IN THE

INDIANA SUPREME COURT

CAUSE NO. 23S-OR-00311

STATE OF INDIANA ON THE )

RELATION OF RICHARD ALLEN, )
Relator, )
)
vs. ) Cause No. 08C01-2210-MR-000001
)
THE CARROLL CIRCUIT COURT )
and THE HONORABLE FRANCES )
C. GULL, SPECIAL JUDGE, )
Respondents. )

BRIEF OF AMICUS CURIAE IN SUPPORT OF

RELATOR’S PETITION FOR WRIT OF MANDAMUS

Bernice Corley
Attorney Number 22315-49
Executive Director
Indiana Public Defender Council
309 W. Washington St., Suite 401
Indianapolis, Indiana 46204
(317) 232-5505
bcorley@pdc.in.gov

Joel M. Schumm
Attorney Number 20661-49
530 W. New York Street
Indianapolis, Indiana 46202
(317) 278-4733
jmschumm@iu.edu

Counsel for Amicus Curiae IPDC

Amicus Brief of the Indiana Public Defender Council

Table of Contents

Table of Authorities………………………………………………………….……..………3
Statement of Interest…………………………………………………………..….……….4
Summary of Argument……………………………………………………………..………5
Argument
This case raises significant concerns about the independence of defense
counsel and the public defense structures designed to ensure it……….……5
A. Indiana has been a leader in public defense and the independence
of defense counsel……………………………………………………………….5
B. Counsel was replaced without regard to Carroll County’s
comprehensive plan…………………………………………………………….9
C. Public defense in Allen County is also affected……………………….10
D. Mr. Allen and the public paying for his defense deserve better…10
Conclusion………………………………………………………………….………………..11
Certificate of Service……………………………………………………………………..12

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Amicus Brief of the Indiana Public Defender Council

Table of Authorities

Cases

Gideon v. Wainwright, 372 U.S. 335 (1963)………………………………………………..5

Johnson v. State, 948 N.E.2d 331 (Ind. 2011)…………………………..……………5, 7, 8

Webb v. Baird, 6 Ind. 13 (1854)…………………………………………………..………….5

Statutes

Ind. Code § 33-40-4-5……………………………………………………………….………….4

Ind. Code § 33-40-7-9………………………………………………………………..…………9

Ind. Code § 33-40-7-10………………………………………………...……………….7, 8, 11

Other

ABA Ten Principles of a Public Defense Delivery System (Aug. 29, 2023)………..…8

Indiana Task Force on Public Defense, Findings and Recommendations to the

Indiana Public Defender Commission (2018)……………………………………………..6

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Amicus Brief of the Indiana Public Defender Council

INTEREST OF AMICUS CURIAE

The Indiana Public Defender Council’s (IPDC’s) mission is to improve legal

representation provided at public expense in Indiana state courts. This mission is

fulfilled in part by providing research, training, and consultation on strategy and

tactics. IPDC is also mandated to “assist in the coordination of the duties of the

attorneys engaged in the defense of indigents at public expense” and “maintain

liaison contact with study commissions, organizations, and agencies of all branches

of local, state, and federal government that will benefit criminal defense as part of

the fair administration of justice in Indiana.” Ind. Code § 33-40-4-5.

IPDC is well-positioned to address the importance of independence of the

defense function, a topic at the core of the work it does. IPDC’s interests are aligned

with the Relator, Richard Allen, in raising concerns about the removal of his court-

appointed counsel. However, this brief intentionally focuses narrowly on

independence concerns. The Council is committed to supporting appointed counsel,

whomever that may be, as this case continues.

SUMMARY OF THE ARGUMENT

Indiana has long been a leader in providing appointed counsel and in recent

decades has made strides to preserve counsel’s independence from the judges before

whom they appear. The removal of appointed counsel for broad or vague reasons

undermines the independence of the defense function and extinguishes a long-

standing rapport with a client who must now languish in prison for an additional

nine months. Moreover, after removal of counsel, replacement counsel should have

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Amicus Brief of the Indiana Public Defender Council

been selected according to the Carroll County plan from a list of qualified attorneys

approved by the county’s public defender board or by referral to the state public

defender for selection of replacement counsel. Appointing counsel from Allen

County, especially the chief public defender of that county, deprives Indiana’s third

largest county of the leader of its public defender office and raises the prospect of

loss of reimbursement for Allen County if Commission standards are not met.

ARGUMENT

This case raises significant concerns about the independence of defense

counsel and the public defense structures designed to ensure it.

The removal or replacement of appointed counsel must occur in a manner

that ensures the independence of defense counsel. IPDC is also concerned that the

removal does not undermine the public defender structures in both Carroll and

Allen counties.

A. Indiana has been a leader in public defense and the independence

of defense counsel.

In many ways, Indiana has been a leader in providing representation to those

unable to afford counsel. For example, more than a century before Gideon v.

Wainwright, 372 U.S. 335 (1963), this Court held that indigent criminal defendants

had a right to counsel provided at public expense in Webb v. Baird, 6 Ind. 13, 18-19

(1854). For most of Indiana’s history, trial judges appointed counsel and required

their compensation from the county treasury. Johnson v. State, 948 N.E.2d 331, 336

(Ind. 2011). But a deep and persistent concern “was the lack of defense counsel’s

independence from the court; because defense counsel’s employment relied upon the

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Amicus Brief of the Indiana Public Defender Council

judge, it was thought that counsel might be reluctant to represent his or her client

as vigorously as necessary for fear of alienating the judge.” Id.

The American Bar Association, among other groups, has long emphasized the

critical importance of public defender independence. The very first of the ABA’s Ten

Principles of a Public Defense Delivery System, which provide guidance on how to

create a well-functioning and constitutionally-sound public defense system, is that

the “public defense function, including the selection, funding and payment of

defense counsel, [be] independent.” Indiana Task Force on Public Defense, Findings

and Recommendations to the Indiana Public Defender Commission 38 (2018),

available at https://www.in.gov/publicdefender/files/Indiana-Task-Force-Report.pdf

(last visited Nov. 6, 2023) (quoting American Bar Association, Ten Principles of a

Public Defense Delivery System (2002), Principle 1). Under this principle, the public

defense function “should be independent from political influence and subject to

judicial supervision only in the same manner and to the same extent as retained

counsel.” Id.

In Johnson, this Court traced the history of the Public Defender Commission1

and other legislative efforts to protect the independence of appointed counsel.

In 1989, the General Assembly created the Indiana Public Defender

Commission (“Commission”), which began a series of reforms to
improve indigent defense services. The Commission’s original mission
was to make recommendations concerning providing indigent counsel

1The Public Defender Commission is an entirely different entity from the Public
Defender Council, which filed this brief, and the State Public Defender, who is
mentioned throughout this brief. A helpful comparison of the functions of each is
available on the Commission website. https://www.in.gov/publicdefender/ (last
visited Nov. 6, 2023).
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Amicus Brief of the Indiana Public Defender Council

in capital cases, most of which were adopted by this Court in Indiana

Criminal Rule 24.
In 1993, the General Assembly authorized the Commission to offer
state reimbursement to counties for the costs of indigent defense in
noncapital cases, provided the counties complied with standards
established by the Commission. To qualify, a county must establish a
county public defender board, which appoints indigent defense counsel
at public expense for all persons financially unable to obtain a lawyer
without substantial hardship to themselves or their families.
Appointed counsel must satisfy certain experiential and training
requirements, which vary depending on the seriousness of the charge,
and appointed counsel’s caseload must be limited to a specified
amount. The Commission’s standards also govern appointed counsels’
compensation. Counties that comply with these standards are
reimbursed for 40% of their indigent defense costs for noncapital cases.
Unlike the capital defense program under Criminal Rule 24, the
noncapital program is optional, though the Commission reports that it
has approved comprehensive plans for 58 of Indiana’s 92 counties, and
50 of those counties are eligible for reimbursement.
Indiana’s reform of public defender services has been lauded by the
American Bar Association and legal scholars alike. Undoubtedly, one
of the most important reforms for noncapital cases was ensuring the
independence of defense counsel by transferring the duty to appoint
counsel from judges to county public defender boards. Such
independence protects the integrity of the attorney-client relationship.

Johnson, 948 N.E.2d at 336-37 (internal citations omitted).

As noted in Johnson, trial courts retain some ability to appoint counsel

outside of a county’s comprehensive plan in limited circumstances. Appointments

outside the approved plan may affect the ability to seek reimbursement from the

Commission. First, under Indiana Code section 33-40-7-10(a), a judge may appoint

counsel outside of the plan “when the interests of justice require. A court may also

appoint counsel to assist counsel provided for under the board’s plan as co-counsel

when the interests of justice require.” However, expenditures outside the plan are

not subject to reimbursement from the public defense fund. Id.

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Amicus Brief of the Indiana Public Defender Council

Subsection (b) provides a better route that protects both independence and

reimbursement. Under subsection (b), a judge may:

make a written request to the state public defender to provide a qualified

attorney for the defense of a person charged in the court with a criminal
offense and eligible for representation at public expense if the judge
determines:
(1) that an attorney provided under the county public defender
board’s plan is not qualified or available to represent the person;
or
(2) that in the interests of justice an attorney other than the
attorney provided for by the county defender board’s plan should
be appointed.

Ind. Code § 33-40-7-10(b). When the state public defender makes the selection, the

county is entitled to reimbursement from the public defense fund. Id. Under a

separate statute, appointments of counsel by the state public defender are “subject to

the concurring appointment, of record, by the requesting judge.” Ind. Code § 33-40-2-

2.

The ABA’s Ten Principles have been updated since this Court decided

Johnson. They now provide that public defenders should be subject to “judicial

authority and review only in the same manner and to the same extent as retained

counsel and the prosecuting agency and its lawyers.” ABA Ten Principles of a

Public Defense Delivery System (Aug. 29, 2023).2

2The Principles are available at:

https://www.americanbar.org/groups/legal_aid_indigent_defense/indigent_defense_s
ystems_improvement/standards-and-policies/ten-principles-pub-def/.
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Amicus Brief of the Indiana Public Defender Council

IPDC is unaware of the removal of an Indiana prosecutor under

circumstances of alleged “gross negligence.” Public defenders deserve the same

treatment as prosecutors by Indiana’s trial courts.

B. Counsel was replaced without regard to Carroll County’s

comprehensive plan.

The independence concerns raised by removing appointed counsel are

exacerbated when the process for selection of replacement counsel fails to follow the

statutes and structures designed to protect the independence of defense counsel.

Carroll County is a member of the Public Defender Commission and has a public

defender board and comprehensive plan. The Commissioners of Carroll County

adopted an ordinance creating a public defender board in 2000. The county’s plan

provides for an “assigned counsel system.”3 Under this appointment system,

(1) The board shall gather and maintain a list of attorneys qualified to
represent indigent defendants.
(2) Upon the determination by a court that a person is indigent and
entitled to legal representation at public expense, the court shall
appoint an attorney to provide the representation from the list
maintained by the board.

Ind. Code § 33-40-7-9. Later sections provide for payment and reimbursement of

expenses. Id.

Here, it is unclear why the Respondent appointed counsel in a manner

inconsistent with Carroll County’s comprehensive plan. Immediately after

announcing that Mr. Baldwin had orally moved to withdraw and that Mr. Rozzi

would be filing a written motion to withdraw, the Respondent stated, “I will reach

3
The plan cites I.C. 33-9-15-9, which has since been replaced by I.C. 33-40-7-9.
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Amicus Brief of the Indiana Public Defender Council

out to public defenders to make that appointment.” Record Vol. 2, p. 6. If no

qualified Carroll County attorney was able to take this case, the preferred

procedure would have been for the Respondent court to contact the state public

defender for selection of replacement counsel. Not only would this allow

reimbursement in what will likely be an especially long and expensive proceeding,

but it would also better ensure independence by insulating the selection from

control by the judge presiding over the case.

C. Public defense in Allen County is also affected.

Instead, the Respondent reached out to and chose two lawyers from Allen

County, neither of which is on the Carroll County list and one of whom is currently

serving as the chief public defender of Allen County. Thus, in addition to

jeopardizing the possibility of reimbursement for Carroll County, the appointment

of Mr. Lebrato deprives Indiana’s third largest county of the leader of its public

defender office and raises the prospect of loss of reimbursement for Allen County if

Commission standards are not met.

D. Mr. Allen and the public paying for his defense deserve better.

As a final point, although this brief focuses on statutes and procedures

designed to protect the independence of defense counsel, we should not lose sight of

the person most affected. Public defenders do extraordinary, life-changing work

every day in courtrooms around the state. Mr. Allen was pleased with the work of

his initially appointed public defenders. Mr. Allen and the public that funds his

defense should be entitled to more than vague and broad concerns about “gross

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Amicus Brief of the Indiana Public Defender Council

negligence” and that a judge “cannot and will not allow these attorneys to represent

you . . . . I can’t do it, sir. I just can’t.” Record Vol. 2, p. 26. Such statements do not

engender confidence in the criminal justice system for criminal defendants, many of

whom believe that appointed counsel is not a “real lawyer” but a “public pretender”

or a lawyer who works for the State. When followed, the statutes and decisional law

outlined above provide some means to dispel these misconceptions. When not

followed, the trust and rapport developed during a full year of intensive

representation is lost—and Mr. Allen is left to wait nine additional months

incarcerated in the Department of Correction under conditions that he and his

counsel of choice have stated undermine his ability to prepare his defense.

Conclusion

The issues presented in this case justify the intervention of this Court at this

stage to preserve the independence of defense counsel and the integrity of the public

defense structures established by the General Assembly. The Court can uphold

these essential values by reinstating Mr. Allen’s initial and desired counsel. In the

alternative, the Court should direct the Respondent court to follow Indiana Code

section 33-40-7-10(b) by referring the case to the state public defender for selection

of counsel.

Respectfully submitted,

/s/ Bernice Corley

Bernice Corley, 22315-49

/s/ Joel Schumm

Joel Schumm, 20661-49

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Amicus Brief of the Indiana Public Defender Council

CERTIFICATE OF FILING AND SERVICE

Under Rule 2(D) of the Indiana Rules of Procedure for Original Actions, the
foregoing was filed using IEFS and on November 6, 2023, was served upon the
following through IEFS and/or via electronic mail at the noted e-mail address:

The Honorable Frances C. Gull, Special Judge

Carroll Circuit Court
101 W Main St #206
Delphi, IN 46923
Frances.Gull@allensuperiorcourt.us

Robert Cliff Scremin

116 E Berry St, Suite 1200
Fort Wayne, IN 46802
robert@robertscreminlaw.com

William Santino Lebrato

116 E Berry St, Suite 500
Fort Wayne, IN 46802
william.lebrato@co.allen.in.us

Nicholas Charles McLeland

101 W. Main St., Suite 204
Delphi, IN 46923
nmcleland@carrollcountyprosecutor.com

Theodore Rokita
Indiana Attorney General
efile@atg.in.gov

Mark K. Leeman, #29109-09

LEEMAN LAW OFFICE
412 East Broadway
Logansport, Indiana 46947
markleeman@leemanlaw.com

Cara Schaefer Wieneke, #24374-49

WIENEKE LAW OFFICE, LLC
P.O. Box 368
Brooklyn, Indiana 46111
cara.wieneke@gmail.com
/s/ Joel Schumm
Joel Schumm, 20661-49

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