Karen Heller: Why city plan for public defenders is wrong

The Nutter administration plans to pay $9.5 million annually to a law firm that would represent the poor in cases where the Defender Association of Philadelphia has a conflict. It would replace the current network of more than 300 outside lawyers at multiple firms.

This is a profound mistake, because the firm would replace a broken model with a cheaper one and expect better results.

Outside counsel is assigned when there are multiple defendants or the client is a witness in an existing case. We're dealing with 27,000 cases a year, and the city is offering $1 million less to cover legal fees than it does now. The caseload and amount of time required are numbing, often producing spectacularly bad lawyering. And the city wants to cut funding?

The system needs to be overhauled, not fashioned from spit and tape.

Daniel-Paul Alva, a respected defense lawyer, is negotiating the deal with the city. He is one of four partners listed on the Alva & Associates website. He has proposed hiring or subcontracting 75 lawyers, plus the necessary support staff. Seventy-five lawyers doesn't sound close to enough.

Many states pay for the defense of indigent clients. It will come as a shock that Pennsylvania is not one of them and that elected officials, despite proposed legislation, have been unwilling to help fund defense lawyers in its most overworked court system.

The random nature of how a lawyer is assigned is critical. The first defendant in a criminal case is represented by the defender office. The second is assigned to private counsel, which can range from terrific to dismal. A 2011 study found that the Philadelphia defender office reduced its clients' murder conviction rates by 19 percent, lowered the probability of a life sentence by 62 percent, and lessened prison time by 24 percent.

Even with a 2012 increase in fees for death penalty cases, Philadelphia's lawyer rates are among the lowest in the nation. Mississippi pays better.

"We're not saving any money because we're paying millions in excess incarceration and retrying cases because they're not handled properly," noted Marc Bookman of the Atlantic Center for Capital Representation and a former public defender who is vehemently opposed to a private firm's handling these cases.

And he has a problem, as I do, with hiring a private firm. Bookman said, "The words for profit and indigent defense should not be in the same sentence."

Bookman and other top defense lawyers prefer a nonprofit organization, an auxiliary defender office of salaried lawyers, similar to groups in other jurisdictions. Private lawyers work for fees, and the payments for outside counsel are often inadequate. The concern is that the paying clients would get preference over the indigent. Who can blame a lawyer for wanting to make a living?

There are excellent lawyers who do defense work for poor clients, particularly in high-profile homicides. But the bulk of assigned cases involve poor children and parents in abuse, neglect, and custody matters that grind on for years. These cases pay a maximum of $500 the first year and a pathetic $60 by the third. Lawyers are expected to appear in court every 90 days. You would do better as a janitor.

"I don't know how a private attorney can afford this," said chief public defender Ellen Greenlee, whose office has 240 lawyers, 70 social workers, 38 investigators, and a $38 million annual budget. "It's really charity, a disgraceful system in terms of what they're paying counsel."

Defense lawyer David Rudovsky, president of the Defender Association board, said, "It's a huge cost that we pay in not reaching the right results, innocent people convicted of the wrong charges."

Deputy Mayor Everett Gillison, a public defender for 22 years, defended the move, which has been criticized by the Philadelphia Bar Association, defense attorneys, and City Council. "I'm not the U.S. Treasury. I can't print money," Gillison said. "We're having a kerfuffle. Whether services provided should be for profit or nonprofit, it's a red herring."

Besides, he told me, no nonprofit submitted a proposal.

Which is true, most likely because those lawyers recognized this was a fool's errand due to inadequate funding.

"You probably need 20 lawyers alone for appellate work and clients trying to overturn their convictions because their lawyers were ineffective," said veteran defense lawyer Sam Stretton. "You're going to pay $9.5 million for half the work that the defenders do? It's going to break down in a year. You're going to have cases backlogged, cases not going to trial, neglected cases. They're going to lose all their experienced lawyers."

Every experienced defense lawyer I spoke to, with the exception of Gillison, said that if the money isn't there, changing the model won't work.

"The city should stop looking for the cheapest thing. They need to pay $15 to $17 million to make the current system work," Stretton said. "If we want a vigorous criminal justice system, we have to fund it."

215-854-2586 @kheller