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.