Today, I introduced a bill to revoke the exemption provided to the Philadelphia Defenders Association, the Support Center for Child Advocates, and Community Legal Services for City Council review of contracts that in whole, or in part, deal with the representation of indigent individuals in matters requiring the use of conflicts counsel as defined in Chapter 17-2100 of The Philadelphia Code, entitled “Conflicts Counsel Contracts.”
The fear of government unduly taking a person’s liberty led the U.S. Supreme Court in 1963 to unanimously declare that the indigent accused cannot receive a fair trial unless a lawyer is provided to him at no cost in Gideon v. Wainwright. Philadelphia is considered to be the only jurisdiction in the Pennsylvania that might come close to meeting the standards of Gideon through its contract with the Defender Association of Philadelphia. They are a long established, independent, non-profit public defense organization and are the national gold standard model.
In late 2012, the City issued a Request for Proposal (RFP) seeking a single law firm to provide legal representation to all indigent clients when a conflict of interest requires appointment of outside counsel. I was a vocal critic of the unsound plan and questioned the ability to appropriately and legally deliver representation. In October 2013, nine out of the 10 expert witnesses at our Law and Government Committee hearing into the administration’s plan highlighted systemic deficiencies and constitutional shortcomings.
I met with the Mayor after the hearing and I respectfully stated that I was digging in and not going away on this issue. Proper legal representation is a constitutional right and the process warrants transparency and inclusiveness. I honored those words by passing legislation and securing funds from the U.S. Department of Justice (DOJ) to study our indigent defense delivery systems for criminal, delinquency and dependency courts with a specific focus on our current conflict counsel system.
In January 2014, the City was unable to reach an agreement with a for-profit vendor and has since rebooted the process releasing a new RFP just before Thanksgiving 2014.
The new RFP, just like the first one, is flawed and it blatantly ignores my legislation that was enacted in March and created standards to be included in such contracts. Once again, it does not outline a model that structurally meets nationally recognized standard of justice, such as the American Bar Association (ABA) Ten Principles of a Public Defense Delivery System.
My ordinance, which was returned by the Mayor to Council without signature and was subsequently enacted, requires financial and quality control audits, as prescribed by the ABA, of the law firm or entity the City enters into a contract with for the representation of the indigent. The financial audit is standard and encompasses what Council already asks of many other departments during the budget process. The quality control audit will be performed by an independent auditor who is familiar with indigent defense systems and the Philadelphia criminal justice system. The legislative intent behind this ordinance is to make sure that the level of representation for the indigent is up to the national standards and hold the work of the contracted firm in plain sight for Council examination.
U.S. Attorney General Eric Holder, called the ABA Ten Principles the “basic building blocks of a well-functioning public defense system.” More importantly, the DOJ has begun to enforce the right to counsel by investigating claims of systemic deficiencies like those highlighted in the ABA Principles. For example, the DOJ has reached an agreement with Shelby County, Tennessee that will usher in comprehensives changes to meet national standards. Similar investigations are under way in Meridian, Mississippi and St. Louis, Missouri. If the findings in the RAND study are true, then Philadelphia’s conflict counsel system could become the next target of DOJ action.
Last week, I was informed that the Mayor’s administration is considering a proposal from the Philadelphia Defender’s Association in response to the current RFP. One component relates to a contract renewal for their current legal services. The second part is to represent indigent individuals in matters requiring the use of conflicts counsel, which is beyond the scope of their normal work. This change in dynamics warrants my proposed legislation to appropriately include Council in this process.
I am disappointed that the administration has willfully ignored the Philadelphia Code as it relates to City contracting for the legal representation of the indigent. Furthermore, I am frustrated that no one from the administration notified me about the issuing of a new RFP given my unyielding commitment to this issue.
I look forward to next week’s Law and Government Committee hearing on my bill introduced today.
Denny's Dispatch 