Panel suggests process change: Use independent board for oversight

Judges in Columbus should no longer appoint public defenders that work in their courts.

That is a key recommendation from the Bartholomew County Public Defender Board, which issued its report one year after the three-member board was created.

The recommendation, which includes hiring two additional part-time public defenders, is expected to become part of the Bartholomew County Council’s five-year comprehensive financial plan that will be considered during 2018 budget negotiations in August.

The county council, whose authority over the courts extends only to financial oversight, allocated $548,000 into a special fund to pay for the current 11 attorneys this year, public defender board member Bud Herron said.

In the recommendations, Herron and fellow board members Rob Kittle and Randy Allman also proposed that one of the attorneys representing indigent clients be chosen as chief public defender.

Hired on either a full- or part-time basis, the chief public defender would be paid extra to:

  • Decide which attorney will be assigned to each case.
  • Select, train and supervise attorneys within the system.
  • Handle some of the caseload.

The recommendations are not in response to any particular matter but instead are meant to avoid a potential problem that all Indiana courts might face in the future, said David Nowak, a long-time public defender in Bartholomew County who coordinated last year’s board formation and provided data.

Lawsuits were filed in at least three of the other 39 Indiana counties that, like Bartholomew, allows judges to appoint public defenders, Nowak said.

Some litigants claim that as employees of the judge, public defenders become inhibited in their ability to defend their clients, he said.

Some public defenders fear they will be fired if they do something that angers the judge, said Chris Monroe, attorney for the Bartholomew County Council who served nearly 25 years as Bartholomew Superior Court 1 Judge.

“Is the attorney looking over his shoulder and saying ‘If I try too hard for my client, am I going to make the judge angry?'” Monroe said.

Most potential conflicts are a natural outcome of everyone doing their jobs, Nowak said.

For example, a public defender might be compelled to ask the judge to pay for expert witnesses, psychiatric examinations or scientific testing for his client, he said.

Such a request might force a judge to ask the county council to allocate additional money and be asked by the council to prioritize the court’s needs, Nowak said.

If public defenders know the judge doesn’t want to hurt morale by publicly declaring one group is more important than another, those attorneys might choose to not back their bosses into a corner rather than act in the client’s best interest, Nowak said.

“We want to make sure there is a clear and bright line between the role of the public defender and the roles the judges play,” Kittle said.

In Indiana, 52 counties have an independent board that handles these matters for public defenders, and the board is recommending that Bartholomew join their ranks.

Another considered option was to seek assistance from the Indiana Public Defender Council, which would reimburse the county for up to 40 percent of the cost for providing indigent legal assistance, Herron said.

But since the council is an agency of the Indiana judicial branch, that level of funding could be reduced at any time, Herron said.

Under the council’s program, Bartholomew County could also be handed down an unfunded mandate to hire additional public defenders without warning — and be legally obligated to do it, Nowak said.

Although updated figures detailing the ratio of public defenders to clients are not available, it was announced recently that Bartholomew County has the 10th most congested courts in Indiana.

A state review issued in July 2015 recommended that six new public defenders be hired in Columbus, Nowak said.

“And then every judge’s caseload went up dramatically in 2016 and is still increasing,” Nowak said. “Right now, we could probably go as high as adding eight more. At some point, that 40 percent (reimbursement) doesn’t become nearly as compelling.”

The board also proposed that a fund be established to reimburse public defenders for operational expenses. Currently, most of the contracted attorneys representing indigent cases use their own staff and pay for items such as paper, ink and postage.

Public Defender Board recommendations

Recommendations of the Bartholomew County Public Defenders Board:

  • Remove contractual responsibilities of the Bartholomew County Public Defender System from the judiciary.
  • Appoint a chief public defender to select, train and supervise public defenders and administer the Bartholomew County Public Defender System.
  • Upgrade the current system to more closely align with recommended state standards. This will mean adding two additional public defenders to reduce average caseloads, and establishing caseload guidelines consistent with the Indiana Supreme County standards.
  • Create a fund to reimburse public defenders for operational expenses.
  • Retain the Bartholomew County Public Defenders Board to serve as a liaison between the system and the county, as well as evaluate and verify alignment with Indiana Supreme Court standards annually.
Author photo
Mark Webber is a reporter for The Republic. He can be reached at mwebber@therepublic.com or 812-379-5636.