Oestereich v. Selective Service System Local Board No. 11 Brief for Petitioner

    IN THE

Supreme Court of Pennsylvania
Eastern D istrict

January Term, 1970 No. 223

IN RE AMENDMENTS OF ARTICLES OF 
INCORPORATION OF DEFENDER ASSOCIATION 

OF PHILADELPHIA

Appeals of Bernard L. Segal and 
Louis B. Schwartz

BRIEF FOR APPELLANTS 
AND OPINION OF 

COURT BELOW

Appeals from Adjudication of the Court of Common 
Pleas of Philadelphia County, Trial Division, per 
McDevitt J., approving certain amendments to 
the Articles of Incorporation of the Defender 
Association of Philadelphia, originally docketed 
as Common Pleas Court No. 5 of Philadelphia 
County, June Term, 1930, No. 10005.

LOUIS B. SCHWARTZ 
3400 Chestnut St.
Philadelphia, Pa. 19104 

BERNARD L. SEGAL 
Suite 600
One East Penn Square Building 

& Philadelphia, Pa. 19107
Attorneys fo r  Appellants

THE LEGAL INTELLIGENCER, 6G NORTH JUNIPER STREET, PHILA., PA. 19107



TABLE OF CONTENTS

Page
Jurisdictional Statement ............................................  1

Statement of Questions Involved............................... 2

History of the C a s e .......................................................  3

Summary of Argument ..............................................  6

Argument ....................................................................... 9

The Central Is s u e ................................................. 9

I. As a Matter of Law, 50% Plus Influence 
in the Board of Directors is Clearly 
Domination by City H a ll ........................  10

II. State and Federal Constitutions Forbid 
a “Partnership” between Prosecuting Au­
thorities and Counsel for the Indigent
Accused .....................................................  11

A. The Controlling C a se s ......................  11

B. A Manifest conflict of interest exists
where the Mayor, who will appoint 
the City’s Members on the Defender 
Board. Also appoints the Commis­
sioner of Police and the City solic­
itor .......................................................  15

C. The conflict of interest that exists 
by virtue of the Mayor’s power to 
appoint the City Solicitor and also 
the City’s members on the Defender 
Board is further compounded by the 
appointment to the Defender Board
of the City Solicitor h im self.............  18

D. The Analogy with City Hall “partner­
ships” in Commercial and Develop­
ment Enterprises is Wholly Inap­
propriate ..............................................  19

l



TABLE OF CONTENTS— (Continued)

Page
III. “A Construction Which Is Clearly Con­

stitutional is to be Preferred to One That 
Raises Grave Constitutional Questions” 19

IV. When Independence of Counsel or Con­
flict of Interest is in Question, It is the 
Possibility, not the Actuality, of Preju­
dice that is Determinative......................  21

A. The Applicable T e s t ..........................  21

B. Political Control of Defense of the 
Poor is Not a Speculative Claim but 
is Based in Part on the Success of 
City Hall in Forcing the Resignation 
of the Acting Chief Defender En­
tirely for Political M otives...............  27

V. Constitutionally Mandated Defense 
Services Must Provide the Appearance 
as Well as the Reality of Independence . 29

VI. Arrangements Which Exert a “Chilling 
Effect” on the Exercise of Constitutional 
Rights Must be Condemned on Constitu­
tional and Public Interest Grounds . . . .  29

VII. “Command Influence”, Which is Barred 
in Military Prosecutions, Must A Fortiori 
be Excluded from Prosecution in Civil­
ian Courts ...................................................  30

VIII. Professional Ethics and the Constitution 
Would Demand Full Disclosure to 
Clients of the Compromising “Partner­
ship” with City Hall, and Intelligent 
Consent by the Client. It Would be Im­
practicable to Operate a Defender Or­
ganization on that B a s is ........................... 32

ii



TABLE OF CONTENTS— (Continued)
Page

IX. The Pennsylvania Non-Profit Corpora­
tion Law; Charter Amendments Must be 
“Lawful,” “Beneficial” and “Not In­
jurious” .....................................................  34

X. In Defining the Public Interest, the
Court Should Accord Great Weight to 
Recent Authoritative Declarations of 
Appropriate Standards for Organized 
Defender Associations ............................. 36

XI. The Scope of Review on Appeal in 
Equity Cases is Very Broad; it Should 
Especially be so Here Where the Or­
ganization of Criminal Justice is at
Stake .......................................................... 40

XII. Implications of this Case for Political 
Control of Private Schools, Public Tele­
vision, Welfare Payments, and Other 
State Supported Operations....................  42

Conclusion ..................................................................... 46

Adjudication ................................................................  48

TABLE OF CITATIONS
Cases:
Anders v. California, 386 U.S. 738 (1 9 6 7 )........... 12, 13
Chambers v. Chambers, 406 Pa. 50, 56 (1962) . . . .  41
Commonwealth v. Grucella, 214 Pa. Superior Ct.

716 (1 9 6 9 )..............................................................  23
Commonwealth v. Stotland, 214 Pa. Superior Ct.

35 (1969) ..............................................................  16
Commonwealth v. Wakeley, 433 Pa. 159 (1969) . . .  23
Commonwealth ex rel. Dermendzin v. Myers, 397 

Pa. 607 (1959) .....................................................  19



Cases: Page
Commonwealth ex rel. Gallagher v. Rundle, 423 

Pa. 356, 223 A.2d 736, 737 (1 9 6 6 ) .................... 11
Commonwealth ex rel. Lyons v. Day, 177 Pa. Su­

perior Ct. 392 (1 9 5 5 ) ..........................................  19
Commonwealth ex rel. Washington v. Maroney,

427 Pa. 599 (1 9 6 7 ) ..............................................  21
Commonwealth ex rel. Whitling v. Russell, 406 

Pa. 45, 176 A.2d 641 (1 9 6 2 ) ........................ 22,23
Crooker v. California, 357 U.S. 433 (1 9 5 8 ).............  26
Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) . . 29 
Douglas v. California, 372 U.S. 353 (1 9 6 3 ).............  12
Gideon v. Wainwright, 372 U.S. 335

(1963) .................................................... 1 2 ,24 ,26 ,42
Girsh Trust, 410 Pa. 455, 467 (1 9 6 3 ) ........................  41
Glasser v. United States, 315 U.S. 60 (1 9 4 2 )...........  24
Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 ) ......................  12
Hamilton v. Alabama, 368 U.S. at page 5 5 .............  24
Idell v. Falcone, 427 Pa. 472, 474 (1 9 6 7 ) ...............  41
Johnson v. Zerbst, 304 U.S. 458 (1 9 3 8 ).................... 15
McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1961) .24, 25
Middleburg v. Middleburg, 427 Pa. 114, 233 A.2d 

899 (1967) ............................................................  37
Miranda v. Arizona, 384 U.S. 436 (1 9 6 6 )...............  26
N.A.A.C.P. v. Button, 371 U.S. 415 (1 9 6 3 )..............  29
Nottingham Fire Company Charter, 394 Pa. 631,

632 (1959) ............................................................  40
O’Callahan v. Parker, 89 S.Ct. 1683 (1 9 6 9 )..............  32
Rapp v. Van Dusen, 350 F.2d 806, 812 (3d Cir. 

1965)   29
St. John C.G.C. Church v. Elko, 436 Pa. 243,254 . . 41

iv

TABLE OF CITATIONS— (Continued)



Cases: Page
Screws v. United States, 325 U.S. 91 (1945) . . . .  20
Seifert v. Dumatic Industries, 413 Pa. 395, 197 

A.2d 454 (1964) ................................................... 37
Shapiro v. Thompson, 89 S.Ct. 1322, 1329 (1969) . 45
Sherbert v. Verner, 374 U.S. 398 (1 9 6 3 ).................. 45
Snyder’s Case, 301 Pa. 276, 152 Atl. 33 (1930) . . . .  29
Tremont Township School Dist. v. Western Coal 

Co., 364 Pa. 591 (1 9 5 0 ) ...................................... 19
Turney v. Ohio, 273 U.S. 510 (1 9 2 7 )............. 13, 14, 25
U.S. v. Berry, CM 414955, June 7, 1968 .................. 30
United States v. McLaughlin, JALS Pamphlet 

27-69-1, p. 4 (December 13, 1 9 6 8 )....................  30
United States ex rel. Ried v. Richmond, 277 F.2d 

702 (2d Cir. 1 9 6 0 ) ...........................................25,26
United States v. Rumely, 345 U.S. 41, 45 (1952) . . 20 
Statutes:
Investment Company Act, 15 U.S.C.A.

§80a-2(a) (9)   11
Pennsylvania Non-Profit Corporation Law, 15 Purd. 

P.S.A. §7707 ............................................  34 ,35 ,36
Public Broadcasting Act of 1967, P.L. 90-129 

47 U.S.C.A. §396(a) (6) ...................................... 44
Public Utility Holding Company Act of 1935, §2,

15 U.S.C.A. §79 ................................................... 11
Statutory Construction Act §52(3), 46 Purd. P.S.A. 

§552   19
Uniform Code of Military Justice, Article 3 7 ...........  30

Other Authorities:
A.B.A. Project on Minimum Standards for Criminal 

Justice, Standards Relating to Providing De­
fense Services, §1.4 (1 9 6 7 ).............................27, 37

v

TABLE OF CITATIONS—(Continued)



Cases: Page
A.B.A. Special Committee on Evaluation of Ethical 

Standards, Code of Professional Responsibility 
(Preliminary Draft 1 9 6 9 )...............................32, 33

A.B.A. Standing Committee on Ethics and Pro­
fessional Responsibility, Informal Opinion 
No. 114 (7/24/69)................................................  14

TABLE OF CITATIONS— (Continued)

Berdahl, British Universities and the State (U.
Cal. Press 1 9 5 9 ) .............................................. 42, 43

Carnegie Foundation, Public Television: A Program 
for Action, Bantam ed. 1967, p. 37 ............. 43, 44

5 Cr. L. Rep. 1030, May 21, 1969 ............................... 12
Dimrock, The Public Defender: A Step Towards 

a Police State, 42 ABAJ 219 (1 9 5 6 ).................. 40
Hansen, Judicial Functions for the Commander,

• 41 Mil. L. Rev. 1 (1 9 6 8 ) ...................................... 30
2 Loss, Securities Regulation (1 9 6 1 )........................  11
Note, Another Look at Unconstitutional Conditions,

117 U. Pa. L. Rev. 144 (1 9 6 9 ) .........................  45
O’Brien, Implementing the Right to Counsel in 

New Jersey— A Proposed Defender System,
20 Rutgers L. Rev. 789, 818 (1 9 6 6 ) ...................  40

2P.L.E. §442(1957)
§339   41
§438   41
§442   41

Silverstein, Defense of the Poor, American Bar 
Foundation (1965) ............................................... 40

Somer, Who’s “In Control”?, 21 Business Lawyer 
559 (1966) ............................................................  11

Williston, History of the Law of Business Corpo­
rations Before 1860, 2 Harv. L. Rev. 105, 110 
(1888) ..................................................................... 35

Zeiter, Foreword to Title 15, Purdon’s Pa. Statutes, 
p. 72 .......................................................................  35

vi



Jurisdictional Statement 1

JURISDICTIONAL STATEMENT

The jurisdiction of this Court to hear this appeal 
arises from the Act of June 24, 1895, P. L. 212 §7.4 as 
amended by the Act of August 14, 1963, P.L. 819, §2, 
and as amended by the Act of June 30, 1967, P.L. — , 
No. 42, §1, 17P.S. 191.4.



STATEMENT OF QUESTIONS INVOLVED

1. Are poor people’s Constitutional rights to 
independent defense counsel, free of conflict of in­
terests, violated by an arrangement which gives the 
Mayor of Philadelphia and his law enforcement asso­
ciates more than 50% control of the governing board 
of the Defender Association?

(Answered in the negative by the Court below.)
2. Under the Pennsylvania Non-Profit Corpora­

tion Law, can an Amendment to the Charter of the 
Defender Association of Philadelphia be found “law­
ful,” “beneficial” and “not injurious” when its effect is 
to convert an independent legal defense into a defense 
dominated by “City Hall.”

(Answered in the affirm ative by the Court below.)
3. To pass on the constitutionality and pro­

priety of a shift from an independent defense agency 
to a defense agency dominated by political and law 
enforcement authorities, must the judicial system 
wait for piecemeal retroactive attacks on convic­
tion by habeas corpus and other post-conviction pro­
ceedings, rather than determine whether the struc­
ture of the proposed Defender organization involves 
inherently impermissible conflicts of interest?

(Answered in the affirm ative by the Court below.)
4. Did not the Court below manifestly err in 

failing to require, at the least, that the City’s repre­
sentation on the Defender Association Board be re­
stricted to the minimum necessary to safeguard the 
City’s fiscal interests in view of the uncontradicted 
testimony, some of it from the City’s own witnesses, 
that the reorganization gave the City more control 
than was warranted by any legitimate interest of the 
City?

(Answered in the negative by the Court below.)

2 Statement o f  Questions Involved



History o f  the Case 

HISTORY OF THE CASE

3

Under circumstances more fully described 
below, the Defender Association of Philadelphia, a 
Pennsylvania non-profit corporation engaged in de­
fending indigent persons accused of crimes, filed a 
petition in the Court of Common Pleas of Philadelphia 
County seeking to amend its charter and give con­
trol of 50% of the Defender Association Board to the 
City. The amendment was to effectuate an agreement 
between the Association and the City under which 
the City would advance the constitutionally required 
funds for defense of the indigent upon condition that 
City authorities should gain one-half control of the 
Board of Directors. Objections were filed by appel­
lants and others who were former members of the 
Board of the Defender Association and dues-paying 
members of the Association. Judge John J. McDevitt, 
3d, of the Court of Common Pleas of Philadelphia 
County, held a hearing, and approved the amendment 
in an adjudication filed August 8, 1969. The present 
appeal followed.

The hearings in the court below established that 
the Defender Association of Philadelphia has for 
thirty-five years provided defense services for in­
digent persons accused of crimes. It acquired a 
national reputation and was properly character­
ized in testimony in this case as a “model” in the field. 
(R. 134-136.) It was controlled by a Board of Direc­
tors numbering 50, elected by the membership and 
representing a broad spectrum of public-spirited 
citizens. Its financing came from the United Fund, 
membership dues, and occasional contributions. As 
the demand for services expanded, under the impact 
of Gideon v. W ainwright, these sources of financing 
became inadequate. The City of Philadelphia began



4

to supplement its income. Funds also came from the 
Ford Foundation and from the Poverty Program 
of the Federal Government. These latter sources of 
support dwindled by the beginning of 1969. (R. 65-70.) 
The City saw the necessity of increasing its contri­
bution to the level of $1,250,000. (R. 76.) City author­
ities determined, under these circumstances, to 
assume total control of the Defender operation, and 
introduced a bill in Council to create a Public De­
fender, to be appointed by the Mayor. (R. 587.) The 
Defender Association “fought back”, not to preserve 
itself or any particular form of organized defense 
of the indigent, but to protect the principle of inde­
pendence of defense counsel from prosecution-linked 
domination.

There resulted a “compromise”, embodied in a 
contract between the City and the Defender Associa­
tion. The compromise envisioned a “partnership” in 
control of the defense. City Hall would designate 10 
directors. The Defender Association would desig­
nate 10. These 20 would designate an additional 10. 
(R. 59.) On its face, this arrangement gives City Hall 
50% control of the Defender Association. In prac­
tice, it would give City Hall total domination, owing 
to the likelihood that highly-motivated political 
appointees would attend and vote en bloc at all crit­
ical points, especially in the selection of the Chief 
Defender and in establishing personnel policy. Prac­
tical domination would also be assured by the normal 
division of opinion among “independent” directors 
combined with the expectable political and economic 
links to City Hall of many directors having no overt 
connection with the political authorities.

Testimony in this case established City Hall’s 
purpose and power to dominate, through the force- 
out of the then Defender for political reasons, which

History o f  the Case



History o f  the Case 5

was made a condition of negotiations between the 
City and the Defender Association, and through the 
course of negotiations in which even the minimal 
safeguards in the contract were extracted from a 
reluctant City administration.

Uncontradicted testimony in this case, including 
testimony of the petitioners’ own witnesses, estab­
lished that the degree of control allotted to the City 
exceeds any legitimate interest the City could have 
in the premises. (R. 38-65, 145-147, 227-231). Uncon­
tradicted testimony established that the City’s legiti­
mate interests could be fully protected by contract 
stipulations regarding the service to be performed, 
audits and other purely fiscal supervision, and con­
tinuance of the policy already firmly established of 
“goldfish-bowl” operation with a standing invitation 
to any interested official to attend directors’ meet­
ings. Uncontradicted testimony established that full 
information about the Defender operation has al­
ways been made available, and that no City official 
had ever claimed otherwise. (R. 341.)

The amendments to the Defender Association 
charter, the subject of the present appeal, were de­
signed to carry out the contract executed by the 
Association under the gun of the City’s threat to cut 
off funds completely. Approval by the membership 
of the Association was by a close vote of 19-16. The 
tenuousness of the “independent” position in the pro­
posed organization is exposed by an analysis of the 
amended articles: virtually every feature of the or­
ganization and operation of the “new” Defender Asso­
ciation, including its contract with -the City, could 
be altered or abandoned without the concurrence 
of a single director representing the Association. 
The only power unequivocally remaining in the 
Association’s directors is the power to fix the annual 
dues of members.



6 Summary o f  Argument

SUMMARY OF THE ARGUMENT

The Constitutional right to effective assistance 
of counsel requires that poor defendants have lawyers 
about whom there can be no question of undivided 
loyalty. No client who could afford to retain his own 
lawyer would think of hiring one who was under the 
control of, or substantially linked to, the police or the 
prosecutor; it is a denial of equal protection and due 
process of law to force such lawyers upon the indigent.

The Pennsylvania Non-Profit Corporation Law, 
15 P.S. §7707 imposes three independent require­
ments for amendments to non-profit charters; the 
amendments must be “lawful,” “beneficial,” and 
“not injurious to the community.” None of these 
requirements is met here. The amendment, depriving 
the poor of independent counsel, is unlawful and 
unconstitutional, as shown above, because it denies 
effective assistance of counsel, equal protection, and 
due process. The reorganization of the Defender 
Association, far from being a “beneficial” change, is 
detrimental, inasmuch as it impairs the former inde­
pendence of the Defender Association. The amend­
ment is “injurious to the community” for the fore­
going reasons and also because it undermines confi­
dence in the system of justice, especially by the poor 
and minority groups, thus enhancing the probabilities 
of resort to violence rather than law. The fact that 
the Defender Association secured City financial 
support by selling its independence does not make up 
for this “injury.” The City could not constitutionally 
deny adequate funds for defense. Its promise to do 
what it was bound, in any event, to do is no legal 
consideration for giving up independence of defense 
counsel. However coerced the Defender Association



Summary o f  Argument 7

felt itself to be, the Courts are not bound to accept 
and sanction such an illegal and bad bargain.

It is well settled, contrary to the decision below, 
that the constitutional right to counsel free of con­
flict of interest is not to be tested by a showing of 
actual prejudice (i.e., on retrospective review of 
actual trials), but by appraising the potential for 
something less than zealous protection of defendant’s 
rights. Middleburg v. Middleburg, 427 Pa. 114 (1967); 
Com m onwealth ex rel. Whitling v. Russell, 406 Pa. 
45 (1962); Gideon v. W ainwnght, 372 U.S. 335 
(1963); Glasser v. U.S., 315 U.S. 60 (1942); McKenna 
v. Ellis, 280 F.2d 592 (5th Cir. 1961). Cf. P. 63 (opinion 
of the court below). Moreover, the Non-Profit Corpo­
ration Law explicitly requires the courts to appraise 
the future effect of proposed charter amendments. 
Accordingly, it was fundamental error for the Court 
below to dismiss as “speculative” all evidence and 
demonstration by the Objectors that the reorganiza­
tion was fraught with peril to the independence and 
zeal of defense counsel, p. 63 (opinion of the court 
below).

The proposed reorganization of the Defender 
Association is unlawful and injurious for the addi­
tional reason that it violates the American Bar Asso­
ciation’s Code of Professional Responsibility and 
Standards for Providing Defense Services. These 
inveigh against “diluted” or “divided” loyalty, or 
“political pressures,” and demand that defense of the 
indigent be “free from political influence”— totally 
free, not 50% free.

The City’s legitimate fiscal interests can be fully 
safeguarded without domination of the Defender 
Board, through audits, standing invitations (as here­
tofore) to City officials to attend all meetings, in­
spect books, and the like. If deemed appropriate, two 
or three City officials might, as in the past, serve on



8 Summary o f  Argument

the Board of Directors without City domination of 
the Board. Accordingly, the crucial finding of fact by 
the court below, No. 19, that “No feasible alternative 
to the proposed system has been shown,” is absolutely 
contrary to the evidence, (p. 55). If this Supreme 
Court reverses and remands with instructions to con­
fine the City’s representation to the minimum re­
quired to safeguard the City’s fiscal interests, no 
problem of feasibility whatsoever will be encountered. 
Finding No. 19 really translates into a conclusion that 
“The City won’t pay unless it has its way.” We believe 
that the rule of law and respect for the judiciary 
still survive in this Commonwealth; if the Court de­
fines the Constitutional obligation, the City will pay.



ARGUMENT

Argument 9

The Central Issue.

The central issue posed by this litigation is 
whether the government, which is constitutionally 
required to finance defense of the indigent, shall also 
m anage the defense or exercise large influence over 
the defense.

The issue is not whether it would be beneficial 
for the Defender Association to have the $1,250,000 
which the City has offered. Of course it would be 
beneficial. Eut no Court has authority or informa­
tion enabling it to review appropriations. It does 
not know whether $1,250,000 is too much or too little. 
It certainly will have no power in the future to say 
whether amounts annually appropriated by the City 
are sufficient to make it a good or bad bargain for 
the Defender Association to sell its independence.

The issue is not “public” vs. “private” defenders. 
The Defender Association has been and certainly will 
continue to be a “public” defender in the sense that 
private interest and profit considerations are totally 
excluded, all operations are fully exposed to public 
scrutiny, and public accountability in the form of 
audits and inspections is unquestioned. The issue is 
how public defense is to be organized in Philadelphia; 
specifically whether it is “beneficial” to change from 
a fully independent board, insulating the defense from 
City Hall and prosecution-linked influences, to a 
board dominated by these latter powers.

There is in this case no attack upon or incon­
sistency with the “public defender” provisions o f  state 
law. Appellants do not argue that every county 
must imitate Philadelphia’s distinctive and experi­
enced “voluntary” defender plan. Public defenders



10 Argument

may and should be established outside the metropoli­
tan areas where no effectively financed defense has 
existed. This Court’s decision in the present case 
will affect them (and countless public defender organ­
izations to be established throughout the country) 
only insofar as it indicates the necessity and desir­
ability of some measures to protect defense opera­
tions from compromising, injurious and unconstitu­
tional links with governing and prosecuting powers. 
It is significant in this connection that the present 
proposals for Philadelphia are unique in subjecting 
the appointment and operation of the Defender to a 
Mayor who also appoints the Police Commissioner and 
the City Solicitor, the latter a prosecutor of certain 
categories of criminal cases. In other counties, the 
County Commissioners who designate the public de­
fender have no such direct links with police and 
prosecution. Public defenders elsewhere are insulated 
in various ways, e.g., by boards of trustees.

I. As a Matter of Law, 50%  Plus Influence in the 
Board of Directors is Clearly Domination by 
City Hall.

The subtle channels of political control, combined 
with the vast economic influence exercised by the 
government through its tax, purchasing, and regula­
tory powers, present an extraordinary threat to the 
independence of the Defender Association. The 50% 
overt influence of the City that is spelled out in the 
constitution of the Board of Directors is only that 
part of the iceberg that shows above the water. Below 
is the more dangerous bulk of the navigation hazard. 
In the world of business regulation, no one doubts the 
efficacy of “control” achieved with far less than 50% 
ownership of a business. Thus 10% ownership of the



Argument 11

voting securities of a corporation is presumptively 
control under the Public Utility Holding Company 
Act of 1935, §2. 15 USCA §79b(a)(8). The Invest­
ment Company Act adopts the figure 25%. 15 USCA 
§80a-2(a)(9). See generally, 2 Loss, Securities Reg­
ulation (1961) 770 (2d ed. 1961).

“It has been generally recognized since long 
prior to 1933 that practical control of a corporation 
does not require ownership of 51% of its voting 
securities— or anything like that amount. We 
have already noticed in the opening chapter the 
rarity of control by majority ownership so far 
as the country’s largest corporations are con­
cerned, and the frequency of control by manage­
ment with little or no voting power.”

See also Sommer, W ho’s “In Control’’?, 21 Business 
Lawyer 559 (1966).

II. State and Federal Constitutions Forbid a 
“ Partnership” between Prosecuting Author­
ities and Counsel for the Indigent Accused.

A. The Controlling Cases

The Constitutional right to effective assistance 
of counsel will be violated under the proposed 
“partnership” between City Hall and independent 
directors. The Supreme Court of Pennsylvania has 
stated quite clearly, “It is unchallenged that the 
Sixth Amendment guarantee of effective assistance 
requires the service of a lawyer who is not obligated 
to serve conflicting interests at the same time. 
Comm, ex rel. Gallagher v. Rundle, 423 Pa. 356, 
(1966). At the recent National Defender Conference, 
jointly sponsored by the United States Department 
of Justice, the American Bar Association, and the



12 Argument

National Defender Project of the National Legal Aid 
and Defender Association, Attorney General John N. 
Mitchell said:

“There is one point in which we all agree— the 
prosperous, the educated, and the experienced 
criminal defendant should not have a substantial 
advantage over the poor, the illiterate, and the 
novice”, (reported in 5 Cr. L. Rep. 1030, May 
21, 1969).

It is obvious that no one who could afford an inde­
pendent attorney would take one who was in “partner­
ship” with the government that was prosecuting him.

Numerous decisions of the Supreme Court of the 
United States establish that the poor are not to be 
fobbed off with a second-class defense; they are en­
titled to equality of defense. This means equality as 
respects independence as well as equality in other 
respects, regardless of demonstrated “prejudice” from 
lack of counsel,1 counsel on appeal regardless of 
appellate court’s opinion that it would not be “help­
ful”,2 and provision of a transcript on appeal.3 The 
strict requirement of undivided loyalty to the client 
is demonstrated by Anders v. California, 386 U.S. 
738 (1967), where the Supreme Court invalidated a 
conviction because appeal counsel appointed for the 
indigent defendant was allowed to withdraw after 
filing a letter to the effect that his client’s appeal had 
"no merit.” The California courts had refused to ap­
point another attorney who would present the client’s 
position as an active advocate. Mr. Justice Clark’s 
opinion declared that this refusal “lacks that equality 
that is required by the Fourteenth Amendment.” The

1. Gideon v. Wainwright, 372 U.S. 335 (1963).
2. Douglas v. California, 372 U.S. 353 (1963).
3. Griffin v. Illinois, 351 U.S. 12 (1956).



Argument 13

case is especially notable and apt in the present con­
nection because the Supreme Court rejected argu­
ments based on reliance upon the professional integ­
rity of counsel. See dissenting opinion, 386 U.S. at 747:

“I cannot believe that lawyers appointed to 
represent indigents are so likely to be lacking in 
diligence, competence, or professional honesty. 
Certainly there was no suggestion in the present 
case that the petitioner’s counsel was either in­
competent or unethical.”

The high probability that appointed counsel would 
behave honorably and competently, and that his “no 
merit” letter could be trusted was treated as an 
inadequate substitute for uncompromising advocacy 
such as a fee-paying client would get.

The Anders holding is all the more striking when 
viewed against the background of the duty which the 
California courts laid upon them selves to review the 
transcript and independently confirm that only friv­
olous issues were raised and that counsel’s “no merit” 
letter was correct. Thus neither the assumed pro­
fessional reliability of lawyers nor the duty of courts 
to prevent prejudice arising from lawyers’ neglect 
saves a conviction where counsel was not manifestly 
and unequivocally on the side of his client.

In Turney v. Ohio, 273 U.S. 510 (1927), dis­
cussed in further detail below, the Supreme Court 
invalidated a conviction mainly because the village 
mayor who tried the case was compensated from 
“costs” imposed in case of conviction. But the Court 
also saw another important element of unconstitu­
tional impropriety in the fact that the village, as 
distinct from the mayor personally, had a financial 
stake in the proceedings. The Ohio statutes provided 
that half the fines in liquor cases would be payable to



14 Argument

the villages for expenses of enforcing the liquor law. 
The Court took cognizance of the fact that the mayor 
“is charged with the business of looking after the 
finances of the village” so that he would be indirectly 
interested in imposing higher fines:

With his interest, as mayor, in the financial con­
dition of the village, and his responsibility 
therefore, might not a defendant with reason say 
that he feared he could not get a fair trial . . . 
from one who would have so strong a motive to 
help his village by conviction and a heavy fine? 
(273 U.S. at p. 533).

The relevance of this potential financial bias in 
the present case is clear. Many decisions by a public- 
defender entail expenses for the community, notably, 
refusal to plead guilty, demand for jury trial, and zeal­
ous prosecution of appeals. Conscientious work as 
defense counsel may expose the need for greater 
expenditures for prosecution, courtroom facilities, 
probation service and jails. It defies belief that City 
representatives on the Board of the Defender Associa­
tion would ignore budgetary implications of decisions 
of this sort. And even if, “being men of the highest 
honor and the greatest self-sacrifice”, they did manage 
to ignore it, the question remains whether defendants 
and the community would believe it. R. 412, 543-546; 
567. Recent events have highlighted the vital neces­
sity for the centers of justice to avoid the appearance 
as well as the substance of evil. See the advisory 
opinion of the American Bar Association’s Committee 
on Professional Ethics in the matter of Justice Fortas, 
1969.4

4. A.B.A. Standing Committee on Ethics and Profes­
sional Responsibility, Informal Opinion No. 1114 (7/24/69.).



Argument 15

It is not material that the present case concerns 
defense counsel rather than judge. Johnson v. Zerbst, 
304 U.S. 458 (1938), the landmark case establishing 
that lack of counsel renders a conviction subject to 
collateral attack, treated absence of counsel as “fail­
ure to complete the court” resulting in loss of jurisdic­
tion. And, from a practical point of view, a defendant 
needs a lawyer whom he can trust absolutely even 
more than a completely impartial judge. Intimate 
confidentiality is a feature of the client-attorney 
relationship; it is not so of the judge-defendant re­
lationship. The zealous defense lawyer can often 
manage to avoid subjecting his client to trial before 
an unsympathetic judge, be watchful against expres­
sions of bias from the bench, and seek remedies by 
appeal.

B. A Manifest Conflict o f  Interest Exists Where 
the Mayor, W ho Will Appoint the City’s Mem­
bers o f  the Defender Board, Also Appoints the 
Com m issioner o f  Police and the City Solicitor.

The intolerable effect of linking Defender ser­
vices to City Hall is glaringly apparent when it is 
recognized that the Mayor will appoint the princi­
pal antagonists in the field of law enforcement 
and in the defense of indigent persons accused of 
crime at one and the same time.

Under the amendments to the Defender Associa­
tion charter the Mayor will appoint all of the City’s 
representatives to the Defender Board, and thereby 
influence, if not control, the appointment of the Chief 
Defender. At the same time, however, the Mayor 
under the Philadelphia Home Rule Charter appoints, 
through the Managing Director, the Commissioner of 
Police. Equally disturbing is the fact that the Mayor



16 Argument

also appoints the City Solicitor, who is the prosecu­
tion lawyer for violations of numerous criminal-type 
ordinances, such as violations of the Mayor’s Procla­
mation,5 and various anti-gun, knife and weapons 
ordinances.

The amendments approved by the Court below in 
simplest form allow the Mayor of Philadelphia to 
appoint the lawyers on both sides of litigation involv­
ing indigents accused of offenses, as well as the 
principal enforcement officer, too.

The total unacceptability of this arrangement 
is fully exposed by Police Commissioner Rizzo’s state­
ment, reported on page 1 of the Philadelphia Bulletin 
for June 10, 1969. Speaking before City Council’s 
Committee on Public Safety, he declared his inten­
tion to stop police payroll deductions for the benefit 
of the United Fund because the United Fund sup­
ports the Legal Aid Society. Organizations that 
“fight the Police Department . . . won’t get a 
penny,” he stated. On June 16, 1969, the Board of 
Governors of the Philadelphia Bar Association 
adopted the following resolution in response to this 
threat to independent, loyal legal representation of 
the poor:

“WHEREAS, the Philadelphia Commissioner 
of Police has publicly charged the Legal Aid 
Society of Philadelphia with harassing the police 
force and processing complaints against police 
officers, a charge which investigation indicates to 
be unfounded in fact, and

WHEREAS, the Board of Governors deems 
such charge an attack upon the freedom of the 
lawyer to represent his client,

5. See Commonwealth v. Stotland, 214 Pa. Superior Ct. 
35 (1969).



Argument 17

NOW, THEREFORE, BE IT RESOLVED, 
That the Philadelphia Bar Association through 
its elected Board of Governors supports and en­
courages every lawyer in the exercise of his pro­
fessional responsibility to represent any client 
or group of clients in regard to any just cause of 
action no matter how unpopular; and,

FURTHER RESOLVED, That the Philadel­
phia Bar Association deplores any action or 
statement by any government official who at­
tempts to discourage or interfere with the opera­
tion or activities of a non-profit corporation 
providing legal services to the community merely 
because the lawyers employed thereby, acting in 
good faith and within the confines of ethical con­
duct, zealously represent their clients in matters 
deemed embarrassing to, or which involve claims 
against, a government entity or individuals 
employed thereby.”

The continuing disposition of police, prosecution, 
and political authorities to exert their influence even 
upon the judiciary is attested by the events of late 
August, 1969, as reported in the Philadelphia Bulletin, 
August 27, p. 42, and August 29, p. 1. Under a head­
line, “Rizzo Sets Up Meeting with Judge Carroll,” 
the report describes a meeting in the Mayor’s office, 
attended by the District Attorney, the Commissioner 
of Police, and several judges, at which the judges 
were pressed to change their sentencing policies. 
This meeting, too, evoked protest from the Philadel­
phia Bar Association. These events are not in the 
record below, since they occurred after the hearing in 
this case, and accordingly cannot serve as direct evi­
dence for consideration by this Court. They are 
mentioned here merely to illustrate by concrete



18 Argument

example the dangerous potential for interference 
with the Defender Association, if City Hall presides 
over the destinies of the Association.

This potential for interference was candidly 
summed up by Richard A. Sprague, First Assistant 
District Attorney of Philadelphia, and a witness called 
by the objectors. Sprague testified from the vantage 
point of 11 years in responsible positions in the Dis­
trict Attorney’s office, and from nearly three years 
experience prior to that as an Assistant Defender. 
He declared:

. . I’m aware of the extent to which, say, the 
Police Department, people from the City Ad­
ministration, are interested in—from the Prose­
cutor’s side, we call it the war on crime. And to 
the extent that the Police, through whatever 
levels of people in the Administration, could 
perhaps have a say over policies by those defend­
ing people we’re warring on, and there in my 
opinion will be a reaching into that area an 
intimidation, getting people to back off certain 
action that they might otherwise take. And I 
think and I feel that the people employed unfor­
tunately are not always the most resolute and 
if they’re aware of the powers over them, they 
might not take as forthright a stand as they 
otherwise would if they were completely inde­
pendent.” (R. 321-322.)

C. The Conflict o f  Interest that Exists by virtue 
o f  the Mayor’s pow er to appoint the City Solic­
itor and also the City’s m em bers on the Defender 
Board is further com pounded by the appoint­
ment to the Defender Board o f  the City Solicitor 
h im self
As if to further underscore the failure of the City 

to recognize the conflict of interest arising from the



Argument 19

Mayor’s influence over the appointment of the Chief 
Defender through his appointment of members of the 
Defender Board as well as his own power of appoint­
ment over the City Solicitor, on January 29, 1970 
the City Council confirmed the Mayor’s appointment 
of Edward Bauer, the incumbent City Solicitor of 
Philadelphia, to the Board of the Defender Associa­
tion.

D. The Analogy with City Hall “partnerships” 
in Com m ercial and Development Enterprises 
is Wholly Inappropriate.

Testimony in this case established that the ne­
gotiators thought in terms of Philadelphia Industrial 
Development Corp. and other enterprises in which 
the City and powerful commercial or financial groups 
jointly embarked on port development or other pro­
prietary projects. (R. 437-439). It is evident that these 
collaborations present no Constitutional issues. No 
fundamental private rights are at stake. Moreover, 
there is in such partnerships a notable parity of power 
that is absent in the present case where the City will 
be the source of virtually all the funds.

III. “ A Construction Which Is Clearly Constitu­
tional is to be Preferred to One That Raises 
Grave Constitutional Questions.”

The quotation is from Com m onwealth ex rel. 
Lyons v. Day, 177 Pa. Superior Ct. 392 (1955), citing 
§52(3) of the Statutory Construction Act, 46 P.S. 
§552. But it is hornbook law. See, for example, Com­
m onwealth ex rel. Dermendzin v. Myers, 397 Pa. 607 
(1959); Tremont Township School Dist. v. Western 
Coal Co., 364 Pa. 591 (1950). The Supreme Court of



20 Argument

the United States follows the rule. In Screws v. United 
States, 325 U.S. 91 (1945), the Supreme Court gave 
the Civil Rights Act a narrow specificity not to be 
found on its face, lest it be unconstitutionally vague, 
saying:

If such a construction [i.e., the broader con­
struction] is not necessary, it should be avoided. 
This Court has consistently favored that interpre­
tation of legislation which supports its constitu­
tionality. . . . That reason is impelling here 
so that if at all possible §20 may be allowed to 
serve its great purpose— the protection of the 
individual in his civil liberties.

In United States v. Rumely, 345 U.S. 41, 45 
(1952), the doctrine was summed up as follows:

“Accordingly, the phrase “lobbying activities” 
in the resolution must be given the meaning 
that may fairly be attributed to it, having special 
regard for the principle of constitutional adju­
dication which makes it decisive in the choice of 
fair alternatives that one construction may raise 
serious constitutional questions avoided by 
another. In a long series of decisions we have 
acted on this principle. In the words of Mr. Chief 
Justice Taft, “ [i]t is our duty in the interpre­
tation of federal statutes to reach a conclusion 
which will avoid serious doubt of their constitu­
tionality.” Richm ond Co. v. United States, 275 
U.S. 331, 346. Again, what Congress has written, 
we said through Mr. Chief Justice (then Mr. 
Justice) Stone, “must be construed with an eye 
to possible constitutional limitations so as to 
avoid doubts as to its validity.” Lucas v. Alex­
ander, 279 U.S. 573, 577. As phrased by Mr. Chief 
Justice Hughes, “if a serious doubt of constitu-



Argument 21

tionality is raised, it is a cardinal principle that 
this Court will first ascertain whether a con­
struction of the statute is fairly possible by which 
the question may be avoided.” Crowell v. Benson, 
285 U.S. 22, 62, and cases cited.”
So here we ask the Court to interpret the Penn­

sylvania Non-Profit Corporation Law so as to avoid 
grave constitutional questions and in favor of in­
dividual liberty including the right to counsel free 
of conflict of interests.

IV. When Independence of Counsel or Conflict of 
Interest is in Question, It is the Possibility, 
not the Actuality, of Prejudice that is Deter­
minative.

A. The Applicable Test.
The Court below was clearly in error in adopting 

the view, which pervades all findings and discussion 
in the adjudication below, that the obvious conflict of 
interest in City Hall domination of the defense did not 
itself vitiate the proposed reorganization. The Court 
thought that apprehensions on this account were 
“speculative” and premature; that possible harm to 
defendants might be averted if, as former Defender 
Herman I. Pollock testified, the non-City directors 
“continue to fight to keep the Association indepen­
dent.” R 592. The Court below was satisfied to await 
the outcome of this “fight”, and to undertake the dif­
ficult task of determining whether the vigor of de­
fense had actually been undermined in particular 
cases on habeas corpus.

But that test of actual harm is the proper rule 
only when inquiring w hether an independent counsel, 
fr ee  o f  conflict o f  interest, has done his jo b  with rea­
sonable com petence. That is the teaching of Com mon­
wealth ex rel. W ashington v. Maroney, 427 Pa. 599



22 Argument

(1967), a case which shows how difficult it is to pass 
on adequacy of counsel by hindsight. An altogether 
different rule applies in Pennsylvania, as elsewhere, 
when the issue is conflict of interest. Com monwealth  
ex rel. Whitling v. Russell, 406 Pa. 45:

If, in the representation of more than one de­
fendant, a conflict of interest arises, the mere 
existence of such a conflict vitiates the proceed­
ing, even though no actual harm results. The 
potentiality that such harm may result, rather 
than that such harm did result, furnishes the 
appropriate criterion. As pointed out by Judge 
Montgomery in his dissenting opinion, the Supe­
rior Court in Pile v. Thom pson, 62 Pa. Super. 
400, well stated: . . . The rule is not intended 
to be remedial of actual wrong, but preventive of
the possibility of it. (ital. in original)

*  *  *

One of the most important factors in a criminal 
trial is the attitude of the defendant’s counsel 
and often the strength of the defendant’s cause, 
unfortunately, is judged and gauged by the abil­
ity demonstrated by defendant’s counsel. We can­
not say that counsel in the instant case was not 
effective. But could he not have been more effec­
tive, and more able to utilize the evidence, if he 
had not been burdened by the chore of defending 
two defendants whose positions were inconsistent 
and at variance?

The Whitling decision serves notice that convic­
tions obtained in disregard of potential conflict of 
interest of defense counsel may be invalidated later 
in habeas corpus proceedings, fully vindicating the 
concerns of District Attorney Specter who testified 
in this case against the “partnership” concept in the



Argument 23

proposed amendments to the charter of the Defender 
Association. (R. 285-291, 302, 304.)

It should be of significance to this Court that the 
only witnesses with prosecution experience called to 
testify in the court below were called by the objectors. 
All these witnesses vigorously opposed the arrange­
ment approved by the court below because of their 
belief that it raised substantial questions of conflict 
of interest. In addition to the testimony of District 
Attorney Specter, there was testimony from Richard 
A. Sprague, First Assistant District Attorney who 
had served as an Assistant Defender for three years 
(R. 321-323); from Edmund E. DePaul, former Chief 
of the Criminal Division of the United States Attor­
ney’s office for the Eastern District of Pennsylvania 
who had served for 11 years as a Senior Assistant 
Defender (R. 412-414); and from Martin Vinikoor, 
a Chief Assistant District Attorney and former 
Acting Defender and First Assistant Defender (R. 
343-345).

Com m onwealth v. W akeley, 433 Pa. 159 (1969), 
is entirely consistent with the Whitling case and with 
appellants’ position here. There the Court sustained a 
conviction against defendant’s objection that his 
lawyer had been  assistant district attorney at the 
time of defendant’s indictment. As the opinion points 
out, any effect this could possibly have had on the de­
fense would have been favorable to defendant; the 
state was the only party that could conceivably have 
been hurt by such a “switching of sides”. The opinion 
also recognizes the inevitability and desirability of 
individual lawyers changing roles from defense to 
prosecutor and vice versa from time to time. Cf. 
Com m onwealth v. Grucella, 214 Pa. Superior Ct. 716 
(1969). Thus, a defense lawyer’s form er  association 
with the district attorney’s office is not a per se dis­



24 Argument

qualification. If the defense lawyer has job prospects 
in the district attorney’s office, more serious question 
of conflict of interest arises, as shown in McKenna v. 
Ellis, below, but the situation is still utterly distin­
guishable from the present and persistent prosecution  
influence on defense  envisioned by the reorganization 
of the Defender Association here in issue.

The very essence of Gideon v. Wainwright, 372 
U.S. 335 (1963), was to make the right to counsel 
absolute rather than, as theretofore, dependent on a 
showing of harm from lack of counsel. Cf. Mr. Justice 
Clark’s concurring opinion, 372 U.S. at 347, rejecting 
any distinction between capital and non-capital cases, 
and quoting from Hamilton v. A labama, 368 U.S. at 
p. 55. “When one pleads guilty to a capital charge 
without benefit of counsel, we do not stop to determine 
whether prejudice resulted.” This is clearly evident 
in the conflict of interest cases. In Glasser v. United 
States, 315 U.S. 60 (1942), the Supreme Court re­
versed a conspiracy conviction on the ground that the 
trial judge had appointed defendant’s lawyer to repre­
sent also a co-defendant where there was a potential 
conflict of interest between the two clients. The re­
versal was notwithstanding substantial basis for 
finding that defendant (a former assistant U.S. At­
torney) and his lawyer had waived objections to the 
appointment. The Court’s opinion declares (at pages 
75-76):

“To determine the precise degree of prejudice 
sustained by Glasser . . .  is at once difficult 
and unnecessary. The right to have the assistance 
of counsel is too fundamental and absolute to 
allow courts to indulge in nice calculations as to 
the amount of prejudice arising from its denial.” 
(itals. supplied)



Argument 25

The Court cited for this proposition Turney v. Ohio, 
273 U.S. 510 (1927), where Chief Justice Taft, speak­
ing for a unanimous bench, reversed Turney’s convic­
tion of a liquor offense on the ground that he was tried 
before a village mayor who, under state law, was 
compensated for conducting such summary trials out 
of “costs” taxed against convicted defendants. This 
pecuniary interest in conviction was held to disqualify 
the mayor, on due process grounds, notwithstanding

the argument that men of the highest honor and 
the greatest self-sacrifice could carry it on with­
out danger of injustice. Every procedure which 
would offer a possible temptation to the average 
man . . .  or which might lead him not to hold 
the balance nice, clear and true between the state 
and the accused denies the latter due process of 
law. (273 U.S. at 532)

McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1961), 
reversed a conviction where the trial court had ap­
pointed two young attorneys to represent defendant, 
both of them candidates for jobs with the district at­
torney. The court declared, at page 599:

We interpret the right to counsel as the right to 
effective counsel. We interpret counsel to mean 
not errorless counsel, and not judged ineffective 
by hindsight, but counsel reasonably likely to 
render and rendering reasonably effective 
assistance. We consider undivided loyalty of 
appointed counsel to client as essential to due 
process.

United States ex rel. Reid v. Richmond, 277 F.2d 
702 (2d Cir., 1960), which sustained the constitu­
tionality of the old Connecticut public defender sys­
tem, is utterly distinguishable from the present case,



26 Argument

and is in any event rendered obsolete in view of subse­
quent constitutional developments. The Connecticut 
Public Defender was not appointed by a prosecution- 
linked mayor, but by judges. Judges had historically 
appointed individual counsel to represent indigents, 
and it was natural to turn to them as the appointing 
power when a defender organization was to be 
created. Besides, judges had always recognized, even 
prior to Gideon v. Wainwright, their responsibility 
to safeguard an unrepresented—and indeed even a 
represented— defendant’s rights in a criminal case. 
The Mayor and the Commissioner of Police of Phila­
delphia have no such historic or practical responsibil­
ity. To the contrary, they are properly the commun­
ity’s agents for the enforcement of law.

The obsolescence of the Richm ond  decision is 
evident from several considerations. First, the right to 
counsel has become more absolute since 1960. The 
Richmond court cited and relied on Crooker v. 
California, 357 U.S. 433 (1958), in holding that Reid 
had no absolute right to counsel at pretrial phases of 
the prosecution, e.g., when he gave a confession in re­
sponse to interrogation while in police custody. The 
Richmond court quoted Crooker’s declaration that de­
fendant must show “prejudice” from denial of counsel 
under these circumstances. But Gideon v. Wain­
wright, 372 U.S. 335 (1963) and Miranda v. Arizona, 
384 U.S. 436 (1966), have swept away such notions.

In the second place, since 1960 the nation and 
the legal profession have begun to recognize that there 
is a difference between appointing individual counsel 
and appointing a public defender insofar as the role of 
the judiciary is concerned. When a variety of 
individual lawyers are appointed by different judges, 
appointed counsel presumably has a broad clientele, 
including paying clients perhaps in the civil field as



Argument 27

well as the criminal field. He is thus considerably 
more independent of the appointing judge than is a 
professional public defender. It is for this reason that 
the ABA Minimum Standards for Criminal Justice 
emphasize that the “plan” as well as individual de­
fender attorneys be “subject to judicial supervision 
only in the same manner and to the same extent as 
are lawyers in private practice.” 6 Notably, in Con­
necticut, the 1969 Public Defender legislation aban­
dons the old system under which local trial judges ap­
pointed a local defender. Instead, a state-wide chief 
defender is appointed by a commission that is com­
posed of the Chief Justice of the State Supreme Court, 
the Chief Court Administrator of the State, the Chief 
Judge of the Superior Court, the Chief Judge of the 
Circuit Court, and two trial court judges designated 
by the Chief Judge of the Circuit Court. The Com­
mission also appoints local defenders and assistant 
defenders upon nomination of the chief defender, and 
promulgates regulations, guidelines, and standards 
for administration of the defender system. The Com­
mission selecting public defenders for Connecticut 
is, therefore, effectively insulated not only from poli­
tical patronage and links to prosecution forces, but 
also from pressures of the trial judges themselves.

B. Political Control o f  Defense o f  the Poor is Not 
a Speculative Claim but is Based in Part on the 
Success o f  City Hall in Forcing the Resignation 
o f  the Acting C h ief Defender Entirely fo r  Political 
Motives.
The court below, in characterizing the concern 

of the objectors over political control as “specula­

6. A.B.A. Project on Minimum Standards for Criminal 
Justice, Standards Relating to Providing Defense Services 
§1.4 (1967).



28 Argument

tive”, chose to entirely overlook the evidence pro­
duced in the hearings as to the circumstances 
surrounding the “resignation” of Martin Vinikoor as 
Acting Chief Defender early in 1969.

The evidence established without contradiction 
that the City refused to discuss with the Defender As­
sociation additional appropriations so long as Vini­
koor remained at the head of the Defender staff.

There was no complaint by the City that Vinikoor 
lacked the qualifications for the position. To the con­
trary, he was eminently well qualified with a back­
ground that included substantial experience as both 
an assistant district attorney and as a private criminal 
defense lawyer, and as a former Secretary of the 
Criminal Procedural Rules Committee of this Court.

However, Vinikoor when in private practice had 
refused to support the incumbent Mayor of Philadel­
phia in his campaign for re-election in November, 
1967, and had, in fact, sought election to City Council 
on the ticket of the opposite political party. For this 
action in 1967 the City set as a condition precedent 
to any negotiations with the Defender Association 
for appropriations the resignation of Vinikoor as Act­
ing Chief Defender. Under that pressure he resigned.

Following Vinikoor’s resignation the City con­
cluded the agreement with the Association resulting 
in the Charter amendments that are now before this 
Court.

Despite the fact that there was no challenge 
at all to these facts, which so clearly demonstrate 
the way the City is prepared to pursue its political 
objectives even when dealing with the organization 
handling the defense of the poor, the court below 
chose erroneously to characterize the objections 
raised by the appellants as merely “speculative.”



Argument 29

V. Constitutionally Mandated Defense Serviees
Must Provide the Appearance as Well as the
Reality of Independence.

An important function of providing defense coun­
sel is to build confidence in the fairness of the judicial 
process. It is not merely that the outcome of a particu­
lar case may be skewed where there is a lawyer on one 
side and none on the other. It is that underprivileged 
groups in the community come to view courts and law 
with cynicism and hatred when the conduct of the 
courtroom seems one-sided, as where there is no de­
fense counsel or an “official” defense counsel. All con­
victions become tainted in their eyes, even though the 
outcome of many individual cases would be found on 
close examination to be perfectly just.

The importance of avoiding the “appearance of 
evil” is attested by cases like Rapp v. Van Dusen, 350 
F.2d 806, 812 (3d Cir. 1965) (“not only actual im­
partiality [of a judge], but also the appearance  of de­
tached impartiality”); and Snyder’s Case, 301 Pa. 276, 
152 Atl. 33 (1930) (“avoiding even the appearance of 
evil”).

VI. Arrangements Which Exert a '“Chilling Effect”
on the Exercise of Constitutional Rights Must
he Condemned on Constitutional and Public
Interest Grounds.

The rule against “chilling effects” has been fre­
quently invoked. A striking instance is NAACP v. 
Button, 371 U.S. 415 (1963), where a Virginia regula­
tion of the conditions of law practice was held uncon­
stitutional because of the chilling effect on First 
Amendment rights: “First Amendment freedoms need 
breathing space to survive.” (at p. 433) And so do 
Sixth Amendment rights of vigorous defense. Com­
pare Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) 
(federal injunction against threatened state prosecu-



30 Argument

tion allowed notwithstanding general rule against 
such interference where rights might be vindicated by 
defense to prosecution, because of “chilling effect on 
free expression of prosecutions initiated and 
threatened”).

VII. “ Command Influence,” Which is Barred in 
Military Prosecutions, Must A Fortiori be 
Excluded from Prosecution in Civilian Courts.

Stanford Shmukler, Esq., then Chairman of the 
Philadelphia Bar Association Committee on Criminal 
Justice, testified for the objectors in this case. 
R. 364 et seq. Drawing on his experience in the Judge 
Advocate Corps, he pointed to the dangers of “com­
mand influence” in the sphere of military trials, where 
the necessities of war and discipline might have led to 
considerable tolerance of command influence, espe­
cially considering that service men inevitably must 
yield many of the freedoms that a civilian enjoys. To 
the credit of the armed services, every effort has been 
made to achieve independence for the military tribu­
nals including counsel for the defendant. See Article 
37 of the Uniform Code of Military Justice; U.S. v. 
Berry, CM 414955, June 7, 1968, digested in Judge 
Advocate Legal Service, Pamphlet 27-68-18, page 4 
(“Appearance of Command Influence Raises Re­
buttable Presumption” of unlawful command influ­
ence despite finding of lack of prejudice); United 
States v. McLaughlin, digested in JALS Pamphlet 27- 
69-1, p. 4, Dec. 13, (1963) (routine command memo 
assigning three out of a panel of 12 duly assigned 
officers, for purposes of allocating trial duties, held 
unlawful command influence); Hansen, Judicial 
Functions fo r  the Com mander, 41 Mil L. Rev. 1 
(1968). Relevant quotations from this last source in­
clude the following:



Argument 31

[p. 20] “The principal objection voiced by 
witnesses during the committee hearings on the 
Code concerned the power of the commander to 
appoint the members of the court-martial. To 
these witnesses “control is exercised by reason 
of the fact the participants in the courts— the 
judges, the prosecutors, and the defense coun­
sel—are subject to the full command of the offi­
cers who appointed them, and that their service 
careers are in his hands. Accordingly, the only 
way to prevent the court members from being 
improperly influenced in their judicial activity 
by the commander, as they saw it, was to dis­
continue the commander’s power to appoint the 
court, and remove him from any responsibility 
in this area of military justice.

“This suggestion was not new in the his­
torical development of the commander’s power 
and has been consistently resisted by the military 
establishment as an impracticable provision 
which would hinder those responsible for the 
conduct of military operations. This latter view 
was accepted by Congress and recognition given 
to the fact that acts which are rights in the 
civilian community may constitute direct chal­
lenges to the commander’s authority to success­
fully accomplish his assigned mission:

Take the business of telling off the 
boss, that is an inalienable right of an Amer­
ican citizen. If you tell off the sergeant or 
commissioned officer, that is a military of­
fense. In civilian life, if you do not like your 
job, you quit it. If you do not like your job in 
the Army and quit, that is called desertion 
in wartime and it carried very serious con­
sequences. In civilian life if people decide 
they do not like the working conditions and



32 Argument

walk off jointly, that is a strike. In the Army 
or in the Navy, that kind of action is mutiny, 
which is one of the most serious offenses. 
“However, retention of the commander’s 

position as a convening authority was not a com­
plete vote of confidence since the remainder of 
the committee’s efforts were expended in an at­
tempt to provide additional safeguards against 
the abuse of his power.”

Cf. O'Callahan v. Parker, 395 U.S. 258 (1969), which 
denied court martial jurisdiction for a crime against a 
civilian committed by a soldier on leave, pointing to 
the importance of preserving maximum trial rights 
of accused:

Strides have been made toward making courts- 
martial less subject to the will of the executive 
department which appoints, supervises and ulti­
mately controls them. But from the very nature 
of things, courts have more independence in 
passing on the life and liberty of people than do 
military tribunals. (395 U.S. at p. 263)

VIII. Professional Ethics and the Constitution 
Would Demand Full Disclosure to Clients of 
the Compromising “ Partnership" with City 
Hall, and Intelligent Consent hy the Client. 
It Would he Impracticable to Operate a De­
fender Organization on that Basis.

The least that would be required of a prosecution- 
linked defender organization, from the point of view 
of professional ethics and constitutional law, would 
be full disclosure to each client of the conflict of in­
terest in City Hall’s partnership in the Defender Asso­
ciation. This is clear even in civil cases. The American 
Bar Association Special Committee on Evaluation of 
Ethical Standards, has just published a “Code of



Argument 33

Professional Responsibility” (Preliminary Draft, 
1969). Speaking of “potentially differing interests” of 
multiple clients (Paras. 12 et. seq.), the committee 
warns against “diluted” or “divided” loyalty, states 
that “all doubts” should be resolved against repre­
sentation of potentially conflicting interests, and in­
sists upon the client’s being given “opportunity to 
evaluate his need fo r  representation free  o f  any po­
tential conflict and to obtain other counsel i f  he so 
desires.” The lawyer is required to explain the “im­
plications” of common representation before securing 
his client’s consent, and to advise the client of “other 
circumstances” that might cause the client “to ques­
tion the undivided loyalty of the lawyer.” “Regardless 
of the belief of a lawyer that he may properly repre­
sent multiple clients, he must defer to a client who 
holds the contrary belief and withdraw from repre­
sentation of that client.”

Speaking of the effect on lawyers’ independence 
of “desires of third persons” (Paras. 19 et seq.), the 
Committee says:

A lawyer subjected to outside pressures [“often 
subtle, and a lawyer must be alert to their exis­
tence”] should make full disclosure of them to 
his client. The Committee notes the special lia­
bility to “political” pressures where the lawyer 
is being paid by someone other than his client.

What is so emphasized in civil cases must a fo r ­
tiori be true in criminal defense, where effective as­
sistance of counsel is a fundamental Constitutional 
right.

It is obviously unwise and impractical to operate 
a defender organization on the basis of disclosures to 
and waiver by often ignorant prisoners with no effec­
tive alternatives. It would take far too much time; 
the process would degenerate into an ineffectual



34 Argument

formality of giving prisoners written explanations and 
waiver forms; much suspicion would be generated by 
the very process of seeking to allay it; and numerous 
convictions would be opened to collateral attack. Such 
consequences clearly preclude a finding in this case 
that the proposed amendments of the Association’s 
articles are and will be “lawful, beneficial, and not 
injurious.”

IX. The Pennsylvania Non-Profit Corporation 
Law; Charter Amendments Must he “Lawful,” 
“ Beneficial” and “ Not Injurious.”

The issues posed by the Pennsylvania Non-Profit 
Corporation Law, 15 P. S. §7707, are whether the 
proposed amendments are “lawful,” “beneficial,” and 
“not injurious to the community.” 7 This legislation 
contemplates the broadest inquiry into the public 
interest. The non-profit corporation has traditionally 
been regarded in Pennsylvania as the private profit 
corporation used to be regarded, i.e., as an instrument 
for carrying out public policy in the best way.8 The

7. Section 7707 is the section applicable to this case. An 
alternative procedure for amending charters of non-profit 
corporations was authorized by Act 31, Laws 1969. This Act 
did not take effect until September 17, 1969, long after the 
hearing and judgment below. It was prospective in operation, 
applying to corporations then “proposing to amend,” 
“elect [ing] to proceed under this section,” and advertising 
in a manner prescribed by the new section 14. A decision by 
this Court that reorganization of the Defender Association in 
the manner proposed would be unconstitutional, unlawful, 
or injurious would, of course, be effective to preclude any 
amendment of that character by whatever procedure may be 
available, since it would plainly lay open to collateral attack 
all convictions obtained with the participation of prosecution- 
linked defense counsel.

8. Originally, in Pennsylvania as in England, all corpora­
tions were regarded as public agencies carrying out particular



Argument 35

Court has the power and duty to shape and constrain 
these public agencies, especially when the question 
at issue is the relationship which the non-profit cor­
poration will have with the City of Philadelphia—it­
self an instrument of government—and especially 
when the crux of the controversy has to do with the 
independence of defense lawyers who are officers of 
the Court.

“Beneficial” in 15 P.S. §7707 means that the pro­
posal must improve matters. The legislature did not 
take a neutral attitude towards corporations designed 
to serve public purposes, exempt from taxation, and 
subject to supervision by state officials. It required 
a demonstrated need for and benefit from the found­
ing of a non-profit corporation or any substantial al­
teration of its structure or purposes. Thus the burden 
is on the applicants to show that a structure which 
gives to City Hall at least half the governing power 
over indigent defense is an improvement over the 
previous wholly independent Defender Association.

The requirement under 15 P.S. §7707 demands 
that the proposal be “beneficial” and  “not injurious to 
the community.” The plain meaning of this conjunc­
tion is that there is not to be a balancing of benefits 
and detriments, but an absence o f  injurious elements.
governmental purposes thought of as “special government” in 
distinction from the general government carried out by 
municipal corporations. Williston, History of the Law of Busi­
ness Corporations Before 1860, 2 Harv. L. Rev. 105, 110 
(1888). Chartering was by the legislature in Pennsylvania 
until it vested this discretion in the Supreme Court as re­
spects “non-profit” organizations. The jurisdiction was later 
vested in the Court of Common Pleas, which to this day ex­
ercises supervision over this branch of “special government,” 
while the chartering of private profit corporations has become 
a routine administrative task substantially divorced from the 
notion of public responsibility. See Zeiter, Foreword to Title 
15, Purdon’s Pa. Statutes, at p. 72.



36 Argument

If all that had been intended was a “net benefit ’ cri­
terion— more benefit than detriment— there would 
be no need for the words “and not injurious to the 
community.” Therefore, it is the responsibility of 
the Court to prune out of an otherwise beneficial 
arrangement any elements which are "injurious to 
the community,” such as dominance of defense by 
prosecution-linked officials, loss of client confidence, 
risk that convictions will be collaterally attacked, 
and likely resentment by underprivileged segments 
of the population promotive of cynicism and public 
disorder.

The requirement that amendments to charters of 
non-profit corporations be affirmatively beneficial is 
highlighted by contrast with the provision as to ori­
ginal organization of such corporations, 15 P.S. 
§7702. There it is stated only that the purposes must 
be “lawful and not injurious.” By contrast, the addi­
tion of the word “beneficial” in §7707 indicates a high­
er standard for amendments than for original in­
corporation. And this makes sense since, as in the 
present case, people who have united in a charitable 
or other non-profit enterprise may be disunited when 
it comes to a fundamental alteration of the arrange­
ment. It should be altogether clear that the revised 
enterprise is “beneficial” and not too remote from the 
original plan. In our case the present amendments, 
adopted by a close vote of 19-16, radically alter the 
original enterprise, from an independent defender 
association to one at least half dominated by City Hall.

X. The Court Should Accord Great Weight to 
Recent Authoritative Declarations of Stand­
ards for Organized Defender Associations, Re­
quiring Freedom from Political Influence.

The Supreme Court of Pennsylvania has often 
shown its willingness to back up the canons of the



Argument 37

American Bar Association with the authority of 
judicial decision. See Middleburg v. Middleburg, 427 
Pa. 114, 233 A.2d 899 (1967) (barring representation 
of conflicting interests; test is “not the actuality of 
conflict but the possibility that conflict may arise”); 
Seifert v. Dumatic Industries, 413 Pa. 395, 197 A.2d 
454 (1954).

The American Bar Association’s Standards Re­
lating to “Providing Defense Services,” approved in 
1968, state:

“1.4 Professional Independence.

The plan should be designed to guarantee 
the integrity of the relationship between lawyer 
and client. The plan and the lawyers serving 
under it should be free from political influence 
and should be subject to judicial supervision only 
in the same manner and to the same extent as 
are lawyers in private practice. One means for 
assuring this independence, regardless of the 
type of system adopted, is to place the ultimate 
authority and responsibility for the operation of 
the plan in a board of trustees. . . .

Note that this requires that “the plan” as well as “the 
lawyers” be “free from political influence.” “Free from  
political influence” surely does not contemplate one 
third or 50% or two thirds political influence. There 
is not room here for a “partnership” between political 
authorities and “independents.”

Standard 3.1 of the American Bar Association 
“Providing Defense Services” deals with “Career Serv­
ice” as follows:

“A defender plan should be designed to 
create a career service. Selection of the chief 
defender and staff should be made on the basis of 
merit and should be free from political, racial,



38 Argument

religious, ethnic and other considerations ex­
traneous to professional competence. The tenure 
of the defender and his staff should be protected 
similarly.”

The committee which drafted these standards was 
headed by Chief Justice Warren E. Burger, then of the 
Court of Appeals of the District of Columbia Circuit. 
Among its members were Judge Hastie of the United 
States Court of Appeals for the Third Circuit and 
Herman I. Pollock, Esquire, long-time Chief Counsel 
of the Philadelphia Defender Association.

Not one witness in this case disavowed these 
standards. The only attempt to reconcile the proposed 
Defender Association charter amendments with these 
authoritative standards was an appeal to “practical­
ity,” meaning a recognition that City Hall insisted on 
violation of the standards as a condition of advancing 
the money. (R. 20, 144, 150, 165, 250, 591-592.)

The National Defender Project, whose Deputy 
Director, John J. Cleary, Esquire, testified for the 
applicants in this case, has published a Handbook on 
How to Organize a Defender Office (1967). The Hand­
book reviews the various methods by which defenders 
are appointed and expresses (p. 31) its preference for 
a governing board which “provides a screen between  
the defender and ‘City Hall,’ ” and for minimizing “the 
influences of partisan politics”:

“On balance, since the public defender is es­
sentially a legal specialist rather than a policy­
making official, a public defender should be 
neither elected nor appointed by elected officials. 
Instead, the defender should be chosen by an 
independent board or by a combination of of­
ficials, as in Minnesota where the Judicial Coun­
sel— a state-level, non-political body— appoints 
local defenders on the recommendation of local



Argument 39

judges. Similarly, Las Vegas candidates are 
initially screened by an advisory board of judges, 
bar leaders, and laymen who submit three nomi­
nees to the county board of commissioners for 
final selection.
“The term of the defender should be for a sub­
stantial period of time (four to six years) or for an 
indefinite term with provision for removal for 
good cause. A public defender statute should 
provide for civil service status, and the private 
defender organization should clearly state tenure 
in the employment contract. Tenure benefits the 
community, which retains the experienced de­
fender. Also, the position will attract more 
candidates when they understand that they can­
not be summarily discharged.”

The Foreword to this Handbook discloses that it 
based on material prepared by Mr. Cleary. This 
clearly reveals the Pickwickian sense in which Mr. 
Cleary testified initially in this proceeding that the 
proposed “partnership” with City Hall was a “model.” 
(R. 124.) As became clear on cross-examination, Mr. 
Cleary regarded this as a model only by contrast with 
City Hall’s original proposal of a 100% political de­
fender association. (R. 136-142.) He could not believe 
otherwise in view of his own unhappy experience as 
a rejected applicant for a position on Chicago’s poli­
ticalized defender organization for no other reason 
than his lack of ward leader support. (R. 204.) The real 
and substantial purport of Mr. Cleary’s testimony was 
revealed in his answer to the final question on cross- 
examination when he said that City Hall’s demand 
for representation on the Defender Association board 
exceeded  any legitim ate city interest o f  which he was 
aware. (R. 216.) That answer is fully consistent with



40 Argument

Mr. Cleary’s considered position in the National De­
fender Project handbook.

Similarly, Dennis N. O’Brien, Assistant Director 
of the National Defender Project, wrote that a key ad­
vantage of the private or public-private defender sys­
tem is the fact that there is “less likelihood of political 
influence over the defenders.” O’Brien, Implementing 
the Right to Counsel in New Jersey— A Proposed 
Defender System, 20 Rutgers L. Rev. 789, 818 
(1966). Cf. Dimrock, The Public Defender: A Step 
Towards a Police State, 42 ABAJ 219 (1956); Ander­
son, J., speaking of the advantages of judicial appoint­
ment of defenders as going a “long way toward 
preserving the adversary positions of counsel and 
eliminating any fears of a too close connection be­
tween the state supported prosecution and the state 
supported defense.” 36 FRD 129, 160 (1964).

Silverstein, Defense o f  the Poor, American Bar 
f oundation (1965), a basic and comprehensive review 
of the field, takes the same position, viz., that the only 
way a public defender system can achieve the 
requisite freedom from “undesirable political influ­
ence” is by “civil service examination, as in Los 
Angeles County, or by having the court appoint a 
distinguished committee of private citizens that in 
turn selects the defenders, as in Massachusetts 
and Oregon.” (p. 57).

XI. The Scope of Review on Appeal in Equity 
Cases is Very Broad; It Should Especially be so 
Here Where the Organization of Criminal Jus­
tice is at Stake.

As was said in Nottingham Fire Company Char­
ter case, 394 Pa. 631, 632 (1959), involving review 
of the granting of a non-profit charter: “. . . the cer­
tiorari upon which the action of the court below is 
now before us is consequently broad.”



Argument 41

“In equity, it is the general rule that an appeal 
brings up the whole case, and that the appellate court 
passes upon the record as to the facts as well as the 
law.” 2 Pennsylvania Law Encyclopedia (1957) §339. 
“While the findings of facts of a chancellor, when 
supported by competent evidence and affirmed by the 
court en banc, are conclusive on appeal, this rule does 
not apply in favor of deductions or inferences which 
are made by the chancellor from facts which he has 
found [or] to conclusions of law. The court en banc 
and the reviewing court may make conclusions not­
withstanding the chancellor’s determination.” 2 
P.L.E. (1957) §442.

The general rule was reaffirmed in Chambers v. 
Cham bers, 406 Pa. 50, 56 (1962):

“well settled that a Chancellor’s conclusions, 
whether of law or ultimate fact, are no more than 
his reasoning from the underlying facts and are 
reviewable, especially when the underlying facts 
themselves are not in esse but are matters of 
inference and deduction.. . . ”

This has been said to be true “even though [the 
conclusions have been] approved by a court en banc.” 
See Girsh Trust, 410 Pa. 455, 467 (1963); cf. Idell v. 
Falcone, 427 Pa. 472, 474 (1967); St. John  C.G.C. 
Church v. Elko, 436 Pa. 243, 254; 2 P.L.E. §438.

In the present case there is no real dispute as to 
any of the facts, but only as to legal conclusions. More­
over, since what is at stake is the fundamental prin­
ciple of organization of justice itself in the criminal 
court, it is especially appropriate that the Supreme 
Court should decide what legal conclusions should be 
drawn.



42 Argument

XII. Implications of this Case for Political Control 
of Private Schools, Public Television, Welfare 
Payments, and Other State Supported Opera­
tions.

American law confronts in the present proceed­
ings a new moral and constitutional issue. Having 
only very recently, as a result of Gideon v. Wain- 
wright, accepted a national obligation to finance the 
defense of the indigent, we are compelled suddenly to 
ask hard questions about the character and quality of 
that defense.

Can the “public defender,” which necessarily will 
be financed by the public treasury, be saved from 
political domination? Is it to be insulated as far 
as humanly possible from the prosecuting arm of 
government? From the police force? From the “estab­
lishment”?

These questions regarding publicly financed 
defense of the indigent are part of a larger set of 
issues facing a nation where tax dollars play an 
ever-larger role in private lives, for example, in the 
fields of education, public broadcasting, publicly sub­
sidized arts, and public welfare. As college education 
becomes more expensive and more widely demanded, 
the state and the federal government increasingly 
must foot the bill by subsidizing “private” universities 
and schools. It is widely recognized that freedom, 
diversity, and intellectual strength of higher education 
require insulation of the system from ordinary politi­
cal controls. In England, the effort to maintain uni­
versity independence despite public financing went 
so far as to set up a University Grants Commission 
as a buffer between the grantee universities and 
even the normal budgeting and auditing controls. See 
Berdahl, British Universities and the State (U. Cal.



Argument 43

Press 1959). One interesting feature of the British 
University Grants system has been that in principle 
grants were made on a five-year basis to avoid politi­
cal and policy pressures stemming from annual 
processing of budgets and appropriations.

The Commonwealth of Pennsylvania recognizes 
the same principle when it makes large grants to uni­
versities, medical schools, and other institutions with­
out demanding any “representation.” Even where 
the educational institution is “state-related,” and the 
state is paying the bulk of the costs, as in the case of 
Penn State, the University of Pittsburgh, and Temple 
University, only a small proportion of the boards of 
trustees are state designees. Should the principle o f  
state subsidy o f  private and parochial schools com e to 
be recognized in this country, it would be a constitu­
tional catastrophe to link financial aid with governing 
power in such instances.

In the field of broadcasting, the issue has arisen 
in connection with proposals to establish a national 
network of noncommercial television stations fi­
nanced either by the Treasury or by users of the pub­
licly-owned communications satellite facilities. A 
major concern has been how to structure a govern­
ing board so as to avoid official propaganda interests 
or art preferences from influencing the programming 
of the net network. The Carnegie Commission on 
Educational Television reported in 1967 in favor of 
creating a new private organization to be known as 
the “Corporation for Public Television,” and added:

“Recognizing areas of special sensitivity, the 
Commission is persuaded that a nongovernmental 
institution is necessary to receive and disburse at 
least a part of those funds. The purpose is not to es­
cape scrutiny but to minimize the likelihood that such 
scrutiny will be directed toward the day-to-day oper­



44 Argument

ations of the sensitive program portions of the Public 
Television system. What we have sought to design is 
an institution that will represent Public Television, 
that in behalf of Public Television will receive and 
disburse federal, state, and local government funds, 
as well as private funds, and yet will be free of politi­
cal interference.” (Public Television: A Program for 
Action, Bantam ed. 1967, p. 37)

It was proposed to have Congress impose a tax on 
television sets, the proceeds to be held in trust for the 
Corporation -

‘‘to permit federal funds to flow to Public 
Television outside the ordinary budgeting and 
appropriations procedures, and thus insulate the 
system from direct governmental overseeing of 
its day-to-day operations and from the danger 
of political interference with the substance of 
programming,” (id. at 88)

Compare Horman, “The Producers Organize”, Na­
tion, May 19, 1969, p. 634, reporting the difficulties 
and fears resulting from Congress’ adoption of an an­
nual funding program instead.

When Congress enacted the Public Broadcast­
ing Act of 1967, P.L. 90-129, creating a Corporation 
for Public Broadcasting, it declared (47 U.S.C.A. 
§396(a)(6)):

“that a private corporation should be created to 
facilitate the development of educational radio 
and television broadcasting and to afford maxi­
mum protection to such broadcasting from ex­
traneous interference and control.”

Just as constitutional policies of free speech and free 
press under the First Amendment demand appropri­
ate organizational adaptations for public broadcast­



Argument 45

ing, so the Constitutional policies of effective assist­
ance of counsel under the Sixth Amendment call for 
appropriate organizational safeguards. In neither 
situation does it suffice to say that honorable and 
courageous officials would not abuse their powers.

In the field of welfare legislation, likewise, there 
is a growing awareness that payments to the poor 
cannot, consistently with Constitutional guarantees 
of liberty, be accompanied by official intrusions on 
privacy or burdensome constraints. Cf. Shapiro v. 
Thom pson, 89 S. Ct. 1322, 1329 (1969) (invalidating 
one year residence requirement for welfare recip­
ients as unreasonable restriction on movement); 
Sherbert v. Vemer, 374 U.S. 398 (1963) (disqualifica­
tion of Seventh Day Adventist for unemployment ben­
efits because of refusal to accept work on Saturday 
infringes First and Fourteenth Amendments). See 
generally Note, Another Look At Unconstitutional 
Conditions, 117 U. Pa. L. Rev. 144 (1969).

This Court is, of course, not called upon to rule 
on all these questions in the present case. Reference 
to these broader issues is merely intended to under­
line the importance of this whole group of issues for 
freedom in America, and to highlight the unique sig­
nificance of the intrusion of government and prose­
cuting officials into defense of the indigent. In a crim­
inal case the government is not “handing out favors,” 
it is prosecuting the defendant, proposing to deprive 
him of life, liberty, or property. If, in so doing, it 
moves in to disarm or compromise the defense, the 
most acute case of jeopardizing liberty without due 
process of law is presented. If the Court approves of 
governmental control or powerful influence in such 
a case, it will be signalling in all areas a retreat of 
freedom before the insistent onslaught of Leviathan 
government.



46

CONCLUSION

Argument

Public Defender law is just beginning to be de­
fined. Now is the time when the whole future of the 
institution is at stake, when the first decisions must 
be made as to the direction of development. Rarely 
has a Court been in the position of this one to in­
fluence the pattern of Twentieth Century criminal jus­
tice. It may not seem that much can be done to pre­
serve the “independence” of defense so long as the 
money must come from the City or State. Some will 
say fearfully or cynically that the power of the purse 
exercised by City Council at annual budget hearings 
is all that is necessary to subvert the independence 
of the Defender. But the testimony of former Council­
man Sawyer in this proceeding answers these 
doubts: there is a vast difference between episodic 
inquiries at annual budget hearings and direct super­
vision and management by City Hall established in 
the Board of Directors and the all-powerful execu­
tive committee of the Defender Association. (R. 509- 
510, 521-26.) Perhaps, in the future, ways may be 
found to limit even the influence of annual budgetary 
review, e.g. by longer-term commitments or by con­
tracts on a purchase-of-services basis obligating the 
city to pay so much a case. Perhaps future indigent 
defendants will be offered an alternative under which 
a lawyer of their own choosing would be paid the 
“per case” fee on the basis of which Defender Asso­
ciation appropriations are calculated. All these possi­
bilities of growth and development in the direction 
of greater independence of counsel will be cut off by 
a decision in the present case that discounts concern 
about City Hall intrusion into the conduct of the de­
fense.

On the other hand, a decision here that confines 
City Hall to a fiscal and auditing role will properly



Argument 47

protect the City’s legitimate interests and point in the 
right direction for the future, preserving individual 
rights even in settings where the City and the State 
must provide the funding.

Accordingly, it is submitted that the decision be­
low should be reversed and the case remanded with 
instructions to make findings as to whether any City 
representation on the Board of Directors of the De­
fender Association is necessary to protect the City’s 
legitimate interests, and if so what the minimum rep­
resentation for that purpose would be.

Respectfully submitted,

LOUIS B. SCHWARTZ 
BERNARD L. SEGAL 

Attorneys fo r  Appellants



48

ADJUDICATION

Adjudication

McDEVITT, J.

The proposed amendments of Articles of Incor­
poration of Defender Association of Philadelphia was 
referred by the President Judge of the Court of Com­
mon Pleas to Judge John J. McDevitt, 3rd, for a hear­
ing and determination.

Testimony of proponents and objectors was 
taken on four days in April and May of this year total­
ling some 643 pages of transcript. This seemed to of­
fer a full opportunity for the interested parties to ex­
press their views and opinions. There was agreement 
that the limited number of witnesses called would be 
sufficiently representative of the community and pre­
sent a cross-section sampling of views and responsi­
ble opinion in the City of Philadelphia.

The Court has been assisted in arriving at a 
decision by the professional advocacy of counsel for 
the proponents and objectors. Certainly the same ob­
servation applies to the witnesses as well as some of 
whom traveled a considerable distance.

On behalf of the Defender Association the fol­
lowing testified:

Joseph N. DuBarry, 4th, Esq. - President
Edward J. Blake, Esq., - Philadelphia Court 

Administrator speaking for President 
Judge Vincent A. Carroll of the Court 
of Common pleas as well

John J. Cleary, Esq., Deputy Director of the 
National Defender Project, a grant ac­
tivity of the National Legal Aid and De­
fender Association.

Herman Pollock, Esq., for many years the 
Defender and more recently holding 
the title of Counsel to the Association.

Pace Reich, Esq., Assistant City Solicitor



Adjudication 49

On behalf of the objectors appeared:

Arlen Specter, Esq., District Attorney of 
Philadelphia

Richard Sprague, Esq., his First Assistant 
Martin Vinikoor, Esq., former Defender 
Stanford Shmukler, Esq.
Jack B. Justice, Esq., Chairman of the 

Southeastern Pennsylvania of Ameri­
cans for Democratic Action 

Edmund E. DePaul, Esq.
Norman Dorson, Esq., Professor of Law, 

New York University 
Henry W. Sawyer, 3rd, Esq.
Stephen A. Sheller, Esq.
Alvin E. Echols, Jr., Esq., Executive Direc­

tor of the North City Congress 
David Cohen, Esq., City Councilman

The Defender Association of Philadelphia was 
incorporated under the provisions of the Pennsyl­
vania Non-Profit Corporation Law on April 14, 1934 
and has since that time provided legal defense ser­
vices in Philadelphia to indigent persons accused of 
crime. For years and until more recent years the As­
sociation operated without financial assistance from 
the City of Philadelphia. Decisions of the United 
States Supreme Court such as Gideon v. Wainwright, 
372 U. S. 335 (1963) and In re Gault, 387 U. S. 1 (1967) 
greatly expanded the obligation to provide counsel 
for the indigent. The obligation to provide counsel is 
placed upon the local or state Government.

Philadelphia had and has an independent De­
fender Association which has operated successfully'. 
It has the overwhelming support of the community as 
a whole. However, in 1968 the Association found itself 
unable to provide the legal representation required



50 Adjudication

because of lack of sufficient private contributions, 
grants of aid and appropriations from the City Admin­
istration. To prevent a total breakdown in law en­
forcement in Philadelphia and the administration of 
justice a stop gap appropriation procedure was 
worked out with the City Administration by President 
Judge Carroll and representatives of the Defender 
Association.

The Mayor of Philadelphia, James H. J. Tate, 
publicly advocated a Public Defender Office. An Or­
dinance was introduced in City Council and a public 
hearing scheduled. Opposition came from every non­
political direction in Philadelphia. No hearing was 
held. Negotiations between City representatives and 
the Association toward support for the Defender As­
sociation began to make progress.

The Major, however, insisted that because pub­
lic funds to be appropriated to the Defender Associa­
tion during the fiscal year 1969-1970 amounted to 
some $1,160,000 the City should have a substantial 
number of members on or percentage of the Board 
of Trustees appointed by the Major. The Association, 
after full consideration and by a close vote of its 
membership, agreed to enter into the contract pre­
pared by the City Solicitor.

The proposed amendments to the Articles of In­
corporation are required in order to effectuate the 
contract. Relevant provisions of the contract, Exhibit 
“F”, executed on behalf of the Defender Association 
of the City of Philadelphia are referred to in the fact 
findings by the Court. The term of the contract is per­
petual but either party may terminate this agreement 
on June 30th of any calendar year provided not less 
than ninety (90) days written notice of such termina­
tion is given.

A further escape clause is provided by para­
graph 4 of the contract wherein the City undertakes



Adjudication 51

to compensate the Defender Association for the ser­
vices to be rendered by the contract in an amount to 
be determined by Council of the City of Philadelphia 
from time to time by appropriation. In the event the 
Defender Association shall determine such appropri­
ation is insufficient it may terminate the agreement 
upon thirty (30) days written notice.

FINDINGS OF FACT

1. The Defender Association was incorporated 
under the provisions of the Pennsylvania Non-Profit 
Corporation Law on April 14, 1934 and has since such 
time provided legal defense services in Philadelphia, 
Pennsylvania to indigent persons accused of crime.

2. During such time, the Defender Association 
has been managed by an independent Board of Di­
rectors of, in recent years, approximately fifty mem­
bers; and by an Executive Committee and Officers 
elected from such Board.

3. This Board of Directors has been composed 
mainly of members of the Philadelphia Bar, supple­
mented by interested individuals from local and state 
government and the Philadelphia community at large.

4. For many years, the United Fund was the sole 
substantial source of funds for the operation of the 
Defender Association; however, during the past few 
years, as a result of certain decisions of the Supreme 
Court of the United States, such as Gideon v. Wain- 
wright, 372 U. S. 335 (1963), grants from certain char­
itable foundations, notably the Ford Foundation, as 
well as the provision by the Office of Economic Op­
portunity for funds for legal service programs, the 
budget and services of the Defender Association



52 Adjudication

were expanded until by 1967 the combined budget 
for defender operations, including representation of 
juveniles, was over $600,000.

5. In 1967, the City of Philadelphia contributed 
$152,000 to the Defender Association. This sum was 
paid as part of the City’s Quarter Sessions Court bud­
get.

6. During 1967 and 1968, the Ford Foundation 
grant expired and the contract for funds from the Of­
fice of Economic Opportunity was not renewed.

7. Appropriate efforts were made by the Defend­
er Association during 1968 to obtain additional funds 
from the City without success and in the fall of 1968 
it became necessary to schedule the reduction and 
elimination of several Defender services.

8. In November of 1968, a bill was introduced 
into City Council proposing the Office of Public De­
fender be appointed by the Major, with the approval 
of City Council. Representatives of the Defender As­
sociation met with the City Solicitor and other City 
representatives in order to express their opposition 
to the bill and to urge that the Defender Association 
continue to provide the required services in repre­
senting indigents accused of crime.

9. As a result of such meetings, an agreement

was reached between the City and the Defender 
Association, the principal provisions being:

(a) The Board of Directors of the Defender 
Association is to be changed to consist of thirty 
directors, ten directors to be chosen by the 
Mayor with the approval of City Council, ten di­
rectors to be chosen by the members of the De­
fender Association and the final ten directors to



Adjudication 53

be chosen by a majority of the directors selected 
by the Major and a majority of those selected by 
the Defender Association.

(b) The Board of Directors shall appoint the 
Chief Defender and First Assistant Defender.

(c) The Chief Defender shall appoint such 
other professional and non-professional staff as 
is necessary.

(d) All employees shall be full-time except 
with the approval of two-thirds of all the mem­
bers of the Board.

(e) The Defender Association agrees to 
provide counsel to indigents in various areas of 
representation, including:

(1) Juvenile delinquency;
(2) Any indictable offense at any stage 

of the prosecution;
(3) Any offense cognizable before the 

Municipal Court;
(4) Post conviction proceedings;
(5) Habeas corpus proceedings;
(6) Extradition proceedings;
(7) Probation and parole proceed­

ings; and
(8) Appeals in appropriate cases

The Defender Association will not provide coun­
sel where such representation would present a con­
flict of interests.

(f) The City is to compensate the Defender 
Association in an amount determined by appro­
priation from time to time by City Council.
As a result of such agreement, the Public De­

fender bill was not acted upon.

10. Provisions of the proposed agreement with 
the City necessitated certain changes in the Defender



54 Adjudication

Association’s Articles of Incorporation, primarily with 
regard to the purpose of the corporation and the 
structure of its Board of Directors.

11. Amendments to the Articles of Incorporation 
were prepared and presented to a meeting of the 
members of the Association on March 28, 1969, at 
which time they were approved.

12. Certain standards for the operation of de­
fender systems throughout the country have been 
adopted by the American Bar Association and in- 
include, inter alia, that a defender system should pro­
vide “experienced, competent and zealous counsel, 
independent and free from political or economic in­
fluence.”

13. While it is necessary to insulate a defender 
system from undue political control or interference, 
there have been established in recent years a number 
of public defender systems and systems whereby 
management was placed in a board of directors con­
taining substantial representation from both the pub­
lic and private communities.

14. Although the City’s representation on the 
proposed Board of Trustees is larger than that seen 
necessary by several of the witnesses, there is no in­
dication that the proposed system will fail to continue 
to provide independent defender service.

15. The proposed amendments and contract be­
tween the Defender Association and the City of Phila­
delphia appear to provide adequate insulation from 
undue political influence over the operation of the de­
fender system.

16. The prompt implementation of a competent, 
adequate defender system in the criminal and juve­
nile courts of Philadelphia is vital to the sound ad­
ministration of justice.



Adjudication 55

17. The budget for the Defender Association for 
the fiscal year 1969-1970, to provide for the areas of 
representation set forth in the proposed agreement 
with the City, is in the amount of $1,263,595 of which 
$1,160,095 is to be paid by the City of Philadelphia.

18. The proposed defender system is supported 
by the Board of Governors of the Philadelphia Bar 
Association; the United Fund, which has indicated its 
continued annual contribution of $50,000; and the 
Court Administrator of the Philadelphia Courts.

19. No feasible alternative to the proposed sys­
tem has been shown.

20. The Philadelphia community is protected 
from attempts to exert undue political influence over 
the operation of the proposed Defender Association 
by competent “watchdogs” such as the Philadelphia 
Bar Association, United Fund, the Philadelphia judi­
ciary and the Court Administrator, as well as many 
of the witnesses opposing the proposed amendments 
and the organizations of which they are members.

DISCUSSION

The Defender Association has made application 
for approval of certain amendments of its Articles of 
Incorporation. The amendments should be approved 
if the Court:

“shall be of the opinion that the amendments are 
lawful, will be beneficial and not injurious to the 
community, and do not conflict with the require­
ments of this act. . . .” 15 P.S. 7707

It is the Defender Association’s position that the 
proposed amendments provide an appropriate ac­



56 Adjudication

commodation between legitimate governmental in­
terests in the substantial amount of funds required 
to be spent for an adequate defender service in Phila­
delphia and the professional independence vital to 
the operation of a sound defender system.

Herman Pollock, longtime Defender, described 
this position in his testimony:

“We arrived at this not because it’s the best sys- 
stem. I don’t think it is at all. I would like to have 
the government give $1,200,000.00 to the De­
fender organization as it now is, . . .
“But this is a world, sir, in which I think we can­
not deal in absolutes and we have to be realistic. 
And I think that this is a plan with which a decent 
lawyer can live with as Defender.
“Now, if you are going to get somebody there 
who isn’t decent, if you are going to get a corrupt 
City government, if you are going to get a cor­
rupt judiciary, this thing is in danger, but if you 
don’t start with the belief that there is corruption 
all around us, I think that this is a viable, opera­
tive instrument.

“THE COURT: Well, I expect you have to start 
off with a highly capable Chief Defender, do you 
not, under the new set-up?
“That is correct.

“The COURT: Because of the absolute author­
ity he has with respect to selection and opera­
tion of the actual defense of cases, investigation, 
defense of cases.

“That is right. And I have said to my own Board, 
with due respect, that whether or not this organ­
ization continues as an independent organiza­
tion is not going to depend on the City; it’s going



Adjudication 57

to depend on our own Board that’s there now. 
If they will continue to fight to keep the Associa­
tion independent, it will be independent, but if 
they’re going to compromise all over the place 
then it may be our effectiveness may be dim­
inished. No doubt about that.
If they can muster the necessary community 

support, in my opinion, should the occasion 
arise when it is needed to protect the independ­
ence of the Defender and the staff, I think there 
will be no trouble in Philadelphia of doing it.”

John J. Cleary, Esq., Deputy Director of the Na­
tional Defender Project, a grant activity of the Na­
tional Legal Aid and Defender Association, testified 
as to the operation of various forms of defender sys­
tems throughout the United States. In his opinion any 
type of defender or system, be it public, private or 
mixed can provide independent, competent service. 
The obvious reservation is that the system must be 
free of political control and interference and ade­
quately financed. He is familiar with the past opera­
tion of the Defender Association and its contract with 
the City of Philadelphia. In his opinion Philadelphia 
has had an outstanding defender system. The agree­
ment involved in this controversy has been reviewed 
by his group and approved as being consistent with 
the recognized standards and a model balancing of 
public-private interest. Cleary described it as an “in­
dependent system” for handling legal representation 
of the indigent.

Edward J. Blake, Esq., the Court Administrator, 
appeared officially to state his endorsement of the 
proposed amendments which have the effect of con­
tinuing the services to the community of the Defender 
Association. Speaking for President Judge Vincent



58 Adjudication

A. Carroll as well, he testified that the amendments 
would be beneficial to the administration of criminal 
justice in the City of Philadelphia where 60-65 per­
cent of defendants in criminal cases are indigent. He 
looks upon the proposed changes in the organization 
of the Association as not effecting its independence. 
On the contrary it not only maintains its independ­
ence but for the first time will be adequately financed 
and in a position to give full and complete attention 
to the legal requirements of indigent defendants in­
cluding juveniles.

Joseph DuBarry, President of the Association, 
recited the problems of the Defender Association 
during the last several years in attempting to handle 
the burgeoning case load thrust upon the organiza­
tion, and negotiations with the City to obtain ade­
quate financing. By late 1968 the financial situation 
was critical. In his opinion the contract with the City 
of Philadelphia does not seriously impair the inde­
pendence of the organization. Upon approval of the 
proposed amendments the Association will have the 
necessary finances.

The contract representative of the City was Pace 
Reich, Esq., Deputy to the City Solicitor. Clearly the 
City would not negotiate the several questions raised 
by the objectors such as the extent of City represen­
tation and tenure of the Chief Defender. On the other 
hand, assurance was offered that the only interest of 
the City administration was to see to the expenditure 
of the substantial sums of money to be appropriated 
to the Association.

Within the past week counsel for the objectors 
and earlier counsel for the American Civil Liberties 
Union, Greater Philadelphia Branch, furnished the 
Court excellent briefs contra the amendments to the 
Charter. We appreciate the highly competent and



Adjudication 59

dedicated advocacy of Bernard L. Segal, Esq. and 
Louis B. Schwartz, Esq. who advanced the position 
of the objectors throughout the four day hearing. 
Both are former members of the Association and vig­
orously opposed the approval of the contract with the 
City.

The objectors state that from the negotiations 
with the City there resulted a “compromise,” em­
bodied in a contract between the City and the De­
fender Association. The compromise envisioned a 
“partnership” in control of the defense. City Hall 
would designate 10 directors. The Defender Associa­
tion would designate 10. These 20 would designate 
an additional 10. On its face, this arrangement gives 
City Hall 50 percent control of the Defender Associa­
tion. In practice, it would give City Hall total domina­
tion, owing to the likelihood that highly-motivated 
political appointees would attend and vote en bloc 
at all critical points, especially in the selection of the 
Chief Defender and in establishing personnel policy. 
Practical domination would also be assured by the 
normal division of opinion among “Independent” di­
rectors combined with the expectable political and 
economic links to City Hall of many directors having 
no overt connection with the political authorities.

Testimony in this case established City Hall’s 
purpose and power to dominate, through the force- 
out of the then Defender for political reasons, which 
has made a condition of negotiations between the 
City and the Defender Association, and through the 
course of negotiations in which even the minimal 
safeguards in the contract were extracted from a re­
luctant city administration.

Uncontradicted testimony in this case, including 
testimony of the petitioners’ own witnesses, estab­
lished that the degree of control allotted to the city



60 Adjudication

exceeds any legitimate interest the City could have 
in the premises. Uncontradicted testimony estab­
lished that the City’s legitimate interests could be 
fully protected by contract stipulations regarding the 
service to be performed, audits and other purely fis­
cal supervision, and continuance of the policy al­
ready firmly established of “goldfish-bowl” opera­
tion with a standing invitation to any interested offi­
cial to attend directors’ meetings. Uncontradicted 
testimony established that full information about the 
Defender operation has always been made available, 
and that no City official had ever claimed otherwise.

The amendments to the Defender Association 
Charter, here offered for the approval of the Court, 
are designed to carry out the contract executed by 
the Association under the gun of the City’s threat to 
cut off funds completely. Approval by the member­
ship of the Association was by a close vote of 19-16. 
The tenuousness of the “independent” position in the 
proposed organization is exposed by an analysis of 
the amended articles: virtually every feature of the 
organization and operation of the “new” Defender 
Association, including its contract with the City, 
could be altered or abandoned without the concur­
rence of a single director representing the Associa­
tion. The only power unequivocally remaining in the 
Association’s directors is the power to fix the annual 
dues of members.

They view the contract issue as being whether 
the government, which is constitutionally required to 
finance the defense of the indigent, shall also man­
age the defense or exercise large influence over the 
defense, and state that it is significant in this connec­
tion that the present proposals for Philadelphia are 
unique in subjecting the appointment and operation 
of the defender to a Mayor who also appoints the



Adjudication 61

Police Commissioner and prosecutor (the City Solic­
itor). In other counties the County Commissioners 
who designate the public defender have no such di­
rect links with police and prosecution. One might add 
that if the District Attorney should happen to be sub­
ject to control by the Mayor the Chief Administrator 
would have the potential right of control over both the 
prosecution and the defense. Of course, anything can 
or may happen in this City but the Court believes 
charges of this type are purely speculative and with­
out any apparent foundation in fact.

Of course, there may not be a “Partnership” be­
tween prosecuting authorities and counsel for the in­
digent accused. The Defender Association must pro­
vide independent and effective counsel. One can ap­
preciate the concern of the objectors that a conflict 
of interests situation or situations can develop from 
such a “Partnership” should it exist but this Court be­
lieves it does not.

Clearly a portion of the active and interested ele­
ment of the community have strong opinions with re­
spect to the question before the court. But does the 
division involve the goals of the defender system in 
Philadelphia - it does not. Both sides firmly advocate 
an operation that meets all the accepted standards 
for independent and equal representation of those 
persons entitled to counsel by the constitution and 
court decisions. The opposition is based upon belief 
or perhaps no more than speculation that a long time 
politically oriented Mayor will dominate and control 
policies, procedures, and hiring in the Defender As­
sociation. For this Court to find that he will or will not 
would be speculative as well.

The Court has carefully listened to the testimony 
of the objectors, most of whom are professional 
friends or acquaintances. We don’t question their sin­



62 Adjudication

cerity. One might pick out for special mention the tes­
timony of several but all followed the same ideologi­
cal line. All were concerned not with the continuation 
of the same standards of representation by the De­
fender Association but motivated by a conviction that 
the City Administration intended to control and 
change the character of our nationally recognized 
defender group.

Considering alone the testimony of Mr. Cleary 
for the proponents and Professor Dorson for the ob­
jectors, both of whom are most familiar with de­
fender systems and not from this City, one concludes 
that success, failure, or inadequacy in representation 
of the indigent defendant depends largely upon inde­
pendence of operation. That may be considered an 
oversimplication of the question. The point is that no 
matter who appoints the Directors, Trustees, or Pub­
lic Defender, that in itself does not assure a commu­
nity that it will have a first class defender office. The 
success or failure of the Defender Association will 
depend almost completely upon the selection of thirty 
members of the Board of Directors, the choice of a 
Chief Defender and his selection of assistants. This 
Court believes that the Chief Defender and his assist­
ants should have the protection of “tenure” in office 
as advocated by the present members of the Associa­
tion. Anything less will be a clear indication that the 
defender organization is suspect. The Association 
must offer lawyers career service opportunity.

The Court has reviewed carefully the learned 
and dynamic brief presentation of the objectors and 
finds itself in complete agreement with the philos­
ophy and guidelines presented. However, we cannot 
accept the argument that the revised Charter would 
create a corporate monster outside the contempla­
tion of the Non-profit Corporation Law which is



Adjudication 63

clearly unlawful, not beneficial and would be injur­
ious to the community. Again we say this is pure 
speculation on the part of the objectors and contrary 
to the belief of a majority of the members of the Asso­
ciation, the Court Administrator, and the President 
Judge of the Court of Common Pleas and the Na­
tional Defender Project.

The objectors argue that the question of prejudi­
cial organization of the Defender Corporation is not 
prematurely raised. It is not. Of course, in a sense, 
time will tell and individual defendants can question 
the adequacy of defense counsel including conflict 
of interests for years in the future. This Court is not 
tempted to by-pass what counsel refer to as the novel 
and difficult central issue in this case by saying that 
the issue is raised “prematurely.” To do so would 
have a disruptive and devastating effect upon the 
constitutional administration of justice in our com­
munity.

We agree that an amended Charter should not 
be approved that involved a compromising “Partner­
ship” with City Hall which would by the application 
of professional ethics and the Constitution require 
the intelligent consent by a client before undertaking 
to represent him. Of course, it would be impractica­
ble to operate a defender organization on that basis. 
We do not believe and do not find or “predict” that 
such a need will arise. At this point in their argument 
able counsel for the objectors tend to overreach too 
enthusiastically and argue beyond any reasonable 
examination and interpretation of the record pre­
pared at the hearing on this application.

We do not decide the problem before the Court 
on the basis that the contract with the City requiring 
an amendment of Articles of Incorporation represent 
the better choice of two evils. Actually in our opin-



64 Adjudication

ion the Defender Association service to the commu­
nity will be more beneficial than in the past. Believ­
ing that the Board of Directors will be "independent" 
the Association will now be adequately financed and 
in a position to meet the increasing demand for legal 
representation as required by the Constitution and 
court decisions. The community will have the ser­
vices of an established and respected organization 
backed up by the Courts of Philadelphia County and 
an intelligent and aggressive organized Bar. Com­
munity organizations and the objectors have support­
ed the Association in the past and will continue to do 
so if it continues to be an outstanding independent 
organization. A new dimension appears in the new 
organizational picture as well. For the first time the 
Association will be in a position to offer prospective 
members of the defender staff a competitive and ade­
quate salary or rate of compensation and hopefully 
a career.

The testimony offered at the hearings and argu­
ments advanced by counsel require one to stop and 
think. One must reason carefully in evaluating the 
merits of the conflicting positions. The final judg­
ment of this Court is that the application should be 
approved. The burden of persuasion by a preponder­
ance of the evidence has been met by the Applicant 
Defender Association of Philadelphia.

The Court orders each party to pay their own 
costs.



Adjudication 65

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties 
to and subject matter of this action.

2. Applicant has complied with the requirements 
of the Non-Profit Corporation Law (15 P. S. 7001 et 
seq.) concerning the approval of proposed amend­
ments of articles of incorporation.

3. The proposed amendments are lawful.

4. The proposed amendments are beneficial and 
not injurious to the community.

The Court has simultaneously with the filing of 
this Adjudication filed a Decree approving the 
Amended Articles of Incorporation of the Defender 
Association of Philadelphia.

BY THE COURT:

McDEVITT, J.
Date filed: August 8. 1969.