WHAT PRICE JUSTICE? Difficulties of facing criminal charges without a lawyer

Posted April 23 2017

Bucks County residents who earn no more than $320 a week qualify for food stamps, public medical insurance and federal assistance to heat their homes.

Montgomery County Chief Public Defender Dean Beer

What they don’t qualify for is free legal representation against criminal charges.

The county’s income cutoff to obtain a public defender is $285 a week for a one-person household, an amount that hasn't changed in almost two years.

The figure is a little larger in Montgomery County, where the income cutoff is just under $348 a week.

While "the assistance of counsel" is constitutionally guaranteed under the Sixth Amendment of the U.S. Constitution, exercising the right can be influenced by financial factors the Founding Fathers probably didn't anticipate.

Pennsylvania is the only state where county government shoulders the entire burden of funding and administering criminal legal defense services for the poor. It is also the only state that lacks oversight and uniform quality standards for indigent criminal representation, leaving funding decisions and income guidelines to the county.

As a result, many defendants who don't qualify for public defenders can pay higher costs and fees and are less likely to have restitution reduced, according to criminal defense lawyers. And many cannot afford fee-based programs like house arrest that can keep them from going to jail.

The situation can be so dire that a number of Bucks County private defense lawyers say they often advise defendants to stay in jail if they can't afford private lawyers or don't qualify for public defenders. In jail, they receive free legal representation, many lawyers said.

Bucks County's income cutoff for a public defender is roughly 125 percent of the federal poverty level, county administrator Stephen Heckman said. The income limit is $14,820 for a single-person household, a level that has been in effect since October 2015. The office doesn't keep records of applicants who are rejected because they don't meet income requirements, but it has never turned down someone who did meet those qualifications, Chief Public Defender Christina King said.

Montgomery County uses 150 percent of the current year’s federal poverty level to qualify for a defender. This year, that is $18,090 for a single-person household. However, a county spokeswoman said exceptions can be made when a low-income defendant faces a serious charge.

“Sadly, in many ways, it’s a two-tier system. Like many other things in life, the underprivileged don’t have access to the same goods and services that well-to-do individuals do,” said Newtown Township criminal defense lawyer Louis Busico. “You have the clash of two competing interests: the fundamental right to counsel and the free market system of supply and demand.”  

Quality of defense

Getting a public defender may not be the end of the struggle, either. 

Last year, the Pennsylvania Supreme Court decided that public defender clients have the right to sue counties to force them to provide adequate funding for public defenders. The ruling involved a 2012 lawsuit by the Luzerne County public defender’s office and the Pennsylvania chapter of the American Civil Liberties Union on behalf of more than 300 criminal defendants, who alleged that chronic county under-funding overwhelmed the public defender’s office and resulted in “sub-Constitutional representation.”

"We’re not talking about a Cadillac; we’re talking about a Ford Escort. We’re talking basic,” said Mary Catherine Roper, deputy legal director of the Pennsylvania ACLU. “It’s basic that your lawyer can meet with you. It's basic to have someone interview witnesses. It’s basic that your lawyer be able to evaluate your plea.”

Staff shortages may lead public defenders to negotiate less advantageous plea bargains to reduce caseloads, a situation the Supreme Court noted in its ruling.

Public defenders also often appear before judges with little advance information about their client’s case, Roper said. They may not get the court paperwork until the night before a preliminary hearing or meet a client for the first time until the hearing. The circumstances leave public defenders in a poor position to evaluate whether a plea offer is in the client’s best interest, Roper explained.

“You are never going to a preliminary hearing cold on a paid case,” Roper said. “I don’t care how good a trial lawyer you are, if you have done nothing but read the police report and have a six-minute conversation with your client, there is only a limited amount you can do. You lose opportunities to exonerate the client or figure out a plea deal.”

A 2011 Pennsylvania task force and advisory committee that examined defense services for the poor found a major reason for the “overuse” of plea bargains is that public defenders often lack the resources to mount an adequate criminal defense.

“There is a high risk that factually innocent defendants will be convicted, legally established defenses will be ignored and substantive constitutional rights will be violated,” the task force reported.

Montgomery County's Chief Public Defender Dean Beer blames lack of funding on the reluctance of state and local politicians to appear "soft" on crime.

“It doesn’t get you votes to fund indigent criminal defense,” he said. “It’s like everything else. No one likes a lawyer until they need one. No one thinks their family is going to need a public defender or indigent defense until they do.”

Defender vs. district attorney 

In Bucks County, the DA's 2016 budget was $6 million. That included $1.74 million for the detective bureau, which included 17 detectives, plus support staff. There were 34 full-time attorneys in the DA's office and 23 full-time attorneys in the public defender's office. 

In Montgomery County, the DA's office had 145 staff members in 2016, including 71 who worked for the county detective bureau. The DA's office had 48 full-time attorneys, explained Kate Delano, communications director for the DA's office. The detective bureau accounts for significantly more than half the DA's budget, she said. The public defender's office had 33 full-time attorneys last year.

Delano said the detective bureau investigates all major cases in the county and supports all 49 police departments with a variety of services that include ballastics analysis and crime scene support. Delano said that office also is charged with investigating allegations that may not result in criminal charges.

Montgomery County DA Kevin Steele cited an investigation of 17 gang-related shootings in Pottstown that resulted in 47 arrests and the ongoing prosecution of actor Bill Cosby for alleged sex crimes as cases that require many staff hours and resources.

Beer said he tries to cap annual caseloads at 300 per public defender, including 100 felonies. “Our caseloads are full,” Beer said. “I’d like to get the caseload numbers down.”

In Bucks County, the annual budget for the DA's office has been consistently double the public defender budget -- and it has received larger annual funding increases. Since 2005, the office has had its budget increase by $2.7 million, while the public defender’s office budget rose $120,000, according to budget data.

During a typical trial term, Bucks County's public defenders handle roughly 200 to 340 cases, roughly half the caseload of the DA's office, according to the county. Four public defenders typically are assigned 50 to 85 clients during the term, said King, the chief public defender. The exception is capital cases, when up to three public defenders can be assigned to one client.

Bucks County assigns seven prosecutors to handle all the criminal cases not assigned to a specific prosecutor. During the August 2016 trial term, the prosecutors were responsible for 718 of 851 cases scheduled, plus any pre-assigned cases the seven had, according to Assistant District Attorney Karen Diaz.

The National Advisory Commission on Criminal Justice Standards and Goals recommends an annual caseload cap per-attorney that “should, in no event, exceed” 150 felonies, or 400 misdemeanors, or 200 juvenile delinquencies, or 200 mental health commitments, or 25 appeals.

And the 2011 Pennsylvania task force report recommended 12 changes, but state lawmakers haven't taken any action, said Lawrence Feinberg, a senior staff attorney for the Joint State Government Commission. It's the primary nonpartisan research organization serving the General Assembly.

In the 2013-14 legislative session, Sen. Stewart Greenleaf Jr., R-12, of Willow Grove, who chairs the Senate Judiciary Committee, introduced a bill to create a state center to oversee and manage criminal defense services for the poor and create statewide standards. He argues that better funding would benefit the court system by reducing backlogs that can lead to delays that end up costing more tax dollars.

In January, Greenleaf reintroduced Senate Bill 61, to create the center. In a memorandum to senators, he noted his proposed $1 million appropriation would spare counties from being sued under the Luzerne County decision for improperly funding public defender services. 

"This appropriation is small in comparison to the costs of longer sentences and greater recidivism, which are the demonstrated consequences of inadequate legal representation," Greenleaf said, adding the center would seek supplemental funding from federal and private sources.

Out of luck

Criminal defense lawyers like Jason Rubinstein, who practices in Middletown, say they often find themselves requesting multiple court continuances to buy clients time to get money for restitution or trial diversion programs. Judges are more inclined to be lenient with defendants who can pay most -- or all -- court costs, fees and restitution up front, Rubinstein and other attorneys said.

Attorney Ron Elgart

Among the biggest complaints private defense attorneys have with programs like accelerated rehabilitative disposition, or ARD, is that it requires higher fees from defendants with private attorneys. The requirement is based on the belief that a defendant who can afford a private attorney can afford higher payments to participate in ARD and other programs. ARD is a pretrial diversion program that allows those with no or very limited criminal records to avoid jail for non-violent offenses and qualify to have their records cleared if they complete the program.    

In Montgomery County, public defender clients pay $500 to $800 in ARD-related court fees and fines, compared to $2,000 for private attorney defendants, according to a county spokeswoman.

ARD clients in Bucks County with a private attorney pay $1,000, while public defender clients pay $500. Bucks defendants who can pay costs and restitution in full before their trial date are also rewarded with a six-month probation period, rather than the typical year, attorney’s said.

Those seeking programs such as ARD can request a hearing before a judge to prove they can’t afford the fees and costs. If the judge agrees, they don’t have to pay the fees and restitution is waived. Bucks County Assistant District Attorney Antonetta Stancu, who oversees Bucks County’s ARD program, couldn't provide data on the number of indigent requests that are sought or granted.

Rules assessing higher fees to those with private attorneys don’t consider the fact that many people who work live paycheck to paycheck, defense attorneys and advocates said.

"This kind of stuff bankrupts families," said the ACLU's Roper. "Given the likelihood you’ll have to (make a guilty) plea -- the fees you will owe -- it's a life-destroying event for a person. You may never recover."

With some cash-strapped clients, Rubinstein said he ends up trading legal representation for services like auto repairs or home improvement work.

One client last year was struggling to raise the upfront money to qualify for ARD, so Rubenstein said he didn't charge her for every court appearance he made on her behalf. “If I had, she would have been completely out of luck,” he added.

Falls defense attorney Ron Elgart participates in a bar association program that refers criminal defendants with incomes just above public defender qualifications to private defense attorneys who will charge them reduced rates. Still, he said, some of those clients can’t afford to pay him.

“I get people referred to me, who after they pay the motel rent and get some food, have about $20 left over," Elgart said. "And somehow, they don't qualify for a PD (public defender).”

Jo Ciavaglia: 215-949-4181; email: jciavaglia@calkins.com; Twitter: @JoCiavaglia

DID YOU KNOW

Bucks County residents who earn too much money to qualify for public representation may be eligible for a special program to help defray their legal costs.

The Bucks County Bar Association’s Marginal Criminal Program was started in 2003 for criminal defendants with annual incomes that exceed the public defender income limits.

People must be referred through the public defender’s office for the program, which connects them with one of the 27 private attorneys who have agreed to charge reduced rates for their services to those in need, according to Lynn Abbonizio, the lawyer referral services administrator for the Bucks County Bar Association.

The fees are determined by the participating attorney, Abbonizio said. Income qualifications for the program are determined by the public defender's office.

Last year, 68 individuals were referred through the program, down from 74 in 2010. The bar association doesn't track how many referrals are accepted by attorneys, Abbonizio said.

Attempted murder suspect, 79, in Evesham case remains jailed despite terminal diagnosis

Posted April 17, 2017

A 79-year-old Camden County man, who doctors say likely has no more than a month to live, will wait two more weeks in state prison before a Burlington County Superior Court judge may consider a motion to dismiss the attempted murder case against him.

The prosecution, defense and judge appeared to acknowledge it is highly unlikely that John Teti, of Barrington, will face trial during a case management conference Monday at the Burlington County Courthouse in Mount Holly. He is charged with the March 2016 near-fatal strangling and assault of his estranged 69-year-old wife outside the Evesham home where she had been living.

Judge Jeanne T. Covert

“This is not someone who can endure trial conditions,” said Burlington County Superior Court Judge Jeanne T. Covert, who is presiding over the case.

The matter will next appear before her on May 1, when the defense is expected to file a motion to dismiss the case.

During his year-plus incarceration awaiting trial on attempted murder and related charges, Teti was diagnosed with lung cancer, which has since worsened and spread to his bones. His health has deteriorated to the point that he was unable Monday to make the hour-long trip from the South Woods State Prison in Bridgeton, Cumberland County, where he has been jailed since last month, to appear in court.

He last appeared before Covert in late January.

John Teti

Burlington County corrections officials transferred Teti to the state prison's palliative care unit because the county jail was unable to meet Teti’s increasing medical needs. So far, county taxpayers have spent more than $340,000 for Teti’s medical care including an extended hospital stay earlier this year where doctors diagnosed him with terminal stage 4 lung cancer.

He was given a life expectancy of no more than three months in late February, according to court documents.

Teti’s attorney, public defender Jennifer Weiler, on Monday confirmed that her client was unable to appear because of his poor health made the trip too difficult.

Medical documents filed with the court contend that he likely could endure no more than a few hours in a wheelchair and his compromised immune system puts him at high risk for infection if he is placed in a holding cell with other inmates awaiting court proceedings.

But Weiler told the court that she has not yet received medical reports from the state prison that she requested three weeks ago that would provide the most up-to-date information on her client’s health. The documents would also be necessary to prepare a motion to dismiss the case.

Burlington County Assistant Prosecutor Rose Mesa told Covert that the state’s position on Teti has not changed and that the state has no “legal basis’ to dismiss the charges against him.

The Burlington County Prosecutor’s Office has fought five bail motions to release him, and two judges have agreed that he should remain incarcerated until trial. The family of Teti’s estranged wife also opposes his release.

Teti’s niece, Debra Loggia, of Evesham, has been seeking to have her uncle released into her custody since doctors gave him the terminal prognosis; she has offered to take him into her home so he can spend his remaining time in comfort. He is jailed in lieu of $250,000 cash bail.

Debra Loggia

His trial was originally scheduled to take place in February but was continued to April because of Teti’s deteriorating health.

In an email Monday, Loggia vowed to demand a full review of the prosecutor’s conduct.

"I was once again deeply disappointed in the Burlington County Prosecutor’s Office and Judge Covert who had the opportunity to dismiss these charges based on the critical nature of my uncle’s condition and the fact that everyone agrees there will never be a trial,” Loggia wrote. “At this point he has weeks to live. This is vindictiveness on the part of the prosecutor’s office and they are just delaying until he dies in jail.”

Evesham woman wants dying uncle, awaiting trial for attempted murder, released

Posted: April 14, 2017

Debra Loggia accepts that her Uncle John will die soon. What the Evesham woman can’t accept is he could die in prison, although he has not been convicted of a crime.

John Teti

Loggia’s uncle, John Teti, 79, of Barrington, Camden County, has been locked up since March 8, 2016, when he was arrested for attempted murder, aggravated assault and related charges for allegedly attempting to strangle his estranged 69-year-old wife.
During his year-plus incarceration awaiting trial, Teti was diagnosed with lung cancer, which has spread to his bones. His health has deteriorated to the point that he was hospitalized for a month earlier this year and learned he has no hope for recovery. The hospital stay delayed his February trial until this month.
Since before doctors delivered the terminal prognosis, Loggia and her husband have sought to have Teti released to their custody. The couple are willing to take him into their home and assume the cost of his medical care, which so far has amounted to more than $340,000 for Burlington County taxpayers, according to documents obtained through an Open Public Records Act request.
“It’s like being in a Kafka novel. There is no due process here,” Loggia said. “My uncle will die in jail without ever having been given his constitutional right to a trial.”
The Burlington County Prosecutor’s Office has fought five bail motions to release Teti, who has a $250,000 cash bail, and two judges have agreed that he should remain incarcerated until trial.
A final conference is scheduled before Superior Court Judge Jeanne T. Covert on Monday, when she will determine if his trial can move forward or if a motion should be filed seeking to dismiss the charges based on Teti’s health.
But as far as Teti's stepson, Peter Corelli, is concerned, he is where he belongs.
“He is an attempted-murder suspect where all the facts point to him,” he said. “As far as we’re concerned, he created a heinous act on my mom, and since March 8 he is where he should be — sick or not sick.”
The situation is an example of what the New Jersey Attorney General’s Office hopes to avoid under the new statewide bail reforms, which took effect Jan. 1. Under the new rules, nearly all defendants are expected to be released without monetary bail after an assessment at their first court appearance, where it will be determined if the person is a flight risk or otherwise community threat. The rules also allow alternatives to incarceration, such as house arrest and electronic monitoring for defendants released on bail.
New rules don't apply
But the new bail rules don’t apply to Teti because he was arrested last year; Burlington County didn’t use electronic monitoring prior to Jan. 1, when bail reform took effect, according to a court administrator.
New Jersey also does not have a specific compassionate release law or court ruling for criminal defendants who are accused — but not convicted — of crimes.
The number of deaths in local jails increased nationally by 18 percent, from 889 to 1,053, between 2011 and 2014, the largest increase since 2008, according to a U.S. Bureau of Justice Statistics report. Illness-related deaths accounted for more than half of all deaths in local jails in 2014, with heart disease as the leading cause, followed by AIDS-related illness, according to the report.
In New Jersey, the number of reported local jail deaths dropped between 2003 and 2011 from 38 to 20, before ticking back up to 34 deaths in 2014, the most recent federal justice statistics available.
Teti was the only inmate with a terminal illness incarcerated at the Burlington County Jail in Mount Holly until recently, when he was transferred to a state prison that could meet his medical needs, according to county spokesman Eric Arpert.
Over the last five years, the county has had only one other terminally ill inmate, and he was also transferred to state prison for hospice care, Arpert said. State law requires the Department of Corrections to assume the cost of housing county prisoners placed in its care, according to state corrections spokesman Matthew Schumann.
While Teti remains in state custody, his criminal case continues through the courts.
The Prosecutor’s Office alleges that Teti went to deliver mail to his wife of 30 years, Joan, at the Evesham home where she lives with Corelli and his family, and attacked her. Authorities allege that Teti fled the scene, leaving his wife unconscious and not breathing when police arrived. Officers were able to revive her through CPR and the use of a portable defibrillator.
Court documents state that Teti called police to report a "dead body" on the front lawn of the home. When Barrington police arrested Teti later that day, he allegedly admitted that he put one hand on his wife's neck but that he never intended to kill her, according to court documents. 
Corelli said his mother was hospitalized for two days after the attack with broken ribs, neck trauma and cuts to her hands from trying to fend off Teti. The assault was the first time Teti allegedly physically abused his mother, he said. Authorities confirm that Teti has no prior criminal record or police record involving domestic violence.

Debra Loggia

Lung cancer diagnosed
When Teti was arrested, the family already knew he had a mass in his lungs, but it was not diagnosed as cancer, Loggia said. After the arrest, Teti complained about chest pain in jail, and a PET scan and biopsy were performed in June and July, according to medical bills the county provided. The biopsy confirmed stage 3 lung cancer, Loggia said.
Her uncle was offered medical treatment, she said. The only treatment available was chemotherapy, but Teti had watched his sister — Loggia’s mother — go through the treatment and didn’t want to have his immune system further compromised while in jail.
During the months after his diagnosis, Teti and Loggia hoped prosecutors would let him plead guilty to third-degree assault so he would be eligible for time served. In December, though, prosecutors made their final offer — second-degree assault, and he’d have to complete more than four of his five-year prison sentence before he’d be eligible for parole, Loggia said.
He turned it down, and a trial was scheduled to start in February.
But when the new year arrived, Teti’s health began a steady decline, Loggia said. She visited the jail on Feb. 8 and learned he had been hospitalized at Virtua Memorial in Mount Holly with pneumonia in late January, a day after his last in-person court appearance, she said.
Doctors determined that the mass on his lung was blocking a bronchial tube that made breathing and swallowing difficult, Loggia said. The cancer was now at stage 4 and had spread to his pelvic bone.
Doctors trimmed his life expectancy from three to five months to no more than three, Loggia said.

Judge Jeanne T. Covert

Covert, the presiding judge of Burlington County's criminal court, agreed to continue the trial to April. Teti received a series of radiation treatments to shrink the mass, allowing him to breathe and swallow, which was considered palliative care, Loggia said.
In an email, Dr. David D. Wilson, with Penn Medicine Virtua Radiation Oncology, who treated Teti and wrote a medical report presented at a Feb. 22 bail hearing, confirmed that Teti has end-stage lung cancer with no chance of remission. 
“He does not have the physical strength to walk around the block. He has an overall poor prognosis. … After completion of this course of radiation, I would recommend that he proceed to hospice and receive no more life-prolonging therapies," Wilson said, according to a copy of a Feb. 16 chart note, which was presented at the bail hearing seeking to lower Teti's bail or release him on his own recognizance.
Prosecutors are aware 
At a Feb. 22 bail hearing, Public Defender Jennifer Weiler, who represents Teti, argued that prosecutors are well-aware of her client's terminal prognosis, according to a copy of a court transcript.
“The idea of putting that trial off to April is the fact that we all anticipate Mr. Teti will be passed by then. He will be dead,” Weiler said. “At that point, knowing this, that we’re all working on that assumption, the bail is to make sure he comes to court. Well, there is no assumption that he will ever come back to court. The assumption is he will pass.”

Jennifer Weiler

Weiler also acknowledged Joan Teti's safety concerns, especially since the two families live about 2 miles away from each other. But she argued that the county has available options to address the concerns, such as ankle bracelet monitoring available under bail reform. Burlington County’s Corrections Department does have ankle bracelets and can use the technology under a judicial order, Arpert said.
“Not because we anticipate him ever leaving the house, but to give some kind of comfort in any possible way that he is not leaving the house and, if he was, if he was to step over that threshold in any manner,” Weiler said. "… It would be known to everyone.”
Burlington County Assistant Prosecutor Rose Marie Mesa agreed that it was likely Teti would not go to trial, but it wasn’t “beyond the realm of possibility,” according to the hearing transcript. She also said Joan Teti has a “legitimate fear” of her husband, and the state alleges in its case that he has a history of following his wife and showing up unannounced at her home.
“He might not be able to walk around the block, but I certainly don’t know whether or not he would be able to rally long enough to go back to the home and finish what he started,” Mesa said.
The need to protect the victim and the seriousness of the charges and the ability to transfer Teti to a state prison that can meet his medical needs were among the reasons Superior Court Judge Robert Kelly gave for denying the bail application on Feb. 22.
“I don’t know what the true physical condition of this man is, other than I know he has a cancer. I don’t know whether that is such that he is unable to physically do anything,” Kelly said, according to a court transcript. “I’m not inclined to release under the circumstances, even though I know he has a serious illness, and there may be some time limitations here on his life as a result.”
Appeal denied
An emergency appeal of the decision was denied on March 31. 
After Teti finished his palliative radiation treatments, he was transferred on March 3 to South Woods State Prison in Bridgeton, Cumberland County, about an hour south of Evesham. The prison has a special palliative care unit. Schumann, the state corrections spokesman, described it as unusual, but not unheard of, for a state prison to accept a county inmate awaiting trial for security or medical purposes.
After the transfer, Loggia said she waited more than two weeks to secure permission to visit her uncle. She alleges that he remains in his cell 24 hours to prevent any interaction. Whenever he leaves his cell, the other inmates in the wing have to be locked in their cells, which Schumann confirmed.
Between visits, Loggia has been able to communicate with her uncle only by writing letters. Schumann confirmed that Teti’s phone privileges have been delayed because of “confusion” over the list of individuals he provided the prison (Loggia claims she is the only person on that call list).
Since the transfer, Loggia has seen her uncle only twice. At the most recent visit, she said his weight had dropped to about 100 pounds.
“He is in excruciating pain from the cancer,” Loggia said. “No one should have to die alone in a cell after having been in jail for over a year with never having the benefit of a trial.”
But Corelli is unmoved by his stepfather’s plight. His priority is keeping his mother safe. While she has recovered from her physical injuries, the emotional scars are fresh.
“She thinks about it every day,” Corelli said. “She is still scared he might show up at the front door.”