Fight ‘Em ‘Til We Can’t

Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.

Is it a conflict of interest for the Regional Deputy Public Defender in a region to be the son of one of the few District Court judges in that region?

Almost anyone involved with the Office of the State Public Defender in Montana can tell you: This first 18 months has been a little rocky. There’s not enough money and that means there’s not enough people or other resources to fulfill the mandates set for the Office by the legislature and the ACLU case that started this whole ball rolling. Of course, those are the same problems plaguing indigent defense systems nationwide; usually it’s just a matter of degree. Take, for example, Missouri, where it appears things have truly reached a state of crisis.

That story doesn’t provide much detail, but it does suggest the attorneys are stuck between a rock and a hard place. The courts are saying they’re personally liable for inadequate or ineffective assistance of counsel, regardless of the fact that the legislature won’t provide them the resources they need to do their jobs. So what is a lawyer to do? Have they begun refusing to take cases? That might be a start. Of course, then the article says the legislature is “considering” a bill that would allow the lawyers to refuse to take case. Um, what? You mean to say there’s some law saying they can’t refuse? Even when their rules of professional conduct say they must refuse if they cannot adequately represent new clients? Whoa.

Obviously no matter how bad things seem, they could always get worse….

Meanwhile, it sounds like the Vermont Supreme Court just issued a fascinating opinion on speedy trial delays. If the news article is correct, it says that public defenders are part of “the state,” so delay caused by a public defender is attributable to the state, not to the defendant. Crazy. I mean, it actually might be a more fair way to look at it in many cases where a public defender’s heavy workload means he/she isn’t ready for trial and has to ask for more time through no fault of the defendant, but still, this decision would turn speedy trial analysis upside down in Montana.

According to this story from Fond du Lac, Wisconsin, state laws there cap the caseload of public defenders at 184.5 felonies and 492 misdemeanors per year. It’s not clear whether that means each defender is expected to close almost 600 cases each year, or whether each attorney is expected to do one or the other (the felonies or the misdemeanors). Either way, those caseloads are higher than the loads recommended by the Public Defender Commission in Montana (PDF), which are:

• 50 felony cases (excluding those in which the death penalty is being sought) per attorney at any one point in time;
• 100 misdemeanor cases per attorney at one point in time;

Recommendations are one thing; real numbers are another. As that Wisconsin story indicates, defenders are regularly carrying much higher numbers of cases than the law allows there, and while the same seems to be true here, I haven’t heard of it being quite as bad as things sound in Fond du Lac.

In addition, it appears Wisconsin defenders are unhappy that outdated indigency criteria mean that too many people are denied access to lawyers. Here in Montana the problem seems to be the reverse — the law basically says that anyone can and should be appointed a public defender, regardless of means. After that initial appointment, the public defender’s office is supposed to conduct an indigency test and tell those who have too many resources that they need to find their own counsel. This means that public defenders can end up handling cases that they really shouldn’t be handling, which can deny resources and representation to those who really need it.

Apparently, things could be much worse, as this story from Tennessee makes clear:

During a recent day in Alcoa city court, Garner and his assistants plowed through 50 cases, devoting about 12 minutes to each. That kind of pace makes it hard to provide the quality of service that people deserve, he said.

“I try to do all my work by telephone because we simply don’t have an hour to spare to talk to a person about a case,” he said “I’m not sure all of our clients know what’s going on because everything happens so fast.”

Ouch.

This is completely hearsay, but I was told last week that at a recent negotiation between the union representing public defenders in Montana and representatives from the state, the state put forward the proposition that, for purposes of pay, public defenders are not “attorneys” — we are public defenders. This is because “attorneys” employed by the state — e.g., as attorneys general, aka, prosecutors — get a certain pay range and the state doesn’t really want to have to pay its public defenders that much. Therefore, we are not attorneys, we are something else — public defenders, of course.

Like I said, this was just a story someone who was at the meeting told me, so I don’t know how serious anyone was about this or whether it might have been a joke or just an idea floated and quickly withdrawn. Regardless, it shows that at least some people in state government either have no respect for public defenders or simply don’t understand the fundamentals of the criminal justice system.

Can anyone who was at that meeting shed any more light on this rumor? [tags]union, contract, pay, public pretender[/tags]

Following up on the Montana state budget, it appears the legislature finally agreed upon a budget. Best of all, although I can’t find any confirmation online, my understanding is that most, if not all, of the $4 million previously cut from the budget for the Office of State Public Defender, was restored in the final spending bills. I’ll update this once I know more…

UPDATE: Silly me. As a kind reader pointed out, the Montana legislature puts its work online, so on page A17 of this bill (PDF) you’ll see that the budget for the Office of State Public Defender ended up with the $19 million it requested. Interestingly, that includes $30k for “Mediation for Criminal Proceedings” as part of HB 629. I’ll have to look into that…

[tags]budget[/tags]

The latest round of Montana state budget fights appears to have produced more cuts for the State Office of Public Defender:

The Corrections Department is losing, among other things, $2.1 million from a $10 million plan for 120 methamphetamine-treatment beds. And, $4 million is being trimmed from the new statewide Public Defender’s Office. That office, created in 2006, will get $1 million in one-time money to offset the cuts.

It’s a great idea to cut the budget for criminal defenders at the same time you’re cutting treatment options for their clients. The legislature had better increase the budget for prison beds, because they’re going to need more of those as a result of these cuts.

The infuriating thing about this is that the budget cuts are being made at a time when the state has a billion dollar surplus. But hey, we need tax breaks for property owners! You know, the people who already own property are definitely the neediest people in the state. For sure. Brilliant.

Thanks to Public Defender Stuff for pointing to this bit of news. As always, PD Stuff is the place to go to stay on top of the public defender world nationwide. [tags]budgets, money[/tags]

In the latest installment of “Monday Musings,” the weekly interview series at Public Defender Stuff, the author of the blog entitled “A Public Defender” talks about his life in the criminal defense trenches, and why he loves his job:

there is nothing more important that one can do today than be a public defender (or criminal defense attorney). There is not a single more important document in this country than The Constitution and it is our job to enforce it and to protect the rights of everyone. For today’s public defender (or prosecutor) could be tomorrow’s criminal defendant.

“Gideon” also gives a good perspective on working in the Connecticut public defender system, a system from which it sounds like Montana might learn a thing or two:

From what I have seen and read (and obviously my own personal experience), Connecticut has one of, if not the, best public defender systems in the country. Last year, the budget was in the vicinity of $36million and there are about 200 attorneys hired full-time. There is a centralized Office of the Chief Public Defender and then various sub-offices at each and every courthouse. Most courts are split up into two parts: Part A and Part B (also called the Judicial District and the Geographical Area courts). There is a public defender office for each J.D. and each G.A. Each office has anywhere from 3-15 attorneys. On top of that, we have three specialized units that don’t operate out of a specific courthouse: The Legal Services Unit (Appellate), The Habeas Corpus Unit and the Capital Defense Unit. I believe either the PD system in general or the Capital Unit specifically received some sort of national recognition award a year or two ago. Almost all offices are more than adequately staffed.

According to “Gideon” and this history, the great system Connecticut has today has been a long time coming and is at least partially the result of an ACLU lawsuit that forced the state to improve its indigent defense system. (Scroll down to the history since 1995.) Sound familiar? Currently the MT legislature is threatening to slash the budget of its new statewide public defender system by $7.4 million. (What could possibly be left!?) Let’s just hope that 10 years from now the system has survived and grown to be as healthy as the Connecticut system sounds.

Here’s a proposal for people in positions to hire public defenders: Ask your new (and current) employees to sign an agreement not to compete — an agreement that any lawyer who leaves your office will not accept a position as a prosecutor within your jurisdiction for at least one year after he/she leaves your employ.

Why? It’s fine to switch sides if that’s where your ideology/heart/pocketbook/whatever leads you. But when it potentially damages your former clients and those of everyone else in your office, then you’re crossing a line that ought not be crossed. An agreement not to compete would be a reasonable way to prevent this.

I started thinking about this a few weeks ago when Skelly noted a conversation on a law student forum about how hard it might be for law students to get summer internships with public defender offices. The conversation revolved around whether you’d help or hurt your chances by having experience working as a prosecutor intern, and Skelly mused about whether PD offices should be hiring former prosecutors—not just as interns but as attorneys.

I agree w/Skelly that more harm than good would come from some sort of automatic DQ rule forbidding PD offices from hiring former prosecutors. As he points out, if PD offices made a hard and fast rule like that, good people like Skelly would not have jobs as defenders. In my own office we have several former prosecutors who do great work and I’m sure that happens everywhere.

However, what happens when someone goes the other way—from defender to prosecutor? Generally nothing, and there’s no harm done. But when someone moves from one side to the other in the same jurisdiction—that changes everything. Potential conflicts of interest abound, plus it just leaves a bad taste in the mouths of all of that person’s former colleagues. Hence the need for the agreement not to compete—no switching sides in the same jurisdiction for at least a year.

Thoughts?

See also: The sleeping with the enemy theory of criminal defense by Austin Criminal Defense Lawyer which argues that being a prosecutor first is a great way to get experience for later becoming a good private defender. [tags]ethics, prosecutors[/tags]

Infinity Ranch points to an op-ed in yesterday’s NYT in which Morris Hoffman, a Colorado judge, reveals that a recent study in which he participated showed that defendants who retain private counsel end up with less jail time—three years less, on average—than those who rely on court-appointed counsel. When the researchers “controlled for the seriousness of the crime” they found that “public defenders performed relatively worse, not better (five years more incarceration versus three years more).”

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

Hoffman’s answer is that there’s a sizable group of “marginally indigent” defendants who can afford to retain counsel if they really really want to. These defendants are “rational actors”: those who know they’re guilty don’t pull out all the stops to hire private counsel because, well, why bother? They know they’re guilty. Those who are innocent do pull out all the stops to hire counsel—by borrowing from friends, family, whatever—because no expense is too great when you’re really innocent.

That theory may have something to do with the different outcomes achieved by private vs. court-appointed counsel, but what about other variables? What about the resources most public defenders have at their disposal—investigators, access to or money for experts, etc? What about caseloads? If the average public defender has 80-100 cases at any given time while private counsel has 20-40, I’m thinking that could easily explain a difference of 3-5 years for average sentence.

Finally, I wonder if the study considered how many private counsel start their careers in PD offices in order to learn their craft and become better defenders. Once they feel they’ve learned the tricks of the trade, these people hang shingles and start making money. Perhaps this means that the average private defender has had more years of experience than the average public defender? I have no idea if this is true, but it would be interesting to explore.

Whatever the case, prominent articles like this that speak to a national audience and say that public defenders aren’t as “good” as private counsel are bound to fan the flames of PD-critics who claim we’re not “real lawyers.” On the side of the silver lining, let’s hope this study encourages states and counties to invest more in their PDs to try to reduce caseloads and improve outcomes for the truly indigent defendants who really don’t have a choice of counsel.