Tuesday Talk*: A Brief Too Far?

As Joe Otte made clear, the job of running a public defender’s office in Pennsylvania is fraught with collateral politics. The problem begins with the fact that funding for indigent defense comes from the county directly rather than the state, and so the hiring, firing and funding is more personal, and more directly felt by the local politicians and taxpayers.

Pennsylvania PDs know this, even if we don’t. They are well aware of who’s butt needs kissing if they want to hire more public defenders, or need new computers, or want to start a program for the good of mankind. Or just need to get along. This isn’t a good situation, but it’s what they have, and they know it.

For the chief public defender and second in command in Montgomery County, this became a problem. A huge problem.

Last week, Montgomery County, Pa., officials fired Dean Beer, the county’s chief public defender, along with Keisha Hudson, the second-ranking attorney in the same office. This came as a shock to many in the legal community. Under Beer and Hudson, the Philadelphia suburb was thought to have one of the most effective public defense offices in the state.

It comes “as a shock” to many because this isn’t how it works elsewhere, and, to most of us, shouldn’t be how it works, where we’re of the belief that it’s fundamental to the constitutional duties of public defenders to be free of governmental interference. While they get a government paycheck, they must be free to do their duty. But then, what is that duty?

A public defender, on the other hand, has a responsibility to his or her clients. For the head of a public defender’s office, that obligation means not only ensuring that individual clients have effective representation, but also addressing broader, systemic issues in the system.

That a PD has the duty to zealously represent an individual accused of a crime is at the core of the Sixth Amendment. But that doesn’t give rise to the blind leap from defending clients to “addressing broader, systemic issues.” Glossing over that chasm in reasoning doesn’t resolve the issue. Nowhere does the Constitution state that public defenders have a duty to champion causes beyond the defense of the individual accused.

In fact, public advocacy is especially important for a chief public defender, because there are also strong incentives that keep defense attorneys from reporting the systemic problems they experience day to day. If you’re a public defender who notices prosecutorial misconduct or if you encounter a judge who sets unusually high bail amounts, speaking out on those problems could make it a lot more difficult to do your job.

There is little doubt that public advocacy is important, or that it impacts the ability for public defenders, all criminal defense lawyers, to be effective in their representation. But is that the question here? Dean Beer and Keisha Hudson proffered an amicus brief in a case of extreme interest, but it wasn’t their case and they did it  on Montgomery County’s dime.

Others could have written the brief. Others who weren’t on the county payroll could have made the argument that, without a doubt, mattered, and mattered for the indigent defendants of Montgomery County as well as the rest of Pennsylvania. But Beer and Hudson did it. And for that, they were fired.

But if someone doesn’t address the problems, no one ever will. And in a system such as Pennsylvania’s, addressing them can be difficult. “Any time a public defender has to choose between putting food on his family’s table and zealous advocacy for clients, you’re going to have a conflict,” said David Carroll of the Sixth Amendment Center.

Had Beer and Hudson been fired for defending individuals too well, too zealously, there would be no question but that their discharge for performing their duty was wrong. But they were fired for the submission of an amicus brief in support of an issue that was clearly relevant to their work, to their representation, but not their actual job of defending individual accused. Did they go beyond the limits of their job? The county didn’t tell them to defend their clients less zealously, but to stay in their lane. Is this an outrageous impairment of their duty as public defenders or did they stray too far from the job for which the county hired them?

*Tuesday Talk rules apply.

23 thoughts on “Tuesday Talk*: A Brief Too Far?

  1. Miles

    Up until now, there has been nothing but outrage over the firing of Beers and Hudson. This is the first time anyone has even suggested that maybe too much has been taken for granted, that maybe they pushed the envelope too far and that maybe, just maybe, they can’t do anything they want while cashing their county paychecks.

    Was it that the mobs of woke PDs and activists were right, or that they were just screaming so loud that nobody wanted to take the chance of provoking their fury? Until now.

    1. SHG Post author

      I’m not sure the mobs were wrong or the outrage misguided, but they failed miserably to provide an honest recounting of the interests involved here. It’s easy to be “right” when you only tell half a story and gloss over the “unpleasant” gap in facts and logic.

  2. Pedantic Grammar Police

    “Is this an outrageous impairment of their duty as public defenders?”

    No. If an employee’s supervisor tells him to do something (with rare exceptions such as requests for sexual favors), and he doesn’t do it, then that employee is likely to be fired. I doubt that this firing was a surprise to anyone involved.

    Does it look bad? Sure it does, but Pennsylvania politicians and the bureaucracy that they govern have made it crystal clear that they don’t care about the optics of their abuse of criminal defendants and their defenders, and the citizens of Pennsylvania keep electing those politicians. This appears to be what Pennsylvanians want.

    I have a fascinating anecdote that would fit perfectly here, but I will restrain myself. Your welcome.

    1. SHG Post author

      We all appreciate your self-restraint, although TT rules would be the one opportunity for you to tell your story.

      1. Pedantic Grammar Police

        Since you asked…

        I’ve been working from home for the last 3 weeks, since it became obvious to me that CoronaVirus was likely to spread here in the US. I didn’t ask for permission; I sent an email to my team, including my manager, saying “I’ll be working from home for the duration of the CoronaVirus epidemic.”

        My manager emailed me saying “This isn’t approved by HR; I want you in the office tomorrow,” but I declined to risk my life for a job, and then crossed my fingers and hoped that I would not get fired. I still have a job, but this was a calculated risk, similar to the risk that Beer and Hudson took. I got away with it because my supervisor values me and the work that I do enough to put up with a minor insubordination, but if he had fired me, I would not be out raising woke mobs of online protesters, and no newspapers would be killing trees on my behalf. I would be calling recruiters and finding another job.

        Fortunately the job market is hot right now. If I had been fired, I would have another job within a week, and in my field there are lots of “work from home” jobs, so the decision to trade job security for reduced risk of illness and death was an easy one. The old saying “YMMV” applies here. For Beer and Hudson, mileage varied in the downward direction.

          1. ShallMustMay

            Great set up. I always appreciate learning new communication techniques. Good or bad. Always fascinating.

  3. LocoYokel

    Curiosity is killing another cat.

    Given that, from the articles I read, the court specifically asked for the brief do you think there is a very high likelihood of this coming back to bite the county in ways they won’t appreciate? You all know better than I how judges at any level like being thwarted.

    1. SHG Post author

      Not a very high likelihood. Not a likelihood. Not a remote likelihood. Not at all. And Radley’s post might have been a bit unclear on that point, as I don’t believe it was the court asked for the amicus brief, but the Community Bail Fund. Courts don’t solicit briefs in specific support of one side.

  4. GBarry

    This is a curiously narrow-minded column – you identify their sole job as defending individual accused persons and then take essentially a civil law approach – they should expect to be fired for devoting time/resources to anything that is not expressly spelled out as a duty of their job. Yet, I doubt – and I doubt you know, either – that their job contracts spell out specifically – and in their entirety – all of the duties that they are expected to fulfill. Given that we live in a common law society (except for those poor Cajuns), I’m puzzled as to your hostility toward the PDs – the question should be: is what they are doing within the commonly understood scope of their job? I would argue that the county’s procedures for setting bail affect – in a negative way – the liberty of the PD’s individual customers in their individual cases before the court, and thus falls within the scope of issues we would expect the PD’s office to weigh in on (as compared to, say, changes in the zoning law. Or Section 230.). Your piece seems an oddly reflexive genuflection in the direction of Authority, which would run counter to your usual instincts. Is there a backstory here not conveyed in the linked articles? Have the two fired PDs spent their tenure on endless amicus briefs in all manner of cases?

    1. SHG Post author

      It’s always a curious tell when someone confuses the raising of a question as the taking of a position. By raising the question, and therefore not being mindlessly supportive of the action no matter what, you see “hostility toward PDs.”

      1. GBarry

        I went back and re-read the column, and see that I read a tone into your questions that may not be there. By now, I should be familiar with your style, so my apologies. In my defense, I’m originally from NJ, and thus prone to fight.

  5. Brennan

    Constitutionally, I don’t think there’s a huge deal here. It’s not exactly a Garcetti issue, because they weren’t really speaking as part of their job duties. But they filed a brief, which they presumably worked on when they were supposed to be working as public defenders, in their capacity as public defenders for the county. The county can tell them to limit their work as public defenders to representing their specific clients.

    The big problem is the message the termination sends to other public defenders. Firing them after they’ve already been reprimanded and withdrawn the brief is more than they needed to do to correct the issue. It’s pretty likely that other public defenders will interpret this whole episode as retaliation for criticizing the county. Criticizing the county is almost certainly going to be part of an effective representation in individual cases from time to time. I don’t see a major issue with telling public defenders to stick to representing individual clients, but this issue could pop up in that context, especially in a case where there’s a motion to reduce bail. The county has pretty unnecessarily exacerbated the chilling effect on representation in that context by firing these public defenders.

  6. MelK

    You throw a lot of sand on your tracks there, but I agree with where you ended up:
    Not “on the company’s time” so much as “having taken the king’s shilling”.

  7. Joe O.

    Well, as you already know, I’m about three laps behind on this 1600 meter run…

    I like Balko, but he’s wrong about a public defender’s obligation to address “broader, systemic issues in the system.” He’s wrong as a matter of law, and I think he’s wrong as a matter of policy.

    More unfortunately, he and others have reframed the issue, placing it in the bucket of broad social justice goals. In doing so, they’ve missed the opportunity to present a really good defense of Beer and Hudson.

    They filed an amicus curiae under Rule 531 of the Rules of Appellate Procedure. There is no question about whether it was a brief authorized under R. 531. There is no question about whether the case, if resolved in favor of the criminal defendant, would benefit their MontCo clients. It’s highly likely that many of their clients could raise the same issue that the party before the Supreme Court had raised. So what were they fired for?

    They were fired for doing their jobs. Because that’s what we do in the Keystone State. We make life miserable for public defenders who do their jobs. And if they’re okay with being miserable and they persist in doing their jobs? We fire them.

  8. Sgt. Schultz

    There was a time when Balko was one of the foremost voices on criminal law. And then came Trump and his spiral into the inane social justice hysteria. It’s painful to watch the Agitator turn into the agitating.

    1. SHG Post author

      He still does good work and I believe the Agitator is still in there. These are hard times to be in crim law reform and yet not let one get swept away by the anti-Trump tide.

  9. Charles Morrison

    My answer to your question would be that, although the county pays them to represent clients and not causes, this is close enough to the latter that they should not have been fired. This wasn’t, for example, a pro-choice amicus brief. This issue directly impacts their representation of county “clients.” They are ticketed in that state and ostensibly can provide direct knowledge of the issues to the appropriate court. They were doing an attendant task to their routine job, in my mind.

    I believe the county deserves derisive feedback from the public. But, the county was within its rights to discharge these folks, too. So, vote the decision-makers out if you don’t like it.

Comments are closed.