The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

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On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.

3 thoughts on “The Most Important Criminal Justice Reform Case You’ve Never Heard Of

  1. Dear Mary Roper, I am one of many in Pa. Who are pulling forvthis reform. My case was hea aer d in Tioga county pa. Where my pd in 2008 told my to plea my case with no chance of fair hearing. He told me that Tioga can and does pick its own jurors for case’s as mine. Said the judge there would convict me with a panel of jurors picked by the defence and prosecutor’s office. Please I need the aclus help. Email me at schlicher3305@gmail.com please. There are so many other victim’s in this county.

    • Dear Mary Roper, I am one of many in Pa. Who are pulling forvthis reform. My case was hea aer d in Tioga county pa. Where my pd in 2008 told my to plea my case with no chance of fair hearing. He told me that Tioga can and does pick its own jurors for case’s as mine. Said the judge there would convict me with a panel of jurors picked by the defence and prosecutor’s office. Please I need the aclus help. Email me at schlicher3305@gmail.com please. There are so many other victim’s in this county.

  2. I myself have been through the pa justice system,spisificly Lackawanna County. I spent quite a few years in and out of prison. Don’t judge, after studying law for several years after being gravely victimized by parole agents. I found it not just offensive to myself but constitutionality offensive as well. Studying law I started with why we declared independence from Great Britain after one hundred sixty three years under there laws. ????. People were oppressed and abuse of power were the norm, until people stood up and even died for this country start anew, as said in our preamble “we the people will perfect s more perfect union. Many other government theories have been around thousands of years, we just took the best from what already existed. This country and local county’s need well studied leaders. We need dedicated men an women to get rid of the workers there to just get a check and go about there life. If you could experience both sides of the law , a law follower and a lawbreakers, you gain a value and wisdom that can’t be passed down it has to be lived and for many years in prison and out on parole. The help I can offer would normally be rejected by those threatened by someone they think less of. However, understaffed is a part of it but there is much more than one key to unlocking this 63 billion dollars industry. People are building careers with there handed down process that we clearly know money just is not the only answer

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