IN THE INDIANA SUPREME COURT CAUSE NO. 235-OR-00311 STATE OF INDIANA ON THE RELATION OF RICHARD ALLEN, Relator, vs. ‘THE CARROLL CIRCUIT COURT and THE HONORABLE FRANCES C. GULL, SPECIAL JUDGE, Respondents. Cause No. 08C01-2210-MR-000001 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 beorley@pdc.in.gov Joel M. Schumm Attorney Number 20661-49 530 W. New York Street. Indianapolis, Indiana 46202 (317) 278-4733 imschumm@iu.edu Counsel for Amicus Curiae IPDCAmicus Brief of the Indiana Public Defender Council Table of Contents Table of Authoritie: Statement of Interest... Summary of Argument 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... B. Counsel was replaced without regard to Carroll County’s comprehensive plan. C. Public defense in Allen County is also affected.. D. Mr. Allen and the public paying for his defense deserve better...10 Conclusion.. Certificate of Service... 2Amicus Brief of the Indiana Public Defender Council Tabl Auth Cases Gideon v. Wainwright, 372 U.S. 335 (1963)... Johnson v. State, 948 N.. .2d 331 (Ind. 2011) Webb v. Baird, 6 Ind. 13 (1854).......-..0--e eee a, wcsevcevee, Statutes Ind. Code § 33-40-4- Ind. Code § 33-40-7-9.... Ind. Code § 33-40-7-10. Other ABA Ten Principles of a Public Defense Delivery System (Aug. 29, 2023)........ Indiana Task Force on Public Defense, Findings and Recommendations io the Indiana Public Defender Commission (2018)...Amicus Brief of the Indiana Public Defender Council INTEREST OF AMICUS CURIAE The Indiana Public Defender Council’s (PDC’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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 publie 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 o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 ai https://www.in.gov/publicdefender/files/Indiana-Task-Foree-Report., (last visited Noy, 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 Commission! 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 1 The 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 Noy. 6, 2023).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.B.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. a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. Jd. 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 2 The Principles are available at: https://www.americanbar.org/groups/legal aid indigent defense/indigent defense ystems _improvement/standards-and-policies/ten-principles-pub-def/.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.”? 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 +The plan cites I.C. 33-9-15-9, which has since been replaced by I.C. 33-40-7-9. 9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 10Amicus Brief of the Indiana Publie Defender Council negligence” and that a judge “cannot and will not allow these attorneys to represent you....Lcan't do it, sir. [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 {si Joe] Schumm Joel Schumm, 20661-49 a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 46928 fended Gull@allensiperioren a Robert Cliff Seremin 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 MeLeland 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 ca ieneke@gmail.com /s/ Joel Schumm Joel Schumm, 20661-49