Imagine you’re accused of a crime, but without the money to hire a lawyer to keep you out of jail, or protect your rights. In that case, you’re likely to wind up with a public defender.
But in the state of Indiana, the very officials in charge of making sure the system is in check say public defense is underfunded, public defenders are overworked and there is little to any oversight.
We spent an hour outside the Allen County Misdemeanor Division Courthouse this week, and it didn’t take us long to find folks unhappy with their public defender.
“He told me, ‘sorry about my luck,’ literally in court,” recounted Dave Burget, who several years ago faced a more serious charge – burglary. “He told me that in court. He says, ‘just take the plea bargain and get it over with.’”
Burget said on several occasions his public defender forgot he was supposed to appear in court.
"He left the room,” recalled Burget. “So they had to call him back three times just to be able for him to get back on in. And he didn't have no paperwork or nothing for it. And I did three years for that."
Three years in prison for a crime Burget still claims he didn’t commit.
“They said they was over case logged,” said Burget. “They ain’t got enough time to do anything on it. So they basically show up, don’t even know who you are.”
Troy Christman was arrested in 2015 for drug-related charges.
“I don’t know if he was overworked,” said Christman. “But it just seemed like he didn’t have the time to work with me on my case. He was not in my corner.”
Christman spent nine months sitting in a jail cell – most of that time – waiting to see a public defender.
"In the nine months that I was in there I only met with him about three times,” said Christman. “I had to write him a letter to get the third meeting with him."
Instead of working on a defense, Christman says his public defender kept pushing for one thing.
“He just basically told me, ‘look you’re guilty. Just plea out and get this over with,’” said Christman. “When you know, I was trying to get a program in order to get help.”
Dozens more shared similar stories, but didn’t want to talk on camera.
"There's good people out there who are sitting in jail for crimes they didn't even do," said Christman.
The Sixth Amendment Center, a public defense advocacy firm, has published a 212-page study of Indiana’s public defense system. The results?
Alexis Gray: “Is it accurate to say Indiana is currently violating the Sixth Amendment?”
“Yes it is,” said David Carroll, executive director of the Sixth Amendment Center. “They are not ensuring that each and every person who is entitled to counsel is getting effective representation.”
Part of the problem, according to the study: Indiana is one of 28 states that does not fully pay for public defense – passing that cost on to the counties.
The state will reimburse up to 40 percent of some cases if counties meet state standards – specifically defense experience, caseload limits and continuing education.
But that’s optional, and Carroll says more counties are finding it’s cheaper to bypass state oversight all together.
“There's no one watching the ship is the bottom line," says Carroll.
Even when counties opt for the reimbursement program, state officials say there are glaring problems.
“It’s really just a meet ‘em and greet ‘em system,” says Larry Landis, executive director of the Indiana Public Defenders Council. “It’s an assembly line system.”
The council is the state agency that provides resources to public defenders in the reimbursement program.
"The number of cases and the number of lawyers tells me you've got serious problems that need to be addressed in Allen County," said Landis.
One top state official we spoke with says Allen County, which joined the reimbursement program in 2003, is one of the worst abusers of what he calls “The Criminal Misdemeanor Loophole.”
So how does the loophole work?
The state does not reimburse any of the costs of criminal misdemeanors. As long as those public defenders don't work any other kinds of cases, they don't have to meet any of the state standards for attorney experience, qualifications or caseload maximums.
Gray: "Is it possible that right now we have public defenders in the state that are not qualified?"
Landis: "Yes, possible. Probable even."
In Allen County, the Public Defender’s Office contracts with four or five part-time lawyers to handle all of its misdemeanor cases. Last year, those attorneys saw more than 2,000 new cases alone – four out of five were assigned more cases than the state-recommended maximum – one worked more than four times the suggested limit. The only lawyer within the max caseload didn’t start taking cases until last October.
“It should not be surprising that we have problems with quality,” said Landis.
ABC21 reached out to Allen County Chief Public Defender Randy Hammond for an on-camera interview. Due to a pending lawsuit against the county, he turned down our request.
However, Hammond did send a statement saying:
“Our public defenders are experienced attorneys who are well qualified to provide effective legal representation for each case they have been assigned.”
"We've got some excellent lawyers,” says Landis. “But you handcuff ‘em and you tie their hands behind their back and you overload them with cases, they're not going to provide high quality representation. And then there's no oversight. There's no consequence for somebody being poorly represented."
The solution, says Landis, is more state funding, and with it, more oversight.
A bill in this past legislative session would have added misdemeanors to the reimbursement program, and increased state funding to 50 percent. It passed committee, but never made it out of the House.
“You get poor quality and people get ripped off,” says Landis. “And nobody cares.”
Landis says spending tax dollars to defend people accused of crimes is a hard sell – that is, until it affects you.
“Most people don't realize that their liberty hangs by a slender thread of an accusation made against them by somebody,” says Landis. “Your freedom depends upon the quality of representation you get. And most people, 80 percent of people charged with a serious crime, have to rely on a public defender."
"I do think it was unfair,” said Christman. “Because I feel like whether I paid him or not, I should still get the proper treatment."
Last year, a Fort Wayne attorney filed a class action civil rights lawsuit against the Allen County Public Defender’s Office. The primary plaintiff, Calvin Wilson, was accused of misdemeanor battery.
The suit claims his assigned public defender spent less than one hour on his case, has not done any meaningful research, or filed any pretrial motions aside from continuance requests, and has not held one private meeting with Wilson outside of the courtroom.