U.S. Attorney Eric Holder spoke today in Wilmington, NC, about the need for more resources for public defenders and more substance in the Sixth Amendment right to counsel:

“Today the Sixth Amendment right to council is quite simply, not a right at all. Not to the extent that it should be. The right to council is the right of every citizen and it must be the concern of every citizen,” he explained.

Holder told the group that many people waive their right to legal council without any idea of what that means for their rights. He urged judges and others to push for higher professional standards so that more people can have access to equal legal rights.

Holder’s comments follow the announcement earlier this year that his Justice Department would be launching the Access to Justice Initiative, “a new program to help low-income people receive legal help.” Laurence Tribe is heading that Initiative, and he said yesterday that the Initiative “will work with federal officials and chief justices on the state level to raise pressure for changes public defense programs. He also expressed approval for lawsuits and private action through Section 1983 in cases of ineffectual counsel.”

While it’s great to hear politicians talking this way — recognizing the problems and promising improvements in indigent defense and access to justice — there’s little evidence of any substance behind the nice words. Here’s hoping all of this buildup has some substantive change before Holder and the Obama Administration no longer have that bully pulpit.

We all work hard, but sometimes, no matter how hard we work, we can’t keep up with the avalanche of new cases. That’s where public defenders in southeastern Minnesota apparently find themselves; they filed a union grievance over excessive workloads:

A legislative audit report issued in February said public defender workloads in Minnesota are too high and exceed state and national standards.

The study took into account how much time cases took to defend, with one case unit in the average misdemeanor, and more case units for more serious offenses.

The report said that state and national standards call for public defenders to carry no more than 400 case units per year.

In this district, there were 31 full-time-equivalent public defenders in 2007. Each had a weighted caseload of 689. In 2009, there were 27 full-time-equivalent public defenders carrying 745 case units each.

The evaluators for the legislative report said that during their site visits, they saw public defenders under such time pressures that they often had about 10 minutes to meet each client for the first time, evaluate the case, explain the client’s options and the consequences of a conviction or plea, discuss a possible deal with the prosecuting attorney and allow the client to decide how to proceed.

Some of the public defenders in this district have refused to accept new case assignments.

It sounds a little dire. The “smart-ass, sailor-mouth public defender” at not for the monosyllabic should know — she’s one of the PD’s who filed the grievance.

The bottom line is that when we’re overloaded, we can’t do our jobs, and if we can’t do our jobs, the Constitution gets trampled. Good luck, brothers and sisters! We’re with you!

Legislators and local officials typically love to starve indigent defense. The New York Civil Liberties Union has had enough:

the lawsuit is a broad challenge to a patchwork system that has been described by decades of studies and commissions as dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads. It says indigent clients have been failed by their appointed lawyers all around the state.

“The eyes of the nation will be on New York as it decides this crucial issue,” a brief filed by the National Association of Criminal Defense Lawyers argues.

As the system works now, defendants who are unhappy with their appointed lawyers can generally make those claims only after they are convicted. The court then reviews each appeal case by case. But the civil liberties lawyers argue that a broad review is necessary because the arrangement has not addressed systemic failings that unconstitutionally leave tens of thousands of defendants without meaningful representation in every part of the state.

This is nothing new. “In recent years, there have been cases similar to the New York one in states like Connecticut [in 1999], Indiana, Minnesota, Montana [in 2005] and Washington, with settlements, lower court decisions and inconsistent rulings. The Michigan Supreme Court is to hear a challenge to its public defender program next month.” Not to mention the lawsuit against Pittsburg in the mid-1990s, one in Mississippi in 2001, and more mentioned here.

It sound like things are pretty bad in NY: “Last year, the Legislature passed a law intended to limit defenders’ caseloads in New York City, where on average Legal Aid lawyers each handle more than 700 cases a year. But it is not clear that adequate financing will be provided.” Wow.

Gideon blogged about this two years ago when the suit was filed in November, 2007. It’s sad that we have to sue our government to give real meaning to the constitution (and that it takes so long to get any result), but thank god for the ACLU and its state affiliates.

Last week NPR caused a minor uproar among public defenders with its hatchet piece on the state of the profession featuring perhaps the nation’s worst public defender, Bob Slameka.

Now, Woman of the Law gives us the beginning of the real story with her simple statement of what it really means to be a public defender. NPR should do a story on the PD funding crisis featuring WotL and others like her.

Thanks, WotL, for the simple reminder of why we do — and love — this work.

From the MinnPost:

Michael Kunkel’s work was done. For the moment.

The young lawyer with the Joe Mauer sideburns was trying to relax. His hearing before the Minnesota Court of Appeals, including rapid-fire, rugged questioning from the three justices, was over.

But his day was not.

Kunkel, 29, was gathering his belongings for a parole hearing in Anoka County 25 miles. He has another 30 or so cases on his desk back at the State Public Defender’s Office at the less-than-glamorous Griggs Midway Building on University Avenue in St. Paul.

Just so happens Kunkel’s venue today was Courtroom 200 of the Minnesota Judicial Center.

It’s directly beneath Courtroom 300, the daily venue for the Norm Coleman-Al Franken recount trial.

…

Coleman’s and Franken’s lawyers are making — what? — an average of $500 an hour? They’re big hitters from Washington, Seattle and the Twin Cities. Sounds like as much as $20,000 a week per lawyer, give or take a grand or two.

…

The state public defender’s office, already reeling from 53 layoffs this year, could be in further danger if state budget cuts whack the justice system. Kunkel, who has been with the PD’s office for three-and-a-half years, could be laid off.

Meanwhile, three state district court judges, supported by their state-paid clerks, sit in Courtroom 300, and a Ramsey County courts clerk administers proceedings that drag on in the Franken-Coleman case.

Read the entire article

From the Lansing State Journal:

Today, the Campaign for Justice, a coalition of Michigan legal groups and human rights and faith organizations, launched an effort to reform Michigan’s system to prevent further miscarriages of justice.

The effort builds on a report issued in June that found the state’s system of providing court-appointed attorneys for indigent defendants, now funded through counties, is flawed and failing. The report, offered by the National Legal Aid and Defender Association and the State Bar of Michigan, found that defense attorneys had little time or resources to prepare their cases.

Forty-three states spend more per-capita on indigent defense than Michigan.

Based on this report, the coalition issued a “report card” today for Michigan’s defense system that offered Ds and Fs in nearly every category.

Read the entire story

From the Columbus Ledger-Enquirer:

Georgia’s cash-strapped public defender system, which already struggles to pay a growing backlog of legal fees, could be faced with a new round of bills stemming from a case under review by the state’s top court.

The arguments before the Georgia Supreme Court on Monday focused on who should pick up the tab for a Burke County death penalty case. But the public defender system solemnly warned that the court’s ruling could lead to more fees that could end in “financial jeopardy.”

“This case could have a much broader impact,” said Mack Crawford, the system’s director, after the arguments.

It’s the latest challenge facing the beleaguered public defender network, which has been a target of frustrated legislators almost since it took effect in 2005.

The gaudy defense bills for the trial of courthouse gunman Brian Nichols – which may have topped $2 million – became a rallying cry for deep cuts even before the state grappled with a $2.2 billion deficit.

Now the department, like other state agencies, is bracing for a new round of cuts as it seeks to shed about 10 percent of its budget. And the outcome of this case could determine whether the system is on the hook for a slew of bills it hasn’t budgeted.

The case stems from the trials of Willie Palmer, who was convicted of murder in the 1995 deaths of his estranged wife and 15-year-old stepdaughter. An appeals court ordered a new trial in March 2005, and the council’s former director said the state would pick up the tab.

Palmer was again convicted and sentenced to death in 2007. But his attorneys, Michael Garrett and Randolph Frails, were told the county should pay the costs when they submitted their $68,000 bill to the council.

In court on Monday, council attorney Judson Turner warned the judges it is only authorized to pay for new death penalty cases after it was established in 2005, not existing or past cases.

Read the entire story

From the Kingman Daily Miner (AZ):

A new plan is in the works to take some of the confusion out of indigent defense at the County Superior Court.

The County Public Defender’s and Legal Defender’s offices will present a plan during Tuesday’s Board of Supervisor’s meeting that will create an Office of Indigent Legal Services. The Board will meet at 9:30 a.m. Tuesday in the County Administration Building, 700 W. Beale St.

The office, according to material provided to the Board, will reorganize how indigent defense cases are processed.

Currently, if a defendant cannot afford to pay for an attorney, a judge assigns the case to the PDO. If the PDO has a conflict of interest in taking the case or currently does not have an attorney that can take the case, the case is then assigned to the LDO. If the LDO has a conflict of interest or does not have an attorney who can take the case, it is sent back to the PDO, which then assigns it, via a contract, to an outside attorney. Outside attorneys are paid a set hourly wage per case.

If approved, the director of the new Office of Indigent Legal Services would determine which indigent defense cases will go to the LDO or PDO, and which ones will be contracted to outside attorneys. The office will also oversee the use of investigators, experts, interpreters and other services used by attorneys in order to keep costs down.

Read the entire article

From The Gainsville Times:

Faced with a growing indigent defense bill where costs were once much lower, Hall County State Court officials want to improve how they provide lawyers for the poor in 2009.

But while “improvement of delivery of indigent defense services” is a stated goal for state court this year, it’s likely to be more of a fine tuning than a wholesale revision of the system.

Hall County’s Public Defender Office was created in 2005 to represent poor defendants in felony cases prosecuted in superior court, but state court judges still appoint lawyers from a panel of about 30 area criminal defense attorneys who are paid by the hour. In recent years, their workload and billing both have gone up dramatically.

Six years ago, 848 cases in state court had court-appointed attorneys paid by taxpayer money. In the wake of a U.S. Supreme Court decision and a loosening of indigent guidelines, that number increased at a greater rate than the rise in criminal case loads, peaking in fiscal year 2006-07 with nearly 3,000 cases with attorneys appointed for indigent defendants charged with misdemeanors.

In fiscal year 2007-08, Hall County spent $742,000 paying attorneys to represent people in 2,377 misdemeanor criminal cases.

The right of poor criminal defendants to have an attorney provided at taxpayer expense was once largely reserved for felony cases or serious misdemeanor crimes that carried a real threat of jail time.

But in 2002, the Supreme Court’s decision in Alabama v. Shelton reaffirmed the constitutional right to counsel for all criminal defendants facing even a remote possibility of jail time. Now, officials say, defendants facing such minor charges as speeding or failure to yield in a traffic accident are applying for, and getting, court-appointed attorneys who are paid $60 an hour in court and $50 an hour outside of court, with a $1,000 cap.

The average cost for representing an indigent defendant in state court in fiscal year 2007-08 was $312.

One change that has been seriously considered is shifting the duties of state court indigent defense to the public defender office, which might get the job done cheaper and more efficiently. But that would require hiring more lawyers and providing more office space.

In the current economic climate, Forrester said, “I don’t think we could recommend to anyone creating another level of bureaucracy to support government.”

Proponents of the current appointed attorney system note that state court provides a good training ground for young members of the criminal defense bar that would not exist if the public defender’s office moved in.

Said Wynne, “While we certainly try to improve upon the system we have, there are a lot of good things about it. We have a lot of good attorneys interested in doing defense work who do a good job. Yes, there are costs associated. They are subject to going up with the case numbers and with the revenue going up.”

Read the entire story

From the Post-Bulletin (MN):

A 10 percent cut budget cut would result in the elimination of 300 to 400 positions statewide.

The justice system includes prosecutors, public defenders, law enforcement and people who provide legal services to the poor.

John Stuart, chief public defender in Minnesota, said his department cut 53 public defender positions last year because of budget woes. Another 100 public defenders would be lost under a 10 percent budget cut, he said. These are the attorneys who represent people unable to hire lawyers.

“I love living in a country where people have rights. Everyone has the right to a fair trial, but that does not happen automatically,” he said. “People have to be there to do the work, to provide the service.”

In Rochester, he said, there are public defenders with 200 active cases. Stuart said there will be delays.

“No one gets a fair trial if he has to wait one or two years for his trial,” Stuart said.

If cases are delayed, security is jeopardized, Stuart said. Jails will become more overcrowded because defendants will be held longer waiting for trials and hearings, increasing the cost to counties.

Olmsted County Sheriff Steve Von Wald said crime usually goes up in times of economic crisis.

Magnuson said courts collect $200 million in revenue annually for state and local governments. Much of that would be gone.

He said the state’s justice system is stretched to the breaking point and further cuts would jeopardize the system. And that, he said, will affect just about every Minnesotan.

Read entire story