The timing of litigation, as well as the persons for whom the case is filed, will likely impact a court’s analysis of whether indigent defendants are being systematically deprived of their right to counsel. Two critical factors are (1) whether the case is brought pretrial or post-conviction; and (2) whether the case was brought on behalf of an individual defendant, a class of defendants, or all indigent defendants. A review of the cases suggests that litigation that was begun pretrial on behalf of all or a class of indigent defendants is more likely to achieve systemic reform.

Pretrial Litigation

When determining a pretrial claim, courts often assess “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.”[36] In Luckey v. Harris,[37] the court explained that “[p]rospective relief is designed to avoid future harm.”[38] Indigent defendants, therefore, need not show actual harm by the failure of the state to provide constitutionally adequate representation; they must show only that there is an on-going violation of their right to counsel and that they are at imminent risk of harm in the future.[39] Accordingly, pretrial litigation must demonstrate that the constitutional right to counsel is being denied or will be denied because some aspect of the provision of indigent defense services makes it unlikely that any attorney could provide competent representation under the circumstances. As discussed above, this approach is not unlike the third test for ineffective assistance of counsel listed in the Cronic decision.

Cases Asserting the Rights of All Indigent Defendants

As noted above, legal action may be instituted pretrial for an individual defendant or for all or a class of indigent defendants. For cases asserting the right to counsel for all indigent defendants, both those with cases currently pending and future defendants, the requirement of standing to bring the action has been met either through class certification or through action in a representative capacity.[40] Generally, so long as actual or imminent harm is alleged and factually supported, the cases have been deemed “justiciable,” i.e., capable of being decided according to legal principles in a court of law.[41]

To illustrate, in Lavallee v. Justices in Hampden Superior Court,[42] indigent defendants in Hampden County, Massachusetts, sued the state for failure to provide them with counsel at or after arraignment. Petitioners alleged that “chronic underfunding of the assigned counsel system” resulted in an insufficient number of attorneys willing to accept assignments at the current compensation rates and requested that the court authorize increased compensation.[43] The Massachusetts Supreme Judicial Court agreed that indigent defendants were being denied their right to counsel under the state’s constitution due to a shortage of attorneys, attributable to low rates of compensation. The court ruled that there was no need to articulate a specific harm for each defendant since the on-going harm of depriving them of the right to counsel warranted relief. Although the court was unwilling to increase assigned counsel rates, important relief was ordered: any indigent defendant incarcerated pretrial in Hampden County had to be released after seven days if counsel was not appointed, and any pending case against an indigent defendant had to be dismissed after 45 days if no attorney filed a court appearance on the defendant’s behalf.[44]

Similarly, in New York County Lawyers’ Association v. New York,[45] a court held that the rates for assigned counsel and caps on their fees per case denied indigent defendants their right to counsel. As in Lavallee, the court found that there were an insufficient number of available lawyers, leading to “less than meaningful and effective assistance of counsel.” It concluded that the low rates of compensation and fee caps were the direct cause of the attorney shortage.[46] Noting “17 years of legislative inaction and proof of real harm and immediate danger of irreparable constitutional harm,” the court entered a permanent injunction ordering the City of New York to pay assigned counsel $90 an hour until the legislature acted to remedy the situation.[47] Although this order applied only to the cases of assigned counsel in New York City, while the case was on appeal, the New York General Assembly increased the compensation rate for court-appointed attorneys in felony and family court cases to $75 per hour both for in-court and out-of-court time and $60 an hour in misdemeanor cases.[48]

While the two preceding cases dealt with fee increases for assigned counsel and achieved commendable results, the next two cases addressed indigent defense systems in the respective jurisdictions more broadly. In Rivera v. Rowland,[49] the American and Connecticut Civil Liberties Unions filed a class action lawsuit seeking injunctive relief on behalf of all indigent defendants, asking the court to order Connecticut to provide a public defender system that ensured the constitutional rights of the accused.[50] In support of their request, plaintiffs argued that the public defenders’ overwhelming caseloads, lack of adequate supervision, client contact, investigation, and trial preparation, as well as lack of resources, prevented indigent defendants from receiving effective assistance of counsel.[51] The court denied the state’s motion to dismiss, holding that these allegations, if true, would be sufficient to support plaintiffs’ claim under the state and federal constitutions.[52] Prior to a trial on the merits, the state entered into a consent decree, which required implementation of system-wide improvements, including reduced public defender caseloads, increased staffing, and enhanced training and supervision.[53]

A similar class action suit on behalf of all felony defendants in a county in the State of Washington was filed by the American Civil Liberties Union (ACLU) of Washington and Columbia Legal Services. In Best v. Grant County,[54] the goal was injunctive relief against the county on constitutional grounds, which, at the time, provided defense services through public defenders and contracts with private lawyers. The complaint alleged, inter alia, that funding for indigent defense was inadequate, caseloads were excessive, there was no oversight of the defense system, defense services lacked independence, and defendants were deprived of investigators and experts.[55] In October 2005, the presiding trial court judge ruled that defendants had a “well-grounded fear of immediate invasion of the right to the effective assistance of counsel.”[56] Soon afterwards, plaintiffs’ lawyers and Grant County officials entered into a settlement agreement in which the county agreed to “reduce excessive caseloads, guarantee that public defense lawyers are qualified to handle serious felony cases, and provide adequate funding for investigators and expert witnesses.”[57] The settlement included a provision for appointing a monitor to oversee Grant County’s compliance with the terms of the settlement agreement during the ensuing six years.[58]

In 2007, lawsuits similar to the Rivera and Grant County cases were filed in state courts in Michigan and New York, charging that indigent defense systems in the two states are completely broken. Both cases were still pending as this report was completed. In Duncan v. State of Michigan,[59] the ACLU and private attorneys filed suit against the State of Michigan and its governor. In Hurrell-Harring v. New York,[60] the New York Civil Liberties Union and private attorneys filed suit against the State of New York. While the Michigan case focuses on indigent defense deficiencies in three counties, the New York case alleges that indigent defense throughout New York State is defective. Both cases allege, inter alia, violations of the Sixth and Fourteenth Amendments to the Constitution, as well as 42 U.S.C. § 1983.[61] In both Michigan and New York, indigent defense is substantially organized at the county level; funding in Michigan is also from the counties, whereas in New York, the state contributes about 40% of the funding with the balance from the counties.

In the New York case, the complaint charges that there are a host of indigent defense problems because the State has “abdicated its responsibility to guarantee the right to counsel for indigent persons and has left each of its sixty-two counties to establish, fund and administer their own public defense programs, with little or no fiscal and administrative oversight or funding from the State.”[62] Among the specific deficiencies claimed to exist are unnecessary and prolonged pretrial detention, restrictive client eligibility standards, no performance standards for attorneys, no monitoring or supervision of attorney representation, a lack of attorney training, a lack of resources for support staff and access to investigators and experts, overwhelming caseloads, a lack of independence from the judiciary, and inadequate compensation and resources for those who provide defense services, especially in comparison to the prosecution.[63] Similar allegations are contained in the Michigan lawsuit.

Not all cases asserting the rights of indigent defendants have been successful. In Kennedy v. Carlson,[64] the public defender for Hennepin County, Minnesota, filed suit claiming that the state’s failure to provide sufficient funds for his office “may or will”[65] result in the violation of his clients’ Sixth Amendment rights. However, the Minnesota Supreme Court held that the public defender had failed to establish an actual and imminent injury to his clients, finding the claim that violations may or will occur to be “too speculative and hypothetical.”[66] While acknowledging the office’s high caseloads, the court noted that there was no evidence that any attorney had provided ineffective assistance of counsel or even substandard representation. Since the public defender failed to provide evidence that clients had been prejudiced due to ineffective assistance of counsel, the case was distinguished from those in other jurisdictions where relief had been provided.

Cases Asserting the Rights of a Class of Defendants

Another approach to achieving change has been for public defender offices to seek to withdraw from some of their cases and/or to halt the assignment of prospective cases, thereby providing relief to a class of indigent defendants whose cases are not now being properly handled or would not be properly handled in the future. If the litigation is successful, not only can improvements be achieved, but also, the court’s order can lead state legislatures or local authorities to provide additional funding.

In 1990, the Florida Supreme Court in In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender[67] found that the large workload and enormous backlog of appellate cases of public defenders, caused by the “woefully inadequate funding of the public defenders’ offices,” was a “crisis situation of constitutional dimensions,” requiring a systemic response.[68] The court noted that the number of cases requiring briefing had grown from 408 to 1005 in less than three years and that privately retained counsel filed briefs at least one year earlier than public defenders. The Florida Supreme Court concluded that the excessive caseloads were requiring public defenders to choose between the rights of clients, creating a conflict of interest and a violation of the right to counsel. To remedy the situation, the court ordered lower courts to appoint alternate counsel upon public defender motions to withdraw and stated that the legislature should appropriate sufficient funds for a “massive employment of the private sector on a one-shot basis.”[69] The court further advised:

If sufficient funds are not appropriated within sixty days from the filing of this opinion, and counsel hired and appearances filed within 120 days from the filing of this opinion, the courts of this state with appropriate jurisdiction will entertain motions for writs of habeas corpus from those indigent appellants whose appellate briefs are delinquent sixty days or more, and upon finding merit to those petitions, will order the immediate release pending appeal of indigent convicted felons who are otherwise bondable…. There can be no justification for their continued incarceration during the time that their constitutional rights are being ignored or violated.[70]

While the legislature approved funds to pay for private counsel to reduce the case backlog, it did not increase funding of the public defender for the long-term and an appellate case backlog later developed. So in 1993, the public defender office once again moved to withdraw, asking to be excused from over 350 overdue appeals. This time, a retired judge was appointed to sit as a special commissioner to hear evidence and make findings of fact regarding both the efficiency and productivity of the public defender’s office and to determine whether the allegation of case overload was supported by the facts. After a four-day evidentiary hearing, the commissioner concluded that the public defender was working at capacity but was nonetheless overloaded with cases and should be allowed to withdraw from certain of his cases.[71]

Although most challenges to excessive caseloads have been litigated in state courts, one notable case, similar to the Florida cases discussed above, was filed in federal court. In Green v. Washington,[72] a federal district court in Chicago held that petitioners, indigent defendants incarcerated in Illinois prisons whose appeals had not been filed for one year or more, were deprived of their rights to due process of law. The cause of the problem, according to the court, was chronic underfunding of the Illinois First District Office of the State Appellate Defender to handle its caseload. Further, the court noted that the Illinois General Assembly had been on notice for at least eight years that there was inadequate staff to represent an increasing number of indigent appellants. Despite the lack of appellate staff, the Illinois General Assembly decreased the appellate defender’s appropriation. Facing a history of inaction from both the judicial and legislative branches of the Illinois government, the court held that “[i]n the usual situation where a violation of constitutional rights has been caused or permitted to continue despite full knowledge and ample opportunity to cure on the part of governmental defendants, the appropriate remedy is one that would grant prompt (perhaps immediate) relief to the victim of that violation.”[73] Although the court asked the State of Illinois to propose an appropriate remedy, the case ultimately was dismissed when the legislature appropriated additional funds for the use of private attorneys to address the backlogged appeals and substantially increased funding for the Office of the State Appellate Defender.

The judgment in Green was based upon the federal court decision in Harris v. Champion,[74] in which a federal court of appeals held that a violation of due process and ineffective assistance of counsel could be found if an appellant’s direct appeal from a state conviction was pending for more than two years without final state action. As in Green, the delays were attributable to underfunding of the state’s appellate defense program. Further, the court stated that such cases merited a rebuttable presumption of prejudice, permitting the federal courts to grant writs of habeas corpus and release otherwise bondable defendants pending their state appeals. However, the court noted in its opinion that none of the named defendants would probably be entitled to such relief because, during the pendency of their cases, all of the defendants received appointed counsel and were believed to have had briefs filed on their behalf.[75] Nevertheless, the remedy is potentially available for future indigent defendants in the event underfunding of appellate counsel causes inordinate delays in appellate review.

Facing an overload of cases at the trial level, a public defender in New Orleans filed a pretrial “Motion for Relief to Provide Constitutionally Mandated Protection and Resources,”[76] contending that systemic deficiencies caused his caseload to be so high that it prevented him from providing effective assistance of counsel to his clients. In State v. Peart,[77] the Louisiana Supreme Court ruled that, due to excessive caseloads and insufficient support of Louisiana’s indigent defense system, “the services being provided to indigent defendants … do not in all cases meet constitutionally mandated standards for effective assistance of counsel.”[78] The court found that there was a rebuttable presumption of ineffectiveness in all of the public defender’s cases and remanded the case to the trial court for individualized determinations regarding whether each indigent defendant represented by the public defender was receiving effective assistance.[79]

Since Peart was a pretrial case in which the question was whether counsel could be effective, the tests for determining post-conviction ineffective assistance of counsel contained in Strickland and Cronic were not applicable. The remedy that the Louisiana Supreme Court fashioned, in which the trial court on remand was required to conduct individualized hearings respecting each defendant to determine counsel’s likely effectiveness, has not been adopted in cases by courts in other states.[80] Nor do there appear to be other cases in which courts have found that the indigent defense services being provided create a rebuttable presumption that defendants are not being effectively represented.

In re the Matter of Continued Indigent Representation by the District Public Defender’s Office in Knox County General Sessions Court is another example of a public defender’s office seeking relief from an overwhelming caseload.[81] In 1991, the Public Defender of Knox County, Tennessee, filed a motion requesting that the General Sessions Court suspend appointments to his office for 60 days to allow the office’s caseloads to become more manageable. In support of his position, the public defender presented amicus briefs, affidavits, and statistical data regarding the office’s caseload. After an evidentiary hearing, the court granted the motion to suspend. As a result of this ruling, the court appointed lawyers who were required to represent indigent defendants pro bono, but soon afterwards, the legislature passed a law requiring reasonable compensation for court-appointed work.[82]

In some of the prior cases involving excessive caseloads, public defenders did not argue that their continued representation of existing clients or the defense of future clients would cause them to violate their ethical duties as lawyers. Now, with increasing frequency, defenders are claiming not only that the constitutional rights of their clients are jeopardized by excessive caseloads, so, too, are their responsibilities as members of the legal profession pursuant to rules of professional conduct, which require that competent and diligent representation be provided.[83] This relatively new approach has undoubtedly been fueled by the 2006 ethics opinion of the ABA Standing Committee on Legal Ethics and Professional Responsibility, which is discussed elsewhere in this report.[84]

In 2007, the Public Defender of Mohave County, Arizona, filed motions to withdraw from 36 of the office’s pending cases, arguing that, unless relief was granted, defendants would be denied the effective assistance of counsel and attorneys would violate their ethical duty to furnish competent services.[85] During an evidentiary hearing, the chief public defender testified about the caseloads of each of his lawyers, indicating that they could not accept additional cases and claiming that they were “overwhelmed.” Asked about his own caseload, the public defender replied that he “would not be able to render effective representation to any additional people. Many times I question whether I’m doing what I should be doing on the cases that I have.”[86]

After this evidentiary hearing, the trial court judge found that, given the office’s caseloads, “[r]equiring or even allowing the Public Defender’s Office to remain as appointed counsel in these cases would likely compromise them from an ethical standpoint and deprive the Defendants … of their right to effective representation.”[87] The court, therefore, granted the public defender’s motions to withdraw, declaring that it would apply its order to other pending motions to withdraw, and further held that future motions to withdraw need only reference the ruling in these cases. The court refused to “concern itself with financial or funding implications of its ruling on the motions to withdraw,”[88] leaving to the county the problem of paying the fees of private attorneys who would now be required to represent defendants in cases from which the public defender would be excused.

While the litigation in Mohave County, Arizona, was successful, similar litigation in New Orleans, also in 2007, resulted in a less positive result. A public defender employed by the Orleans Public Defender Office, with the support and assistance of his agency, sought to withdraw from cases and to halt the assignment of additional cases. During an evidentiary hearing, the public defender explained that his current caseload was well over 100 clients, many of whom were charged with very serious felonies. He also recounted his numerous defense counsel responsibilities for which he lacked adequate time due to his overwhelming caseload. These included a failure to conduct timely and adequate interviews of clients, investigation of his cases, seeking relevant records, identifying and interviewing witnesses, visiting crime scenes, considering the use of experts, filing pretrial motions, and preparing for trials.[89] In his order in the case, the trial court offered the following assessment:

Indigent defense in New Orleans is unbelievable, unconstitutional, totally lacking the basic professional standards of legal representation and a mockery of what a criminal justice system should be in a western civilized nation.

Equally shocking is the Louisiana legislature, which has known since 1972, constitutional violations and insufficient funding have plagued indigent defense, not only in New Orleans, but also in other Louisiana parishes.

The Louisiana legislature has allowed this legal hell to exist, fester and finally boil over.[90]

The court’s order in the case, which contemplated allowing the public defender to withdraw from some of his cases and stop accepting additional appointments, was appealed to a Louisiana appellate court. This court held that the trial judge had failed to conduct, consistent with the Louisiana Supreme Court’s decision in Peart,[91] “individualized hearings” respecting each defendant in which the public defender claimed to lack sufficient time to provide adequate representation.[92] Ultimately, the litigation did not achieve its desired result. While the trial court appointed some private attorneys to handle some of the defender’s case overload, the public defender at the center of the litigation and other public defenders assigned to other criminal courtrooms in Orleans Parish continue to carry extremely high caseloads.[93]

In June 2008, in Knoxville, Tennessee, the city’s five misdemeanor court judges conducted a day-long evidentiary hearing on a motion by the Public Defender of Knox County, who requested to be excused from assignments in future misdemeanor cases.[94] The public defender and two of his lawyers testified about their excessive caseloads and explained that they were incapable of doing what was required of them in order to represent their clients competently, as required by the state’s rules of professional conduct and standards governing the defense function.[95] As of January 2009, however, the five judges had not yet rendered a decision on the public defender’s motion, which reflects the difficulty sometimes encountered in obtaining a prompt judicial resolution in this kind of litigation.[96]

Another unresolved case at the time of this report’s completion, which is pending before the Florida Supreme Court, is from Dade County (Miami), Florida.[97] In late July 2008, a trial court judge in Miami held a two-day hearing on the motion of the Dade County Public Defender, who asked that his lawyers be excused from appointments in all felony cases, except capital cases, in Miami’s 21 felony courtrooms. The public defender argued that underfunding of his office had led to excessive caseloads and that his lawyers could not ethically or legally accept additional non-capital felonies. In an opinion dated September 3, 2008, a trial court judge ruled substantially in favor of the public defender’s position, declaring that, until further review, the public defender would be excused from having to accept appointments to all class C felonies, though appointments to class A and B felonies would continue.[98] The court summed up the situation with these words:

… [T]he evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused…. [T]he evidence clearly shows that … [the public defender] is in need of relief sufficient to ensure that the assistant public defenders are able to comply with the Florida Rules of Professional Conduct and carry out their constitutional duties…. The Court concludes that the testimonial, documentary, and opinion evidence shows that … [the public defender’s] caseloads are excessive by any reasonable standard.[99]

In these recent cases from Arizona, Louisiana, Tennessee, and Florida, in which public defenders invoked their ethical duty as a basis for objecting to excessive caseloads, a great deal of statistical data was presented concerning past and current caseloads of either the individual lawyer (Louisiana) or of the individual lawyers and the overall office caseload (Arizona, Tennessee, and Florida). In addition, in all four cases, expert witness testimony was presented concerning whether the individual public defender (Louisiana) or the staff as a whole (Arizona, Tennessee, and Florida) could be expected to provide competent services given the size of the caseloads. Also, in the Arizona, Tennessee, and Florida cases, dedicated and skilled attorneys from prominent private law firms in their respective states, experienced in civil litigation, served as pro bono counsel and represented the public defender offices in challenging their caseloads.[100] In addition, in the Tennessee and Florida cases, private criminal defense attorneys testified that they believed the defenders could not adequately represent all of their clients and that, as private practitioners, they would not assume caseloads as large as those of the public defender unless they had substantial additional resources.[101]

Cases Asserting the Rights of an Individual Defendant

When pretrial litigation is brought on behalf of all or a class of indigent defendants, systemic reform is usually the goal. In contrast, when problems with the system of indigent defense are raised pretrial on behalf of a single defendant or co-defendants, the matter is normally presented to the trial court in a motion, and the relief sought relates to the specific defendant or defendants before the court. It is, therefore, not surprising that such actions do not normally result in systemic changes to the indigent defense system, as illustrated in the following cases.

In New Mexico v. Young,[102] in an unusually complex capital case involving co-defendants and two defense teams, the lawyers “filed a motion asking to be compensated at an hourly rate, to be allowed to withdraw, and/or to dismiss the death penalty.”[103] The attorneys argued that they would require an additional $100,000 per defense team to represent the defendants even if the request for the death penalty was withdrawn, but would require an additional $200,000 per defense team if the death penalty remained an option. The New Mexico Supreme Court agreed that $100,000 was inadequate under the extraordinary circumstances of the case. As the court explained, “[t]he inadequacy of compensation in this case makes it unlikely that any lawyer could provide effective assistance, and, therefore, as instructed by the United States Supreme Court, ineffectiveness is properly presumed without inquiry into actual performance.”[104] After considering various alternatives, the court determined that the proper course was to stay the prosecution of the case in which the death penalty remained an option unless additional funding for defense counsel was appropriated by the legislature. In doing so, the court remarked that it was making “no determination that similar fees or rates are constitutionally required in other cases.”[105]

The Louisiana Supreme Court reached a similar result in State v. Citizen,[106] where there were insufficient funds to compensate appointed counsel in two capital cases. The attorneys for the defendants were to be paid by the then state-funded Louisiana Indigent Defense Assistance Board. When the board failed to provide adequate funds for the defense, the trial court ordered the local parish to appropriate the necessary funds for defense counsel. In overruling the trial court’s decision, the Louisiana Supreme Court found that, under state law, a local parish could not be ordered to pay for indigent defense. Instead, the court noted that funding was the legislature’s responsibility and that, even if the legislature were to reform the indigent defense system in Louisiana, which was then under consideration, changes would not be made in sufficient time to help the defendants. Accordingly, the court concluded that “the trial judge may halt the prosecution of these cases until adequate funds become available to provide for these defendants’ constitutionally protected right to counsel….”[107]

Quitman County v. State of Mississippi (Taxpayers’ Rights Case)

A different kind of strategy was pursued by Quitman County, Mississippi, in an effort to achieve systemic reform in the funding of indigent defense. On its own behalf and on behalf of its taxpayers, Quitman County asked that the State of Mississippi be ordered to pay for the cost of indigent defense representation, which by statute in Mississippi is funded by the counties.[108] In State v. Quitman County,[109] the county claimed that the state breached its duty under the state’s constitution to provide representation for indigent defendants and that Quitman County could not afford the expense. When the case was first appealed to the Mississippi Supreme Court, the court rejected the state’s motion to dismiss and remanded the matter for trial, concluding that counties had standing to sue because the county-based system of indigent defense adversely impacted counties and their taxpayers.[110] The court also indicated that, if the allegations of chronic underfunding by the state were shown to lead to systemic constitutional deficiencies in providing the right to counsel, the county would be entitled to relief in the form of increased state appropriations.[111] After a trial, in which the trial court ruled against Quitman County, the case again was appealed to the Mississippi Supreme Court. The court sustained the trial judge’s decision, concluding that Quitman County had not “met its burden of proving that the funding mechanism established by statute led to systemic ineffective assistance of counsel….”[112]

Post-Conviction Litigation

In post-conviction cases, it is sometimes possible to argue that not only did defense counsel fail to provide appropriate representation on behalf of a specific client, which would warrant an analysis of attorney performance under the Strickland standard for ineffective assistance of counsel, but also, that no lawyer could have effectively represented the client under the circumstances in which the jurisdiction provided indigent defense services. To succeed with such an argument, which is predicated on the Supreme Court’s decision in Cronic v. United States,[113] courts have required proof both that systemic deficiencies exist and that they prejudiced or were highly likely to have prejudiced the defendant.

For instance, in Conner v. Indiana,[114] counsel argued in a post-conviction proceeding that the defendant was denied his right to an effective lawyer because the indigent defense system was so defective that even experienced counsel could not provide competent representation. Counsel pointed to the hiring of defense attorneys by judges based on political affiliation, as well as a lack of trained staff and resources. But the Indiana Supreme Court refused to provide relief, observing that the lower court did not find any systemic deficiencies at all and that the defendant did not demonstrate that the systemic deficiencies alleged were present in his case.[115] While the court conceded that the indigent defense system was less than ideal, it did not believe that this particular defendant had been affected, finding that “political considerations did not hamper or constrain trial counsel, that trial counsel received funds to hire an investigator and a psychological expert, and that no evidence demonstrated that trial counsel failed to pursue any aspect of the defense because of pressure or lack of funds from the trial court.”[116]

Similarly, the Arizona Supreme Court denied relief to the defendant in the post-conviction case of State v. Smith,[117] even though the Court found that the procedure followed by Mohave County, Arizona, in providing indigent defense services, violated the rights of indigent defendants to effective assistance of counsel and due process. The defense system was ruled defective because the county contracted with individual attorneys through a low-bid arrangement that failed to take into account the number and types of cases to be represented, the experience of the attorneys, and the time required for each case. The court further noted that investigative services had to be paid by the contracting attorney, thus reducing the likelihood that an investigator would be used, and that there was no limit on the number of retained clients contracting attorneys could have. Accordingly, the court found that the situation in Mohave County created an inference of ineffectiveness in all cases and held that this inference would prospectively apply to all counties using the same procedures for selecting and compensating counsel. However, in the particular case before it, the court ruled that the inference was rebutted.[118] (In considering the Smith case, however, it is important to note that the Arizona Supreme Court decision was not controlled by either Strickland or Cronic because Smith was decided approximately six weeks before these Supreme Court cases. If Cronic had been controlling, perhaps the Arizona Supreme Court would not have relied upon an inference that was rebutted but instead would have decided “that a presumption of prejudice … [was] appropriate without inquiry into the actual conduct of the trial.”[119])

On balance, however, it is undoubtedly difficult to achieve systemic indigent defense reform when issues are litigated in post-conviction proceedings. Even if systemic deficiencies are acknowledged by courts, as occurred in Conner, the problems will rarely be found to raise “a presumption of prejudice,” thereby avoiding an examination of what actually occurred during the trial. The state invariably will argue that the representation of the defendant should be analyzed under Strickland’s two-prong test and that the representation was reasonably competent, and even if it was not, there was no prejudice to the defendant notwithstanding deficiencies in the defense system. Thus, as one author has noted, efforts to achieve systemic reform through post-conviction litigation are unlikely to succeed.[120]