Doris DelTosto Brogan & Steven Chanenson: Get politics out of public defender system

Recently, Montgomery County, Pa. fired its top two public defenders, Dean Beer and Keisha Hudson, immediately escorting them from their offices with no explanation to their stunned staff or the public. We join the lawyers, academics and other stakeholders who have spoken out because this matters.

If the motivation for the firings is as it appears to be — retaliation for filing a brief that described the local system negatively — a grave wrong has been done to Beer and Hudson, and serious damage has been inflicted on the Montgomery County Public Defender’s Office in particular and Pennsylvania criminal justice in general.

But we do more than decry what appears to be a dangerous assault on the independence of the public defender function, which is critical to a fair criminal justice system. We also advance a solution that can guard against future incidents like this and go a long way toward ensuring the kind of trust needed for the system to function properly.

Beer and Hudson earned broad-based respect as committed and highly effective lawyers, under whose leadership the office enjoyed a first-class reputation. So, what happened?

Diligent reporting suggests that the firings were related to — indeed, were retaliation for — submission of a friend-of-the-court brief with the Supreme Court of Pennsylvania highlighting failures of the county’s cash bail system, and advocating for systemic changes.

If that is the case, it should set off alarms among all lawyers, and all citizens who count on fair, equitable and effective access to justice. If counties can fire public defenders for presenting what they and others view as injustices to our state Supreme Court, then the entire system is in grave danger.

American criminal justice is adversarial by design. It relies on the principle that if two parties vigorously present their case, marshaling the facts and law, to a neutral decider, as Shakespeare wrote, “at the length, truth will out.” Because the commonwealth represents the people collectively, the district attorney or the attorney general acts as a “minister of justice” according to the rules governing lawyers’ ethics, especially in its investigation and charging functions. But once the issue is joined, the prosecutor vigorously advocates on behalf of the commonwealth. Criminal defense lawyers, on the other hand, are ethically bound to provide zealous representation and fierce, undivided loyalty to their clients’ interests.

And this is so even though public defenders are paid by the government. What an astonishing concept! The very government that has arrested and charged an indigent person provides the lawyer to defend her. It only works if the public defenders are truly independent, which is why professional independence is the first of the American Bar Association’s 10 principles of public defense.

Here is where Pennsylvania has a problem.

Pennsylvania has the dubious distinction of being the only place in the nation that has absolutely no statewide indigent defense agency. Everything operates — from hiring to funding — at the county level. Giving counties that kind of control can lead to myriad challenges. More than eight years ago, a task force of the General Assembly’s Joint State Government Commission, a kind of governmental think tank, recognized these problems and set out a blueprint for reform. It echoed the concern of an earlier report from the Supreme Court’s Committee on Racial and Gender Bias that counties’ role in appointing and funding the public defender could allow them to meddle inappropriately.

The task force provided a comprehensive legislative recommendation that would create a State Board of Indigent Defense, funded by the state, with the power to appoint and supervise a chief public defender in every county except Philadelphia, which has a long-standing, well-run private-public arrangement. The key to this approach is to provide constitutionally required representation to impoverished defendants and ensure public defenders have the necessary professional independence to do their jobs at the individual and systemic levels.

Whatever happened in Montgomery County raises at least the specter of political interference. But this issue is bigger than one county. At long last, Pennsylvania’s General Assembly needs to live up to its responsibilities and bring public criminal defense into the 21st century by adopting a system that provides a statewide structure for public defenders and places administration of the defenders in an independent body beyond the easy reach of local politics.

Doris DelTosto Brogan is the Harold Reuschlein Leadership Chair and law professor at Villanova University Charles Widger School of Law. Steven Chanenson is a Program in Law and Public Affairs Fellow at Princeton University and a law professor in the Charles Widger School of Law. This op-ed was co-written by fellow Charles Widger School of Law law professors Michelle Dempsey, Harold Reuschlein Scholar Chair, and Teri Ravenell, associate dean for faculty research and development.