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UNITED STATES EX REL. GREEN v. WASHINGTON

February 23, 1996

UNITED STATES OF AMERICA ex rel. MERVIN GREEN, etc., Petitioners,
v.
ODIE WASHINGTON, et al., Respondents.



The opinion of the court was delivered by: SHADUR

 After the litigants had conducted the protracted discovery that was required for the full presentation of the issues in this class action brought under 42 U.S.C. § 2254 ("Section 2254"), this Court conducted an extended evidentiary hearing on September 26-29, October 2-3 and October 12, 1995 (the "Hearing"). Well after the completion of the Hearing, the parties simultaneously filed proposed findings of fact and conclusions of law, after which each filed a simultaneous response to the other side's initial submission. Finally each side filed a reply, so that the matter has been fully briefed and is ready for disposition.

 In accordance with Fed. R. Civ. P. ("Rule") 52(a), what follows are this Court's Findings of Fact ("Findings") and Conclusions of Law ("Conclusions"). *fn1" To the extent (if any) that the Findings as stated may be deemed conclusions of law, they shall also be considered Conclusions. In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings. In both of those respects, see Miller v. Fenton, 474 U.S. 104, 113-14, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 Findings of Fact

 I. Description of the Petitioner Class

 1. On January 24, 1994 this Court certified this action as a Section 2254 habeas corpus representative action. Petitioners are a class of prisoners in the custody of the Illinois Department of Corrections ("DOC") (Petition P4):

 
(a) each of whom has filed a currently pending appeal in the First District of the Illinois Appellate Court from a non-capital felony conviction in the Circuit Court of Cook County;
 
(c) each of whom has been sentenced to serve no more than 20 years in prison; and
 
(d) in each instance, as to whom either (1) his or her appeal has been pending for one year or more with no opening brief filed on his or her behalf, or (2) he or she has been advised that it will be more than one year after his or her notice of appeal before an opening brief will be filed in his or her case.

 As of June 1, 1995 there were approximately 366 prisoners within the class as so defined (P. Ex. 104; Tr. 1031-32).

 II. OSAD Background Information

 A. OSAD's Origin and Scope of Its Responsibilities

 2. OSAD is a statewide indigent appellant defender agency that was established in 1972 with the goal of providing uniformly high quality appellate defense to indigent persons appealing their criminal convictions (Tr. 33-34). It was created pursuant to the Illinois State Appellate Defender Act (now 725 ILCS 105/1 to 105/11), which provides in part that it is OSAD's duty to "represent indigent persons on appeal in criminal and delinquent minor proceedings, when appointed to do so by a court under a Supreme Court Rule or law of this State" ( id. 105/10(a); see also 725 ILCS 5/121-13).

 3. OSAD has been headed by Theodore Gottfried, Esq. ("Gottfried") since its inception. Before becoming the State Appellate Defender, Gottfried was the Director of the Illinois Defender Project, and before that he was an assistant public defender in Cook County. Gottfried is an active member of the National Legal Aid and Defender Association ("NLADA"), having served on its Board of Directors, on its Executive Committee and as Chairman of its Defender Committee. During his involvement with NLADA Gottfried has worked on studies of various public defender offices nationwide and has assisted in developing policies for public defender offices. Gottfried has also written the criminal appeals chapter of the Illinois Institute for Continuing Legal Education series. Tr. 30-33.

 4. OSAD has been recognized by NLADA and the American Bar Association ("ABA") for its provision of public defender services. In addition Gottfried has received the Reginald Heber Smith Award from NLADA for his work in providing indigent defense. Tr. 32-33. Despite respondents' cavil in this respect, it is fair to infer that OSAD has a national reputation as a well-qualified indigent appellate defender agency.

 5. Statewide OSAD is organized into five district offices, corresponding to the five districts in the Illinois Appellate Court, with district offices in Chicago (First District), Elgin (Second District), Ottawa (Third District), Springfield (Fourth District) and Mount Vernon (Fifth District). OSAD also has a specialized Supreme Court Unit devoted solely to death penalty appellate litigation. Finally, its Administrative Office consists of three attorneys (the State Appellate Defender himself, the Legal Director and the First Assistant Appellate Defender) whose duties are primarily administrative and who are located in Springfield, Illinois. P. Ex. 109 at 12-15.

 6. In Illinois counties other than Cook County, OSAD handles virtually every indigent appeal from criminal convictions (Tr. 36).

 7. Both statewide and in First District, OSAD is also appointed from time to time to represent criminal defendants in appeals from proceedings filed in the Circuit Court pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 to 122-7 (Tr. 34). Those appointments are made pursuant to Ill. S. Ct. Rule 651, which provides that if the Circuit Court determines that a Post-Conviction Hearing Act petitioner is indigent the Court "shall appoint counsel on appeal." It is undisputed that in cases to which OSAD is appointed under Rule 651, it has no alternative but to handle those appointments (like all others) in a manner consistent with the Rules of Professional Responsibility (Tr. 108-13). In First District such post-conviction appeals make up slightly less than 20% of the OSAD caseload (Tr. 132).

 B. First District

 8. First District handles appeals arising from criminal cases initiated in Cook County. It is headed by Michael Pelletier, Esq. ("Pelletier"), who has held the position of Deputy Defender for First District since 1987. Pelletier's duties and responsibilities include hiring staff, assigning cases, overseeing the functioning of the office by monitoring work performance and handling the administration of the office (Tr. 119-22).

 9. In Cook County, First District is appointed to represent indigent appellants in approximately 30 to 35% of the appeals from criminal convictions (Tr. 36). Of the indigent appeal cases to which First District is not appointed, the majority are handled by the Appeals Division of the Cook County Public Defender's Office, the only other agency that handles indigent criminal appeals in Cook County (Tr. 130-31).

 10. In addition to felony appeals, First District handles a small number of Class A misdemeanor convictions and appeals from juvenile delinquency findings. Misdemeanor appeals make up less than .2% of First District's caseload. First District does not handle juvenile abuse and neglect cases, mental health commitment cases, Sexually Dangerous Persons Act cases, paternity cases or appeals in state habeas proceedings, and for some years it has not handled probation revocation appeals. Tr. 131-32. Although he has not studied the matter systematically, it is the considered view of State Appellate Defender Gottfried (and respondents have not disputed) that First District handles a tougher caseload than any other district office (Tr. 58-59).

 C. OSAD's Funding, Appointments and Staffing

 
1. Summary of Funding, Appointments, Staffing and Pending Unbriefed Cases in FYs 1990-95

  11. OSAD is primarily funded on a statewide basis through an annual appropriation by the Illinois General Assembly (Tr. 45) for a State of Illinois fiscal year ("FY") that commences on July 1 of the prior calendar year and ends on June 30 (so that, for example, "FY 1995" refers to the 12-month period ended June 30, 1995) (Tr. 46). This next table (based on P. Exs. 2 and 109) sets forth OSAD's statewide budget, statewide number of appointments and statewide volume of pending unbriefed cases for each year from FY 1990 to FY 1995: OSAD Statewide Pending Unbriefed FY Budget No. of Appts. Cases - End of FY 1990 $ 5.722 million 1,593 908 1991 $ 6.307 million 1,866 1,055 1992 $ 6.079 million 2,046 1,284 1993 $ 4.996 million 1,929 1,512 1994 $ 5.180 million 2,073 1,987 1995 $ 6.285 million 2,211 2,188 And this next table (based on P. Exs. 2 and 3 and Tr. 126) sets forth First District's staffing, appointments and pending unbriefed cases for the same FYs: First District Pending Unbriefed No. of No. of No. of Pending Unbriefed FY Cases-Start of FY Attys. Staff Appts. Cases - End of FY 1990 224 20 13 224 194 1991 194 18 13 559 436 1992 436 20 11 582 560 1993 560 16 6 358 417 1994 417 16 6 542 604 1995 604 19.5 6 598 684 (as of 4/1/95)

 12. In the FYs from 1984 through 1995 OSAD's statewide responsibilities have increased steadily: In FY 1984 OSAD statewide was appointed to represent indigent appellants in 1,353 cases, while in FY 1995 OSAD was appointed statewide to represent indigent appellants in 2,211 cases (P. Exs. 2 and 109).

 13. In dollar terms (not adjusted for inflation), OSAD's statewide annual appropriation has increased from $ 3,611,182 in FY 1984 to $ 6,285,184 in FY 1995 (P. Ex. 2). But that increase has not produced significant increases in OSAD's staff. On the contrary, in every one of the five OSAD district offices, the support staff has been reduced in FY 1995 from the support staff levels that existed in FY 1984 (id.), while there has been only a small increase in the total number of attorneys in the district offices: In FY 1984 there were 63 attorney slots in the five OSAD district offices, and that total had increased to only 67 in FY 1995. Indeed, even that increase is deceptive in terms of understanding the causes of the buildup of a backlog, for in the preceding year (FY 1994) there had been only 51 attorney slots in the district offices, 12 fewer than in FY 1984. P. Exs. 2 and 109.

 14. In consequence of the constant increase in the total statewide volume of OSAD's appellate appointments, as contrasted with the relatively static staffing levels, there have been alarming increases *fn3" in the statewide total number of pending unbriefed cases to which OSAD has been appointed. In FY 1984 OSAD had a total of 607 pending unbriefed cases in its statewide district offices, while that number had mushroomed to 2,188 as of the beginning of FY 1995 (P. Ex. 2).

 2. History from FY 1989 Through FY 1992

 15. Each fiscal year the State Appellate Defender participates directly in the budgeting process for OSAD (a) by preparing a proposed budget request that is submitted to OSAD's Board of Commissioners for approval, (b) by writing letters explaining OSAD's budgetary needs to members of the General Assembly, (c) by seeking support from judges and bar associations and (d) by personally testifying before the appropriate committees of the General Assembly in support of OSAD's budgetary needs (Tr. 46-48). For example, on March 18, 1988 Gottfried wrote to Illinois State Representative Peg Breslin, the legislative sponsor for OSAD's budget request, explaining OSAD's request for an appropriation for FY 1989 in the amount of $ 5,877,522 and pointing out that the number of OSAD's staff attorneys had increased by only 1.4% from FY 1985 to FY 1987 despite the fact that OSAD statewide had been appointed to 19.4% more appeals in FY 1987 than in FY 1985, resulting in an increase of 22.7% in OSAD's statewide volume of pending unbriefed cases during the course of FY 1987 (P. Ex. 16 and Tr. 47-49).

 16. Despite that request and the reasons supporting it, OSAD's appropriation from the General Assembly for FY 1989 was only $ 4,952,700--nearly $ 1 million less than the amount requested from the General Assembly (P. Ex. 1 and Tr. 50). Understandably, during FY 1989 the volume of OSAD's pending unbriefed cases statewide increased from 808 at the close of FY 1988 to 896 at the close of FY 1989 (P. Ex. 2 and Tr. 51).

 17. By the end of FY 1991 OSAD's volume of pending unbriefed cases had continued to increase--to 1,055, nearly double the volume of pending unbriefed cases as of the close of FY 1985--as a result of further increases in the number of cases assigned to OSAD attorneys statewide without any corresponding increase in the size of OSAD's staff (P. Exs. 2 and 22 and Tr. 52).

 18. Despite its having been apprised of the growing problem (P. Ex. 22 and Tr. 52), the General Assembly actually reduced OSAD's FY 1992 appropriation by approximately 3.8% from the FY 1991 appropriation (P. Ex. 2 and Tr. 53). As a result of that reduced appropriation, OSAD was forced to reduce its attorney staff statewide by six attorneys (P. Ex. 2 and Tr. 53). At the same time, during FY 1992 OSAD's case appointments statewide rose to 2,046, about 180 more appointments than during the prior fiscal year, producing an increase in the statewide volume of pending unbriefed cases from 1,055 at the end of FY 1991 to 1,284 at the end of FY 1992 (P. Ex. 2 and Tr. 54).

 19. As distressing as was that statewide pattern of an inadequate supply to meet an increasing demand, the trend of increasing case appointments from FY 1989 through FY 1992 was even more dramatic in First District than it was statewide. There OSAD's appointments increased from 164 in FY 1989 to 582 in FY 1992. P. Ex. 4 at 411, P. Ex. 7 at 583 and Tr. 144-45.

 3. Funding Reductions for FY 1993; Impact and Efforts To Deal with Reductions

 20. Before the beginning of FY 1993 State Appellate Defender Gottfried took steps, including a personal appeal to House Speaker Michael J. Madigan (P. Ex. 26), to persuade the General Assembly that further cuts to OSAD's funding would worsen the already unacceptable backlog of pending unbriefed cases (Tr. 55). Despite that and other efforts, the appropriation for FY 1993 actually reduced OSAD's statewide budget by approximately 18% (OSAD's total statewide funding for FY 1993 was $ 4,996,300), forcing OSAD to lay off 15 attorneys statewide (P. Exs. 1 and 8 and Tr. 56-57).

 21. In First District the FY 1993 budget reductions forced OSAD to eliminate approximately four attorney positions and to cut the support staff approximately in half (P. Ex. 2 and Tr. 148-49). In addition to that reduced staffing, First District was forced to eliminate certain service contracts, to reduce its budget for travel to prisons and to limit the office's ability to accept collect phone calls from clients (Tr. 149-50).

 22. Because of the problems caused by underfunding (and consequent understaffing) at the same time that the number of assigned cases was increasing, in the FYs preceding FY 1993 First District had suffered an increase in the number of assigned cases in which no opening brief had been filed. That in turn meant that an increasing number of those cases had completed records but were awaiting the assignment of a First District lawyer to begin working on the case. Thus at the beginning of FY 1991 there were 194 pending unbriefed cases in First District, 71 of which had completed records and were awaiting briefing. At the beginning of FY 1992 there were 436 pending unbriefed cases, 93 of which had completed records. By the beginning of FY 1993 there were 560 pending unbriefed cases, 192 of which had completed records. P. Ex. 3 (June 1990, June 1991 and June 1992) and Tr. 141-42.

 24. In May 1992 Pelletier wrote to the Chief Judge of the Criminal Division of the Circuit Court of Cook County to ask that, in light of the impending budget reduction and staff layoffs, the Circuit Court Judges not appoint First District to handle any more appeals (P. Ex. 113 and Tr. 150-51). As a result of that letter, appointments to First District were reduced but not stopped altogether (Tr. 151-52): It was appointed to only 358 new cases during FY 1993, over 200 fewer appointments than in the prior FY (P. Exs. 7 and 8 and Tr. 145-46).

 25. In June 1992 and October 1992 First District filed motions to withdraw as counsel on appeal in approximately 80 cases to which it had been appointed. Those motions advised the court of OSAD's funding reductions for FY 1993 and reported the then-existing volume of First District's pending unbriefed cases. Each motion stated that OSAD could not remain as counsel without impairing the client's rights to a timely appeal and to the effective assistance of counsel on direct appeal. Tr. 153-55 and P. Ex. 42. Without exception the motions to withdraw were denied (P. Ex. 43 and Tr. 155). Then when no additional funding for OSAD was forthcoming out of the General Assembly's fall 1992 session, First District filed a second round of motions for leave to withdraw on the same basis as the earlier motions. Approximately 45 such motions were filed after obtaining permission of the clients. All of those motions were also denied. Tr. 153-55.

 26. In January 1993 (midway into FY 1993) the State Appellate Defender transferred cases among the five OSAD district offices in an effort to equalize the backlog of pending unbriefed cases. Approximately 115 to 125 cases were transferred out of First District, which had the most severe backlog among OSAD's district offices, to other districts. P. Ex. 8 at 587 and Tr. 155, 60. Despite those transfers First District's backlog remained at too high a level for the prompt effective representation of the Office's clients (P. Ex. 2 and Tr. 62). In FY 1993 OSAD was appointed to a statewide total of 1,929 cases (nearly 500 more appointments than the Office had received in FY 1989, the last prior fiscal year in which its budget had been below $ 5 million) (P. Ex. 2 and Tr. 57). During FY 1993 OSAD's statewide volume of pending unbriefed cases increased from 1,284 at the close of FY 1992 to 1,512 at the close of FY 1993 (P. Ex. 2 and Tr. 57-58). As a consequence, no additional transfers of cases out of First District to other district offices would have been possible without increasing the backlog of pending unbriefed cases in those district offices (P. Ex. 2, P. Ex. 8 at 587 and Tr. 62).

 27. In addition First District also worked with the Chairman of the Judicial Advisory Council of Cook County to push for pro bono representation of some of the clients in First District's backlog. Although the Judicial Advisory Council established a pro bono committee and a small program to accept some indigent criminal appeals both from First District and from the Appeals Division of the Cook County Public Defender's Office, that program had only a negligible impact on First District's caseload problem. In the three years that the program has been in existence, it has been able to accept only a total of 30 cases from First District. Tr. 157-58.

 28. Primarily as a result of the reduced level of appointments in FY 1993 and the transfer of cases to other districts in the middle of FY 1993, First District's volume of pending unbriefed cases was reduced to 417 at the beginning of FY 1994. Neither the reduced appointments nor the transfers, however, produced a reduction in the number of First District cases awaiting briefing with completed records. During FY 1993 that number increased from 192 at the beginning to 240 at the end of the FY. P. Ex. 3 (June 1992 and June 1993) and Tr. 142.

 29. In FY 1994 OSAD received a 3.69% increase in its appropriation above the FY 1993 level, to the sum of $ 5,180,657. That amount was still well below pre-1992 levels and did not enable OSAD to hire any additional staff attorneys to make up for the FY 1993 staff reductions. P. Ex. 1 and Tr. 63.

 30. During FY 1994 OSAD was appointed statewide in a total of 2,073 cases, about 150 more cases than in FY 1993. At the end of FY 1994 OSAD's statewide volume of pending unbriefed cases had reached 1,987, up from 1,512 at the end of FY 1993. P. Ex. 2 and Tr. 63-64. As Finding 31 reflects, in First District there were dramatic increases in both appointments and backlog.

 31. In December 1993 Cook County Public Defender Rita Fry wrote to Chief Judge Fitzgerald to complain that the Appeals Division of the Cook County Public Defender's Office was being overwhelmed with an unprecedented number of appointments as a result of the reduction of appointments to First District that had occurred in response to Pelletier's May 1992 request. Ms. Fry's letter requested that the Chief Judge appoint the Cook County Public Defender's Appeals Division in fewer cases. Tr. 758, 780. Thereafter the Circuit Court judges began to appoint First District in more cases and the Appeals Division of the Cook county Public Defender in correspondingly fewer cases. In FY 1994 First District was appointed in 542 cases, nearly 200 more appointments than in FY 1993, despite the fact that its attorney staffing remained unchanged. P. Ex. 9 and Tr. 146, 758, 780. As a result, at the end of FY 1994 there were 604 pending unbriefed cases in First District, 349 of which had completed records and were awaiting briefing. Tr. 143 and P. Ex. 3 (June 30, 1994).

 32. In FY 1995 OSAD's statewide appropriation was increased to $ 6,285,184, approximately the same dollar amount (not adjusted for inflation) as the FY 1991 appropriation. That increase enabled OSAD to hire additional attorneys in all of its district offices so as to achieve staffing levels close to the FY 1991 attorney staffing levels--but with substantially reduced support staffs. Because OSAD's 1991 personnel had been unable to keep pace with the statewide volume of appointments in FY 1991 and because OSAD's 1995 appointments (2,211) significantly exceeded the level of appointments in 1991 (1,866), the restoration of funding to OSAD in FY 1995 was clearly insufficient to enable OSAD to keep pace with its responsibilities. P. Ex. 2, P. Ex. 109 at 26 and Tr. 65-68.

 33. As a result of the restoration of OSAD's funding to pre-1992 levels, First District was able to hire four additional lawyers at the beginning of FY 1995 (Tr. 146-47). But during FY 1995 First District was appointed to an all-time high of 598 cases (P. Ex. 109 and Tr. 147). Thus despite the increase in staff, OSAD's volume of pending unbriefed cases continued to grow during FY 1995. As of April 30, 1995 there were 684 pending unbriefed cases in First District, 439 of which had completed records and were awaiting the availability of a lawyer for briefing. Tr. 143 and P. Ex. 3 (April 1995).

 5. Status of First District as of the Hearing

 34. If trends as of the time of the Hearing were to continue, First District would likely receive more than 700 new appointments in FY 1996--the largest volume of new appointments ever (see P. Ex. 96). But OSAD had not then received any increase in its appropriation for FY 1996 above the amount received for FY 1995 (Tr. 68). As of August 31, 1995 there were 758 pending unbriefed cases in First District. As of the time of the Hearing, First District's volume of pending unbriefed cases was at 765 (the highest level ever) (Tr. 123), 522 of which had complete records and were awaiting briefing (P. Exs. 50 and 50(a)).

 35. Findings 56 and 57 describe OSAD'S policy of briefing oldest cases first. Under that policy First District attorneys were, as of the late September 1995 Hearing date, working only on cases to which First District had been appointed during or before March 1994. Thus all of the cases that the First District attorneys were engaged in briefing as of the time of the Hearing had already been pending on appeal, with no opening brief filed, for at least 18 months. Tr. 165-66.

 36. In accordance with OSAD's statewide office policy referred to in Findings 35, 56 and 57, the 765 cases pending in First District as of the time of the Hearing are being handled on a first-in-first-out basis, under which the oldest cases will be assigned for briefing first. Pelletier anticipates that each lawyer on his staff will file the opening substantive document--a brief, a dispositive motion or an "Anders motion" (a brief and motion under Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967))--in approximately 20 cases each year, or the equivalent of 1.6 dispositions per attorney per month. Tr. 167-69. As of the time of the Hearing there were 19.50 full-time equivalent attorneys (taking account of part-time attorneys) on staff in First District (Tr. 126).

 37. On the assumptions (a) that First District will continue with the equivalent of 19.50 full-time attorneys on staff, (b) that each of them can be expected to prepare 1.6 opening substantive documents per month and (c) that no pending cases are eliminated from the docket, Pelletier anticipates that it will take close to two years before an Assistant Appellate Defender will be available to begin working on the newest cases to which First District had been appointed as of the time of the Hearing (Tr. 169-71). Because of the length of time that it has taken and continues to take before a First District attorney becomes available to begin work on a newly-assigned pending case, the length of time that it takes to prepare the record on appeal has not contributed to delays in the processing of First District cases. As of the time of the Hearing it took approximately six to eight months for First District to received completed records in its office. Tr. 219.

 38. As part of its continuing effort to reduce the number of pending unbriefed cases, First District was at the time of the Hearing in the process of transferring 50 cases to OSAD's Springfield Office (Tr. 68, 125).

 D. First District's Success Rate

 39. OSAD counts an appeal as "successful" if the appeal results in any modification of the trial court's judgment or sentence or in any opportunity being afforded the appellant to obtain such a modification through further proceedings in the trial court (Tr. 184). In FY 1995 First District was successful, in that sense, in 30% of the cases that it handled on direct appeal (Tr. 99, 184). In FY 1994 First District had been successful in the same sense in 24% of its cases (Tr. 185).

 40. Pelletier was personally aware of situations in which appellant clients of First District had completed their terms of incarceration and had been released before the First Appellate District had rendered decisions in their appeals, including instances in which those decisions had reversed the convictions outright. *fn4" Although Respondent's Response 2 has disputed the sufficiency of the Hearing record to demonstrate the frequency of such occurrences, it is surely an appropriate matter for judicial notice that given Illinois' system of day-for-day credit for an inmate's good conduct in prison, *fn5" an inmate who does not forfeit such credit and whose appeal will not have been decided until (say) 2-1/2 years have elapsed since his incarceration--an overly optimistic assumption--will have been released before that decision if his sentence had been five years or less. On a more realistic assumption of three years between notice of appeal and decision, any defendant with a prescribed sentence of six years of less and with no forfeiture of good time credits will have served his or her entire custodial sentence and been released before the decision is reached. And of course any decision that reverses a conviction means that the period of time that has been spent in serving the invalid sentence has been impermissibly lengthened by any undue delay in the handling of the appeal.

 TIII. Response by the State of Illinois and the Illinois Courts During the Pendency of This Litigation

 41. As heretofore and hereafter set forth, the Illinois legislature has been on notice of the severity of OSAD's backlog of unbriefed cases for several years. In the spring of 1992, immediately prior to the time that the General Assembly reduced OSAD's funding by 18%, the Speaker of the Illinois House was apprised that the backlog was most severe in OSAD's First District Office and that further cuts would render competent and effective representation of First District clients impossible. P. Ex. 24 and Tr. 152-53. Since the filing of this action, the General Assembly has restored OSAD's funding to close to the pre-FY 1991 level that existed prior to the FY 1993 budget cuts, but that funding level is plainly insufficient to enable OSAD to employ enough staff to address the growth in appointments and backlog that OSAD's district offices have experienced in the last three years.

 42. Less than a month ago (on January 30, 1996) Illinois Supreme Court Chief Justice Michael Bilandic transmitted the Court's annual report to the General Assembly. It read in relevant part:

 
The General Assembly in the past has recognized the importance of providing adequate resources to assure fair and timely handling of appeals from convictions of capital and other felony defendants.
 
[This quotation omits the portion of the report dealing with death penalty appeals]
 
The lack of resources for appeals by other criminal defendants has also become a critical problem. The General Assembly took a constructive step to address this problem in 1994. At that time, funds were appropriated to restore attorneys to the staff of the Office of the State Appellate Defender. However, this improvement was not fully maintained for the current fiscal year.
 
A comparison of the staffing levels of the state appellate defender with the trend in cases to which the office is appointed shows a sharp contract. For fiscal year 1990 the office had 72 attorneys assigned to Appellate Court cases; currently there are only 60. During the same six-year period the number of new cases to which the office was appointed on an annual basis increased from 1,593 to 2,211. This means that the number of attorneys decreased by 17 percent while the number of new appeals assigned annually increased by 39 percent. The consequence of these diverging trends is that the period of time needed for appellate defender attorneys to file a brief on a new case has lengthened from about 11 months to the current 19 months.
 
The Federal District Court of Northern Illinois has determined that such lengthy delays deny due process to indigent defendants represented by the state appellate defender and the Cook County public defender in the 1st District of the Appellate Court. (U.S. ex rel. Green v. Peters, No. 93 C 7300, U.S. Dist. Ct., N.D. Ill.) Further action by the District Court on this matter is anticipated in the near future.
 
As noted in my message to the General Assembly in January 1994, under-staffing of criminal appeals often leads to more retrials and appeals claiming violation of constitutional rights because of "ineffective assistance of counsel."
 
We urge the General Assembly to renew its commendable previous efforts to restore the number of attorneys for the state appellate defender to levels sufficient to provide fair and prompt representation on criminal appeals.

 As indicated by earlier Findings, that report was more charitable in its reference to the General Assembly's prior funding provisions than the facts would warrant, but that is entirely understandable in a message that seeks to obtain an appropriation in an era of governmental cutbacks. *fn6" It is of course too early to know whether the Supreme Court's request will bear fruit.

 43. As directed by this Court shortly after this action was commenced, petitioners' counsel apprised the First District of the Illinois Appellate Court of the pendency of this litigation in a November 24, 1993 letter directed to that Court. Counsel's letter enclosed copies of individual habeas corpus petitions that had been filed by Hilberto Sanchez, Vernon Joy and Rodney Odell complaining of appellate delay in terms identical to the pending class action petition filed here by Mervin Green. Counsel's letter communicated this Court's request for information as to indigent criminal appellate case processing in the First Appellate District and as to whether private counsel could be appointed for petitioners Sanchez, Joy and Odell.

 44. Pelletier has also advised the Illinois Appellate Court of the pendency of this litigation. On November 8, 1993 he wrote letters to the Presiding Justices in the divisions of the First Appellate District to which the Sanchez, Joy and Odell cases were assigned (P. Exs. 37, 38 and 39 and Tr. 162-64). Those letters reminded the Court that OSAD had filed motions to withdraw as counsel in each of the three cases because of the volume of pending unbriefed cases in First District, once again requesting that outside counsel be appointed to represent the petitioners. Pelletier's letter also stated that First District had many other clients similarly situated to petitioners Sanchez, Joy and Odell and asked that action be taken for those other clients as well. Tr. 162-65. At some time thereafter private pro bono counsel were indeed obtained to represent appellants Sanchez, Joy and Odell. After such pro bono counsel had been obtained, the First Appellate District permitted First District to withdraw from those cases. Other than in the Sanchez, Joy and Odell cases, the First Appellate District has granted only one other motion to withdraw as counsel based upon First District's backlog of unbriefed cases. Tr. 161-65.

 45. On March 11, 1994 the Justices of the First Appellate District responded to this Court with a letter (P. Ex. 40) that acknowledged that the Appellate Court "is aware of the problem" of excessive appellate delay for First District's clients. In the letter the First Appellate District made several observations as to indigent criminal appellate case processing, stating in essence:

 
(a) According to the Court's informal research, OSAD then had larger backlogs in other districts than in First District, but motions to withdraw had not been filed in the other districts.
 
(b) First District had filed proportionately fewer motions to withdraw under Anders v. California than the Appeals Division of the Cook County Public Defender, with the Court suggesting that First District may be "refusing to exercise discretion" to file Anders motions.
 
(c) First District's policy of briefing oldest cases first, counting "from the date of conviction or sentencing," "gives preference to post-conviction cases."
 
(d) First District had filed fewer briefs per attorney than OSAD's other district offices. One of the Justices of the Second District Appellate Court then expected OSAD attorneys to file 30 briefs per year per lawyer in Second District cases.
 
(e) Based on a communication with Renee Goldfarb ("Goldfarb"), Chief of the Appeals Division in the Cook County State's Attorney's Office, it was suggested that OSAD's success rate may be 15% rather than the higher success rate reflected in OSAD's Annual Reports.
 
(f) People v. Thurston, 255 Ill. App. 3d 512, 515-16, 626 N.E.2d 426, 428, 193 Ill. Dec. 393 (2d Dist. 1994) had opined that "the appellate defender should reexamine his policy of processing such cases" (that is, cases that the court viewed as not raising substantial questions).

 In addition, the First Appellate District's letter stated that it has "the inherent power to appoint private counsel to represent indigents in criminal cases." It noted that the Chairman of the Judicial Advisory Council of Cook County has been recruiting pro bono lawyers to handle some indigent criminal appeals and expressed the hope "that we will be able to expand the volunteer program so that it will not be necessary to compel lawyers to represent indigent defendants on appeal without compensation." There was no reference to any other possible solutions to the problem of appellate delay for First District clients.

 IV. Nature of OSAD's Performance

 A. OSAD's Workload Standards

 1. Standards Themselves

 46. OSAD has established a work standard that requires all of its attorneys to meet a minimum level of productivity. That standard, set forth in OSAD's 1994 Employees' Manual (P. Ex. 11), requires each assistant appellate defender with one year of service to complete, during each year, 24 "brief units"--a term defined as an appellate court brief in a direct appeal from a judgment entered following a criminal trial, in which the record on appeal is not less than 250 pages and not more than 500 pages. To refine that concept to reflect various relevant variables, a weighted brief-unit credit value is assigned to various tasks performed by OSAD's lawyers (opening brief, reply brief, certain motions, etc.) and, as to the opening brief itself, the credit is weighted in terms of the length of the record (more than one brief unit is attributed to records greater than 500 pages, and less than one brief unit is attributed to records under 250 pages). P. Ex. 11 and Tr. 42, 171-75.

 2. Expert Testimony as to OSAD's Workload Standards

 48. Petitioners called two expert witnesses who opined as to OSAD's work standards and as to the productivity of First District attorneys. Both experts concluded that OSAD's attorneys must work hard to achieve the level of productivity called for by OSAD's work standard. Respondents presented no evidence contesting those conclusions, and this Court credits the expert witnesses' testimony as summarized in Findings 49 through 53.

 49. Indiana University School of Law Dean Norman Lefstein, who also now chairs the Indiana Public Defender Commission, testified as to the role of defense counsel in criminal proceedings, especially as it pertains to professional responsibility issues and criminal justice standards. Dean Lefstein has taught, written and lectured extensively on professional ethics and criminal justice issues. In addition to having served in the past as director of the Public Defender Service for the District of Columbia, he has been the reporter to the ABA Commission that promulgated the second edition of the ABA's Standards for Criminal Justice. In that capacity, he authored the ABA's standards on the prosecution and the defense functions, on providing defense services and on guilty pleas. Dean Lefstein has frequently been qualified as an expert witness on issues of professional responsibility and competence of representation in criminal matters. Dean Lefstein testified in these proceedings without compensation. Without objection from respondents, this Court found Dean Lefstein qualified as an expert in this area. Tr. 223-31.

 50. Dean Lefstein opined that no more than approximately 25 indigent felony criminal appeals should be assigned to a single attorney in any one calendar year. That opinion, which was unrebutted by respondents, was based in part upon a 1992 NLADA publication titled Indigent Defense Caseloads and Common Sense, and was also informed by Dean Lefstein's own experience in observing the work of the extremely well-qualified appellate lawyers under Dean Lefstein's supervision in the Public Defender Service for the District of Columbia. P. Ex. 59 and Tr. 233-36. It is the thrust of Dean Lefstein's opinion, and this Court finds, that the assignment of significantly more than 25 cases of average complexity to one attorney in a single calendar year would create an unacceptably high risk that the attorney would be unable to brief the cases competently within a reasonable period of time.

 52. In preparation for his testimony here, Spangenberg performed an extensive analysis of First District's functioning. For that purpose his assessment included review of OSAD's Employee Manual (P. Ex. 11) and interviews with all of First District's professional staff and with Gottfried. Tr. 306-08.

  53. In Spangenberg's unrebutted expert opinion, OSAD's work standard constitutes a measure of attorney productivity that requires OSAD attorneys to work up to capacity in order to provide quality representation to the required number of clients, although in some respects it requires attorneys to forgo some aspects of optimum client representation. Tr. 371-73. OSAD's standard was modeled upon the 1980 NLADA Standards for Appellate Defender Offices (P. Ex. 115), which have been a national baseline in defining the appropriate level of productivity for an appellate defender. NLADA's Standards impose a significantly less demanding productivity requirement upon appellate defenders than does the OSAD work standard: NLADA's Standards require appellate defenders to achieve 20 "work units" per year (in contrast to the 24 "brief units" required by OSAD's work standard) and define work units in such a way as to allocate more work unit credit to certain tasks and certain types of records than does the OSAD brief-credit definition in the OSAD work standard. P. Exs. 11 and 115 and Tr. 574-79.

  B. OSAD Client Representation and Briefing Policy

  1. OSAD's Briefing Policy

  54. OSAD's Employee Manual (P. Ex. 11) also sets forth office-wide policies and procedures, including OSAD's briefing policy, relating to effective client representation. After OSAD is appointed to a matter by the Circuit Court, it sends the represented person a form letter that attaches a description of the stages of the appellate process (Tr. 133-34). In part the attachment describes the length of time that it generally takes to complete the record on appeal and to file the opening brief. In that respect clients of First District have been and are presently being informed that they can expect to wait 16 to 22 months (many months after the filing of the record) before the opening briefs in their cases will be filed. P. Ex. 73 and Tr. 133-34, 158-59.

  55. OSAD is professionally obligated--by its enabling statute (725 ILCS 105/1 to 105/11), by Illinois Supreme Court Rules and by the Rules of Professional Responsibility that bind its attorneys--to provide representation in every one of the cases to which OSAD is appointed. It is not possible for OSAD to decline to "process" a case simply because someone within or outside of OSAD might believe that other matters are more deserving of the attention of OSAD's lawyers (Tr. 73 and P. Ex. 32 at 5). This Court of course appreciates (and shares) the concerns sometimes expressed by Illinois appellate opinions as to the potential waste of scarce resources in addressing legal issues of minimal or even no significance--indeed, this Court itself regularly encounters the trial court equivalent of that problem in its having to address pro se filings (most frequently by persons in custody claiming what they may mistakenly perceive as violations of their constitutional rights). But just as this Court must expend its own resources (which could far more profitably be devoted to more constructive activity) in determining whether such pro se filings may be dismissed at the outset on grounds of "frivolousness" in the legal sense (see Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and Denton v. Hernandez, 504 U.S. 25, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992)), so the appointed OSAD lawyer is duty bound to review the record once he or she is appointed and then to file either an Anders brief or a brief on the merits--and those tasks alone require what may fairly be labeled as a waste of resources. It must be remembered that criminal appeals are not taken by the appellate defender but by the convicted defendant who has an unrestricted right to do so (just as, except in the most egregious cases of repetitive groundless litigation, this Court cannot forbid filings by the pro se litigant). In that sense OSAD attorneys should not suffer the fate of the Persian messenger for having to discharge their professional responsibilities by handling the cases that the courts have assigned to them. *fn7"

  56. As a matter of statewide agency policy, OSAD attorneys are assigned cases for briefing based upon the date of the Circuit Court's final disposition of the case--which in an initial direct appeal is typically the date of sentencing--with the oldest cases being placed first in line for briefing. As with the FIFO method of valuing inventory for accounting purposes, that is ...


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