Skip navigation

Pa Aclu Report on Allegheny County Office of the Public Defender 2011

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
A Job Left Undone:
Allegheny County’s Fork in the Road
An Analysis of Problems at the Allegheny County Office of the Public Defender that Cause
Systemic Violations of Clients’ Constitutional Right to Adequate Representation

Acknowledgements
The ACLU of Pennsylvania’s effort to correct severe systemic deficiencies at
the Allegheny County Office of Public Defender (OPD) began fifteen years ago,
but the task of bringing the OPD’s practices up to constitutional standards
remains a job left undone. This report follows the admonition of former U.S.
Supreme Court Justice Louis Brandeis, who once said that, “Publicity is justly
commended as a remedy for social and industrial diseases. Sunlight is said
to be the best of disinfectants; electric light the most efficient policeman.”
This report is designed to shine the light on the operations of an important
government agency, one that serves approximately 25,000 people a year and
which is responsible for whether people go to jail and if so for how long. The
problems plaguing the agency cry for sunlight. We trust this report will begin
illuminating the problems and thus lead to completion of the reforms started
by the ACLU fifteen years ago.

This report would not have been possible without the help of many people. I
want to thank my co-authors, attorneys Claudia Davidson and Thomas J. Farrell,
who were also co-counsel in the ACLU’s lawsuit against the OPD. Thanks also
go to ACLU-PA Legal Fellow and chief scrivener, Alexandra Morgan-Kurtz.
Lastly and most importantly, we wish to thank the countless people who
cooperated in our investigation, from both inside and outside the County’s
criminal justice system and from within the OPD itself, who gave us insight into
current operations and largely validated the findings of the Kalmanoff report,
but who cannot be identified for fear of retaliation. You know who you are. We
are lucky to have so many responsible people with an abiding commitment to
justice and civil liberties.

Witold J. Walczak,
Legal Director, ACLU-PA
October 17, 2011

Table of Contents
Introduction		

1

I.	
	
	

Standards for Criminal Indigent Defense Systems	
A.	 Constitutional Right to Counsel	
B.	 The ABA Ten Principles	

2
2
2

II.	
	
	
	

The ACLU’s 1996 Lawsuit Against Allegheny County	
A.	 An Already Underfunded Public Defender’s Budget is Cut	
B.	 The ACLU Files a Class Action Lawsuit that Leads to a Settlement Agreement	
C.	 Settlement Agreement and Court Monitoring of OPD is Terminated in 2005	

3
3
3
3

III.	 Serious Problems in OPD Operations Persist	
	 A.	 The 2009 “Kalmanoff Report”	
	 B.	 Kalmanoff’s “Action Plan”	

4
4
4

IV.	 The OPD’s Serious Problems Must be Fixed	
	 A.	 Ineffective Management	
	 B.	 Essential Personnel Management Functions are Practically Non-Existent
		 1.	 Virtually Non-Existent Attorney Training	
		 2.	 Unused Written Practice Standards	
		 3.	Workload	
		 4.	 Absence of Performance Reviews	
		 5.	 Staffing Issues	
		 6.	 Conflicted Part-time Lawyers	
	C.	 Unequal Partner in the Justice System	
		 1.	Salary	
		 2.	Resources	
	D.	 Sub-Constitutional Representation Persists	
		 1.	 Woefully Inadequate Client Communication – No One Recognized as “My Lawyer”	
		 2.	 Lawyers do not Conduct Meaningful Client Interviews Before the Preliminary Hearing 	
		 3.	 Grossly Deficient Intake Procedures, Investigation and Preparation	
			 i.	 Intake Procedures	
			ii.	Preparation	
		 4.	 The OPD’s “Hidden Shame” – The Appalling Gap in Representation	
		 5.	 Scarce Use of Experts	

4
5
5
6
6
6
7
7
7
8
8
9
9
9
10
10
10
11
11

V.	CONCLUSION	11
	 Recommendations for the OPD	
12
	 Recommendations for the County Executive	
12
	 Recommendations for the Court	
12
Endnotes			
Appendix 1 (“Kalmanoff Report”)

13

Introduction
Fifteen years ago, the American Civil Liberties Union (“ACLU”)
sued Allegheny County in Doyle v. Allegheny County Salary Board
(“Doyle”), alleging that the Office of the Public Defender (“OPD”)
failed to provide constitutionally adequate representation
to indigent criminal defendants, juveniles charged with
delinquency and people subject to involuntary mental health
commitments, and that County officials were ignoring these
serious deficiencies. The lawsuit was triggered by two events.
First, a 1995 American Bar Association study concluded that
the OPD had suffered from years of neglect and was one of the
most underfunded urban public defenders in the country. Then
in 1996, new County commissioners not only refused to adopt
reforms suggested in the ABA report, but they further cut the
OPD’s budget, exacerbating an already dire situation.
After two years of contentious litigation, the lawsuit resulted in
an agreement designed to improve the OPD, which called for
increased funding, staffing, training and management, as well
as written policies promoting best practices. The litigation was
expensive, costing the county a million dollars just in attorneys’
fees to the ACLU. While the County met the funding and staffing
requirements, the OPD has never adopted the necessary
standards, maintained high-level training or implemented the
practices that are an indispensible part of a constitutionally
adequate indigent defense system.
Fifteen years later, Allegheny County stands at a similar fork in
the road, confronted by a need to save money and a choice to
continue to ignore the OPD’s acute systemic dysfunction or to
take concrete action to finish the reforms contemplated by the
1996 ACLU lawsuit. The parallel with 1996 is strong, except now
the requisite changes would not be nearly so costly and even
arguably would save the County money.
This time there is again a report documenting the OPD’s failings,
except that the County has buried it. Using Pennsylvania’s
public records law, the ACLU uncovered a secret 2009 report,
commissioned by Allegheny County itself, which concluded that
“[m]any of [the problems addressed in the ACLU lawsuit] persist
today, contributing to a dysfunctional office culture where
normative or even minimal performance expectations do not
exist.”1 The report, known by the lead investigator’s name, Alan
Kalmanoff, also stated that:

Leadership in the office needs to be improved. The OPD Director
has not been trained in how to manage a large defense office,
and is not a natural manager. More importantly, he appears
virtually disinterested in administration and management, and
as a result, holds infrequent meetings, does not assign or oversee
supervisors to help manage, and fails almost completely to even
try to identify and to address the major system problems that
plague his office.2

page

● A lack of leadership and efficiency also drives excessive client jail
time, costing millions, and wastes staffing resources. Immediate
actions must be taken to break the cycle of delay, end gaps in
coverage, reduce inefficiency, lower jail crowding, and avoid
liability.3
The single biggest problem the ACLU attempted to correct
through the Doyle litigation was the OPD’s failure to have
attorneys meet with clients early in the process - within days
of arrest – at which time they would assess the case, initiate
essential investigation and legal research, draft necessary
motions and begin thinking strategically about how best to
defend the client. This early case evaluation and preparation is
the hallmark of a constitutionally adequate defense. Sadly, the
Kalmanoff report found the problem had not been fixed, and
indeed had worsened:
● The [OPD] system, and particularly the way that indigent
persons are provided representation . . . is inadequate and poorly
managed. In many routine cases, there is little or no contact with
a person the defendant can regard as “my lawyer” until just before
or at the first courtroom appearance. … There is a nearly total
lack of representation for about four months between the first
stages and the trial. During this time inmates are languishing
with literally no attorney of record, no one to update their files,
and no real advocacy.4
Even judges were reported to hold “a general ‘consensus’ or
shared view that public defenders are not meeting with their
clients prior to some key appearances in court.”5
The ACLU’s independent investigation over the past year
has revealed that conditions at the OPD have deteriorated
since Kalmanoff’s report. Despite Kalmanoff’s stark warnings,
Allegheny County has not implemented any of Kalmanoff’s
thirty specific recommendations for fixing the serious systemic
problems. The County’s failure to act becomes even more
perplexing in light of Kalmanoff’s projection that the changes
and improved efficiencies could save the County millions of
dollars. Seemingly repeating the mistakes of 1996, the County
is beginning to reduce the agency’s budget by, for instance,
delaying or refusing to fill staff vacancies, cutting supplies and

“Because the right to counsel is
fundamental to a fair trial, the
Constitution cannot tolerate trials in
which counsel, though present in name, is
unable to assist the defendant to obtain a
fair decision on the merits.”
Evits v. Lucey, 469 U.S. 387, 395 (1985).

1

discouraging attorneys’ purchase of important preliminary
hearing transcripts and the use of experts, practices that will
further undermine the quality of representation provided by
the OPD. Those who forget the history of fifteen years ago are
doomed to repeat it.

cannot tolerate trials in which counsel, though present in name,
is unable to assist the defendant to obtain a fair decision on the
merits.”14 “A party whose counsel is unable to provide effective
representation is in no better position than one who has no
counsel at all.”15

The three arms of the Allegheny County criminal justice system
must work together with the County Executive and County Council
to implement the changes recommended by the Kalmanoff report.
Only with cooperation of County elected officials, the Office of the
Public Defender, the District Attorney’s Office and the Court of
Common Pleas can the County change the systemic deficiencies
that deny the people of Allegheny County their constitutional
rights. The ACLU calls on County and Court leaders, including the
County Executive candidates, to (1) pledge to complete the OPD
reforms mandated by the Doyle settlement, which also would
largely satisfy the American Bar Association’s Ten Principles
for public indigent defense systems; and (2) implement the
Kalmanoff report’s plan to streamline and improve the operation
of the County’s criminal justice system while saving the County
money. The OPD has many fine, dedicated public defenders who
are shackled by a broken and mismanaged system, prevented
from fulfilling their professional responsibility to provide clients
with a constitutionally adequate defense. Without change, the
County exposes itself to liability for the ongoing deprivation of
indigent defendants’ constitutional rights.

B. The ABA Ten Principles

I. Standards for Criminal
Indigent Defense
Systems

In 2002, the American Bar Association’s (“ABA”) Standing
Committee on Legal and Indigent Defendants established the
“Ten Principles of a Public Defense Delivery System.”16 These
principles describe the fundamental requirements of an
indigent defense system capable of providing representation
that satisfies an individual’s Sixth Amendment right to counsel.17
The standards include general proscriptions, like independence

1.	Independence: The public defense function
	
must be independent from both political and
	
judicial influence.
2.	
	
	
	
	

State Funding & Structural Integrity: The public
defense delivery system may consist of both a public
defender office and participation from the private bar.
The State has the duty to provide funding and
a uniform structure.

3.	 Eligibility & Early Appointment: Potential clients
	
must be screened for eligibility and assigned defense
	
counsel as soon as possible.

A. Constitutional Right to Counsel
Almost fifty years ago, the United States Supreme Court held that
the Sixth Amendment to the U.S. Constitution gives individuals
subjected to state criminal prosecution a fundamental right to
appointed counsel.6 This right applies to the full spectrum of
charges that can lead to the imprisonment of poor defendants,
from less serious crimes to the most serious of felonies. It applies
to all phases of the prosecution including preliminary hearings,
trial, sentencing, and appeal.7 Criminal defendants are entitled
to “more than just the opportunity to be physically accompanied
by a person privileged to practice law.”8 Similar rights to counsel
have been extended to minors facing delinquency charges9 and
people subjected to loss of liberty through involuntary mental
health commitment.10
“[T]he essential aim of the [Sixth] Amendment is to guarantee
an effective advocate for each criminal defendant.”11 As a result,
it envisions defense counsel forcing prosecuting attorneys to
“survive the crucible of meaningful adversarial testing.”12 Unless
an accused has an attorney “able to invoke the procedural and
substantive safeguards that distinguish our system of justice,
a serious risk of injustice infects the trial itself.”13 “Because the
right to counsel is fundamental to a fair trial, the Constitution
page

4.	
	
	
	
	

Confidentiality & Early Client Interviews: Counsel
must have sufficient time and space to meet with
the client confidentially. Counsel should meet with
and interview their client as soon as practicable before
preliminary hearings or trial.

5. 	 Availability: The workload of public defenders must
	
be controlled to ensure that counsel can provide all
	
clients with adequate representation.
6.	Competency: Public defenders should never be
	
assigned cases which they lack the experience
	
or training to handle competently.
7. 	 Consistency: The same attorney should represent
	
the client continuously from the initial hearings
	
through trial and sentencing.
8.	Resources: Defense counsel, whether assigned or
	
a member of the public defender’s office, should be
	
provided with sufficient resources so that they can
	
operate as an equal partner in the criminal
	
justice system.
9. 	 Training: Defense counsel is required to attend
	
continuing legal education.
10. 	Quality & Accountability: Defense counsel must be
	
supervised and reviewed for quality representation
	
in light of local and national standards.

2

for the public defender office (free from political and judicial
interference) and sufficient resources to ensure that lawyers can
prepare a constitutionally adequate defense. But they also call
more specifically for early interviews with clients (before both
preliminary hearing and trial), manageable case loads, training
for the lawyers and supervision to ensure quality representation.
There has been a growing movement across the country to
ensure that public defenders offices adhere to these principles.
By instituting reforms in line with these foundational principles,
states have not only increased the fairness of their criminal
justice systems and reduced prison populations, but have
increased economic efficiency and saved money.

II. The ACLU’s 1996
Lawsuit Against
Allegheny County18
A. An Already Underfunded Public
Defender’s Budget is Cut
In late 1995, a private consulting group sponsored by the
American Bar Association (“ABA”), the Spangenberg Group,
issued a report reviewing the Allegheny County OPD.19 The
report concluded that due to “years of neglect” “the overall
conditions of the office create a major impediment to providing
quality representation to indigent defendants.”20 The report
highlighted deficiencies in staffing, office space, resources and
written standards, plus excessive caseloads. In terms of necessary
resources, the Allegheny County OPD ranked at the bottom of
comparable offices in similar jurisdictions.21
Notwithstanding the major concerns expressed by the
Spangenberg Group, Allegheny County failed to implement any
of the recommended changes. Instead, newly elected leadership
in the County drastically reduced the Public Defender’s budget
by over twenty-five percent.22 These budget cuts led to the
dismissal of 15 attorneys from the original staff of 49, 20% of the
clerical staff and dismissal of all social workers and investigators.23

B. The ACLU Files a Class Action
Lawsuit that Leads to a Settlement
Agreement
In response to the Spangenberg report, the subsequent budget
cuts and numerous complaints from OPD clients, the ACLU filed
a class action lawsuit alleging that the Allegheny County Salary
Board, County Commissioners and the Chief Public Defender
had failed to provide a constitutionally adequate system for
indigent defense.24 The complaint detailed a variety of longstanding systemic problems such as overwhelming caseloads,
page

severe understaffing and flawed policies that were resulting
in a denial of constitutionally adequate legal representation.
The complaint alleged that the County was aware of these
deficiencies and failed to provide the needed resources or make
necessary changes to improve the situation.
The lawsuit ended with a court-enforceable “Settlement
Agreement” in 1998, providing for many changes to the
OPD.25 These changes included a doubling of the budget and
staff, development of written personnel policies and practice
standards, a system of supervisory performance monitoring
and providing new and current staff with extensive training.
In addition to their own litigation expenses, the County paid
the ACLU nearly $1 million dollars in attorneys’ fees. Aside
from the mandated budgetary and staffing increases, however,
the County never fully complied with the provisions of the
settlement agreement aimed at changing how attorneys are
trained, managed and, ultimately, how they represent clients.

C. Settlement Agreement and
Court Monitoring of OPD is
Terminated in 2005
In June 2003, the ACLU filed a motion requesting the Defendants
be held in contempt for failing to comply with the terms of the
settlement agreement.26 The ACLU noted that some positive
changes had occurred in the Allegheny County OPD since the initial
filing of the lawsuit, but several problems remained unaddressed.
Crucial among the neglected provisions were the County’s failure
to implement written practice standards that modeled national
standards, to create a system of employee oversight, to maintain
training and to properly deploy investigators.
In response to the ACLU’s contempt motion, the Court appointed
a pro bono arbitration panel to analyze the County’s compliance
with disputed provisions of the settlement agreement.27 While
the arbitration panel recommended that the Court deny the
ACLU’s motion, it recommended further steps to improve
representation within the Allegheny County OPD. The panel
advised the OPD to employ the “Client Interview” form utilized
by the Defender Association of Philadelphia, which should be
completed during the initial client interview and updated by each
attorney subsequently representing the client with important
information, including jury trial demand, alibi witnesses, and the
need for and/or results of investigation and legal research. The
panel advised that the questionnaire should follow the case and
be reviewed by counsel prior to court appearances. The use of
this document would reduce confusion and ensure that each
attorney would be well informed about the case and the client’s
wishes. Supplementary recommendations included adopting a
form letter informing clients about the purpose and procedures
of the preliminary hearing and increased accountability for
attorneys. The County never implemented even these simple
changes suggested by the arbitration panel.

3

III. Serious Problems in
OPD Operations Persist

quality of representation and save the County additional monies.35
The ACLU’s investigation focused on problems at the OPD, as does
this report, but obviously the other components of the County’s
criminal justice system that strain the OPD’s performance need to
be addressed by County and Court leaders as well.

Problems with the OPD’s representation persist to this day and
have worsened. The ACLU’s assessment is based on a report
commissioned by Allegheny County that was released in 2009,
but never made public, and a year-long investigation by the
ACLU’s Pittsburgh office. The investigation relied on dozens of
complaints received from public defender clients, documents
obtained through public records requests, and interviews with
people who work in the Allegheny County criminal justice
system, including assistant public defenders. The problems
identified by the 2009 report, complained of by OPD clients,
and confirmed by people inside the system show remarkable
consistency.

A. The 2009 “Kalmanoff Report”
In 2008, the Allegheny County Solicitor requested an assessment
of the OPD from the Institute for Law and Policy Planning, led
by Professor Alan Kalmanoff, to analyze “concerns expressed
by judges and others about the high rates of continuances
and operational inefficiencies in the County’s criminal defense
function.”28 The Kalmanoff report was completed in late 2008
and slated for release in 2009, but for unknown reasons was never
released publicly. Its thirty recommendations for improving the
performance and efficiency of both the OPD and the entire
criminal justice system, while saving the County substantial
funds, have been ignored. The problems cited within the report
virtually mirror those the Doyle litigation sought to remedy fifteen
years ago.
Kalmanoff criticizes nearly every phase of the OPD’s operations,
saying “the agency’s current program is dysfunctional”29 and
that the “management” of it is “dysfunctional” and “getting
worse.” 30 He writes that “almost all agree that the amount of
training is inadequate,”31 and that “practice standards are not
employed beyond initial orientation, nor are they enforced by
supervisors and managers over time, thereby demonstrating a
lack of the most basic management oversight.”32 The problems
with inadequate representation identified in Doyle and the
subject of post-settlement monitoring have not been corrected
and have worsened. Kalmanoff notes that “[d]efenders do not
meet their clients after they are booked into the jail,”33 and that
“there is an unacceptable period of approximately four months,
between the pre-trial conference and the preliminary hearing of
a case, when jailed offenders do not see their lawyer,” a practice
“labeled by some as the ‘OPD’s hidden shame.’”34
Although the Kalmanoff report’s focus is on the OPD, the study
also assessed the performance of other agencies within the
County’s criminal justice system and identified improvements
to the practices of the District Attorney’s Office and Allegheny
County’s criminal courts that would help the OPD increase the

page

B. Kalmanoff’s “Action Plan”
Kalmanoff proposed a broad “Action Plan” consisting of thirty
recommended changes in how the OPD and, to a lesser extent
the criminal courts and District Attorney’s Office, operate in
order to upgrade the quality of OPD representation, improve the
entire criminal justice system’s efficiency and, simultaneously,
save millions of tax dollars. The report states that some of the
changes, most notably ones that involved improving the OPD’s
operations, would result in major (defined as millions of dollars
annually) or substantial (defined as hundreds of thousands of
dollars) savings.36
For instance, Recommendations 2 and 3 call for hiring someone to
“[r]espond to an acknowledged core deficiency in management
expertise and capability,” which will over time result in significant
savings.37 Recommendation 13 calls for improving OPD office
systems, including the application and enforcement of practice
standards, which in the short term will result in “substantial”
savings and “major” ones in the long term, i.e., millions of dollars.38
Recommendation 15 calls for improving and bringing into
line with the District Attorney’s Office the OPD’s informational
technology (“IT”) systems, something that over time will result in
“major” savings.39 Simply improving quality control by instituting
basic management concepts like file reviews will result in
substantial savings in the short and long term.40
Despite these potentially significant savings, the ACLU has
learned that more than two years after receipt of the Kalmanoff
report the County has yet to implement any of these vital
changes. The ACLU has been unable to ascertain why Allegheny
County never released the Kalmanoff report publicly, or never
adopted the thirty recommendations for reform contained in the
report. The recommendations are not only sensible and likely
to improve OPD representation without significantly increasing
the budget, but could save Allegheny County taxpayers millions
of dollars.

IV. The OPD’s Serious
Problems Must be Fixed

The ACLU’s investigation over the past year has confirmed
most of the findings of serious deficiencies in OPD operations
described in the Kalmanoff report, which translate into probable
constitutional violations involving OPD clients. We discuss below
the most serious problems based on the Kalmanoff report and
ACLU’s investigation.

4

A. Ineffective Management
Kalmanoff’s greatest concern was OPD’s management, or
lack thereof, especially by the Chief Public Defender. “His
management skills are clearly lacking, which is evident from
almost every aspect of the OPD operation reviewed for this study,
including a lack of actual knowledge of what is going on in the
office and courtrooms, and a lack of effort to identify and remedy
the most serious and obvious OPD and system problems.”41
The report remarked that he “is not a natural manager,” cannot
communicate effectively and “appears virtually disinterested in
administration and management.” This disinterest manifests
itself through infrequent meetings, non-involvement in
overseeing supervisors and “fail[ing] almost completely to even
try to identify and to address the major system problems that
plague his office.”42
There is a perception from many persons spoken to that the
Chief Public Defender is minimally present, unresponsive to
concerns, avoids friction, avoids making decisions and avoids
responsibility. Essentially, his actions are focused on ensuring
that he does not rock the political boat on which his position is
based.43 He is perceived as being unsupportive of his team, staff,
office and the clients. When advocacy is needed to overcome
problems with the District Attorney’s Office or an unreasonable
judge, he rarely takes up the battle to champion his staff or the
clients.
The rest of the management team has no common mission, no
strategic plan, poor communication, a lack of consistency and
a lack of accountability. Many within the OPD are unsure how
managers are identified. While some members of management
obviously care deeply, and try against all odds, many others
can rarely be located and are nonresponsive to the concerns of
assistant public defenders and the support staff.
Poor management infects and exacerbates other OPD
operational systems: “Poor administration furthers the problems
caused by shortfalls in space, equipment and technology, a
long-standing culture of private practice and lawyer autonomy,
inadequate management supervision and incentives, and an
absence of adequate policies and procedures.”44 Management
deficiencies lead to other problems as well. There is no “plan for
managing or transferring caseloads when case numbers increase
and exhaust the allocated funding,” “[c]rucial mechanisms for
identifying conflicts and scheduling issues are lacking,” and
“[t]here are no procedures for maximizing the usefulness of
expensive attorney staffing.”45 Kalmanoff concludes that while
the “dysfunctional management” in the overall court system “is
improving,” at the OPD it “is getting worse.”46
The Kalmanoff report proposed that all members of the
leadership of the OPD undergo management and supervision
training to improve the management of the OPD and strengthen
communication within the agency.47 It expressed doubts that
the current Chief Public Defender could be trained to be an

page

effective leader of the OPD as it was “apparent that the Director
was not aware of or interested in management or leadership.”48
It encouraged that “other personnel changes should be
investigated,” such as hiring a strong manager from outside of
the OPD.49

B. Essential Personnel
Management Functions are
Practically Non-Existent
The OPD’s deficiencies are perhaps nowhere more noticeable
(and damaging) than in the area of personnel management.
Training programs are grossly deficient, there is no mentoring or
other program to aid junior lawyers in preparing and trying cases,
practice standards that set expectations and guide performance
are ignored or non-existent, case loads are not monitored
and performance evaluations are rarely employed. Part-time
attorneys are largely unmonitored and unaccountable. The
number of essential support staff, like investigators and social
workers, has been allowed to decrease through attrition and
non-replacement. The almost complete absence of personnel
management may be the single biggest drag on the ability of the
office to provide effective representation. As will be discussed
below, the consequence of these personnel management
failures is that representation is inconsistent at best and in too
many cases unconstitutional. These are flaws that should be
fixed quickly and can be repaired without substantial expense.

1. Virtually Non-Existent Attorney Training
The Kalmanoff report found a “widespread perception among
judges that there is little or no training of assistant public
defenders.”50 There is minimal formal training within the office
for new attorneys. Unlike well-run public defender offices like the
one in Philadelphia, the OPD has no formal mentoring program
to assist young lawyers in learning the idiosyncrasies of criminal
defense practice generally and in Allegheny County particularly.
The OPD does encourage lawyers to attend “brown-bag-lunch
CLE’s” (continuing legal education) on criminal law and practice,
but those are often ineffectual because they are presented for
and to both prosecutors and criminal defense lawyers, which
means that important practice tips unique to defense lawyers
are omitted. Periodically, but with no real planning or strategy,
the OPD sends small numbers of trial lawyers to good quality
training programs, such as one run annually by the Public
Defender Association of Pennsylvania (PDA of PA), but far more
lawyers could benefit from that education.
In the past a “Trial Advocacy Program” was required for attorneys
transitioning between the Pre-Trial and Trial Divisions. This
program was viewed as a useless formality by those who went
through it and has not been held in over a year. Attorneys at
OPD believe that the training they receive is inadequate by any
measure, but astonishingly so in comparison to the extensive
training provided at comparable offices, such as the Defender
Association of Philadelphia. Moreover, attorneys transfer

5

between divisions without any preparation or training on how to
proceed in matters that decide the ultimate fate of their clients.
In sum, attorneys new to the office or a division are essentially
left to learn by trial and error, at the expense of the clients.
Kalmanoff concluded that the OPD needs to provide training in the
basics, including ethics and motions and trial practice.51 The report
noted that additional training in legal ethics, including regular
refresher classes, was “badly needed.”52 The report suggested the
office create a “Training Coordinator” position to streamline ongoing
development of training programs for all attorneys.53 There is
simply no replacement for a rigorous introductory training program,
supplemental in-house training for attorneys moving to new units,
and an ongoing mentoring program.

2. Unused Written Practice Standards
Practice standards complement and inform the training program,
and the OPD’s failure to conform its practice to minimum
national and constitutional standards is a major problem.
National standards emphasize the importance of an early client
interview, case assessment, investigation and preparation.54 It
is vitally important to perform these activities early in the life of
the case to ensure that valuable evidence and testimony is not
lost, and that the lawyer gains familiarity with the client, knows
the client’s response to the charges, and can begin necessary
fact investigation and legal research. This information arms
the defense lawyer with the crucial knowledge necessary to
advocate effectively for the client in a number of ways, including
seeking pre-trial release, moving to dismiss charges, negotiating
a fair plea bargain and preparing a trial defense.
Presently, practice standards established after Doyle are not
actively utilized. The standards are “not employed beyond
orientation, nor are they enforced.”55 Kalmanoff observed a
“lack of norms concerning baseline practice management
or expectations.”56 Standards introduced at orientation only,
without subsequent repetition and enforcement, might as well
not exist at all. This is evident in that many attorneys and staff
of the OPD are unaware that the practice standards even exist.
Only a handful of employees would know where to find a copy
of the standards if they were interested in doing so.
In addition to the inattention paid to the existing standards,
there are no procedures for identifying conflicts of interest
or scheduling issues. Kalmanoff’s Action Plan included the
development of a comprehensive Office Manual comprised
of job descriptions, qualifications, trial practice standards and
performance standards as a critical change that would provide
the County with substantial immediate savings and major
savings over time.57

3. Workload
Management has an obligation to ensure that lawyers’ caseloads
are not overwhelming and that the work is distributed equitably
among staff. Under the NLADA’s Guidelines “counsel has an
page

obligation to make sure that they have available sufficient time…
to offer quality representation to a defendant.”58 This obligation
was reiterated by the ABA’s Ten Principles, which insists that a
public defense delivery system must ensure that workload is
controlled to prevent it from interfering with counsel’s ability to
render quality representation.
Kalmanoff noted that no one at the OPD manages or controls
the adult criminal caseload.59 The County invested in database
software, at great expense, but the system is not being employed
office-wide. Attorneys are tasked with the responsibility of
maintaining the information, which requires time-consuming
data entry work that doesn’t yield a clear benefit for the
attorneys or their clients. Attorneys view the software as
simply creating more administrative work and do not prioritize
updating the system among their responsibilities. Support
staff only contribute minimal data entry. As a result, there is no
reliable way to track case or workload. There is no balance to
the caseload of Pre-Trial Attorneys. Attorneys are assigned to
particular courts based on what has historically been done and
not the volume of the cases. Consequently, some attorneys are
routinely swamped while others are consistently underutilized.60
Nothing undermines effective representation more or promotes
employee burnout quicker than giving lawyers an overwhelming
and unmanageable workload.

4. Absence of Performance Reviews
At the back end of the personnel management system is the
performance review, which instructs lawyers on proper practice,
corrects problems and provides employee accountability. As
with the written practice standards, performance review of
assistant public defenders and support staff remain practically
non-existent. Allegheny County OPD never complied with the
settlement agreement by implementing a supervisory system
with periodic and systemic monitoring. Without any system of
oversight the OPD lacks a mechanism to ensure accountability
and quality representation. Kalmanoff concluded that problems
with chronically deficient representation are attributable directly
to a “lack of the most basic management oversight.”61
In the past nine months, after the ACLU began submitting public
records requests focused on the agency, the OPD has required
that every division conduct at least some performance reviews
of the attorneys. Attorneys within the office view these reviews
as “superficial” or “shams.” There are no uniform standards for
what the performance review should contain. The Chief Public
Defender has acknowledged to members of the OPD that the
divisions need not put significant time or effort into these
reviews, as they will not be used for any particular purpose.
Outside of these “sham” reviews, current members of the OPD
do not recall any other time when their performance has been
reviewed by a supervisor or other member of the management
team. No one has asked to look over their case files, read
over a motion, or watched them in court. No supervisor has
provided advice on what the attorneys can do to improve their

6

performance or criticized them when they’ve done poorly.
Supervisors cannot critique performance because they simply
don’t know the actual quality of the work of the attorneys they
are “supervising.” Without frequent substantive performance
reviews, assistant public defenders’ performance will remain
variable and in some cases patently unacceptable.

and disorganized. Many attorneys write their own letters, do
their own photocopying, type up simple motions, as well as
numerous other clerical tasks because they fear the quality of
the final product if left to the clerical staff. As with the attorneys,
there are no office-wide standards ensuring accountability for
support staff.

Kalmanoff recommended that the OPD begin conducting
regular performance reviews (at least annually) for all employees
to promote a better use of resources, identify training needs and
motivate attorneys to provide a higher level of representation
to clients.62 These performance reviews must be rigorous and
regular. The report also advised the OPD to establish a Quality
Assistance Protocol that involves periodic random review of
case files by a supervisor that would “provide an on the spot
remedy for potential problems.”63 These changes would result
in significant short and long term savings for the County.64

6. Conflicted Part-time Lawyers

5. Staffing Issues
Fifteen years ago, the OPD had no investigators or social
workers on staff and lacked paralegals and clerical personnel.
The settlement agreement mandated that the OPD raise its
staffing levels of attorneys and support staff. For years the OPD
had maintained staffing levels mandated by the settlement;
however, in recent years the process to fill open spots in the
OPD has become bogged down, with no transition plans to
compensate during the prolonged staffing shortages. Currently,
the OPD employs less than the 79 full-time-equivalent attorneys
mandated by the settlement agreement, and has been slow to
fill vacancies.65
Investigators are an integral part of effective representation, and
thus were addressed separately in the Doyle settlement agreement.
The agreement required the OPD to hire one investigator for every
six lawyers, for a total of thirteen investigators. The OPD currently
has an Investigative Division consisting of approximately nine
investigators; however only seven actually conduct investigations,
barely half of the total in 1998.66 Attorneys, who are not trained on
how to best engage the services of investigators, unsurprisingly
find it difficult to get the level of cooperation necessary for
productive investigation. The lack of investigators makes it
difficult if not impossible to adequately serve the attorneys’ needs
for timely and effective investigation.
Social work staff is essentially nonexistent. There is one social
work related position in the entire OPD, an “Ombudsman” who
works exclusively in the Juvenile Division. Her contribution to
the improvement of juvenile cases is minimal. In other public
defender offices, social workers serve an essential function by
investigating a client’s eligibility for alternative justice programs
that reduce or alleviate the extent of a client’s jail time. The
absence of social workers at the OPD is a significant void in the
quality of service provided to its clients.
Moreover, the remaining support staff in place is inefficient
at best. The staff is viewed as minimally skilled, incompetent,
page

Fifteen years ago the public defender system consisted
exclusively of fifty-five part time attorneys.67 At that time,
Allegheny County was the only large metropolitan area that still
followed this “relic of the 50’s and 60’s.”68 The problem with this
type of system is the enormous potential for abuse. The size and
complexity of the caseload can overwhelm a part-time attorney
and interfere with their ability to work on cases for private clients.
The resulting conflict of interest leaves the attorney with limited
choices: work on neither group of cases competently, provide
public defender clients with inadequate representation while
tending to the needs of paying private clients, or work full time
on public defender cases for part-time pay. In recognition of
the shortcomings of a system of part-time public defenders, the
settlement agreement in Doyle provided that no future attorneys
hired by the OPD or appointed to a supervisory position would
be permitted to maintain a private practice.
While no new part-time attorneys have been hired, many of
those who worked in the office at the time of Doyle remain.69 It
is important to note that the part-time public defenders were,
and had to be, “grandfathered” into the system for collective
bargaining reasons, which continue in effect. In other words, any
changes must take into account the realities of the collective
bargaining agreement and the laws related to it.70
Nevertheless, in practice there is continued friction between fulltime public defenders and part-time attorneys. The Kalmanoff
report noted continued allegations that the part-time lawyers
do not put in a sufficient amount of time on their public defender
cases.71 A culture has developed where the attorneys prioritize
the needs of their private clients and their own schedules above
the needs of their public defender clients.72 The report cautioned
that this culture could only be eliminated by discontinuing the
part-time practice as soon as legally feasible.73

C. Unequal Partner in the Justice
System
To ensure fair trials, the ABA’s Ten Principles stresses that public
defender systems must be included as an equal partner in
the justice system. This means that there should be parity of
workload, salaries and other resources, including technology,
facilities, support staff and access to forensic services and experts
between the prosecution and public defense. The presumption
is that the only way for public defenders to properly participate
in the adversarial system is if they start on equal footing. A
strong chief public defender who will not succumb to pressure

7

from his political bosses, like the county executive or the judges,
is essential to maintaining the indigent defense function as
a strong and independent leg of the criminal justice triad
(the courts, prosecution and defense). Unless the chief public
defender fights for his agency’s coequal station within the
criminal justice system, the program will not function properly.
The Spangenberg report observed in 1995 that the District
Attorney’s “staffing, salaries and resources far outweigh[ed] those
of the Public Defender.”74 It described public defender salaries as
“miserably low” and their offices as “totally inadequate.”75 While the
settlement agreement in Doyle initially led to improvements in this
area, there has been some backsliding in the OPD’s resources today,
both in absolute terms and in relation to the District Attorney’s
Office. In 2011, the District Attorney’s office received over $14 million
in funding from the County while the OPD was allocated only $7.5
million.76 These budget discrepancies are apparent in the resources
available to each office.

1. Salary
Perhaps most importantly in the area of resources, the salaries
provided to assistant public defenders remain abysmally low.
Many public defenders are living paycheck to paycheck, and
quite a few attorneys maintain part-time, non-legal, jobs outside
of their full-time public defender work to supplement their
income. Starting salaries for both assistant district attorneys and
assistant public defenders are about $39,000.
The District Attorney’s Office regularly rewards assistant district
attorneys with not only the annual cost-of-living adjustment,
but with advances in “grade,” which amount to more substantial
pay increases and serve as an effective retention tool. These
“grade” pay raises occur roughly 3-5 years into an assistant
district attorney’s term in the office, a time frame that roughly
corresponds to when many public defenders leave the OPD. In a
recent review, the OPD had no “grade 3” lawyers, which is the first
grade advancement from the lowest grade of 4. Comparatively,
the District Attorney’s Office had 33 attorneys at grade 3. The
difference in salary is about $6000, meaning that assistant public
defenders with five to six years of experience are making about
$44,000 to $45,000 while comparably experienced assistant
district attorneys are earning about $51,000. During the current
Chief Public Defender’s term, financial and job classification
grade increases have been unheard of -- employees can only
recall a single one – leaving assistant public defenders making
far less than equally seasoned assistant district attorneys. Some
of the OPD lawyers who have never received a grade increase
were hired 10 or more years ago, and many more have over 5
years experience.
While this has not curbed the recruitment of young attorneys,
the lack of gradation in salary and benefits has produced a high
turnover rate among more experienced attorneys;“another truly
major but largely hidden expense” to the OPD.77 High turnover
further lowers OPD morale and increases the existing “external
and internal perception of the OPD as a training ground.”78 The
continuing attrition of seasoned public defenders can only
page

contribute to the office’s difficulties in providing constitutionally
adequate representation to its clients. In well-run offices “the
most experienced trial attorneys in the office are usually the most
respected role models for younger inexperienced attorneys,”
however this is not the case in the OPD.79 Without the presence
of experienced attorneys, younger attorneys have no one to go
to for advice and no one from whom to learn best practices.
Sadly, as discussed previously, many of the experienced lawyers
in the office are pre-Doyle part-time holdovers who are rarely in
the office and thereby unavailable to assist younger lawyers.
Kalmanoff recommended that the OPD adopt a personnel
structure similar to that of the District Attorney’s office, “which
is divided into specialized units that provide attorneys with the
opportunity to increase their income, improve their overall legal
skills, and receive good supervision.”80 A revised salary structure
that allows for merit based raises and creates a professional
development track for career public defenders is needed.81
This structure would encourage dedicated public defenders to
remain with Allegheny County OPD and would provide the OPD
with a pool of seasoned skilled litigators who could give needed
mentorship and be trained for supervisory roles. Despite the
Kalmanoff report’s alarm about the salary situation, Allegheny
County OPD administrators have shown little concern about
lawyers’ distress over the low salaries, responding instead that
attorneys shouldn’t expect to make a life career out of being a
public defender.

2. Resources
Kalmanoff found that the OPD’s resources are “highly limited” and
that there are shortages in all areas, ranging from inadequate and
poorly maintained office spaces to deficient technologies and
low salaries.82 Supplies are generally scarce. The OPD has been
known to run out of paper or pens without the budget capacity
to purchase more. The fear of running out of basic supplies has
resulted in staff hoarding supplies and not sharing them with
another section of the office when it runs out. The shortages force
some attorneys to spend their limited personal income purchasing
necessary office supplies. Attorneys lack sufficient personal work
space and meeting space for private communications with clients.
The District Attorney’s Office periodically receives new furniture,
while the Public Defender’s office furniture consists of furniture
handed down from law firms.
Kalmanoff observed that the OPD seems to have received “short
shrift from the County” in the realm of information management
systems and other technologies, receiving only hand-me-down
desktop computers for years.83 Basic office equipment is old,
slow and unreliable, while the District Attorney’s office has
overhead projectors, computers and computer technicians to
assist with trial. There are insufficient computers and printers
for the OPD attorneys and support staff. There is one ancient
fax machine to serve both the juvenile and trial divisions. The
report proposed a number of minimum cost changes to the
information technology systems at OPD, which would improve
overall office efficiency.84

8

D. Sub-Constitutional
Representation Persists

trial. Once the case gets to trial, all too often, it is even another
public defender that appears to handle the case, sometimes not
knowing the client and his or her case details.

The single biggest problem with OPD representation, one heavily
targeted by the Doyle lawsuit, is OPD lawyers’ failure to meet with
clients early in the process to give them advice, begin collecting
crucial information, and establish plans for investigation,
evidence gathering and legal research. Early case evaluation
and preparation is the lynchpin of
effective representation, yet sadly
the OPD is nowhere near where it
needs to be on this score.

2. Lawyers do not Conduct Meaningful Client
Interviews Before the Preliminary Hearing

An essential stage for effective client
representation is the initial meeting
with the client. At this meeting an
attorney seeks to establish trust with
the client and advises them of crucial
information, including their rights
The appointment of counsel
1. Woefully Inadequate
and the need to not discuss the case
for
an
indigent
defendant
can
with others, especially while in jail.88
Client Communication
This meeting is the time when the
quickly become a “cruel joke”
-- No One Recognized as
attorney gains critical information
when that counsel does not
“My Lawyer”
about the case, including any alibis,
potential witnesses and defenses.
take the time to communicate
Client communication is an integral
Failure to obtain this information at
with the client and leaves them
component of any attorney client
this critical juncture in the case may
relationship.
Without ongoing
irrevocably harm the defendant by
in the dark about the progress
communication between client
undermining preparation for the
of their case.87
and lawyer, it is practically
preliminary hearing, compromising
impossible for a defense attorney
crucial physical and testimonial
to establish the relationship
evidence and permanently affecting
necessary to create a competent
vital future case decisions. The
defense.85 Moreover, a lawyer has
importance of this interview is
an ethical duty to keep her clients
highlighted by a detailed description
informed and to promptly respond to clients’ requests for of the information to be exchanged in the NLADA’s Performance
information about their case.86 The appointment of counsel for Guidelines and specific mention as one of the ABA’s Ten
an indigent defendant can quickly become a “cruel joke” when Principles.89
that counsel does not take the time to communicate with the
client and leaves them in the dark about the progress of their Courts have also frequently recognized the unique importance
case.87
of this consultation to effectuating an individual’s Sixth
At the time of the Doyle litigation, attorneys from the Office of
the Public Defender were not keeping their clients reasonably
informed about the status of their case. When placing calls to
the Allegheny County OPD, individuals were unable to find out
who their attorney was, ask for information about their case or
provide their attorney with important information. Today this
problem is an integrated component of the system, encouraged
by the lack of practice standards addressing the issue and
the most frequent complaint heard by the ACLU. OPD clients
simply do not know who their attorney is. They cannot contact
any lawyer, have never met their lawyer – except maybe for a
few minutes in the courtroom right before a hearing – and the
lawyer they met momentarily at the preliminary hearing will not
represent them at trial. Some Pre-Trial attorneys do not give
their full names to their clients at preliminary hearings so they
cannot be contacted. Clients are notified of their assigned Trial
attorney at the formal arraignment stage, but there is often no
correlation between the attorney identified to the client and
the attorney eventually assigned to represent the client for

page

Amendment right to counsel. “Informed evaluation of potential
defenses to criminal charges and meaningful discussions with
one’s client of the realities of the case are the cornerstones of
effective assistance of counsel.”90 The information an attorney
can gain from discussion with his client “is a prime source of
the factual bedrock upon which counsel must rely in making
strategic choices.”91 Notably, communicating with the client
for this purpose has been determined to be a necessary
element of adequate assistance of counsel.92 At a minimum,
“the consultation should be sufficient to determine all legally
relevant information known to the defendant” and to inform the
defendant of his constitutional rights.93
The Allegheny County OPD’s practice falls far short of this
constitutional standard. Pre-Trial attorneys handle a high
volume of cases during any given court session, allowing them
only a few minutes to meet with each defendant prior to his
or her hearing. Likewise, attorneys in the Trial Division only
meet with defendants minutes before the pre-trial conference
(if at all) and frequently do not engage in subsequent

9

communication with the defendants until the next scheduled
court appearance. These brief interactions do not provide
attorneys with the opportunity to obtain vital information such
as alibis, potential defenses or to even hear the defendant’s
version of events.
Kalmanoff emphasized the extent of the problem when he
wrote that there is a general consensus among trial judges
that public defenders are not meeting with their clients prior
to key court appearances.94 He found that there is in fact little
or no contact with the client before an appearance; sometimes
the only conversation that occurs is a mere fifteen seconds of
introduction before the hearing.
What little communication that transpires rarely takes place in
a confidential environment. Rather, it happens on the day of
an appearance in a holding area surrounded by other criminal
defendants and law enforcement personnel or in the court room
itself. Countless clients are often moved through the entire
preliminary hearing phase with no substantive lawyer-client
communication and consequently, without any understanding
of what has happened or what to expect next. Communication
is a key component of representation and there is virtually none
between the OPD and its clients. Kalmanoff was so concerned
by the poor client communication that the report repeatedly
emphasized that the OPD needed to quickly implement
mandatory ethics training, focusing specifically on client
communication.95 The OPD has not addressed these deficiencies
over the past two years and there remains no mechanism in
place to ensure that all public defenders communicate with
their clients on a regular and sufficient basis.

3. Grossly Deficient Intake
Procedures, Investigation and
Preparation
According to the U.S. Supreme Court, the
pretrial period is “perhaps the most critical
period of the proceedings;” the time “when
consultation, thorough-going investigation
and preparation [are] vitally important.”96
This time of investigation is “perhaps the most
critical stage” of a lawyer’s representation,
because “it provides a basis upon which most
of the defense case must rest.”97 “Pretrial
investigation and preparation are the keys to
effective representation of counsel,” and the
“exercise of the utmost skill during the trial
is not enough if counsel has neglected the
necessary investigation and preparation of
the case.”98

trial which would otherwise not emerge.”99 A criminal defense
attorney “must investigate a case, when he has cause to, in order to
provide minimally competent professional representation” within
the meaning of the Sixth Amendment.100 The investigation cannot
be a superfluous inquiry; rather defense counsel is obligated
to undertake reasonable steps to investigate all apparently
substantial avenues of defense.101

i. Intake Procedures
A foundational step of thorough investigation is the intake
process itself. Without comprehensive intake it is nearly
impossible to correctly assess and investigate the case.
Allegheny County OPD does not have an effective intake
process. The OPD intake staff are not lawyers and have not been
trained by lawyers. Consequently, they do not obtain necessary
information. Intake has been limited primarily to contact
information, with little if any discussion of facts important to the
case such as possible witnesses and available physical evidence
or records. Approximately 1 out of 4 “jailers” 102 go to their
preliminary hearing without having spoken even to intake staff.
This ineffective intake process exacerbates the other problems
associated with the early stages of indigent client representation
by the OPD. The Kalmanoff Action Plan proposed assigning
a senior attorney to supervise jail interviews and other intake
functions to determine the deficiencies in early stages of
intake.103 Increasing the efficiency at this stage of representation
would provide significant time savings, promote a better use
of resources and reduce the costs associated with prolonged
incarcerations and repeated court appearances.

ii. Preparation
Only the most diligent Pre-Trial attorneys
review case files or speak with clients in
advance of preliminary hearings. Even for
these diligent attorneys this practice is
limited due to the extreme time constraints
between receiving the client file and the
hearing itself. Trial attorneys are likewise
only provided with limited time to prepare.
They are not assigned to a case until the
week before the pre-trial conference and
do not receive the actual case files until
the week of, or even the day before, the
conference itself. This timetable does not
provide attorneys with adequate time to
prepare properly for their cases.104 Moreover,
Kalmanoff contends that a “culture of delay”
permeates the system and encourages
attorneys to not be fully prepared early
in a case.105 This results in a “waste of opportunities” and a “loss
in justice and monies [that are] hard to justify.”106 “[T]he cost is
enormous.”107

Informed evaluation
of potential defenses
to criminal charges
and meaningful
discussions with
one’s client of the
realities of the case
are the cornerstones
of effective assistance
of counsel.”90

This requirement of thorough investigation exists because a
“careful investigation of a case and the thorough analysis of the
information it yields may disclose evidence of which even the
defendant is unaware and may suggest issues and tactics at

page

10

4. The OPD’s “Hidden Shame” – The Appalling
Gap in Representation
The organizational structure of the Allegheny County OPD
continues to result in significant gaps in client representation.108
Every client is first assigned a Pre-Trial Attorney for the
preliminary hearing and then a Trial Attorney to represent them
at the Pre-Trial Conference and beyond, but between these two
events most incarcerated clients are largely unrepresented.
During the Doyle settlement agreement period, the Pre-Trial
Attorney’s lone duty following the preliminary hearing was to
obtain and preserve any evidence that might disappear before
the assignment of the Trial Attorney. This task was significantly
impaired by office practice. Without an in-depth client interview
Pre-Trial attorneys were frequently unaware of crucial evidence
that needed to be preserved. The responsibility of developing
any theory for the case, including alibis and defenses, was left to
the Trial Attorney. On average 45-60 days would pass between
the end of the Pre-Trial Attorney’s obligations and when a
Trial Attorney was assigned to the case. During this period no
meaningful evaluation, strategy or investigation of the case took
place.
Disappointingly, this gap in representation not only continues,
but has widened. Kalmanoff discovered a period of approximately
four months between the preliminary hearing and the pre-trial
conference during which no attorney is assigned and clients
experience a “total lack of representation.”109 Literally no one is
assigned to the case and nothing is done. This dead time results
in long waiting times, lost communication between clients and
attorneys (jail mail) and multiple disciplinary board complaints.
This period has been labeled by some public defenders as the
“OPD’s hidden shame.”110
Aggravating the effects of this dead period is the complete
disorganization associated with the transition between attorneys.
For budgetary reasons, Pre-Trial Attorneys are no longer allowed
to request preliminary hearing transcripts, arguably the most
effective method of communicating to the Trial Attorney
what has happened thus far in the case. Additionally, Pre-Trial
Attorneys are not required to conduct any follow up work on
the case. Many believe that any follow up is the responsibility
of the Trial Attorney alone and avoid such communication with
clients. Clients frequently give their Pre-Trial Attorney critical
information, such as names of witnesses or physical evidence,
but this information is not always put into the client’s file and
consequently never seen by Trial Attorneys. Trial Attorneys have
no expectation that Pre-Trial Attorneys will contribute notes
to the client’s file. Therefore, most client files are given to Trial
Attorneys without anything more than cursory notes from the
Pre-Trial Attorney. The absence of standards requiring early
case evaluation and the transmission of notes undermines and
in some cases irreparably harms effective representation by the
Trial Attorney.

page

5. Scarce Use of Experts
In addition to a right to expect the services of a reasonably
competent attorney, an indigent defendant has a right to expect
that he will be provided with the “basic tools of an adequate
defense” if he cannot afford to pay for them.111 “[A] criminal trial
is fundamentally unfair if the State proceeds against an indigent
defendant without making certain that he has access to the raw
materials integral to the building of an effective defense.”112
Among these tools, in appropriate cases, are mental health and
other kinds of expert witnesses.113
It remains difficult for public defenders to obtain the experts
necessary for their cases. Some experts are reluctant to work for
the OPD because it has a history of delay in paying for services
rendered. There is no clear procedure in place specifying who
an attorney should go to for permission to obtain an expert.
When requesting an expert, some trial attorneys have been
informed by their supervisors that they should simply make
the Commonwealth’s expert their own instead, a profoundly
disturbing suggestion that reflects deliberate indifference to
constitutional and ethical obligations. There are still numerous
occasions when experts are not being hired, even when a
defense expert is absolutely vital to the case.

V. CONCLUSION
An effective public defender office is an essential component
in maintaining the fairness and integrity of the criminal justice
system. As documented above, the OPD is sadly lacking in
virtually every area of operations. Within the OPD there are
attorneys and staff members who are enormously talented
and committed to serving the best interests of their clients, but
are simply hamstrung by the system in their ability to provide
effective representation. Other attorneys and non-legal staff
take advantage of the lack of oversight and accountability by
doing as little as they can get away with, which in some cases
is very little, thereby exacerbating the pressures on the hardworking, responsible staff. Without dramatically improved
management, training, practice standards, supervision and
employee accountability the situation will not improve, and
too many clients will continue to receive sub-constitutional
representation.
Kalmanoff made thirty recommendations as part of a strategic
plan to improve the quality of the representation provided by
the OPD and to increase the general efficiency of the County’s
criminal justice system. The Action Plan included suggestions
for the OPD, the County Executive, the Sheriff’s Department
and the Court of Common Pleas to address the problems that
pervade the entire Allegheny County criminal justice system.
The following list combines the unfinished and lapsed reforms
mandated by Doyle with some of Kalmanoff’s recommendations.

11

Recommendations for the OPD
•	

Recommendations for the County
Executive

Upgrade OPD management.

•	 Provide management training for the OPD leadership.114
	 Return attorney staffing levels to those mandated by
	the Doyle settlement agreement, i.e., at least 79 full-time	 equivalent attorneys.

•	

Upgrade leadership at the OPD.122

•	

Require comprehensive reorganization of the OPD.123
Provide adequate access and space for OPD attorneys,
paralegals and investigators to conduct confidential client
and witness interviews and to facilitate trial preparation.124

•	
	

Return investigator staffing levels to those mandated by the
Doyle settlement agreement, i.e., at least 13 investigators.

•	
	
	

•	

Hire and/or appoint a full-time director of training.

•	

Obtain additional office space for the OPD.125

•	
	
	
	
	

Improve the entry-level training program in the basics
of representation,115 devise training programs for lawyers
entering different divisions, and develop a program whereby
supervisors and more senior attorneys mentor and assist
new and younger lawyers.

•	
	
	

Update information technology (“IT”) systems and expand
contract for computer research services for use by
the OPD.126

•	
	

Ensure that the OPD implements and enforces the changes
recommended by Kalmanoff and this report.

•	
	
	

Create a comprehensive office manual, including trial
practice and performance standards, and incorporate
the standards into daily office culture.116

•	
	
	
	
	
	
	
	
	
	
	

Institute and enforce practice standards that require
attorneys, except in extenuating circumstances, to do intake
with clients before preliminary hearings, to develop and
use forms that assist in gathering and memorializing
important information and strategic decisions for
representing the client, and result in clients being assigned
during the four-month gap between the preliminary
hearing and the pre-trial conference an attorney who
will ensure that necessary investigation, legal research
and filing of pre-trial motions is accomplished in a
timely fashion.

•	
	

Assign a senior attorney to supervise intake functions
and determine the deficiencies in early stages of intake.117

•	
	

Conduct meaningful performance reviews of all
staff members at least annually.118

•	
	

Establish a QA Protocol that includes weekly case reviews
by a supervisor.119

•	

Improve the office space.

•	
	
	
	

Discontinue Part Time attorneys “as soon as legally possible,”
recognizing the limitations imposed by the collective
bargaining system, and in the meantime institute effective
procedures to ensure the employees’ accountability.120

•	
	
	
	

Revise the personnel structure to include a grade and step
progress with performance criteria so that public defenders
receive salary increases similar to those given
district attorneys.121

Recommendations for the Court

page

•	
	

Review internal court procedures to ensure timely
case management.127

•	
	

Revise and enforce discovery rules to expedite discovery
(preferably electronically) by the D.A.’s Office.128

Allegheny County stands at the same fork in the road it
encountered in 1996, with a choice of whether to save money
by continuing to ignore serious, systemic problems at the
OPD or invest in necessary improvements, which will not cost
nearly as much as before and that may ultimately save the
County substantial sums. County Officials and the three arms
of the criminal justice system must work together to make the
changes outlined above, which are necessary to improve the
OPD’s representation of clients to constitutionally-mandated
levels. If the County persists in burying its head in the sand
regarding problems at the OPD, in essence choosing the same
road taken by Allegheny County in 1996, years of litigation are
likely to ensue. But with the benefit of projected savings, even
potentially millions of dollars, to be achieved by the changes, the
ACLU hopes the County will take the other road, one that will
finish the reforms begun but never completed by Doyle.

12

Endnotes
1	
	
	
	
	
	
	
	
	

Inst. for Law and Policy Planning, Allegheny County
Office of the Public Defender Assessment, Final Report,
Presented to Michael Wojcik Allegheny County Solicitor
14 (Oct 20, 2008) [hereinafter Kalmanoff ].
While the date listed on the report cover is October
2008, the footer on each page of the report notes the
date as “January 2009.” A copy of the report is attached
as Appendix 1, and can be downloaded at
http://www.aclupa.org/opd.

2	

Id. at 26.

3	

Id. at 6.

4	

Id.

5	

Id. at 21.

6	

See Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

7	
	

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972);
Starr v. Lockhart, 23 F.3d 1280, 1284 (8th Cir. 1994).

8	

Frazier v. United States, 18 F.3d 778, 782 (9th Cir. 1984).

9	
	
	
	
	
	

See In re Gault, 387 U.S. 1, 41 (1967) (extending the right
to counsel to juveniles in delinquency proceedings
which may result in the juvenile’s loss of freedom);
Argersinger, 407 U.S. at 36-37 (holding that the right to
counsel applies to anyone facing the loss of liberty);
42 Pa. Cons. Stat. § 6337.

10	

	
	
	
	
	
	

population of approximately 1.6 million had a budget of
$19.6 million; Middlesex County, Massachusetts,
population 1.4 million, budget $14 million.
These similarly sized jurisdictions had public defender
budgets of almost four times that of Allegheny County
before the severe budget cuts. Id.

22	

Doyle Compl. 14

23	

Doyle Compl. 15

24	

Doyle Compl. 8

25	

Doyle Settlement Agreement.

26	
	
	

Doyle Mot. Req. that Defs. Either be Directed to Comply
with the Terms of the Settlement agreement Issued in
This Case or be Held in Contempt 1.

27	
	

Doyle Findings of Fact and Recommendations
of Pro Bono Panel 2.

28	

Kalmanoff, supra note 1 at 7,9.

29	

Id. at 6.

30	

Id. at 14 (parentheticals in original).

31	

Id. at 23.

32	

Id. at 28.

See 50 Pa. Cons. Stat. § 7304(e)(1).

33	

Id. at 11.

11	
	

Wheat v. United States, 486 U.S. 153, 159 (1988)
(emphasis added).

34	

Id. at 11.

12	

See United States v. Cronic, 466 U.S. 648, 656 (1984).

13	

Cuyler v. Sullivan, 446 U.S. 335, 343 (1980).

14	

Evits v. Lucey, 469 U.S. 387, 395 (1985).

35	
	
	
	
	
	

While the Kalmanoff report expended a fair amount
of time discussing the system wide problem of excessive
continuances, we will not focus on that issue in this
report as we recognize there are sometimes legally
sound reasons for defense counsel to seek continuances
in a case.

15	

Id. at 396.

36	Kalmanoff, supra note 1 at 37.

16	
	
	

ABA Standing Comm. on Legal Aid and Indigent
Defendants, ABA Ten Principles of a Public Defense
Delivery System (Feb. 2002) [hereinafter ABA].

37	

Id. at 42-44.

38	

Id. at 50.

39	

Id. at 51-52.

40	

Id. at 52. (Recommendation 16)

41	

Id. at 23-4.

42	

Id. at 26.

43	
	
	
	
	
	
	
	

This criticism could possibly be true of many individuals
placed in the Chief Public Defender’s position.
Without greater independence from the judiciary and
the political machinations of the County, very few
individuals would be able to perform the duties of this
position effectively and without being influenced by
concerns about the political waters upon which their
position tenuously floats.

17	
18	
	

Doyle v. Allegheny County Salary Board, No. GD-96-13606
(Allegheny Co. Ct. Com. Pl., 1996).

19	
	
	
	

Robert L. Spangenberg & Catherine L. Schaever, The
Spangenberg Group, A Review of the Allegheny County
(Pennsylvania) Public Defender Office (Nov 1995)
[hereinafter Spangenberg].

20	

Id. at 6.

21	
	
	

Id. at 6-7.; At the time of the study Allegheny County’s
population was approximately 1.3 million, and the OPD’s
budget was $3.9 million. Philadelphia County, with a
page

13

44	Kalmanoff, supra note 1 at 6.
45	

Id. at 11.

70	
	
	

46	

Id. at 14.

71	

Kalmanoff, supra note 1 at 14.

47	

Id. at 54.

72	

Id. at 31.

48	

Id. at 31.

73	

Id.

49	

Id.

74	

Spangenberg, supra note 18 at 15.

50	

Id. at 23.

75	

Id. at 5,10.

51	

Id.at 33.

52	

Id.

53	

Id.

76	
	
	
	

Both of these numbers reflect cuts from previous years,
however, like before Doyle, information shows that the
cuts sustained by the OPD were much greater than that
to the DA’s office, almost 8% compared to 0.3%.

54	 National Legal Aid & Deefender Association,
	
Performance Guidelines for Criminal Defense
	
Representation [hereinafter NLADA], ,
	
Guideline 4.2, commentary (“[d]elay in investigation
	
may result in loss of potential evidence or testimony
	
that would support a defense… investigation may reveal
	
information that could be utilized in plea negotiations,
	
pretrial motions and motions concerning pretrial
	detention”).

A number of the issues discussed in this report would
likely require discussion and cooperation with the
attorneys’ 	bargaining agent in the union.

77	Kalmanoff, supra note 1 at 25.
78	

Id. at 32.

79	

Id.

80	

Id.

81	

See id. at 48.

82	

Id. at 13.

83	

Id. at 24.

84	

Id. at 33.

58	NLADA, supra note 53, Guideline 1.3.

85	
	

See Ramseyer v. Blodgett, 853 F.Supp 1239, 1258
(W.D. Wash. 1994), aff’d 64 F.34 1432 (9th Cir. 1995).

59	Kalmanoff, supra note 1 at 11.

86	

Pennsylvania Rules of Professional Conduct 1.4(a).

60	
	
	
	
	
	
	

87	

Thomas v. Zelker, 332 F.Supp. 595, 600 (S.D.N.Y. 1971).

88	

See NLADA, supra note 53, Guideline 2.2.

89	

Id. Guideline 2.

90	

Weekly v. Jones, 56 F.2d 889, 896 (8th Cir. 1995).

61	Kalmanoff, supra note 1 at 28.

91	

Montgomery v. Peterson, 846 F.2d 407, 412 (7th Cir. 1988).

62	

Id. at 49.

63	

Id. at 52.

92	
	

See Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968);
Ramseyer, 858 F.Supp. at 1259.

64	

Id.

65	
	
	
	

The figure is derived from an OPD employee roster
provided by Allegheny County in response to public
record request in July 2011, and has been updated by
reports from staff.

93	
	
	

United States v. Tucker, 716 F.2d 576, 882 n.12
(9th Cir. 1983); see Wallace v. Kern, 392 F.Supp. 834,
846 (E.D.N.Y 1973).

66	

This figure does not include currently empty positions.

55	Kalmanoff, supra note 1 at 28.
56	

Id. at 11.

57	

Id. at 50.

The Kalmanoff report noted that the excessive caseloads
have contributed to a trend where “the defense tends to
focus primarily on the priorities of the defense attorneys
to the point where they have become more concerned in
a great many instances with their own personal
calendars than with the best interests of the defendant.”
Id. at 19.

67	Spangenberg, supra note 18 at 4.
68	

Id. at 7,12.

69	
	

Information as of June 2011 cites 15 part –time attorneys
remaining in the office. At present there appear to be 14.

page

94	Kalmanoff, supra note 1 at 21.
95	

See e.g. id. at 53.

96	 Massiah v. United States, 377 U.S. 201, 205 (1964)
	(quoting Powell v. Alabama, 287 U.S. 45, 57 (1932)).
97	

House v. Blakcom, 725 F.2d 608, 618 (11th Cir. 1984).

98	
	

Tucker, 716 F.2d at 581; United States v. Williams,
615 F.2d 585, 594 (3rd Cir. 1980).

99	

Moore v. United States, 432 F.2d 735, 739 (3rd Cir. 1970).

14

100	 United States v. Kaufman, 109 F.3d 186, 190 (3rd Cir. 1997).

102	 “Jailers” denotes public defender clients who are in jail,
	
not on bond, during their representation.

	
	
	
	
	
	
	

103	Kalmanoff, supra note 1 at 56.

124	 Id. at 44.

104	
	
	
	

125	 Id. at 45.

101	 See Wallace, 392 F.Supp. at 846-47, Blackburn v. Foltz,
	
828 F.2d 1177, 1183 (6th Cir. 1987).

This timetable combined with the heavy caseloads many
attorneys experience can be identified as a frequent
factor leading to the excessive continuances noted by
the Kalmanoff report.

105	Kalmanoff, supra note 1 at 22. The report found that
	
available data “suggests that repeatedly postponed cases
	
are the rule rather than the exception.” Id. at 15.

126	 Id.
127	 Id. at 56.
128	 Id. at 57.

106	 Id. at 22.
107	 Id.
108	
	
	
	

The ABA’s Ten Principles recommend a vertical
representation system (where one attorney represents
the defendant through all proceedings) in part to avoid
this issue of gaps in representation.

109	Kalmanoff, supra note 1 at 11,21.
110	 Id. at 11.
111	 See Ake v. Okla., 470 U.S. 68, 70 (1985)
	
(quoting Britt v. North Carolina, 404 U.S. 226, 226
	
(1970)) (emphasis added).
112	Kalmanoff, supra note 1 at 77.
113	 See id. at 83, 86.
114	 Id. at 32, 54.
115	 Id. at 23, 33.
116	 Id. at 50.
117	 Id. at 56.
118	 Id. at 49.
119	 Id. at 52.
120	 Id. at 31.
121	 Id. at 48.
122	 Id. at 31.
123	 Id. at 42; Pennsylvania is the only remaining state in
	
which all public defender funding is provided by the
	
County government alone. A preferred organizational

page

model by many public defender focused organizations,
a reform which would require the involvement of forces
outside of Allegheny County, is one in which funding is
provide state wide by the state itself. Another model
which would be useful for Allegheny County to consider
is that of Philadelphia, where the County is the main,
but not only funding source.

15

Appendix 1

Institute for Law and Policy Planning, Allegheny County Office
of the Public Defender Assessment, Final Report, presented
to Michael Wojcik, Allegheny County Solicitor (Oct 20, 2008),
referred to throughout as “Kalmanoff” or the “Kalmanoff Report.”
A copy of the report can be downloaded at www.aclupa.org/OPD.

 

 

Federal Prison Handbook
Advertise Here 2nd Ad
Prison Phone Justice Campaign