Public defenders are on the front lines of the criminal justice system. No one gets a better view of the day-to-day problems in the country’s courts. While much has been said (but less has been done) about the funding crisis in indigent defense services, it’s also vital that public defender offices be free from political pressure.
Montgomery County officials announced Wednesday that the public defender’s office would be under new leadership. But they have yet to explain why Beer and Hudson were terminated, and they didn’t respond to questions I sent to their press office. According to internal emails, letters among Beer, Montgomery County Chief Operating Officer Lee Soltysiak and sources close to the office, however, Beer appears to have been fired primarily because he filed an amicus brief with the Pennsylvania State Supreme Court in a case about how the state implements cash bail.
That brief details how indigent defendants in Montgomery County are often given irrationally high bail, that judges don’t consider a defendant’s ability to pay or the hardship that incarceration before trial will have on their lives, and that bail amounts appear to be more about keeping defendants behind bars than ensuring their appearance at trial. The brief also points out that defendants aren’t provided with counsel before bail is set, and that those who can’t pay are incarcerated for long periods before trial.
It seems pretty clear why Beer’s office filed the brief. It wanted to inform the state supreme court about systemic problems that impose unjust penalties on people who have yet to be convicted of a crime. If the state supreme court rules for the plaintiffs, it will have an enormous impact on indigent defendants in Montgomery County.
Pennsylvania is one of only two states that provide no state funding for indigent criminal defense. All funding for public defenders comes from the counties. This makes the counties’ public defenders wholly dependent on local county officials, who have an interest in making their counties look good. Anything reflecting poorly on the county could be cited as evidence of their mismanagement. A public defender, on the other hand, has a responsibility to his or her clients. For the head of a public defender’s office, that obligation means not only ensuring that individual clients have effective representation, but also addressing broader, systemic issues in the system.
In fact, public advocacy is especially important for a chief public defender, because there are also strong incentives that keep defense attorneys from reporting the systemic problems they experience day to day. If you’re a public defender who notices prosecutorial misconduct or if you encounter a judge who sets unusually high bail amounts, speaking out on those problems could make it a lot more difficult to do your job. If you report a prosecutor for misconduct (complaints that almost always go nowhere), that prosecutor may not offer your other clients favorable plea bargains. And of course, no lawyer wants to get on the bad side of a judge. So as the head of the office, a chief public defender can bring attention to these problems in a way that attorneys on the front lines often can’t.
"I’ve always told our attorneys that if you have a problem with a prosecutor or a judge, if something comes up in a case that’s wrong or unfair, bring it to me and let me deal with it,” Beer said in an interview. “They need to preserve those relationships.”
But if someone doesn’t address the problems, no one ever will. And in a system such as Pennsylvania’s, addressing them can be difficult. “Any time a public defender has to choose between putting food on his family’s table and zealous advocacy for clients, you’re going to have a conflict,” said David Carroll of the Sixth Amendment Center.
Beer and Hudson said Montgomery County commissioners haven’t shown much interest when they’ve tried to draw attention to broader, systemic issues such as immigration or race and policing. The county budgets about three times more funding for the district attorney’s office than the public defender’s, a discrepancy exacerbated by the fact that defense attorneys have to hire investigators, while prosecutors have access to police resources.
This particular controversy began when the American Civil Liberties Union of Pennsylvania and the Philadelphia Community Bail Fund filed a lawsuit in Philadelphia last March over the way the city institutes cash bail. The Pennsylvania Supreme Court quickly agreed to hear the case, and, given the reputation of Beer’s office, asked if he’d write an amicus brief in support of reform.
Beer filed the brief on Feb. 3. It documents numerous instances of excessive bail, including an elderly woman given bail of $5,000 for stealing a bottle of wine, an indigent client incarcerated for 64 days because he couldn’t afford a $5,000 bail for marijuana possession, and a nursing teen mother held on $50,000 for a first offense in a jail that offered no accommodations to allow her to pump or preserve breast milk.
It’s worth noting that the public defender’s office, the county commission and the county’s head judge, Thomas Del Ricci, had been discussing a pilot program to address some of these issues, but the program was in development and had not been implemented.
Two days after the brief was filed, Del Ricci called Beer into his office. Beer said Del Ricci excoriated him and demanded that he withdraw the brief. Beer said Del Ricci threatened to terminate the pretrial services program and to report Beer to the state bar and suggested that he could have Beer fired. He asked Beer, “What are we going to do to fix this?” Beer took that to mean that he should apologize for filing the brief at all. (Del Ricci did not respond to multiple requests for comment.)
Beer said Del Ricci had two substantive complaints about the brief. The first was that it failed to give Del Ricci and the county credit for the planned pretrial program. The second was that in the brief, Beer’s office used the term “routine” to describe how often the county’s judges held indigent defendants on bail of $1,000 or more. Del Ricci told Beer that this happened in only about 15 percent of cases. Whether 15 percent is “routine” is, of course, subjective, and Beer and Hudson said Del Ricci never offered any data to support that figure.
On Feb. 6, Beer met with county officials to talk about what had happened with Del Ricci. Beer said they told him that he had their support and that Del Ricci’s statements were inappropriate. But four days later, the county officials abruptly shifted. Soltysiak sent Beer an email demanding that he withdraw the brief, writing, "the lack of communication both with our office and with courts beforehand was a fatal flaw in the strategy and leaves us with very limited options.”
The implication of Soltysiak’s email is that a public defender’s office should get permission and feedback from not only county commissioners but also from the courts before filing an amicus brief on behalf of clients, even when the subject of the brief is how the county and the courts have treated the office’s clients unfairly.
“I don’t know of any lawyer who would say you should consult with a court before filing a brief,” Beer said. “Especially if the court is the subject of your brief.”
On Feb. 20, Soltysiak sent Beer a scathing letter, scolding for him for not consulting with the commission on the amicus brief, as well as for two other issues, including a project to scan the social media accounts of local police officers for racist, sexist or abusive content. But the letter doesn’t focus on the substance of these actions; rather, it focuses on the fact that Beer and Hudson didn’t ask the commissioners to weigh in before proceeding. But public defenders shouldn’t need to get permission to advocate for clients.
On Feb. 11, Beer reluctantly agreed to withdraw the brief. ″I didn’t want to jeopardize the pretrial program we were working on, and given all the pushback, I just thought it would be in the best interest of our clients to pull the brief," he said.
But even that apparently didn’t assuage the tension. County officials fired Beer and Hudson on Wednesday. On Friday, the county issued a press release in response to “questions from individuals and organizations regarding Montgomery County’s commitment to cash bail reform and to the Public Defender’s office.” The statement details the plans of the pilot program and includes lofty language about the county’s commitment to holistic public defense, but doesn’t mention the firing of Beer and Hudson, who spearheaded the program.
The county commissioners need to explain why the two were fired. As the ACLU of Pennsylvania has called for, there should be “a full accounting as to how and why this decision was made and whether or not the filing of the amicus brief was a factor in the firing of Mr. Beer and Ms. Hudson.” As the chief public defender in Philadelphia told the Philadelphia Inquirer, the firing was “a stunning move that will have a negative, chilling effect on public defenders.”
And as Carroll of the Sixth Amendment Center noted, the blame falls not just on Montgomery County, but also on the state of Pennsylvania: “[The state] provides no mechanism to evaluate whether the people in those counties are getting adequate representation. Pennsylvania is failing in its constitutional obligation.”