office receives 70% more funding than our office.

Apparently not. Despite the numbers that show the Allegheny County PDs are providing indigent defense at an incredibly discounted rate, Mr. Howsie repeatedly scoffed at the notion of a budget increase.  He told his employees that before he could ask the County for more money, the office would “have to do more with less.”  Of the numerous insults levied against his staff, that he thinks they would be stupid enough to believe this takes the cake.

But this isn’t just about Elliot Howsie.  This is a systemic problem.  There is no neutral board or commission that appoints the chief in Allegheny County.  Mr. Howsie was appointed by County Executive Rich Fitzgerald.  When a chief public defender is appointed by a single individual in the executive branch, to whom is that chief public defender likely to be deferential?

In 2012, just prior to appointing Mr. Howsie,  Mr. Fitzgerald was offered private contributions to conduct a nationwide search for a new chief public defender.  Mr. Fitzgerald rejected those offers and instead appointed a local.  Now, there’s nothing wrong with hiring local, but what the hell was Mr. Fitzgerald up to?  Well, he was asked at the time:

The hire is only a piece.  If this is the direction we’re going to go, this is only one piece of that office. It’s not just one individual. No one person is going to come in here — from inside, outside, wherever — and solve this problem.

Given the context, it was a strange thing to say.  But Mr. Fitzgerald was, of course, correct.  If a triumvirate of Bryan Stevenson, Stephen Bright, and a reincarnated Hugo Black had been appointed to run the Allegheny Office of the Public Defender, that still would not have solved the problem.  What Mr. Fitzgerald left out of that statement was that he had zero interest in adequately funding indigent defense.  Apparently, what he really wanted was for someone to make a few cost-free improvements and then sell it to the public as OPD 2.0.

But this isn’t just about Elliot Howsie and Rich Fitzgerald.  This is a systemic problem, and Allegheny County is in the state that houses the Liberty Bell.  Indeed, Pennsylvania has the dishonor of being the only state that does not provide any state funding for indigent defense.  The legislature was aware that Pennsylvania was an outlier back in 2007, so they did the only thing that can guarantee nothing happens: they created a legislative task force.

The lengthily-named “Report Of The Task Force And Advisory Committee On Services To Indigent Criminal Defendants” was released over four years after it was commissioned. The report was a self-indictment that made serious recommendations. Naturally, the legislature that commissioned the task force promptly ignored those recommendations.

Regardless, widespread systemic dysfunction in indigent defense does not excuse lying to your staff and screwing over your clients.

7 thoughts on “Otte: A Casualty Of Allegheny County’s Chief Public Defender

  1. Lawyer Guy

    Until very recently Michigan was much worse. The three major counties Wayne (Detroit), Oakland, and Macomb didn’t have a county wide system. Instead individual judges used their own appointment lists, but off a county fee scale. The lawyers on the lists were expected to donate 10% of their fees back to the judges.

    A new state supervised appointment system is underway, and with it a lot of demands that the layers appointed actually be qualified to defend.

    No real fee increases, though. So even with felony cases they only get paid for one prelim, one motion to dismiss, and one evidence hearing. They have to beg for investigation dollars directly from the judges, almost never granted. They get no time at all for competency reports or witness prep.

    1. SHG Post author

      So this was a post by one guy about his PD office so that he could tell his story. But you want to hijack it so that it’s about your story. Is that because yours is so much more fascinating or that his story isn’t worthy of being told?

    2. Joe Otte

      Lawyer Guy, trust me, I’m under no delusions that we’re the worst. We’re likely far from it. And we have awesome mission-oriented PDs (and support staff) who fight like hell for our clients. But having the head of your organization screw you over and then ask you to be grateful for it is a special situation, and it warrants everyone’s outrage.

  2. CLS

    Joe:

    Thank you for shedding light on a horrendous crack in Pennsylvania’s justice system. Don’t let Elliot Howsie’s misdeeds turn you from practice, though. Go fight! Raise hell in whatever capacity you can! Allegheny County needs honest attorneys like you representing defendants.

    With this insight, and a quick skim of the Pennsylvania Code of Judicial Conduct, it appears Mr. Howsie’s actions render him unfit to be a judge despite his political ambitions.

    More of us need to raise light on the national systemic failure of indigent defense funding. At some point we all have to channel our inner Howard Beale and yell “We’re mad as hell and we won’t take this anymore!” Maybe then action will happen.

  3. kemn

    So, Joe, any bets on if you get replaced by another attorney, or if Howsie uses your leaving to save even more money in the next budget cycle?

    Or is that being too cynical?

      1. kemn

        My resolution this year was to be less sarcastic and cyncial. So far, that’s working out great.

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