Fight ‘Em ‘Til We Can’t

From Injustice Anywhere, a public defender currently working in Washington State, comes this advice for new and aspiring public defenders:

Don’t do it unless you believe in what you are doing. You will rarely get fulfillment from this job if you are relying on the gratitude of individual clients. Don’t get me wrong. The moments when you get that are fantastic—I have shed many tears in those moments. But, in my experience, they are few and far between (albeit more frequent in juvenile cases than they were in adult land). I believe that your reward—your fulfillment—has to come from knowing that the rights of everyone in this country are being protected because of the work you and your fellow defense attorneys are doing for individual clients each and every day.

That’s just a bit of the great perspective to be found in Injustice Anywhere’s (IA’s) interview withPublic Defender Stuff as part of the latter’s Monday Musings series. PD Stuff has emerged in the last year as both a clearinghouse for indigent defense news and as one of the best indigent defense blogs in its own right. Thank you, PD Stuff!

IA’s words of wisdom make me wonder: What words of wisdom would other experienced public defenders give to their new and aspiring colleagues? [tags]advice[/tags]

One thing that’s great about doing legal research in Montana is that, unlike the SCOTUS where opinions can weigh in above 60 pages or more, the Montana Supreme Court frequently produces decisions in the 5-10 page range, and rarely, if ever do they go more than 20 pages. This may reduce the amount of favorable (or unfavorable, as the case may be) dicta we get, but it does make the research go a bit faster.

Another virtue of researching Montana criminal law is the simple lack of cases on any given topic. I’m still getting used to being able to search the Montana state criminal law section of Lexis and ending up with 8-10 results for any given search, rather than the hundreds or thousands you might find in federal law or another state. This obviously means that many questions remain unanswered in Montana, which, in turn, provides more opportunities for making new law. It also makes legal research faster, which, again, is not a bad thing — especially when it’s something you’re squeezing in on a Sunday!

Criminal defense attorneys sometimes have to find humor where they can, and law enforcement lingo is one fairly reliable source for the occasional chuckle. Every time a cop says “someone exited his vehicle” I have to laugh. You mean, the guy got out of his car?

But the best line I’ve seen recently came in a police report:

”Officer K looked at me and gave me the sign to put him in handcuffs.”

I’m thinking I have to put this guy on the stand just so I can ask him to show me “the sign.” Then I’ll ask: “So you put Officer K in handcuffs, as he had signaled you to do? Didn’t it make it kind of hard for Officer K to do his job after you handcuffed him?”

Perhaps the humor is a bit obscure, but we have to take what we can get…

The Supreme Court of Montana (SCOMT) released a number of decisions on Tuesday, including the following involving criminal law:

• Hardin v. State, 2006 MT 272 (involving postconviction releif, sentencing, IAC, and plea bargaining)
• State v. Thompson, 2006 MT 274 (involving DUI and particularized suspicion)
• State v. Benders, 2006 MT 275 (involving DUI, conlaw, vagueness, and particularized suspicion) (sort of an unfortunate name for a DUI case, no?)

We haven’t had time to read (and therefore summarize) these opinions, but if anyone else has, we’d be happy to post your summaries and/or commentary right here on Fight ‘Em ‘Til We Can’t. Just send ‘em in.

The links above (and other links on this blog to recent SCOMT decisions) are to the Montana State Law Library Newsfeed. The links to each case will take you to a PDF download of the actual opinion, and the posts about each case include the keywords listed above that give you some idea of what each case is about. Thus, the Newsfeed is invaluable on several levels. First, if you use a newsreader and know how to subscribe to an RSS feed, the Law Library’s Newsfeed will make sure you stay up-to-the-minute on new decisions from the SCOMT. Second, the keywords for each opinion make it easy to scan new decisions for those that might be relevant to your cases or interests.

Here at FETWCthe Law Library’s Newsfeed is an invaluable service. Kudos to the Law Library for making such great use of available technology.

Last week the Montana Supreme Court affirmed the revocation of appellant Baird’s deferred sentence in State v. Baird, 2006 MT 266. Baird had previously been convicted of felony stalking for violating an order that he stay away from from his wife, from whom he was separated. Baird was given a deferred sentence of two years, but that sentence was revoked after he again allegedly had impermissible contacts with his wife. Baird raised three issues on appeal:

1. Was there sufficient information before the District Court to revoke Baird’s deferred sentence?
2. Did the District Court deny Baird due process by failing to advise him of the reasons his deferred sentence was revoked?
3. Did the District Court err by not allowing Baird to present testimony regarding his conduct?

The Court found that the Twentieth Judicial District Court, Sanders County, had not abused its discretion in revoking the deferred sentence because it had based the revocation on sufficient evidence. ¶22. The Court also found that the district court had properly advised Baird of its reasons for revoking the deferred sentence. ¶32. Finally, the Court chose not to address Baird’s third appeal issue because Baird’s appeal brief was “made in a single paragraph, and without citation of authority,” and therefore gave the Court no reason to believe the District Court had erred. ¶34. [tags]Criminal, Evidence, Sentencing, Probation/Parole, Due Process[/tags]

When you make money from court-ordered supervision and punishment, is there such a thing as a “fair” profit? If so, how much is too much before your profits become unconscionable?

In Mountain Peaks Inc. v. Greg Pohle and Adam Flores, decided Sept. 29, 2006 in Billings, MT, a jury awarded Mountain Peaks (MPI) $154,596 in compensatory damages and $30,000 in punitive damages after MPI claimed that “Phole and Flores wrongfully conspired to commit fraud and business interference and breached their duties of good faith and loyalty.” MPI contracts with the city and county to provide probation services, drug testing, electronic monitoring, and anger management classes for people charged and/or convicted of misdemeanors in Yellowstone County Justice Court or Billings Municipal Court. Apparently, Phole and Flores were employees of MPI up until the end of September, 2005, at which point they quit their jobs and immediately started up a competing probation services provider called Community Solutions, Inc. (CSI). On Phole’s and Flores’ last day of work at MPI, Municipal Court Judge Knisely transferred 110 probationers from MPI to CSI, claiming the move was “in the interest of justice and community safety.”

A third company, Alternatives, also competes with MPI for probationers from the city and justice courts in Billings. Unlike MPI and CSI, Alternatives is a non-profit organization.

MPI had requested up to $453,825 in compensatory damages, an amount it claimed was equivalent to 7 years of lost net profits. That comes out to just under $65,000/year in profit for MPI, and presumably, that’s only the profit it would have made from the clients that CSI took. MPI claimed that prior to the formation of CSI, MPI had 150-160 clients, 90% of them from Municipal Court. That means that CSI took about 2/3 of MPI’s business, meaning that MPI’s annual net profit prior to the formation of CSI must have been closer to $100,000. Perhaps that explains why CSI is claiming it can satisfy the $180,000 judgment and still stay in business. Apparently there’s a lot of money to be made in probation, drug testing, electronic monitoring, and anger management classes.

What’s most disturbing about these numbers is that probably 99% of that profit is coming from indigent defendants, many of whom can’t even afford rent, let alone supervision and drug testing fees. It seems to me that those probationers should never have to pay more than the actual cost of their court-ordered “services.” And if they are going to pay anything above cost, it should go back to the taxpayers rather than into the pockets of private individuals.

This is especially true with regard to those who are awaiting trial. Yes, a healthy portion of the business CSI and MPI are getting from Billings Municipal Court is coming from court-ordered pre-trial supervision. That means that people who have not been convicted of anything and who have only been accused of a misdemeanor are paying hundreds of dollars a month for the privilege of being out of jail while they await their trial.

In the comments on the Billings newspaper’s coverage of the trial, several people noted the large amounts of money involved. Commenter “CSI: Billings” wrote:

What is interesting is what is happening behind the scenes in open court before the good Judge Knisely. Virtually no one charged with a misdemeanor escapes pre-trial supervision or misdemeanor probation with one of these companies. Judge Knisely is not a part of the conspiracy! What about the kick backs from these companies to the City Court for “administrative fees”? What about City Court bringing in a million + $$$$ to the city coffers last year in fines? What about Mountain Peaks and CSI Billings making profit off of people who are in trouble and revoking them from probation when they cannot pay their supervision fees? What about the fact that Mountain Peaks (a for profit company) charges $150 a month for pre trial supervision and Alternatives (a non-profit company) charges $50 per month but the Defendant is not given a choice which company to go to by the good judge? Yeah, your right Judge Knisely you are not part of the conspiracy. . . you run it.

I have no idea who “CSI: Billings” is or whether his/her facts and figures are precise (except for the $100 difference in pretrial charges, which I can verify is accurate), but he/she certainly raises issues that beg more attention from the defense bar and the public, as well.

Who decides whether a defendant qualifies as “indigent” for purposes of being appointed a public defender under Montana’s new Public Defender Act? That was the question the MT Supreme Court recently decided in Rios v. Harris. In brief, the Court granted a Writ of Supervisory Control saying that the Office of State Public Defender (OSPD) decides who qualifies according to the criteria specified in Title 47 of the Montana Code.

The Court said that §47-1-111(1), MCA, calls for appointment of counsel as follows:

1. The court appoints counsel to any accused person facing jail time (and also in dependent/neglect and a few other matters). See also §47-1-104(4), MCA.
2. The Office of State Public Defender (OSPD) begins representation but also determines whether the defendant meets the indigency criteria.
3. If the defendant is not eligible, the OSPD must notify the court so that the court may rescind its order appointing counsel. However, OSPD must remain as counsel until the court issues such an order.
4. The court may review the OSPD’s determination of eligibility, but only in cases where one of the parties requests such review. Under no circumstances my a court initiate such a review sua sponte.

Justice Jim Rice dissented, claiming that the majority erred in holding that a court cannot initiate the indigency determination on its own.

Does anyone have any thoughts on this opinion? Did the majority get it right or was Rice more on target? And how common is it for the Court to issue a Writ of Supervisory Control?