IN THE INDIANA SUPREME COURT

CAUSE NO._________________

IN RE: REQUEST FOR PROMULGATION

OF A NEW RULE FOR A STATEWIDE
PUBLIC DEFENDER SYSTEM

PETITION FOR RULEMAKING OR OTHER INTERVENTION

BY THE INDIANA SUPREME COURT

COME NOW Jauston Huerta, Calvin Wilson, and Kenneth Alford, by counsel Michael
K. Sutherlin and David W. Frank, and jointly petition this Court as follows:

1.

The Indiana Supreme Court has original jurisdiction to affect the "supervision of

the exercise of jurisdiction by the Courts of this state." Ind. Const., Art. VII 4. As such it has
the power to promulgate rules regulating procedures in the Courts of Indiana. See e.g., State v.
Van Cleave, 157 Ind. 602, 62 N.E.2d 446 (1902). (Court has inherent power to ordain such rules
as necessary to proper dispatch of businesses.)
2.

Additionally this Court has original jurisdiction over the practice of law in

Indiana. Ind. Const., Art. VII 4.

3.

The Court has, for example, promulgated rules governing representation of

indigents in death penalty cases, which rules are designed to preserve an accused's right to the
effective assistance of counsel. Ind. Const. Art. VI; Ind. Const. Art. I 13. See Rule 24, Indiana
Rules of Criminal Procedure.

4.

In 2007, when asked to decide a question on appropriate attorney fees in medical

malpractice cases, the Court invited the Indiana Bar Association, the Indianapolis Bar
Association, Defense Trial Counsel of Indiana, the Indiana State Medical Association, and
several other groups to weigh in on the subject before issuing a decision in a disciplinary case.
See In re Daniel B. Stephens, No. 45S00-0505-DI-244 (Ind. Aug. 11, 2006).
5.

This Court issued an ORDER ON PRETRIAL RELEASE, on December 22, 2014,

and has since issued Indiana Criminal Rule 26, in an attempt to lessen the financial burden on
individuals not yet convicted of any crime
6.

On September 28, 2016, the Pennsylvania Supreme Court ruled that indigent

defendants have the right to challenge systemic deficiencies at the outset of a case before having
to suffer from actual or constructive denial of counsel. See Kuren v. Luzerne Cnty., No. J-47A2016 and J-47B-2016, No. 57 MAP 2015 and No.58 MAP 2015 (Pa. Sept. 28, 2016.) (Dean
Emeritus Norman of the Indiana University McKinney School of Law testified on behalf of the
plaintiff class.)
7.

The Sixth Amendment Center, a non-partisan, not-for-profit public interest

group, has completed a comprehensive report on public defense in this state: THE RIGHT TO
COUNSEL IN INDIANA: EVALUATION OF TRIAL LEVEL INDEGENT DEFENSE
SERVICES, The Sixth Amendment Center (November 2016),
http://sixthamendment.org/6ac/6AC_indianareport.pdf. The report was prepared at the request of
the Indiana Public Defender Commission, and it was funded by The National Association of
Criminal Defense Lawyers (NACDL) and Koch Industries. It is also supported by the
Foundation for Criminal Justice (FCJ).

8.

This 200-page, detailed report sets forth seven (7) critical findings and urges

major changes in Indianas system for public defense. The call for comprehensive reform has
never been more thoroughly documented and argued. The report is hereby incorporated in this
Petition. See The Right to Counsel in Indiana, supra.
PETITIONERS
I.
VIGO COUNTY PETITIONER JAUSTON HUERTA
9.

Jauston Huerta was assigned Matthew Daley as his public defender. Mr. Daley has

hardly spent any time with Mr. Huerta to learn about his defenses or to familiarize himself with
the facts and allegations supporting the criminal charges.
a.

Mr. Huerta was originally arrested on October 16, 2015, and he was released on

bond February 15, 2016. Six weeks later, he was rearrested but complained that he had
been released on bond.
b.

Mr. Huerta asked Mr. Daley to obtain the court transcript to prove he was ordered

released on bond. Mr. Daley promised to obtain the transcript but he never did, and then
he insisted he had never been asked.
c.

Mr. Daley is one of 24 public defenders in the Vigo County public defender

system, which requires the PDs to represent individuals charged with misdemeanor and
felony offenses
d.

Vigo County participates in the Indiana Public Defender Commission Public

Defender reimbursement program, but it is not reimbursed for representation of

individuals charged with misdemeanors. The caseload for misdemeanors exceeds

maximum ABA recommendations, in violation of Indiana Rules of Professional Conduct,

Rules 1.1, 1.3, 1.4, and 1.7(b).
e.

Mr. Huerta is representative of many individuals in Vigo County who are

assigned lawyers through the countys public defender system and receive inadequate or
incompetent representation.

II.
JOHNSON COUNTY PETITIONER KENNETH ALFORD

10.

Mr. Alford was arrested in January 2015 and charged with two level-4 felonies in
Johnson County Superior Court 3. Mr. Alford was first appointed a public defender by
Judge Hamner.
a.

Originally, Mr. Alfords public defender was Daniel Vandivier.

b.

On September 1, 2015, Mr. Vandivier was replaced by Attorney Matthew

Solomon.
c.

Mr. Alford had been incarcerated for nearly nine months at this point.

d.

During his entire incarceration, Mr. Alford had only met with Mr. Vandivier at

court hearings.
e.

Mr. Alford mailed letters to Mr. Vandivier seeking assistance.

f.

Mr. Alford mailed a letter to the Court seeking a new public defender.

g.

Copies of Mr. Alfords letters to the Court were attached as Exhibit F-1 and F-2 in

the original complaint.

h.

All of Mr. Alfords letters went unanswered.

i.

Mr. Alford had been pressured to accept a plea deal despite his professed

innocence.
j.

Mr. Vandivier did not perform any investigation specifically requested by Mr.
Alford.

k.

On September 1, 2015, Matthew Solomon was assigned as Mr. Alfords public

defender. Solomon visited Mr. Alford once in jail.

l.

Kenneth Alford was one of seven (7) plaintiffs who brought suit. See Alford v.

Johnson Cnty. Commrs, No. 73D01-1601-PL-00003 (Ind. filed January 21, 2016).
(Pending in Hendricks County Superior Court 1, Special Judge Robert W. Freese.)
m.

Solomon withdrew from representation of Mr. Alford, again leaving Mr. Alford

without representation.
n.

The Court granted Solomons motion to withdraw, then transferred the case to the

Johnson Circuit Court, and Mr. Alford was told Keenan Wilson would be his new public
defender.
o.

Still dissatisfied with Mr. Wilson as his PD, Petitioners counsel arranged for a

Pro Bono Attorney to represent him. He rejected all previous pleas offers and is now
released.
III.
ALLEN COUNTY PETITIONER CALVIN WILSON

11.

Petitioner Calvin Wilson has suffered harm and his constitutional rights were
violated because of the acts and omissions of the Public Defender system in Allen
County. See Wilson v. Allen Cnty., 1:15-cv-00402-PPS-SLC (N.D. Ind. filed Dec. 31,

2015).
12.

Among other matters:

a.

On July 6, 2015, Wilson was charged with one count of Class A Misdemeanor

Battery, a crime carrying a sentence of up to one (1) year imprisonment and a $5,000
fine;
b.

On the same day, Wilson was assigned an attorney from the Allen County Public

Defenders Office;
c.

On July 21, 2015, Wilson had a court hearing on the charge, but:
i. Wilsons attorney had no contact with him prior to the hearing;
ii. Wilsons attorney had no contact with him during the hearing;
iii. Wilsons attorney contacted him only after the hearing when, because
Wilsons attorney had not contacted or spoken for him, the court nearly issued a
warrant for his arrest for failure to appear at the hearing; and
iv. When Wilson, at their next brief meeting on July 28, 2015, requested a copy of
the probable cause affidavit in his case so as to be informed of the charge against
him, Wilsons attorney refused to provide him a copy and told him that, if he
chose, he could obtain such a copy from the court.

d.

Prior to Wilson filing a federal lawsuit against Allen Countys public defense

system, Wilsons attorney had filed so motions in his case other than requests for
continuance;
e.

Wilsons attorney had never met with Plaintiff Wilson aside from brief encounters

inside a courthouse;
f.

Despite Wilsons requests, his attorney had failed to meaningfully investigate the

charge against him, advise him of his rights, and provide him adequate counsel.
g.

Mr. Wilsons Experience with the criminal defense system prior to filing a federal

lawsuit against Allen Countys public defense system was typical and representative of
misdemeanor defendants in Allen County.
h.

In Mr. Wilsons federal lawsuit, it was shown that in a two and one half year

period prior to the filing of the suit, Allen Countys four part-time misdemeanor public
defense lawyers carried a caseload of more than six thousand (6,000) cases between their
private and public defense practices.
IV.
GENERAL ALLEGATIONS

13.

The various county public defender systems existing in non-capital cases

throughout the states 92 counties are grossly inadequate and fail to provide defendants
effective assistance of counsel pursuant to prevailing professional norms.
14.

In 1992, Chief Justice Shepard entertained a similar petition that drew attention to

the constitutional shortfalls in providing indigent defense services in Marion County. In

response to the petition, the Court issued an order asking for comments concerning issues
related to indigent defense statewide. Through the leadership of Chief Justice Shepard,
the Indianapolis Bar Association, and many others, a full-time, independent public
defender agency was formed in Marion County, which by design and policy freed public
defenders in the county from conflicts of interest, and some caseload and funding
constraints.

15.

One such person who diligently advocated for a Marion County Public Defender

Office was the late Jon M. Bailey. As a deputy prosecutor, he saw the injustice of sending
people to prison when they did not have the protection of the Sixth Amendment.
16.

In most counties, there are far too many clients assigned to each public defender,

making it extremely difficult, if not impossible, for the lawyers to render competent and
diligent representation consistent with Indiana Rules of Professional Conduct and
effective assistance of counsel as required by the Sixth Amendment. A review of several
counties demonstrates that the caseloads of public defenders are grossly excessive. See,
e.g., Alford, No. 73D01-1601-PL-00003.
17.

Because the caseloads are so high, lawyers have a difficult time in providing

competent and diligent representation to their clients as required by Rule 1.1 and 1.3.
18.

Public defenders have extreme difficulty in keeping their clients reasonably

informed about the status of their cases or explaining matters to the extent reasonably
necessary to enable clients to make informed decisions regarding representation, in
violation of Rule 1.4. An exception for public defender representation should not be
sanctioned.
19.

Each new appointment that an overburdened public defender accepts constitutes a

violation of Rule 1.7(b), which provides that "[a] lawyer shall not represent a client if the
representation of that client may be materially limited by the lawyer's responsibilities to
another client [.]"
20.

Pursuant to Rule 1.16(a)(1) a lawyer is prohibited from representing a client

where the representation will result in a violation of the Rules of Professional Conduct.
21.

Unfortunately, because of heavy caseloads, attorneys routinely and systematically

represent clients in violation of the above rule. To compound the problem, attorneys who
work as public defenders part-time often must allocate their professional services
between their public defender obligations and their more lucrative private practice.
Whether because of personal predilection or caseload assignments, part-time public
defenders often ignore the legal concerns and the potential of prison confinement of their
indigent clients, and devote time to their fee-paying clients. This indisputable fact has
recently been demonstrated by the Sixth Amendment Centers report based upon a
thorough review of the ways in which Indiana provides public defense representation.
The report, published in November 2016, describes a non-uniform public defense system
with little or no supervision or accountability.
22.

One consequence of the low compensation paid to public defenders and high

caseloads in many, if not most, counties is that the most experienced attorneys in a
community are unlikely to accept indigent defense appointments. As lawyers become
overwhelmed, this leads to high turnover. Some counties solicit low-bid contracts for
public defense assignments, forcing bidders to make compromises that inevitably lead to
the conflicts discussed above. If public defense lawyers are employed on a case-by-case
basis, the minimum rate is $70.00/hour. The rate will be raised to $90.00/hour on January
1, 2017. The Indiana Public Defender Commission has endorsed legislation authorizing
the Commission to reimburse 50% of a countys expenditures for all non-capital cases,
including misdemeanors.
23.

The problems with Indianas system of public defense have long been the subject of

critical analysis and concern. See, e.g., Justice Denied: Americas Continuing Neglect of
Our Constitutional Right to Counsel, Constitution Project, 170-73 (2009), available at

http://www.constitutionproject.org/wp-content/uploads/2012/10/139.pdf. (Norman
Lefstein, Professor of Law and Dean Emeritus of the Indiana University McKinney
School of Law, served as co-reporter and primary author of this most recent national
report on public defense in America.) An average of 70% of persons incarcerated in
Indiana jails are pre-trial detainees. In Marion County, it is estimated that 90% are
pretrial detainees. Additionally, approximately 90% of defendants charged with felonies
are represented by public defenders in this state.
24.

Despite this depressing review of current public defense services in Indiana, there

have been no significant changes in Indianas system of public defense system in

decades. What is needed now is a statewide public defense system that includes all of
Indianas counties. Today, a majority of the states in this country have statewide
programs, many of which are independent and fully state-funded. In some of these
jurisdictions, the public defense offices have multi-jurisdictional responsibilities so that
they can serve more than one county. Specifically, attorneys representing indigent
defendants in 37 counties are either part-time, at will employees of the judge in whose
court they practice, or are appointed case-by case by the judge in the court in which the
case is pending. These attorneys have little or no investigative or other support services
and many suffer from high caseloads. In addition, these attorneys have little or no
systematic supervision or training and are accountable only to the judge who employed or
appointed them.
25.

These factors combine to create situations in which indigent defendants have

extreme difficulty in obtaining effective assistance of counsel. That the common refrain
is that "my PD didn't even talk to any witnesses" suggests that the public defenders do not

investigate their cases but instead rely upon the police narrative to assess their clients
potential criminal liability. As documented in the Report of the Sixth Amendment Center,
in misdemeanor cases, the practice of meet em, greet em and plead em" at the first
court appearance is all too common.
26.

Compounding the excessive caseload problem is the unnecessary use of bail and

cash bonds. This problem has been partially addressed by Indiana Criminal Rule 26. If an
offender is released on his or her own recognizance, a public defender is not needed to
seek a hearing on bond reduction, fewer correctional officers are needed at detention
centers, and less judicial time and fewer judicial resources are drawn upon. The
experience of Marion County during litigation over the overcrowding in the Marion
County Jail offers an illustration of how these reforms might work. One tool that was
successfully used during that litigation was the issuance of citations or summonses in lieu
of custodial arrests for minor crimes. Such policies reduce the temptation to make the
criminal justice system a putative revenue source. See Investigation of the Ferguson
Police Department, U.S. Dept. of Justice, Civil Rights Division (Mar. 2015),
https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf
27.

Testimony from judges, public defenders, and concerned observers will verify the

unreliable state of criminal justice under the Sixth and Fourteenth Amendment to the U.S.
Constitution. The public defense system is currently subject of two civil lawsuits. The
Allen County case has challenged the County PD system, even though it is seeking
quarterly reimbursement from the PD Commission. The Johnson County case can serve
as a template for litigation throughout the state. Hamilton County has contacted

plaintiffs counsel in hopes of avoiding similar corrective constitutional litigation. The 6th
Amendment Center has completed a comprehensive study of Indiana, as noted
previously. Executive Director David Carroll is available to testify about his findings and
recommendations.
28.

The National Juvenile Defender Center in collaboration with the Youth Law

T.E.A.M. of Indiana and the Indiana Juvenile Justice Task Force Inc. issued a 2006
report, The Quality of Representations in Juvenile Proceedings, and discovered many
failings of the states juvenile justice system.
29.

It is well understood that there is little accountability or supervision in most

counties over the quality of legal services provided by public defense lawyers. The
Brown County Public Defender system joined the State Public Defender Commission in
2012 and, in addition to the states requirements for defense representation, added three
additional provisions. The public defender contract: a) requires part-time public
defenders to keep track of their time and report their activities and expenses; b) requires
public defenders to draft a short memorandum analyzing each case and assessing what is
at stake and what some of the evidentiary problems might be; c) and requires that these
records be subject to review by the Public Defender Advisory Board, or in the case of a
larger county, a supervising public defender. The advantage to maintaining timekeeping
record systems, (which are also maintained by Marion, Brown, Vanderburgh, and St.
Joseph Counties, as well as federal public defender offices) is to make defense lawyers
aware that their services are subject to review, and, equally important, it serves as a
defense should lawyers be accused of incompetent or ineffective representation.

30.

These records would be kept by public defender lawyers who provide services in

felonies, misdemeanors, CHINS actions, termination of parental rights actions, probation

violations, and appeals.
31.

Furthermore, if these time records and memorandums of evaluation were certified

and then left with the trial court's file at the end of that PD's representation, then it would
be possible for the individual defendant to raise ineffectiveness of counsel on direct
appeal, with a record to rely upon.
32.

Conversely, this record would be helpful to an appellate court and would assist

the public defender in easily refuting allegations that his/her legal services did not
contribute to or lead to a wrongful conviction. This would eliminate the necessity of
appellate courts belatedly scrutinizing the issue of ineffective assistance, at a much later
time, usually through a PCR. The appellate courts could review on direct appeal, whether
or not the public defender was in fact ineffective.
33.

Usually an appellant public defender, who takes over the case, would need to take

a deposition of the original public defender and prosecutor. The time delay is often years,
and it seems to be clearly unnecessary if steps were taken early on to ensure both a
uniform representation in the case of those accused who are indigent, and also a review
process which mirrors that of private practice to ensure that the public defender lawyer is
doing the job properly.
34.

No doubt there are many other suggestions that will come from a study or hearing

on how to improve Indianas public defense system. Time records do not cost any money
and do not require any legislative action. If time records were deposited in a common
mail drop to be reviewed, it would remove responsibility of the trial court to monitor the

effectiveness of any of the public defense lawyers, thus eliminating one of the most
obvious conflicts. Conflict attorneys already provide time records in order to be
reimbursed monthly.
35.

The American Bar Association has adopted standards for public defender

programs. The standards require: a) full-time public defenders when caseloads are
sufficiently high; b) lawyers should be independent of the judiciary and should not be
selected by the judiciary; c) lawyers should have investigatory and expert services
necessary to assure a quality legal representation similar to that of the prosecutor; d)
public defenders should have access to effective training and professional development;
and e) the government has the responsibility to fund the full cost of quality legal
representation for those unable to afford defense services. Recommendations of the ABA
are contained in ABA Eight Guidelines of Public Defense Related to Excessive Caseloads
(August 209); ABA Ten principles of a Public Defense Delivery System (2002); and ABA
Standards for Criminal Justice, Providing Defense Services (3rd ed. 1992).
36.

The public defense systems in Indianas 92 counties violate the American Bar

Association standards. This Court has been aware of the serious and systematic problems
with the delivery of indigent services throughout the state. The case involving Mr. Smith
is indicative of this problem:
Errors and omissions made by trial counsel lead to the unerring conclusion
that appellant was denied his right to effective assistance of counsel as
guaranteed by the Sixth Amendment. We note that the record reflects
counsel had only become a public defender a few weeks prior to
appellant's trial and resigned shortly thereafter due to the overbearing
caseload. The reversal of this conviction may not have come about so
much from an individual performance as from a flaw in the system
maintained to provide legal counsel to those unable to meet the expense on
their own.

Smith v. State., 511 N.E.2d 1042,1047 (Ind. 1987).

37.

This court also reiterated Indiana's intent to provide indigent criminal defendants

with the means to defend themselves. See Scott v. State, 593 N.E.2d 198 (Ind. 1992).
38.

Petitioners wish to emphasize that their complaint is not with individual attorneys

but with a system that prevents attorneys from doing what they are professionally
required to do, i.e., provide indigents with effective assistance of counsel.
39.

Petitioners request that the Indiana Supreme Court:

a. appoint a special master to hear testimony and make recommendations to this

Court respecting proposed changes in the states public defense system, or in the
alternative, refer this matter to the rules committee, and
b. adopt such changes as deemed necessary, including the creation of a statewide
public defender system, to ensure that all defendants receive their constitutional rights to
effective assistance of counsel as guaranteed by the 6th amendment, and that lawyers are
able to discharge their duties as required by Indianas Rules of Professional Conduct.

WHEREFORE, petitioners pray that this Court accept jurisdiction of this matter, appoint
a special master, enter relief designed to address the problems presented by counsel and
render all other appropriate relief.