Indigent Defense Services in the Sample Counties

The Indiana General Assembly by statute defines the conduct that will constitute a crime or a delinquent act, the procedures that must be followed throughout the life of that criminal or juvenile case, and the penalties that may be imposed on a person who is convicted.[1] The same is true for the conduct that will give rise to and procedures that must be followed in a child in need of services (CHINS) case,[2] a termination of parental rights (TPR) case,[3] and an involuntary mental health commitment case.[4] The Indiana Supreme Court also enacts rules that must be followed in the courts that have jurisdiction over these cases.[5] All of these statutes and rules apply statewide.

The statutes and rules, though, often allow for considerable discretion to be exercised by the law enforcement agencies, prosecutors, courts, defense attorneys, counties, cities, and towns that carry out these duties. When combined with the variation in court structures and case allotments established through local rules, the existence of city and town courts in some counties but not in others, and the participation in the state’s non-capital indigent expense reimbursement program by some counties and courts but not others, what actually occurs during the course of a case can look quite different from one county to another and even from one court to another within a given county.

Indiana statutes talk about three methods that a county can use to provide representation to indigent people: a public defender office; contracts; or a list of attorneys.[6] All national standards agree that there is no one right method of providing indigent representation, and all systems should have a mix of public and private attorneys.

Every public defense system must engage individual lawyers to provide representation, and each of those lawyers is either a government employee or a private attorney. Beyond that, though, the method that a county uses to provide indigent representation encompasses three areas: how the lawyer becomes available for appointment by the system; how much of the lawyer’s time is committed to providing public representation within the system; and how the lawyer is compensated by the system for his services.

Availability. A lawyer can be available: for a single case; for a given term (such as one year) or type of case (such as misdemeanors) or in a specific court; or permanently as an employee.
Time Commitment. The amount of time the lawyer has promised can be: the time required by a single case; part-time, where the lawyer is free to devote working hours to work outside of the public representation system; or full-time, where the lawyer does not do any work outside of providing representation to indigent people within the specific system.
Compensation. The lawyer can be paid: a fixed amount for a given period of time (such as an annual salary, or monthly contract rate); a fixed amount for a single case or type of cases, without regard to the amount of time required; or an hourly rate for every hour expended toward indigent representation in the specific system. Subsumed within compensation is the issue of whether the system or the individual lawyer is paying the cost of overhead and case-related expenses for each client’s case. In other words, is the system paying for these things in addition to the lawyer’s compensation, or is the cost of these things coming out of the lawyer’s compensation.

Each of these three factors, and in particular the way the factors interact, affect the lawyer’s ability to provide effective representation to each and every client. All of these components taken together – method of delivery, availability of lawyers, time commitment of lawyers, and compensation of lawyers, all layered upon the structure of the trial courts – provide a true picture of how a county provides representation to the indigent.

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[expand title=”Assigned counsel panels” tag=”h4″]
[expandsub2 title=”Blackford County” tag=”h5″]
Blackford County participates in the non-capital reimbursement program overseen by the Commission. On February 2, 1999, Blackford County adopted an ordinance creating its public defender board, and that board approved the county’s comprehensive plan for participation in the non-capital indigent expense reimbursement program.[7] The Commission approved Blackford County’s comprehensive plan on February 16, 1999.[8] With only occasional lapses, Blackford County has applied for and received reimbursement for non-capital indigent case expenses beginning with the second quarter of 1999 and continuing through the present. Blackford County has never sought reimbursement for an indigent capital case.

Blackford County has one circuit court bench that handles: murder and level 1 to 5 felony cases; juvenile delinquency proceedings; CHINS & TPR; mental health commitments; and various civil matters.[9] There is also one superior court bench that hears level 6 felonies, misdemeanors, and various civil matters.[10]

Blackford County is the only one of the eight sample counties that uses an assigned counsel system as its sole method of providing indigent defense services. Each judge selects individual attorneys to appoint on a case-by-case basis to represent indigent defendants in their courtroom. In 2014, a total of seven attorneys received appointments across the two courts. The attorneys are paid an hourly rate of $45 per hour for misdemeanors and $70 per hour for felonies. The attorneys can bill monthly, and they submit their invoices to the assigning judges to be approved for payment by the county auditor. All of the assigned counsel attorneys work out of their own private law offices and can represent an unlimited number of private clients in addition to their public defense clients.

The county’s three-member public defender board[11] meets on an as-needed basis. Prior to February 2015, the last three meetings of the board were: July 25, 2014; April 25, 2014; and November 21, 2013.[12] The minutes from each of these meetings reflect that the only business the board attended to was to review and approve the auditor’s reimbursement request to be sent to the Indiana Public Defender Commission.

Despite the existence of a public defender board in Blackford County, it is the two judges who wholly administer the county’s public defense system. Each judge selects the attorneys whom they will assign to cases in their courtroom, and each judge requests from the county council the budget he deems appropriate for public defense.

Funding for public defense is spread across the budgets of the two courts and additionally from the supplemental public defender services fund.[13] In 2014, Blackford County spent $233,747.38 on indigent defense.[14] With a 2010 population of 12,766,[15] this is an annual per capita indigent defense expenditure of $18.31.

Source: Indiana Gateway Report. Additional financial information on 2014 public representation expenditures was provided by the Blackford County Auditor, in the form of a “Budget Status” report showing 2014 totals expended for “Pauper Attorneys” from the budgets of the two courts and from the supplemental public defender services fund.

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[/expand]
[expand title=”Contract services” tag=”h4″]
Three counties – Scott, Montgomery, and Warrick – all use contracts as their primary method of providing indigent representation. Lake County uses contracts as its primary method in the county and juvenile divisions of superior court, but it uses a public defender office as its primary method in the criminal division. The contract systems in these four counties bear little resemblance to one another, except they all use fixed fee contracts with private attorneys, and the contracting attorneys are required to handle an unlimited number of cases – the compensation does not change no matter how many or how few cases the attorneys are required to handle.
[expandsub2 title=”Scott County” tag=”h5″]
Scott County has not participated in the non-capital indigent expense reimbursement program since the end of 2008. The Commission approved the county’s comprehensive plan in 1999,[16] and it regularly received reimbursements through the fourth quarter of 2008, when it ceased its participation.[17] Scott County has never sought reimbursement for any capital indigent expenses.

The Scott County comprehensive plan stated that the county would use contracts as the primary method of providing indigent representation, and secondarily, in cases of conflicts, it would use assigned counsel as needed on a case-by-case basis.[18] The plan said the contracts would include a provision for “the maximum number of cases to be assigned in each category within a 12 month period,” and the plan expressly stated the maximum number of cases to which any contract attorney could be appointed in a 12-month period. The plan promised that “[t]he compensation to contractual attorneys under this plan . . . will include reimbursement for reasonable office expenses and other reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage, and travel,”[19]

The contracts actually in place in Scott County never contained any such provisions, instead requiring the contract attorneys to provide representation in an unlimited number of cases during a year.[20] The Scott County contracts only paid lawyers a flat annual fee, without any provision for reimbursing expenses and without regard to how many cases an attorney was assigned in a given year.[21] The Commission would have known these facts from 1999 through 2008, had it ever required the county to produce copies of the contracts.

Scott County has one circuit court bench and one superior court bench.[22] The circuit court hears: murder and level 1 to 5 felonies; juvenile delinquency proceedings; CHINS & TPR; mental health commitments; and various civil matters.[23] The superior court handles level 6 felonies, misdemeanors, and various civil matters.[24]

Scott County contracts annually with seven private attorneys to provide representation to indigent defendants in all cases except murder and appeals. These are fixed-fee contracts that require the contracting attorneys to handle an unlimited number of cases at a fixed annual rate of compensation – the compensation does not change no matter how many or how few cases the attorneys are required to handle. One of the seven contracting attorneys serves as the public defender administrator and handles a reduced caseload in superior court.[25] Three additional attorneys are contracted to handle criminal cases in superior court,[26] and two lawyers are contracted to handle criminal and delinquency cases in circuit court.[27] The circuit and superior court contracts pay $30,000 annually.[28] One of the circuit court attorneys plus one more lawyer contract for CHINS and TPR cases at $17,500 per year.[29] All of the contracting attorneys work out of their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

For murder cases and appeals, the judges appoint lawyers on a case-by-case basis and pay $60 per hour. The contract attorneys can also agree to be appointed to these cases outside of their contracts and be paid on an hourly basis.

The contract attorneys generally handle each other’s conflict cases as part of their flat-fee contracts. Circuit court attorneys can be assigned to an unlimited number of conflict cases (excluding murder and appeals) in both circuit and superior court.[30] Similarly, the superior court contract attorneys can be assigned to an unlimited number of conflict cases in both circuit and superior court.[31] All of the contract attorneys are required to take up to three conflict-based CHINS or TPR cases each year.[32] There are only four extremely rare conflict situations that require the county to assign a conflict case to someone other than the contract attorneys.

In murder cases and appeals if all of the contract attorneys decline to be appointed on an hourly basis.
In multi-defendant criminal or juvenile delinquency cases, where more than six individual attorneys must be appointed in a single case, for example a multi-defendant drug case (the one attorney who contracts only to provide counsel in CHINS/TPR cases could accept an appointment on an hourly basis to represent a seventh defendant, in which case appointment outside of the contract attorneys would only be required for a case involving eight or more defendants).
In CHINS or TPR cases where more than two individual attorneys must be appointed in a single case, if all of the attorneys contracted to circuit or superior court have already been assigned to their contract limit of three CHINS/TPR conflict cases in a given year and they all decline to be appointed on an hourly basis; otherwise only in a CHINS/TPR case where more than seven individual attorneys are required.
In any case of an indigent defendant where all of the contract attorneys have a personal conflict.

Scott County has a three-person public defender board – a vestige from the earlier days of participation in the state reimbursement program. The board’s responsibility is limited to interviewing candidates for public defense contracts within the budget allocated by the county council, and then signing the individual contracts on the county’s behalf. The board does not set any policies and does not have any ongoing supervisory responsibilities over the contractors. The board meets whenever the public defender administrator asks them to, which is typically about three times a year unless there is an unexpected resignation by one of the contracting attorneys.

The public defender administrator is the de facto manager for the system, under the direction of the judges. The administrator appears before the county council each year to make the budget request on behalf of the indigent representation system. The county council establishes the budget for the county’s indigent representation system. One of the attorneys who contracts with the county to provide public defense was elected to the county council in 2014. He has been a contract attorney for 15 years, and he now sits on the board that sets his own public attorney pay.

Funding for indigent defense in Scott County comes from the county’s general fund and the supplemental public defender services fund. In 2014, the county spent $223,307.98 on indigent defense.[33] With a 2010 population of 24,181,[34] this is an annual per capita expenditure of $9.23.

Source: Indiana Gateway Report. Additional financial information on 2014 public representation expenditures was provided by the Scott County Auditor in the form of a report showing total 2014 expenditures for each line item under “Public Defender” from the general fund.

The total $209,663.86 for Prof’l services (see * in table above) was spent for: public defenders $180,000.00 (6 attorneys at $30,000 each); and CHINS & non-support attorneys $29,663.86. Adding this $29,663.86 spent from the general fund for CHINS & non-support attorneys to the total amount spent of $9,706.25 from the supplemental public defender services fund yields $39,370.11. The two CHINS contractors are paid $35,000 (2 attorneys at $17,500 each), leaving $4,370.11 paid to lawyers for hourly rate appointments, and possibly expenses, in 2014. Printing & advertising (see ** in the table above) reflects fees for publication of legal notices. Other services & charges (see *** in the table above) reflect amounts paid to court reporters for taking and transcribing depositions.
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[expandsub2 title=”Montgomery County” tag=”h5″]
Montgomery County was among the first six counties to join the non-capital indigent expense reimbursement program in 1995,[35] but it stopped participating in the program in 2013 and received its final reimbursement from the state for the second quarter of 2013.[36] Montgomery County has never sought reimbursement for an indigent capital case.

The county’s decision to leave the non-capital reimbursement program was based primarily on financial concerns,[37] though the county was also frustrated with the process of trying to understand how the Commission calculated allowable caseloads – no one on the county council understood how it worked.[38] From the county’s point of view, there was never a clear definition by the Commission of what constituted a full-time and a part-time attorney; at some points based on the salaries of the defenders, and at other times based on the salaries of the prosecutors.[39]

Montgomery County has one circuit court bench and two superior court benches.[40] The circuit court handles: murder; level 1 to 5 felonies; juvenile delinquency; CHINS & TPR; and various civil matters.[41] Superior Court 1 handles: level 6 felony drug and alcohol cases; misdemeanor drug and alcohol cases with habitual substance offender charges; drug court; and various civil matters.[42] Superior Court 2 handles: level 6 felony offenses against property; motor vehicle license-related cases; misdemeanors; traffic; infractions; ordinance violations; non-support; veterans court; and various civil matters.[43]

Montgomery County contracts with seven private attorneys to provide representation to indigent people in all cases in the county, except: murder; class A felonies; appeals; habeas corpus; sentence modifications; post-conviction; and, modification of marriage dissolution and paternity.[44] The contracts in place at the time of this evaluation were for a three-year term expiring December 31, 2015.[45] Three of the contracting attorneys are paid $44,000 per year,[46] and the other four are paid $40,000 per year.[47] One of the seven contracting attorneys also serves as the public defense administrator and is paid an additional $10,000 per year for these services.[48] These are flat-fee contracts that require the contracting attorneys to handle an unlimited number of cases at a fixed annual rate of compensation – the compensation does not change no matter how many or how few cases the attorneys are required to handle. All of the contracting attorneys work out of their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

For murder, class A felonies, and appeals to Indiana state courts, the judges appoint lawyers on a case-by-case basis and pay an hourly rate.[49] The contract defense attorneys have a right of first refusal to accept these cases and be paid the hourly rate for them, beyond their contract compensation.[50]

For conflicts in Montgomery County, the seven contract public defense attorneys typically handle each other’s conflicts under their contracts. However, there are three types of situations that occasionally require attorneys beyond the seven contract attorneys. These are: high-level felonies where the three contract attorneys who are sufficiently qualified to handle them are all conflicted out; CHINS cases where multiple parties in a single case all need public counsel; and cases involving the local attorneys as interested parties. In these types of conflict situations, the judges hire attorneys on a case-by-case basis.

Though Montgomery County is not required to have a public defender board since it ceased its participation in the Commission, it voluntarily maintains its board. The board is not very active. It meets quarterly to review the caseload numbers that the circuit court judge provides, and when contracts are up for renewal it selects the attorneys who receive them.

The circuit court judge presents the budget request for public defense to the county council and oversees the spending from the allocated budget. Funding for all indigent representation in Montgomery County appears to come entirely from the county’s general fund. Although state law requires that every county have a non-reverting supplemental public defender services fund,[51] neither the publicly available financial documents nor those provided by the Montgomery County auditor reflect the existence of such a fund in Montgomery County (see ***** in table below). In 2014, the county spent $351,312.61 on indigent representation;[52] a per capita annual expenditure of $9.21 for its population of 38,124.[53]

Source: Indiana Gateway Report. Additional financial information on 2014 public representation expenditures was provided by the Montgomery County Auditor, in the form of a “GL Account Ledger” report itemizing all expenditures from the general fund for: public defender (capital cases); public defender contract; public defender add’l serv; public defender administrator; and pub. def commission.

Salaries & wages (see * in table above) is the compensation of the public defender administrator. Other personal serv (see ** in table above) reflects compensation of $295,909.64 paid to the contract attorneys; and $33,453.01 in compensation of hourly rate appointed attorneys and reimbursement to contract & hourly attorneys for court-authorized case expenses. Prof’l services (see *** in table above) is compensation of the public defender board members. Other serv & chgs (see **** in table above) is reimbursement to contract defenders for out of pocket expenses (7 attorneys @ $1,500 each).
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[expandsub2 title=”Warrick County” tag=”h5″]
Warrick County has never participated in the non-capital indigent expense reimbursement program. The predominant view is that it is cheaper and more effective to not participate in the program. As one judge said, “we would lose good public defenders; we would end up with young, inexperienced attorneys; and we would have to hire a director.” Another judge echoed, “I believe it would cost more. We would have to have administration and probably staff.” “It would probably cost the county a lot more to put a full-time system in place and you would have less experienced attorneys,” said a contracting attorney. The county has submitted requests and been approved for reimbursement in indigent capital cases in three quarters during the history of the capital reimbursement program.[54]

Warrick County has one circuit court bench and two superior court benches.[55] The circuit court hears: adult criminal offenses alleged to have been committed in January, April, July, and October, and by random allotment for offenses with no specific date of commission; juvenile delinquency; and civil matters including CHINS & TPR by serial allotment.[56] Superior Court 1 handles: adult criminal offenses alleged to have been committed in February, May, August, and November, and by random allotment for offenses with no specific date of commission; and civil matters including CHINS & TPR by serial allotment.[57] Superior Court 2 handles: adult criminal offenses alleged to have been committed in March, June, September, and December, and by random allotment for offenses with no specific date of commission; and civil matters including CHINS & TPR by serial allotment.[58] An appointed magistrate presides over all misdemeanors allotted to all three of the courts.[59]

In Warrick County, the three judges orally contract on an annual basis with eight private attorneys to provide representation to indigent people in trial level cases, excluding murder cases and appeals.[60] These are fixed-fee contracts that require the contracting attorneys to handle an unlimited number of cases at a fixed rate of compensation of $31,875 per year – the compensation does not change no matter how many or how few cases the attorneys are required to handle. The attorneys are additionally paid a daily jury trial rate of $450 per day. One of the eight attorneys is appointed in only civil cases, including CHINS, TPR, and child support collections that can result in incarceration. The other seven attorneys are appointed in adult criminal and juvenile delinquency cases, excluding murder and appeals. All of the contracting attorneys work out of their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

When additional attorneys are needed including for murder cases and appeals, the judges appoint lawyers and pay an hourly rate that each judge determines on a case-by-case basis.[61] There are no formal guidelines establishing the hourly rates that the judges pay (other than for death penalty cases where the rate is established by court rule). The contract public defense attorneys are eligible to be appointed to these cases and be paid the hourly rate for them, beyond their contract compensation.

The judges of the three court divisions collectively administer public defense in Warrick County. “Nobody is responsible for the public defenders; it is more collaborative,” said one judge. The judges seek their budgets from the county council, including the funding necessary for public defense, and the contract attorneys rely on the judges to seek increases where needed including for their compensation.

Funding for public defense in Warrick County is spread across the budgets of the three divisions of court (one circuit and two superior) and additionally from the supplemental public defender services fund. In 2014, the county spent $268,553.92 for representation of the indigent,[62] providing a per capita annual expenditure of $4.50 for the county’s 59,689 population.[63]

Source: Indiana Gateway Report. Additional financial information on 2014 public representation expenditures was provided by the Warrick County Auditor, in the form of a “Transaction History” report itemizing all “Pauper Counsel” expenditures from the budgets of the three divisions of court and all expenditures from the supplemental public defender services fund.

The combined total of the expenditures from the general fund by the three divisions of court is $255,269.92 (see * in table above.) This represents the compensation paid to the eight contract attorneys (8 attorneys at $31,875 each = $255,000 less .08 rounding error), and $270.00 for public defense expense reimbursements to contract attorneys. All expenditures from the supplemental public defender services fund (see ** in table above) were for daily trial compensation and expense reimbursements to contract attorneys ($3,703.86), and payment to other attorneys appointed case-by-case and paid hourly ($9,579.64).
[/expandsub2]
[expandsub2 title=”Lake County, county and juvenile divisions” tag=”h5″]
Lake County is the only county in the state that is allowed to have some courts that participate in the non-capital indigent expense reimbursement program and other courts that do not.[64]

Lake County has one circuit court and one superior court.[65] The superior court is divided into four divisions: a civil division of seven judges; a criminal division of four judges; a county division of four judges; and one judge in the juvenile division.[66] Effective February 2, 2015, the judges have divided the caseload roughly as follows:[67]

The county and juvenile divisions of the superior court do not participate in the reimbursement program.[68] The judges each individually contract orally with private attorneys to provide representation to indigent defendants in their courtrooms. Each of the county and juvenile division judges wholly administers the public defense attorneys in their courtroom.

In the county division, each of the four judges contract with five attorneys. The juvenile division judge contracts with ten attorneys. These are fixed-fee contracts that require the contracting attorneys to handle an unlimited number of cases at a fixed rate of compensation per year – the compensation does not change no matter how many or how few cases the attorneys are required to handle. The annual compensation for each county and juvenile division contract attorney is $28,500.[69] The contract lawyers used to have county benefits, but that was eliminated a few years ago and the annual compensation was increased slightly. All of the contract attorneys work out of their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

Funding for indigent defense in the four county division courts and the juvenile division is a line item in the budget of each individual court, which the judge requests as part of his overall budget from the county council (see * in table below). In 2014, these five judges expended approximately $848,500[70] for the compensation of the public defense attorneys in their courtrooms.

Source: Indiana Gateway Report. Additional financial information on 2014 public representation expenditures was provided by the Lake County Auditor, in the form of: an “Expenditure Account Activity” report showing detailed expenditures from all funds for the Public Defender Office dept 4002; and individual “Expenditure Account Activity” reports for the General Fund 001, Public Safety CAGIT fund 010, Gambling Admission fund 196, Supplemental Public Defender fund 405, and the County Cumulative Capital fund 65, showing all expenditures from these funds (not limited to expenditures for indigent representation) for the Public Defender Office dept 4002, the Superior Court Criminal Division dept 4000, the Superior County Division Rooms 1 thru 4 dept 4030, 4040, 4050, and 4070, and the Superior Juvenile Division dept 4100.

The 2014 expenditures from the four county division courts and the one juvenile division court (see * in table above) are estimated because the available financial information does not sufficiently itemize line item expenditures to show the exact amounts paid. One of the public defender positions in county 2 was vacant for some period of time. Each of these courts may have additional line items in their budgets from which expenditures were made in 2014 for public defense, such as for experts or out-of-pocket expenses in individual cases.
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[/expand]
[expand title=”Public defender offices” tag=”h4″]
Three counties – Lawrence, Elkhart, and Marion – use a public defender office as the primary method of providing indigent representation in all of their courts. The Lake County criminal division of superior court uses a public defender office as its primary method of providing public defense.
[expandsub2 title=”Lawrence County” tag=”h5″]
Lawrence County participates in the non-capital reimbursement program. On August 3, 2010, the county passed an ordinance creating its public defender board “for the purpose of providing legal representation to indigent defendants/respondents in criminal, juvenile, probation violation, extradition, child support, civil commitments and other proceedings where the right to counsel has been established by law.”[71] The board adopted a comprehensive plan for the provision of those services, appointed the chief public defender, and charged her with organizing a public defender office. The Commission approved Lawrence County’s comprehensive plan on September 22, 2010.[72] Lawrence County has consistently applied and received reimbursement for non-capital indigent case expenses from the Commission beginning with the fourth quarter of 2010 and continuing through the present. Lawrence County has never sought reimbursement from the Commission for an indigent capital case.

Lawrence County has one circuit court bench and two superior court benches.[73] The circuit court handles: juvenile delinquency; juvenile problem solving court; CHINS & TPR; protective orders; and various civil matters; though an appointed referee presides over all juvenile proceedings allotted to the circuit court.[74] Superior Court 1 hears: 2/3 of all murder, level 1 to 5 felonies, and level 6 felonies not involving alcohol or controlled substances (on a blind filing basis); all non-traffic related misdemeanors; mental health proceedings; domestic violence court; and various civil matters.[75] Superior Court 2 hears: 1/3 of all murder, level 1 to 5 felonies, and level 6 felonies not involving alcohol or controlled substances (on a blind filing basis); all level 6 felonies and misdemeanors involving alcohol or controlled substances; adult drug court; all infraction and ordinance violations; and various civil matters.[76]

Lawrence County uses a public defender office as its primary method of providing representation in indigent cases, and where necessary an assigned counsel system of attorneys paid hourly as a secondary system. The Lawrence County Public Defender Agency began operations on October 1, 2010.[77] The county provides a large office space for the agency, which is located a short drive away from the courthouse and the jail. The office makes extensive use of student interns, and it employs one full-time executive assistant and one full-time office manager in addition to its attorneys.

As of May 2015, the office employed six full-time attorneys including the chief public defender. Each of the six attorneys has primary responsibility for a particular court and case type: one is CHINS/TPR; one is juvenile delinquency; two divide the major felonies in one superior court; the chief public defender divides the felonies in the other superior court with the sixth attorney who also handles all appeals for the office. In addition to this primary area of responsibility, all of the office attorneys represent codefendants in other courtrooms as needed. The county operates three problem-solving courts, and a public defender office attorney is assigned to each of them. The public defender office attorneys are literally full-time – they cannot operate private law offices and they cannot represent clients outside of the Lawrence County public defender system.

Public defender office attorneys handle most all of the conflict cases in the county’s courts, including cases involving codefendants. In a multi-defendant case, each codefendant is assigned to a different public defender office attorney until the office runs out of attorneys who are sufficiently qualified to handle that level of case. When there are not enough attorneys to handle all of the codefendants in a single case, the public defender office assigns the additional codefendants to private attorneys (they have a group of six that they regularly use) and pays these attorneys an hourly rate of $70 plus travel costs (from the public defender office budget).

Read more about Conflict Cases in Lawrence County.

Lawrence County has a three-member public defender board. The county commissioners appoint one member, and the felony and juvenile judges by majority vote appoint the other two, who must be from different political parties.[78] The board meets quarterly unless there is special business. They are always “happy for the chief to come to them when he needs to.” The board’s official responsibilities include establishing policies and procedures for the provision of indigent defense, establishing guidelines for determining indigency and reimbursement by indigent defendants, recommending an annual budget for the public defender agency and monitoring its expenditures, and submitting an annual report on the operations of the agency to the county council.[79] The board has not, however, created indigency determination or recoupment guidelines, and the last annual report was in 2012. Overall, the public defender board sees its role as following the recommendations of the chief public defender and acting as consultants when he comes to them with issues such as potential attorneys to be hired or to inform them of high caseload numbers. The board approves new hires of all attorney and non-attorney staff for the public defender office, on recommendation of the chief public defender.

The chief public defender goes to the county council each year to advocate for the public defense budget and also oversees the budget for public defense throughout the year. The public defender budget includes funding for staff salaries and benefits, conflict counsel, experts, training, and necessary case-related expenses such as transcripts, postage, and travel.

Funding for public representation is in the budget of the public defender office and additionally from the supplemental public defender services fund. State law requires that every county must have a non-reverting supplemental public defender services fund, and money in the fund “may be used only to supplement the provision for court appointed legal services and may not be used to replace other funding of court appointed legal services.”[80] In 2014, Lawrence County transferred $34,000 from its supplemental public defender services fund (see * in table below), but it is unclear what fund the county transferred this money to.[81] From its general fund in 2014, the county spent $496,975.07 for representation of the indigent,[82] providing a per capita annual expenditure of $10.77 for the county’s population of 46,134.[83]

Source: Indiana Gateway Report.

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[expandsub2 title=”Elkhart County” tag=”h5″]
Elkhart County has never participated in the non-capital indigent expense reimbursement program. The county considered joining the reimbursement program when the state first established it in 1995, but county officials did not trust that the funding would be consistent and feared the cost to meet standards might not be worth the reimbursement.[84] The county has submitted requests and been approved for reimbursement in indigent capital cases in four quarters over the history of the capital reimbursement program.[85]

Elkhart County has one circuit court and one superior court.[86] The superior court is divided among six judges, with four sitting at the Elkhart courthouse and two sitting at the Goshen courthouse.[87] The judges have divided the caseload roughly as follows:[88]

Elkhart County has a public defender office as its primary method of providing representation to indigent defendants. The office represents all defendants charged with misdemeanors and felonies in the circuit and superior courts, as well as juvenile delinquency, CHINS, and TPR cases in the juvenile court. The office is divided into three units, each with its own office location: Elkhart Public Defender Office, Elkhart Juvenile Office, and Goshen Public Defender Office. The county provides office space: in Elkhart the juvenile and adult offices are located on two different floors of the courthouse; and the Goshen office is located in the courthouse there.

The office employs the chief public defender who is full-time, eight full-time attorneys, seven part-time attorneys, two full-time investigators, five full-time support staff, and three part-time support staff. Each attorney is assigned to handle indigent cases in one or more specific courtrooms. Both the full-time and the part-time office attorneys receive county health insurance benefits. The office’s part-time attorneys are allowed to maintain their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

Public defender office attorneys handle most conflict cases, including cases involving codefendants. For any conflict in a particular courtroom, the chief public defender appoints a public defender who is regularly assigned to a different courtroom.

Elkhart County created a three-member public defender board in 2012, although it is not required to have a board since it does not participate in the state’s non-capital reimbursement program. Views differ about why the county took this step, but everyone generally agrees that the board provides some insulation between the judges and the public defender office, giving judges a place to voice any complaints about the public defense system and giving the chief public defender independence from the judges. The judges appoint two members of the public defender board and the county commissioners appoint the third. The two members appointed by the judges are lawyers: one is a former prosecutor; the other is a former public defender. The county commissioners’ appointee is the county commission president, who is a businessman and not a lawyer. The board meets quarterly and as requested by the chief public defender, and the chief public defender apprises the board of developments in the office.

The chief public defender, with guidance from the public defender board, administers the county’s indigent defense system. He hires the public defender office staff. He also prepares the requested budget for the public defense system and shares it with the public defender board to get feedback before presenting it to the county council. The public defender office budget includes salaries for staff and a small amount for hiring experts.

Funding for public representation is in the budget of the public defender office and additionally from the supplemental public defender services fund. In 2014, the county spent $1,102,142.50 for representation of the indigent;[89] with a 2010 population of 197,559,[90] this is a per capita annual expenditure of $5.58.

Source: Indiana Gateway Report.

[/expandsub2]
[expandsub2 title=”Lake County, criminal division” tag=”h5″]
Lake County adopted its ordinance on July 7, 1998, establishing a public defender board that is responsible for the provision of indigent representation before only the four judges assigned to the criminal division of superior court.[91] Lake County applied and was approved for participation in the non-capital reimbursement program on December 17, 1999,[92] limited to those four criminal division benches.[93] Lake County’s comprehensive plan similarly covers the provision of indigent representation only before these four judges.[94] Of the $11,870,213 that the Commission has reimbursed cumulatively to all counties for capital indigent defense from July 1, 1989 through June 30, 2014, Lake County received $1,755,070 (15%).[95]

Lake County uses a public defender office as its primary method of providing public defense in only the four courtrooms of its superior court criminal division. The county provides inadequate office space for the public defense system, in four separate physical locations spread throughout the courthouse. One area is an administrative and executive office, one area is for staff public defender attorneys and their support staff, one large room is used collectively by the conflict attorneys and their support staff, and a fourth area is called the “court reporter office” and is used for taking depositions. None of the areas allocated to the public defense system allow for confidential meetings between attorneys and clients, so they are relegated to searching out any empty rooms they can find in the courthouse for this purpose.

The county’s comprehensive plan says that it uses an “assigned counsel system of panel attorneys” to handle conflict of interest and overflow cases in these four courtrooms. In fact, though, the public defender office contracts with a number of attorneys to provide conflict and overflow representation at an hourly rate.

The office is headed by a chief public defender. The chief public defender, deputy chief public defender, and an executive director make up the executive administration for the office and the overall public defense system. They are all full-time county employees who are paid a salary and receive county health and retirement benefits. As of 2015, in addition to the three executive administrators, the public defender office had a total of 51 attorneys and 14 support staff. All 51 of the attorneys are allowed to maintain their own private law offices and can represent an unlimited number of private clients, in addition to their public defense clients.

Twenty-three of the public defender office attorneys are considered “staff attorneys.” Nineteen of them are trial attorneys and four are appellate attorneys. As of 2015, they are each paid an annual salary of $34,505 (this represents an increase of $3,000 per year over 2014). The county treats them as full-time county employees and they receive county health insurance and retirement benefits. None of these attorneys actually work full-time in the county’s public defense system. The trial attorneys are each assigned to one court day a week in a particular courtroom, and the appellate attorneys are each assigned to the appeals arising out of a particular courtroom.

Eight of the public defender office attorneys are considered “overflow attorneys,” and each one is assigned to one court day a week in a particular courtroom. Twenty of the public defender office attorneys are considered “conflict attorneys:” nineteen of them are trial attorneys who are appointed case by case as needed, and one is an appellate attorney who handles the appeals arising out of cases assigned to the overflow and conflict trial attorneys. All 28 of the overflow and conflict attorneys receive county retirement benefits, but they do not receive county health insurance. They are under contract with the public defender office to provide representation as requested by the office – either a certain court day and cases they are allotted for the overflow attorneys, or for the conflict attorneys only the cases they are allotted. Each of these attorneys is paid $90 per hour for their time, with a yearly cap on the maximum amount they can be paid depending on the level of felony case they have the qualifications to handle. The annual cap is $20,000 for class D and C felonies; $25,000 for class C and B felonies; and $30,000 for class B and A felonies. The attorneys can bill monthly or quarterly, in six-minute increments, and the public defender office executive director reviews the bills before the public defender office pays them. The public defender office’s deputy chief public defender oversees the conflict system.

All conflicts are handled within the public defense office system. For multi-defendant cases, a staff attorney is assigned to the first defendant, and overflow and conflict attorneys represent all of the codefendants. The conflict attorneys and their support staff are instructed to maintain confidentiality of each codefendant’s case, though all of the conflict attorneys share one paralegal and one investigator.

Lake County has what is known as the “Criminal Division Public Defender Board.”[96] It has five members who each serve a three-year term.[97] Aside from the two members appointed by the county council and the county commission, members cannot hold elected or salaried public office or office in a political party or organization, nor can they be employees of the state. In 2015, the board was made up of three criminal defense attorneys, a county commissioner, and a county councilmember.

The board has authority only over indigent defense in the superior court criminal division; that is, over the policies, procedures, and funding of representation provided by the office of the public defender including its conflicts panel.[98] The board is also responsible for hiring the chief public defender. The board is required to meet at least quarterly.[99] The public defender office executives appear before the board at each meeting to “keep them in the loop,” discussing issues they are dealing with and presenting the caseload numbers to submit to the Commission for that quarter. The board does not provide much oversight, since there is a lot of consensus and the board usually agrees to whatever the public defender administration thinks is best.

The chief public defender in effect runs the public defense system in Lake County’s criminal division. He hires all public defender office staff and determines which attorneys the office contracts with for overflow and conflicts. He prepares the budget for the office each year and presents it to the county council. The council frequently denies the public defender office’s requests for increases in compensation and for additional positions.

Funding for indigent defense in the four criminal division courts is in the budget of the public defender office, taken from at least the general fund, the gambling admission fund, and the supplemental public defender services fund.[100] The public defender office budget, as authorized by the county council, includes funds for the office employees’ salaries, compensation of contract lawyers (overflow and conflict), and case related needs such as court reporters, experts, social workers, and extra investigators. In 2014, the county spent $2,566,185.25 for indigent defense in the four criminal division courtrooms.[101] Added to the expenditures of the county division and juvenile division, Lake County overall spent approximately $3,414,685.25 for indigent defense in all courts of the county in 2014. With a population of 496,005,[102] this is annual per capita spending of $6.88.

[/expandsub2]
[expandsub2 title=”Marion County” tag=”h5″]
Marion County adopted its ordinance establishing a public defender board and the Public Defender Agency for the county in February 1993.[103] It was among the first three counties approved by the Commission for participation in the non-capital reimbursement program on June 8, 1995,[104] and it has continuously applied and been approved for reimbursement ever since. Of the $11,870,213 that the Commission has reimbursed cumulatively to all counties for capital indigent defense from July 1, 1989 through June 30, 2014, Marion County was paid $3,830,027 (32%).[105]

Marion County has one circuit court and one superior court.[106] The superior court has 36 judges[107] divided among four divisions: civil, criminal, probate, and juvenile.[108] The Marion County courts are highly specialized by type of case.[109] As of June 2015, the judges had divided the caseload, by random assignment within a particular group of courts based on case type, roughly as follows:[110]

The city-county council approves the comprehensive plan for the provision of public defense services,[111] and it legislated that legal services for indigent people be provided by the Public Defender Agency.[112] The agency’s chief public defender must stand for annual confirmation by the city-county council, which also sets his salary.[113] The ordinance adopted by the city-county council is much more comprehensive than that of other counties. It includes criteria for establishing defender training, early appointment of counsel, vertical representation, independence of appellate counsel, and more. In short, the political branches of Marion County have retained much power over the operations of indigent representation.

The Marion County Public Defender Agency (“MCPDA”) is a large and highly structured public defender office. It is responsible for representation of indigent people in all of the courts in Marion County. The county provides extensive office space to the MCPDA on several floors of a building located about half a block from the county courthouse. The county also provides separate office space for the agency’s juvenile delinquency and CHINS/TPR attorneys in a new building adjacent to the juvenile court and detention center.

The office employs approximately 150 staff attorneys assigned to specialized divisions and at least 78 support staff, including paralegals, social workers, investigators, a deposition unit, Spanish-language interpreters, and a training department. By far most of the attorneys are full-time salaried employees who do not have outside law practices. Salaried staff attorneys are allowed to carry a minimal number of private cases, in addition to their public defense clients, calculated on a weighted points basis. They must report their private caseloads to the agency quarterly. As of 2015, only ten of the agency’s staff attorneys had any private cases, and the maximum number they are allowed to handle is ten to eleven at a time.

There are three types of attorneys who work under contract, rather than salary. First, a very small number of staff attorneys have been with the agency since before the current chief public defender took his position. These contract staff attorney are engaged through flat-fee contracts and are limited to only 50% of a full-time caseload because they work out of their private law offices and are allowed to have a private practice. As these lawyers leave the public defender office, the chief public defender intends to replace them with salaried employees. Second, the office has flat-fee contracts with 28 attorneys to handle conflicts in adult criminal and juvenile delinquency cases. Third, the office has flat-fee contracts with (or openings for) 20 attorneys who are assigned to CHINS/TPR teams to handle conflicts,[114] and an additional number of attorneys to handle conflict appeals.

Staff attorneys are assigned to specialized departments within the agency, with a progression track through the departments as attorneys gain experience and training.

The misdemeanor unit has three supervisors, nine or ten attorneys and another approximately nine certified interns, and eight paralegals.
The domestic violence unit has one supervisor, eight attorneys, and three paralegals (though one of these paralegals is shared with the level 6 felony unit).
The level 6 felony (formerly D felony) unit has two supervisors, 33 attorneys (one of whom handles only Title IV-D cases), and seven paralegals.
The major felony drug court team has twelve attorneys and three paralegals.
The major felony (non-drug) unit has two supervisors, 42 trial attorneys, 17 paralegals, and one mitigation specialist.
There is a problem-solving unit with three attorneys who staff the problem solving courts’ teams and also handle all mental competency proceedings.
The juvenile delinquency unit has one supervisor, 12 full-time attorneys, two paralegals, and two social workers.
The CHINS/TPR unit has two supervisors, 16 attorneys, six paralegals, and twelve social workers.
The appeals unit has 11 attorneys and four paralegals.
For office-wide support, there are two investigators, three court reporters, and two interpreters, among others.

The attorneys in each department are assigned to specific courts. Individual cases allotted to those courts are assigned to individual attorneys within the departments that staff them in varying ways depending on the department and courts. All agency staff attorneys except those in the misdemeanor unit track their time for all cases except probation revocation cases.

Conflicts are handled through a managed system of flat-fee part-time contracts. The conflict system for adult criminal and juvenile delinquency cases is supervised by an attorney who is under a part-time contract to the public defender office but works out of a separate location. One paralegal, employed by the public defender office, is assigned to the adult and juvenile conflict system. The agency contracts with 28 attorneys in total, including the supervisor: six attorneys for juvenile delinquency; 12 attorneys for misdemeanors and level 6 felonies; and ten attorneys for major felonies. As with the staff attorneys, the manner in which the conflict attorneys are allotted individual cases varies depending on the type of case and the courts in which they accept cases. The agency decides when it has a conflict and cannot represent a defendant. In multi-defendant cases, codefendants are automatically presumed to have a conflict in major felony cases, but in all other cases it is up to the agency staff attorney to decide whether a conflict exists. If a witness in a case is a prior client of the agency, the agency will appoint conflict counsel for the defendant, but these types of conflicts rarely come to the attention of the agency until the agency attorney receives discovery in the case. These 28 adult and juvenile conflict attorneys all work out of their own private law offices and may represent an unlimited number of private clients, in addition to their public defense work.

Marion County has an active, bipartisan nine-member public defender board, with four members appointed by the city-county council, four members appointed by the judges, and one member appointed by the mayor.[115] Board members serve for three-year terms, and most are re-appointed when their terms end.

The board is required to meet four times per year, although it usually meets upwards of six times. The chief public defender is present at all meetings, which are open to the public. In general, the public defender board’s job is to review the policies and procedures of the chief public defender[116] and to monitor the budget.[117] The chief public defender presents to the board issues that arise in the office, the state of the office’s budget every quarter, public defenders’ private caseloads, and the quarterly compliance reports to submit to the Commission. The chief public defender also comes to the board when he wants its help designing policies and when the council votes to cut portions of the public defender office’s budget to discuss how to implement those cuts. The board is responsible for hiring the chief public defender when the position is vacant, and the city-county council must approve the hire. Annually, the board reapproves by vote the continuance of the existing chief public defender in that position.

The chief public defender, with guidance from the board, oversees the entire public defense system in the county. He is responsible for all hiring and firing within the MCPDA and for selecting the additional and conflict attorneys with whom the agency contracts. The agency has a highly formalized process for hiring and training new attorneys.

Each year, the chief public defender presents a budget proposal to the board for its approval and then advocates for that budget with the city-county council public safety committee during the regular budgeting cycle and on other occasions when the office needs more money. The public defender office budget does not include funding for death penalty representation. When the office is assigned to a capital case, it must go to the city-county council to request additional money to cover the huge attorney fees. The public defender office has a standing agreement with the city-county council that the council will cover the costs of capital case representation, however until the city-county controller puts the money in the office’s budget, the office does not technically have the funds. The public defender board regularly hosts golf outings to raise funds to establish a capital attorney division within the office.

The office’s budget also does not include any funding for training. The MCPDA training department conducts an annual fundraiser and charges a minimal fee for attendance by outside attorneys at its training programs to raise money to provide training to its staff and contract attorneys.

Funding for public defense is set by the city-county council in the budget of the public defender office and additionally from the supplemental public defender services fund. State law requires that every county must have a non-reverting supplemental public defender services fund, and money in the fund “may be used only to supplement the provision for court appointed legal services and may not be used to replace other funding of court appointed legal services.”[118] Despite this, Marion County had a negative balance in its supplemental public defender fund during at least 2013 and 2014 (see ** in table below). It is unclear how this fund could ever come to have a negative balance. The county spent $19,099,176.37 for representation of the indigent in 2014,[119] providing a per capita annual expenditure of $21.14 for the county’s population of 903,393.[120]

Source: Indiana Gateway Report.

[/expandsub2]
[/expand]
[expand title=”Footnotes” tag=”h4″]
^[1] For crimes, see generally Ind. Code §§ 35-31.5-1-1 through 35-52-36-28 (2015). For delinquency, see generally Ind. Code §§ 31-37-1-1 through 31-37-25-5 (2015).

^[2] See Ind. Code §§ 31-34-1-1 through 31-34-25-5 (2015).

^[3] See Ind. Code §§ 31-35-1-1 through 31-35-6-4 (2015).

^[4] See Ind. Code §§ 12-26-1-1 through 12-28-5-19 (2015).

^{^[5]} See Rules of Court, available at https://www.in.gov/judiciary/2695.htm.

^{^[6]} Ind. Code § 33-40-7-5 (2015) (applicable to most counties participating in the non-capital reimbursement program); Ind. Pub. Def. Comm’n, Standards for Indigent Defense Services in Non-Capital Cases, Standard B (as amended through June 18, 2014) (applicable to all counties participating in the non-capital reimbursement program).

^{^[7]} Comprehensive Plan for Indigent Defense Services in Blackford County (Feb. 2, 1999), provided by the Commission.

^{^[8]} Ind. Pub. Def. Comm’n, Minutes (Feb. 16, 1999).

^[9] Ind. Code §§ 33-33-5-1 et seq. (2015) (Blackford County); Local Rules of Practice (Revised) for the Courts of Blackford County, Indiana, Rules LR05-AR1(E)-6, LR05-CR00-201 (rev. July 1, 2014).

^{^[10]} Id.

^{^[11]} In 2015, the board president was also the county treasurer, and another board member was simultaneously a member of the county council.

^{^[12]} Blackford County Public Defender Board Minutes, as provided by the president of the board.

^{^[13]} According to the county auditor, the only receipts into the supplemental public defender services fund are the reimbursements received through the Commission.

^{^[14]} Indiana Gateway Report, available at gateway.ifionline.org. Additional financial information on 2014 public representation expenditures was provided by the Blackford County Auditor, in the form of a “Budget Status” report showing 2014 totals expended for “Pauper Attorneys” from the budgets of the two courts and from the supplemental public defender services fund.

^{^[15]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[16]} Ind. Pub. Def. Comm’n, Minutes (Feb. 16, 1999).

^{^[17]} County council members thought the county received less reimbursement than it was entitled to. “We were frustrated with the state program for many years,” said one council member. Another council member offered, “Never once did they [the state program] reimburse us the amount they owed us.” The consensus was “they never paid what they promised.” “And then the state came along and said we needed to hire more public defenders to meet their caseload standards,” explained a council member. “We did try to participate, but it was hard to pay for the level they were asking.” A judge explained: “To hire the three new public defenders, while also anticipating the reimbursement the county would get from the state, we came to the conclusion that it would be cheaper to leave the state program.” “Finally, we left,” said a council member.

^{^[18]} Comprehensive Plan for Indigent Defense Services in Scott County (Feb. 8, 1999).

^{^[19]} Id.

^{^[20]} See, e.g., Contract for Public Defender Services for 2007 calendar year, provided by the Scott County public defender administrator.

^{^[21]} See, e.g., id.

^[22] Ind. Code §§ 33-33-72-1 et seq. (2015).

^{^[23]} Scott Circuit and Superior Court Local Rules, Rules LR72-CR2.2-1, LR72-AR1-4.

^{^[24]} Id.

^{^[25]} See, e.g., Contract for Public Defender Services, between Jennifer Lewis and Scott County Public Defender Board, covering term of January 1, 2007 through December 31, 2007.

^{^[26]} See, e.g., Contract for Public Defender Services, between Murielle S. Webster Bright and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[27]} See, e.g., Contract for Public Defender Services, between Raleigh Campbell and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[28]} See, e.g., Contract for Public Defender Services, para. V, between Raleigh Campbell and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015; Contract for Public Defender Services, para. V, between Murielle S. Webster Bright and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[29]} See, e.g., Contract for Public Defender Services, para. V, between John Dietrich and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[30]} See, e.g., Contract for Public Defender Services, para. III, between Raleigh Campbell and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[31]} See, e.g., Contract for Public Defender Services, para. III, between Murielle S. Webster Bright and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[32]} See, e.g., Contract for Public Defender Services, para. IV, between Raleigh Campbell and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015; Contract for Public Defender Services, para. IV, between Murielle S. Webster Bright and Scott County Public Defender Board, covering term of January 1, 2015 through December 31, 2015.

^{^[33]} Indiana Gateway Report, available at gateway.ifionline.org. Additional financial information on 2014 public representation expenditures was provided by the Scott County Auditor in the form of a report showing total 2014 expenditures for each line item under “Public Defender” from the general fund.

^{^[34]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[35]} Ind. Pub. Def. Comm’n, Minutes (Sept. 7, 1995). The other five were Clark, LaPorte, Marion, Miami, and Orange counties. Ind. Pub. Def. Comm’n, Minutes (June 8, 1995 and Sept. 7, 1995).

^{^[36]} Ind. Pub. Def. Comm’n, Minutes (Sept. 11, 2013; Dec. 11, 2013; Mar. 19, 2014).

^{^[37]} The public defender board and county council believed that, in order to comply with Commission standards, the county would have to substantially raise public defender compensation and would barely break even with reimbursements, or would have to hire additional attorneys. The county could not see a way to comply with Commission standards on caseloads and also keep the public defense attorneys in the courts they needed to be in based on the Commission standards on qualifications. The county considered creating a public defender office, but the county council did not believe it was economically feasible. Finally, the county was not receiving as much money from the Commission as it expected. Overall, the county council believed the county would benefit financially by discontinuing participation in the non-capital indigent expense reimbursement program. According to judges and lawyers alike, nothing has changed in the county (so far) since the county withdrew from the reimbursement program. One former contract defense attorney, though, said the county left the reimbursement program because it wanted to show the public defenders who is boss and did not want the public defenders to feel “in control” of the system.

^{^[38]} The public defense administrator was responsible for reporting the caseloads to the Commission and had difficulty understanding the Commission’s rules for how to count cases. For example, the administrator thought each attorney could carry 100% of a caseload, but the Commission said it was closer to 75% of a caseload that each attorney was allowed. When a defendant was charged in multiple docket numbers, the administrator understood the county was supposed to only count the highest charged docket number, but the Commission counts and reimburses for all docket numbers, so the county was under-counting the number of cases. When the public defender board asked the administrator in 2012 how many defense attorneys were needed for the county’s overall caseload, the administrator estimated seven based on the misunderstanding of the caseloads allowed to each attorney, when in fact more defenders were required according to the Commission.

^{^[39]} The county encountered problems when the Commission changed its guidelines about how much the public defense attorneys had to be paid.

^[40] Ind. Code §§ 33-33-54-1 et seq. (2015).

^{^[41]} Montgomery County Local Court Criminal Rules, LR54-CR2.2-1 (Aug. 22, 2014); Montgomery County Local Court Civil Rules, LR54-AR00-1 (Mar. 4, 2014).

^{^[42]} Id.

^{^[43]} Id.

^{^[44]} See sample Contract for Legal Services for Indigent Defendants, provided by Montgomery County public defense administrator.

^{^[45]} See id.

^{^[46]} See, e.g., Contract for Legal Services for Indigent Defendants, between Sarah Dicks and Montgomery County Public Defender Board, covering term of January 1, 2013 through December 31, 2015.

^{^[47]} See, e.g., Contract for Legal Services for Indigent Defendants, between Christopher Redmaster and Montgomery County Public Defender Board, covering term of January 1, 2013 through December 31, 2015.

^{^[48]} Contract for Public Defender Administrator, between Sarah Dicks and Montgomery County Public Defender Board, covering term of January 1, 2013 through December 31, 2015.

^{^[49]} See sample Contract for Legal Services for Indigent Defendants, provided by Montgomery County public defense administrator.

^{^[50]} See id.

^[51] Ind. Code §§ 33-40-3-1 through -10 (2015). The circuit court judge referred to a “supplemental fund” with a balance of approximately $33,000, which he said is used to pay for experts and appeals and which is never depleted by the end of the year. This appears to correspond to a line-item in the general fund designated as “public defender add’l serv” 1000.0271.430.431.0.0012. See GL Account Ledger – Detail by Date Range (Current and History) 01/01/2014 through 12/31/2014, for Public Defender Add’l Serv 1000.0271.430.431.0.0012, as provided by the Montgomery County Auditor.

^{^[52]} Indiana Gateway Report, available at gateway.ifionline.org. Additional financial information on 2014 public representation expenditures was provided by the Montgomery County auditor, in the form of a “GL Account Ledger” report itemizing all expenditures from the general fund for: public defender (capital cases); public defender contract; public defender add’l serv; public defender administrator; and pub. def commission.

^{^[53]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[54]} Ind. Pub. Def. Comm’n, Minutes (Aug. 17, 1997; Jan. 31, 2001; Dec. 5, 2001).

^[55] Ind. Code §§ 33-33-87-1 et seq. (2015).

^{^[56]} Warrick County Circuit and Superior Courts Local Rules of Practice and Procedure, LR87-CR2.2-9 (July 2, 2014).

^{^[57]} Id.

^{^[58]} Id.

^{^[59]} Id.

^{^[60]} Warrick County Circuit and Superior Courts Local Rules of Practice and Procedure, LR87-CB-1 (July 2, 2014).

^{^[61]} For example, one judge pays $70 to $80 per hour in LWOP murder cases; another judge pays a flat rate of $2,000 for appeals and pays $75 per hour for CHINS, TPR, and murder cases.

^{^[62]} Indiana Gateway Report, available at gateway.ifionline.org. Additional financial information on 2014 public representation expenditures was provided by the Warrick County Auditor, in the form of a “Transaction History” report itemizing all “Pauper Counsel” expenditures from the budgets of the three divisions of court and all expenditures from the supplemental public defender services fund.

^{^[63]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[64]} Ind. Code §§ 33-40-6-4(c), 33-40-7-1(3) (2015).

^[65] Ind. Code §§ 33-33-45-1 et seq. (2015).

^{^[66]} Ind. Code § 33-33-45-21 (2015).

^{^[67]} Lake County, Indiana, Local Court Rules, LR45-AR1-01, LR45-C.R.2.2-1(A)(3) (2015). The circuit court and other superior court benches handle civil matters that do not involve appointed counsel, other than proceedings to determine mental health.

^{^[68]} There was talk a few years ago of the county division participating in the non-capital reimbursement program and setting up a county division public defender office, but it did not work out. One attorney who provides representation in the county division believes clients would be harmed if the county established a public defender office for the county division, because a full-time office would only attract brand new attorneys and would likely have high turnover. The juvenile court judge is opposed to participating in the reimbursement program, even though the county is forfeiting the 40% reimbursement it could be receiving for juvenile delinquency, CHINS, and TPR cases. He would be willing to participate in the program if the state were to reimburse 100% of the county’s juvenile representation costs, but otherwise he is very comfortable with the current system of providing public representation in the juvenile division.

^{^[69]} In Lake County, county division room 2, of the five public defenders, four are listed as attorneys and the fifth is listed (and thus paid) as a “paralegal.” Instead of the $28,500 most contract attorneys are paid, the fifth lawyer receives $22,000 per year. Because they are all considered private contractors, however, none knows of the disparity.

The juvenile division judge advised that the ten contract attorneys for the juvenile division were paid $32,000 annually as of 2015.

^{^[70]} The 2014 expenditures from these five courts are estimated because the available financial information does not sufficiently itemize line item expenditures to show the exact amounts paid. One of the public defender positions in county 2 was vacant for some period of time. Each of these courts may have additional line items in their budgets from which expenditures were made in 2014 for public defense, such as for experts or out-of-pocket expenses in individual cases.

^{^[71]} Lawrence County Public Defender Ordinance, Ord. No. 04 (Aug. 3, 2010).

^{^[72]} Ind. Pub. Def. Comm’n, Minutes (Sept. 22, 2010). Amended Comprehensive Plan for Indigent Defense Services in Lawrence County, Indiana (Dec. 9, 2014), provided by the Commission.

^[73] Ind. Code §§ 33-33-47-1 et seq. (2015).

^{^[74]} Lawrence County Criminal Rules, LR47-AR00-002, LR47-AR00-002.5 (rev. July 1, 2014).

^{^[75]} Id.

^{^[76]} Id.

^{^[77]} Lawrence County is believed to be the smallest Indiana county with a full-time public defender office.

^{^[78]} “Amended Comprehensive Plan for Indigent Defense Services in Lawrence County, Indiana,” Appendix A, Lawrence County Public Defender Ordinance No. 04, section 3(a) (Aug. 3, 2010).

^{^[79]} Id., at section 4.

^[80] Ind. Code §§ 33-40-3-1 through -10 (2015).

^{^[81]} Indiana Gateway Report, available at gateway.ifionline.org.

^{^[82]} Id.

^{^[83]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[84]} Over time, county officials saw that the state frequently failed to reimburse counties for the amount that had been promised. One judge has been advocating for the county to do an assessment and determine formally whether participating in the program could save the county money while simultaneously improving public representation by lowering caseloads. Today the county continues to believe that it might cost more to meet Commission standards than it would receive in reimbursement from the state, and some fear that the changes the Commission would require would not be in the best interests of the public defender office attorneys or indigent defendants.

^{^[85]} Ind. Pub. Def. Comm’n, Minutes (Sept. 16, 1996; Feb. 19, 1997; May 12, 1999; Sept. 15, 2005).

^[86] Ind. Code §§ 33-33-20-1 et seq. (2015).

^{^[87]} Ind. Code § 33-33-20-4 (2015).

^{^[88]} Elkhart County Rules of Court, LR20-AR00-NAFC-2(C), (D) (2015).

^{^[89]} Indiana Gateway Report, available at gateway.ifionline.org.

^{^[90]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[91]} Lake County, Indiana, Code of Ordinances § 31.195 (2014) (Ordinance 1181A, passed July 7, 1998, established public defender board for the Superior Court of Lake County, Criminal Division).

^{^[92]} Ind. Pub. Def. Comm’n, Minutes (Dec. 17, 1999).

^{^[93]} Lake County, Indiana, Code of Ordinances § 31.195 (2014) (Ordinance 1181A, passed July 7, 1998, established public defender board for the Superior Court of Lake County, Criminal Division); Lake County Public Defender Board, Comprehensive Plan for Indigent Defense Services in Lake County, para. B.2.a. (May 20, 1999).

^{^[94]} Lake County Public Defender Board, Comprehensive Plan for Indigent Defense Services in Lake County, para. B.2.a. (May 20, 1999).

^{^[95]} Ind. Pub. Def. Comm’n, Reimbursements in Capital Cases (Sept. 17, 2014).

^{^[96]} Lake County, Indiana, Code of Ordinances § 31.195 (2014) (Ordinance 1181A, passed July 7, 1998, established public defender board for the Superior Court of Lake County, Criminal Division).

^{^[97]} One appointed by the county council, one elected by the county commissioners, one elected by majority vote of the criminal division public defense attorneys, and two appointed by majority vote of the criminal division judges. Lake County, Indiana, Code of Ordinances § 31.197(A) (2014).

^{^[98]} Lake County, Indiana, Code of Ordinances § 31.198 (2014).

^{^[99]} Lake County, Indiana, Code of Ordinances § 31.197 (2014).

^{^[100]} Indiana Gateway Report, available at gateway.ifionline.org. Additional financial information on 2014 public representation expenditures was provided by the Lake County Auditor, in the form of: an “Expenditure Account Activity” report showing detailed expenditures from all funds for the Public Defender Office dept 4002; and individual “Expenditure Account Activity” reports for the General Fund 001, Public Safety CAGIT fund 010, Gambling Admission fund 196, Supplemental Public Defender fund 405, and the County Cumulative Capital fund 65, showing all expenditures from these funds (not limited to expenditures for indigent representation) for the Public Defender Office dept 4002, the Superior Court Criminal Division dept 4000, the Superior County Division Rooms 1 thru 4 dept 4030, 4040, 4050, and 4070, and the Superior Juvenile Division dept 4100.

^{^[101]} Id.

^{^[102]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.

^{^[103]} Indianapolis – Marion County, Indiana, Code of Ordinances ch. 286 (2015).

^{^[104]} Ind. Pub. Def. Comm’n, Minutes (June 8, 1995).

^{^[105]} Ind. Pub. Def. Comm’n, Reimbursements in Capital Cases (Sept. 17, 2014).

^[106] Ind. Code §§ 33-33-49-1 et seq. (2015).

^[107] Ind. Code § 33-33-49-6 (2015).

^[108] Ind. Code § 33-33-49-14 (2015).

^{^[109]} Marion Super. Ct. Admin. R., Rule LR49-AR00-301.A (2015).

^{^[110]} Marion Super. Ct. Crim. Div. R., Rule LR49-CR2.2-100 (2015). The Circuit Court and other Superior Court benches handle civil matters that do not involve appointed counsel, other than proceedings to determine mental health in probate court.

^{^[111]} Indianapolis – Marion County, Indiana, Code of Ordinances § 286-6 (2015).

^[112] Indianapolis – Marion County, Indiana, Code of Ordinances §§ 286-1, 286-2(1), 286-5, 286-7,  286-8 (2015).

^{^[113]} Indianapolis – Marion County, Indiana, Code of Ordinances § 286-4(4) (2015).

^{^[114]} The agency contracts with 20 attorneys to cover conflict representation in CHINS and TPR cases. These are flat-fee part-time contracts. Each CHINS/TPR conflict attorney is assigned to one of four (or five) teams, along with staff attorneys. The agency staff attorney for a given team is assigned to represent the first parent in any CHINS/TPR proceeding. If additional attorneys are required in the same case, a conflict attorney from a separate team will be assigned to each additional indigent defendant. This is intended to create a barrier between the attorneys representing codefendants in CHINS/TPR cases to preserve confidentiality. These 20 CHINS and TPR conflict attorneys all work out of their own private law offices and may represent an unlimited number of private clients, in addition to their public defense work.

^{^[115]} Indianapolis – Marion County, Indiana, Code of Ordinances § 286-3 (2015).

^{^[116]} The board does not promulgate standards for the office to follow. Instead, as the director comes up with a new issue requiring policy changes, he brings it to the board for approval.

^{^[117]} The budget request is submitted annually to the county, but the board monitors the budget on a quarterly basis.

^[118] Ind. Code §§ 33-40-3-1 through -10 (2015).

^{^[119]} Indiana Gateway Report, available at gateway.ifionline.org.

^{^[120]} Indiana Business Research Center, Indiana Univ., Indiana County-Level Census Counts, 1900 to 2010, in StatsIndiana.
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