Category — Money Issues

From the Macon Telegraph:

Defense attorneys were among the loudest supporters of Georgia’s ambitious public defender program, which for the first time created a statewide network of full-time attorneys to represent Georgia’s poor.

Which may explain why several of Georgia’s most prominent defense attorneys were in court Thursday, urging a Fulton County judge to prevent the ailing system from firing four full-time attorneys and replacing them with contract staff.

To those critics, the move could set an “unconscionable” precedent that threatens to undermine the program’s mission by slipping back to the much-maligned system of contract attorneys that once represented Georgia’s indigent.

“This is not about the right of lawyers to have a job,” said Stephen Bright, director of the Atlanta-based Southern Center for Human Rights. “It’s about the right of clients to be represented.”

But the system’s administrators, who have long argued that their hands are tied by budget cuts, say firing permanent attorneys and replacing them with private sector staffers is a necessary reality in a tough economy.

“It’s sad for the four lawyers who got laid off. It’s certainly unfortunate,” said Devon Orland, a state attorney. “But in this state, there’s no right to have a job.”

Fulton Superior Court Judge Melvin Westmoreland is expected to rule in the case next week.

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From the Lexington Herald-Leader (KY):

The state finance cabinet is asking for an injunction to block public defenders from withdrawing from cases.

The Department of Public Advocacy began withdrawing from certain types of cases July 1 because of budget cuts. It has sued the state and leaders in the legislature for more funding, saying they have not allocated enough money to fulfill the state’s constitutional mandate to provide lawyers for poor criminal defendants.

By DPA’s own estimates, it has enough money to last through February or March 2009 before running out. Lawyers for the Finance & Administration Cabinet and State Treasurer Todd Hollenbach IV say that gives the legislature or courts five to six months to address the issues raised in the lawsuit.

But Public Advocate Ernie Lewis said it would be irresponsible for the agency to spend money until it goes broke. The public and General Assembly would not stand for that, he said.

”I am trying to manage our way out of a severe budget crisis,“ said Lewis, who noted that Kentucky has one of the lowest-funded public defender systems in the nation.

The executive branch requested the injunction in a response it filed to DPA’s lawsuit on Wednesday.

The answer alleges that:

Public defenders inflate their caseloads by double-counting some cases. DPA, for example, counts cases that move from district to circuit court as two cases. It counts persistent felony offender charges as separate cases.

The agency inefficiently allocates its lawyers and resources. The finance cabinet said attorneys in DPA’s Frankfort office handled, on average, 359 cases each last year, while Lexington lawyers had an average caseload of 654. The cabinet also noted that the agency prints a bimonthly magazine and a newsletter, which the cabinet viewed as unnecessary.

Public defenders do not ask for defendants to pay partial fees to help offset the costs of the agency. Under the law, defendants who can afford to contribute to their defense are required to pay a fee, which is set by the judge and is typically a few hundred dollars. Outside of Fayette County, most counties historically have collected very little in these fees.

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From the Florida Times-Union:

Georgia’s ailing public defender system, once praised as a national model for providing legal representation to poor defendants, is now in a legal tug-of-war with critics who say it has failed to live up to its promise.

Lagging support from Georgia legislators and rounds of budget cuts have already led the system’s director to scale back programs and fire dozens of staffers. But it was the decision in June to close the 21-member Metro Atlanta Conflict Defender Office that triggered the legal battle.

Critics sued the system’s director. They will ask a Fulton County judge today to force the office to stay open, arguing that the system is undergoing a “Walmartization” by firing full-time attorneys and replacing them with contract attorneys.

“This would be a giant step back to what is supposed to be a bygone era in Georgia,” said Stephen Bright, director of the Atlanta-based Southern Center for Human Rights, which filed the legal challenge.

It’s a painful fall for the public defender system, hailed in legal circles as groundbreaking when it was created in 2003 to replace the patchwork of systems across Georgia’s 159 counties.

To defense attorneys and their traditional Democratic allies, it was a progressive way to guarantee standard legal representation to Georgia’s neediest for the first time. It also appealed to Georgia’s ruling Republicans by offering a way to avoid what legal experts said could be a costly federal challenge.

Under the old system, some counties assigned indigent defense cases to attorneys with little experience or knowledge of criminal defense. And lawmakers heard horror stories about defendants waiting days - even weeks - before seeing an attorney.

Since the statewide system was established, however, frustrated legislators who worried about financial mismanagement have sought to rein it in. They cut funding from $42 million to $35 million over the past three years.

“Left unchecked, it will continue to grow into another unaccountable burgeoning state bureaucracy and the taxpayers will be left holding an empty bag,” said state Sen. Preston Smith, who chairs his chamber’s judiciary committee.

The budget cuts have forced some belt tightening. About 40 staffers were fired amid the first round of cuts in May 2007, and system director Mack Crawford - himself a former state legislator - warned he would have to furlough hundreds of staffers until a fresh infusion of cash came in this March.

Crawford has said he had little choice but to close the metro conflict office, which handles multi-defendant cases, and fire its 16 lawyers and five investigators. The council received $5.4 million from the state for conflict cases - a drop from the $9 million it spent last year on similar cases.

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From the Great Falls Tribune (Montana):

Two years after Montana overhauled its system for defending the poor in court — partly in response to an American Civil Liberties Union lawsuit — state officials and ACLU leaders say they’ve seen a major improvement.

“I think Montana is actually viewed as a model nationwide for how reforms can be effected,” said Robin Dahlberg, a senior staff attorney for the ACLU, which is based in New York.

“In the more populated areas we have heard again and again that there is a consistent quality of representation that didn’t exist before — that there is a more level playing field between defendants and prosecutors,” she said.

The ACLU filed suit in 2002 against Montana and seven of its counties. At that time, each of the state’s 56 counties had a different system for defending people who were accused of crimes but couldn’t afford to hire an attorney.

The ACLU agreed to suspend the suit while Montana’s Legislature worked to revise the system, and the state officially took control of the public defender system in July 2006. The new organization is headed by Chief Public Defender Randi Hood out of an office in Butte. She oversees 11 regions, each headed by regional deputy public defenders.

Most regions have a staff of full-time public defenders and contract with private attorneys as necessary.

Montana Supreme Court justices have been pleased with the change, said Justice Patricia O’Brien Cotter.

“All of us pretty much agree that the new system is a substantial improvement over the old system,” she said. “The district judges with whom we’ve spoken have been pretty uniformly impressed.”

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From the Hi-Desert Star (CA):

The annual report of the San Bernardino County Grand Jury examines the county’s public defenders office and finds it understaffed, an assessment the Joshua Tree public defenders’ supervisor called “100 percent correct.”

The grand jury recommends hiring new attorneys and investigators for the public defenders office, which provides legal defense when a person accused of a crime cannot afford his own lawyer.

The county, the report notes, has 116 deputy public defender positions, all filled. Public defenders participate in 78 percent of the cases prosecuted by the district attorney’s office, but with 51 percent of the trial lawyer staffing, the grand jury reported.

In 2007, the report states, the average deputy public defender in San Bernardino County handled 562 cases while the average deputy district attorney handled 352.

“San Bernardino County deputy public defenders’ average caseload also was much higher than neighboring counties,” the report states.

“The Department of Justice National Advisory Commission recommends a caseload of no more than 150 assigned felonies per attorney per year, or no more than 400 assigned misdemeanors per attorney per year or no more than 200 assigned juvenile cases per attorney per year,” the jury noted.

One reason for the shortage, the report speculates, may be a lack of lawyers and law schools in the county.

“San Bernardino County has 5.5 percent of California’s population and only 1.3 percent of the State Bar membership and has no law schools. Attorneys are often recruited from outside the county.

“Counties in Arizona with similar problems recruiting and retaining highly qualified personnel have documented the advantages of initiating a loan repayment program,” the jury pointed out.

Finding that the average law student graduates with $83,000 in student loans, the grand jury advised, “A loan repayment program would put monies aside to help the county recruit and retain qualified attorneys, saving time and money by reducing the need for more frequent hiring and providing a significant amount of new-hire training.”

The cost of the program would be about $5,250 a year for every qualifying attorney, according to the grand jury.

The report also finds the public defenders office lacking in investigators, stating, “The public defender’s office also operates with a lower percentage of investigators than the district attorney’s office.”

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From the Alexandria Echo Press (MN):

Minnesota law clearly guarantees parents in child protection cases the right to an attorney.

The issue becomes muddied, however, when trying to sort out whose job it is to provide that service.

Now, as it faces a $3.8 million shortfall due to state budget cuts, the Minnesota Board of Public Defense says it can no longer afford to provide any “non-mandated services,” including representing parents.

On Tuesday, the state board discontinued its role in child protection cases, passing the costs onto Minnesota counties at a time when they say they’re already stretched thin.

The timing couldn’t be worse, said Douglas County Auditor/Treasurer Tom Reddick, with the state also limiting how much counties can raise property taxes over the next few years.

“That’s the really sinful part of this thing,” he said. “If [the cost of representing parents] falls under the levy limit [of 3.9 percent] – if you squeeze the balloon over here, then it pops over there.”

Covering parents’ legal fees for the remainder of the year could cost the county as much as $55,000, and three times as much should the county have to pick up the tab in 2009, said Rhonda Bot, 7th District court administrator for Douglas and Morrison counties.

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From the Kentucky Herald-Leader:

State public defenders filed a sweeping lawsuit Monday seeking a declaration that Kentucky’s criminal-defense system for the indigent is inadequately funded and unconstitutional.

The Department of Public Advocacy filed a petition in Franklin Circuit Court asking a judge to order the state finance Cabinet to pay for private lawyers in cases where public defenders withdraw because of a $2.3 million budget cut in the fiscal year that begins Tuesday.

In the alternative, public defenders are asking the court to set a deadline for the General Assembly to allocate more money. If the legislature does not provide “sufficient” funds, then public defenders want the courts to dismiss all charges for poor criminal defendants who are denied public defenders.

“Not only are the lives and liberty of some of our most vulnerable citizens at risk, but the fairness, reliability and credibility of the criminal justice process are rightly in question,” Louisville’s chief public defender, Dan Goyette, said in a statement. “We can ill-afford a loss of public confidence in our adversary legal system and with it respect for the rule of law.”

The department’s budget for fiscal year 2008-09 was recently cut by the General Assembly to $37.8 million. Officials say they will be unable to fill as many as 75 positions, including 60 lawyer slots.

Public defenders are asking the courts to allow them to withdraw from cases if their caseloads are too high. The average caseload for a public defender in 2007 was 436, with 23 percent of those being felony cases, according to the lawsuit. Public defenders say that level is excessive.

The lawsuit was filed by lawyers Jon L. Fleischaker, Charles E. English and Sheryl G. Snyder, who has been a legal adviser to several governors. The lawyers are handling the case for free.

“It’s a system that needs to be adequately funded so that there is equal justice for all, including indigent defendants,” Snyder said. “So undertaking the representation as a public service is something I was glad to do.”

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The lawsuit is available here

From Fox17 (Nashville):

Kentucky’s public defenders have gone to court in an effort to force the General Assembly to appropriate more money to pay for the legal defense of the indigent.

The Department of Public Advocacy and Louisville and Jefferson County Public Defender Corp. filed a lawsuit Monday. The plaintiffs are seeking permission to decline additional indigent clients when representing them would create excessive case loads.

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From the Sun-Sentinel:

A new, obscure state agency that helps represent the poor in court has rented offices on posh Las Olas Boulevard and wants Broward County taxpayers to pick up the $416,000- a-year tab.

County commissioners, forced to reduce services to provide property tax relief, refuse to pay the rent and ordered their attorneys to join other counties in a lawsuit.

The Office of Criminal Conflict and Civil Regional Counsel handles criminal and civil cases in which public defenders have a conflict of interest. When legislators created the agency last year, they did not set aside money for office space; instead, they ordered counties to cover the expense.

The regional counsel’s local digs are in an eight-story building at Las Olas and Third Avenue, amid downtown Fort Lauderdale’s banks, shops and restaurants. The head of the agency told county officials he chose the location to put his staff within walking distance of the courthouse.

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From Nevada Appeal:

There was more consensus than controversy among public defenders, prosecutors and county managers who met with the Nevada Supreme Court on proposed changes to programs to represent indigent criminal defendants.

Federal Public Defender Franny Forsman said the Tuesday hearings before the state high court brought all sides a step closer to what she termed a “cultural sea change.”

At Tuesday’s public hearing, Forsman and Clark County Chief Deputy District Attorney Nancy Becker suggested revised language agreeable to both defenders and prosecutors for performance standards for indigent-defense lawyers.

The Supreme Court in March delayed implementing reforms aimed at ensuring indigent defendants get adequate legal representation, pending a review of the wording of performance standards. Rural court officials also questioned the feasibility of completely removing judges from the selection of court-appointed defenders.

Forsman and Becker on Tuesday identified five relatively minor issues still in dispute, including whether defendants should always be advised of their right to appeal a conviction.

In September, the Supreme Court will hold another public hearing about issues facing rural counties, including funding.

Judge Dan Papez, of the Seventh Judicial District Court covering White Pine and Lincoln counties, called it increasingly difficult for rural counties to fund indigent defense.

“It’s a state responsibility,” Papez said, “not a local responsibility.”

Justice William Maupin has called the reforms the result of the most important examination of the Nevada state criminal justice system in recent years.

They were ordered after reports by the Las Vegas Review-Journal in March 2007 about flaws in Clark County’s indigent defense system and reports that Clark County public defenders handled an average of more than 350 felony and gross misdemeanor cases a year. The National Legal Aid and Defender Association recommends defenders handle 150 such cases annually.

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From the Detroit Free Press:

Scandalously low pay for court-appointed attorneys and a lack of state standards and oversight have made Michigan a McJustice state — with expedience stressed over upholding a fundamental constitutional right.

The criminal justice system works when truth emerges from the adversarial efforts of a competent prosecutor and vigorous defense. It fails miserably when an outgunned and underpaid public defender is effectively encouraged to cut corners.

A just released report requested by the Legislature in 2006, examining public defense in 10 sample counties, should force an overdue fix.

“A Race to the Bottom,” the title of the study conducted by the National Legal Aid & Defender Association and released last week by the State Bar of Michigan, found that defense attorneys routinely lack the time, training, investigators, experts and resources to prepare cases adequately. Others are appointed to cases for which they are not qualified. Many criminal defendants never speak to an attorney.

Fixing the problem will cost money, but very little compared to the $2 billion a year that Michigan spends on prisons. Getting it right at trial time is especially important today, when appeals courts and the Michigan Supreme Court practically rubber-stamp criminal convictions.

The system cannot be fixed by the hodgepodge of poorly funded county programs for indigent defense. Michigan must establish state standards and oversight of its public defense system — and ensure uniform and adequate funding to counties.

From a purely fiscal standpoint, this is a mess almost begging for a class-action lawsuit that could cost the state plenty. But more basically, budget problems cannot be an excuse for curtailing constitutional rights. Louisiana is in no better shape than Michigan, yet legislators in that Katrina-ravaged state last year passed comprehensive reforms on indigent defense that include quadrupled funding.

“When people understand that one of our cherished constitutional rights is in danger, they find a way to come together and fix it,” said David Carroll of the National Legal Aid & Defender Association.

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From The Northwest Indiana and Illinois Times:

Even some of the poorest criminal defendants must do their part to reduce the cost of Lake County government to local taxpayers.

Lake County Public Defender David Schneider said Monday his staff has recovered $30,000 this year from hundreds they defended in criminal court at public expense. “Our goal this year is $70,000.”

That is only a fraction of the $2.3 million the Public Defender’s office will spend this year to employ a staff of 52 attorneys, paralegals, investigators and secretaries who organize the defense of criminal defendants who cannot afford private trial lawyers.

But Schneider said, “Although we have done this for years, we know belts are going have to be tightened. That is why we leaning a little harder on the attorneys to prepare fee affidavits for any of our clients who are out on cash bonds,” Schneider said.

State law requires criminal court judges to appoint public defenders for indigent persons, even if they can afford to deposit enough money at the clerk’s office for a bond to ensure they will return for each of their court hearings after they are released from the county jail prior to trial.

State law permits the public defender to ask a judge to subtract their expenses from a defendant’s cash bond before it is returned to the defendant after the case is resolved.

The Lake County Council is preparing in the coming weeks to begin setting lower spending targets for all county government agencies, including the courts and public safety agencies, which make up the lion’s share of the government budget.

“Outside of the cost of death penalty (cases), we have lived within our means,” Schneider said. Death penalty cases, because of the intense and time-consuming trial preparation cost hundreds of thousands of extra dollars.

Schneider said local taxpayers are only tapped for 60 percent of his office’s budget. The rest comes from the state treasury. However, the state mandates the public defender maintain minimum staffing levels, which will complicate any efforts to cut his budget by layoffs.

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From the Park Rapids Enterprise:

Justice delayed is justice denied.

That prognostication has become both a cliché and a rallying call for legal reformers. But it’s about to become a burden on indigent Minnesotans and cash-strapped counties.

On June 5 massive cuts were enacted to the state public defenders budget to address deficits and budget shortfalls. The equivalent of 72 of 441 positions was cut from public defenders’ offices and appellate lawyers statewide, a 15 percent reduction in staff.

Minnesota public defenders, according to state compiled statistics, represent 85 percent of all persons charged with felonies and half of the persons accused of misdemeanors.

“I would think that we’re higher up here in PD representation than those numbers simply because the metro areas have a larger pool of private attorneys from the criminal defense bar,” said Kris Kolar, Chief Public Defender for the 9th Judicial District. She added that Hubbard County may be more economically distressed, so that would be a factor, too.

The State Board of Public Defense also voted to stop representing indigent parents in custody fights and in terminations of parental rights (TPR) cases. The former are typically referred to as CHIPS cases, for Children in Need of Help or Protection.

The Board said it faced a $3.8 million deficit after legislators cut $1.5 million from its budget this past session.

It means that overworked public defenders will shoulder even heavier caseloads, poor defendants will wait longer to go to trial and to appeal their cases, court administrators will wait longer to collect fines and fees and the judicial system will feel the strain.

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From the Atlanta Journal-Constitution:

The state public defender council’s board voted Friday to delay by a month the closing of a metro defender office amid concerns its elimination will compromise legal representation of the poor and disrupt Atlanta’s busiest courthouse.

By a 9-1 vote, the board voted to shut down the 21-employee Metro Conflict Defender Office on July 31, but hire back seven of the lawyers who work there. The office won’t be closed until the lawyers are hired and a plan is in place to make sure the transition goes as smoothly as possible. The seven lawyers will work in Fulton County offices.

Last month, Mack Crawford, director of the Georgia Public Defender Standards Council, ignited a firestorm of controversy when he announced the conflict office, which has 17 lawyers, would be closed on June 30. The board held its meeting Friday to either agree to that plan or figure out a compromise.

The metro conflict office costs $1.7 million a year to run and represents people in Fulton and DeKalb counties who cannot afford an attorney. The office’s lawyers represent co-defendants when conflict-of-interest rules allow a public defender to represent only one person.

Crawford said he had to close the office because of budgetary constraints that have hounded the council since it opened its doors four years ago. The council had asked the Legislature for $8.3 million for “conflict” cases, as well as for fees for expert witness, for the next fiscal year that begins July 1. But lawmakers approved $5.4 million.

During Friday’s meeting, held at the Lodge at Amicalola Falls State Park, the board agreed to move toward adopting a compromise that keeps some salaried defenders on payroll and saves the council $600,000.

Under the plan, six of the lawyers from the metro office will stay on and handle “complex” cases – the most serious felony offenses — in a dozen Fulton County courtrooms. An additional lawyer will handle juvenile cases.

Although the plan recommended that four private attorneys handle the less serious, non-complex cases on a contract basis, the board voted to try to find a way to avoid using lawyers who don’t work for the defender council.

The proposal was outlined to the council by Larry Schneider, the DeKalb Public Defender who is leaving that job at the end of the month to oversee conflict cases for the state defender council. DeKalb would receive $300,000 from the council to deal with its conflict case load, he said.

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Our friend Grits for Breakfast has been steadfastly covering issues with the Dallas Public Defender’s Office. Below are some of his most recent posts on the subject:

• Cost per case at Dallas PD much lower
• Move to slash public defender budget couldn’t come at worse time
• Dallas public defender budget saves county money compared to neighbors