Category — Money Issues

Hi. I’m the guy who blogs sporadically over at the imbroglio. Gideon has been busy working and focusing on Connecticut criminal law on his main blog so I volunteered to help out a little here at PD Stuff to keep the PD news and errata flowing. My goal is to increase the posting frequency here and start the rumor that Sanchovilla and Blonde Justice are having an affair which is making Skelly incredibly jealous because he called dibs on Sancho and even got his nails done.

Oh, sorry. What I meant to say is that since the last update here at PD Stuff, public defenders in seven states have begun refusing cases because of high case loads and lack of funds/resources. Scoplaw is right in the thick of it, working in the office that is currently litigating the issue in the FL Supreme Court. Simple Justice points out that the incredibly bad working conditions of public defenders are nothing new:

For as long as I can remember, PDs have been at the edge of a precipice, doing the heavy lifting of representing the poor so that the wheels of the criminal justice system can grind away. They stood there trying to hold back the crush of humanity that threatened to swallow them, and the system. The crush can no longer be held back, unless these offices give up any pretense of providing meaningful representation. No one can represents hundreds of defendants at a time. No lawyer can fulfill their ethical obligation when their caseload that increases at this pace. They are literally drowning under a sea of humanity.

With hatchet jobs in the press about public defenders it’s no wonder so few people seem to understand the realities of the situation. And as if that weren’t bad enough, Skelly points to the Legal Ethics Forum where Andrew Perlman thinks that the situation is only going to get worse. At least in Wisconsin, some PDs are getting recognized as the unsung heroes they are (via Song of the Soul). Gideon had a great suggestion to address the dire situation nationwide: a bailout for public defender systems.

Down in the trenches, Ipse Dixit is dealing with clients who aren’t helping themselves, Injustice Anywhere has been working hard for thankless clients, and Doubtslinger just lost a murder trial. That’s a tough one, but Doubtslinger has the attitude we all must have in these times, the attitude that we must have to keep us going against all odds: “Tomorrow will be a better day.”

It better be, dammit. Hey, at least we got a new president.

From WWLTV.com:

“Prosecuting criminals is an important part of keeping order in the city,” said Ken Foster, anti-crime advocate and co-founder of Silence Is Violence.

But Foster acknowledges that doesn’t tell the whole story.

“The other side of the coin is the Public Defenders Office.”

On the corner of Tulane and Broad, 32 criminal court public defenders work to help the city’s indigent and accused, that’s compared to the 90 district attorneys paid to argue against them.

“There’s a recognition in this city that we want a top flight fully functioning, effective, efficient, and fair criminal justice system, but we’re not going to get that if we only have a public defenders office that’s one third the size of the prosecutor,” said Chris Flood, New Orleans interim chief public defender.

Flood says the disparity between his office’s resources and those provided to the district attorney is bound to get wider, which he warns would dramatically impact the criminal justice system.

“We’re not going to be in a position where we can take anymore cases, and if we can’t take anymore cases, no cases will move forward,” said Flood.

According to Flood, the State of Louisiana doles out about $2,360,000 in funding to the Office of the Orleans Public Defenders, court fees provide approximately $1,170,000 and a federal grant offers $1,720,000. Flood says the federal dollars, however, run out next year and are not renewable.

With the major financial hole looming, Flood fears he could soon have to lay off a third of his lawyers. On Thursday, he pled his case to the New Orleans City Council, which Flood says, historically, has never given the Office of Orleans Public Defenders a dime.

Flood urged the council to make good on his office’s appeal for a 5 million dollar chunk of the 2009 city budget, and his plea found traction.

Read the entire article

And the merry go round continues:

Beginning this week, public defender offices across Missouri will be able to refuse new clients as they try to deal with huge backlogs of cases.

The Missouri Public Defender Commission approved a policy in July that allows local offices to opt out of new cases if they exceed maximum caseload capacity for three consecutive months.

Offices in Springfield, Ava, Jefferson City and Columbia will be the first to begin enforcing the policy Wednesday.

The first types of clients to go unrepresented will likely be people accused of probation violations or those charged with certain collections and traffic crimes. Private attorneys who can take cases for free may take up some of the slack, but it’s not known what effect the shift will do to an already overburdened court system.

“This isn’t going to come close to fixing the problem,” said Cathy Kelly, deputy director of the state public defender system. “We’re trying to move toward fixing capacity without pulling the rug out all at once.”

Greene County Presiding Judge Dan Conklin said he was pleased that the offices planned to phase in the cutoff, which he said was “reasonable,” but acknowledged, “We’re in trouble.”

The state’s 36-year-old system for representing Missouri’s poorest criminal defendants who can’t afford their own counsel has not seen a meaningful increase in staffing or budget since 2000.

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From law.com:

As state budgets in Florida and Georgia are slashed, their criminal justice systems are taking a hit.

Hundreds of prosecutors and assistant public defenders in Georgia and Florida are facing one-day-a-month furloughs — forced unpaid leave — through the end of the year. Both states appear to be suffering from the same malady — a catastrophic reduction in tax revenue due to the housing meltdown. Georgia’s budget shortfall is estimated at $1.6 billion and Florida’s, $1.2 billion.

Georgia public defenders appear to have dodged a bullet, at least for now. Last month, the state Public Defender Standards Council had defiantly refused to accept its share of the 6 percent state budget cut. Then the board, which oversees the public defenders, put forth a plan calling for furloughs of at least one day a month for all staff. At a recent meeting, facing protests, the council voted to allow the 43 public defenders to make their own decisions on how to make spending cuts in their offices.

Those cuts cannot include layoffs, said C. Wilson DuBose, council chairman, and will likely mean furloughs of some kind. The offices have until late October to make the spending-cut decisions, he said.

“We are trying to avoid layoffs above all else,” he said. “I think a lot of offices probably will have to implement furloughs.”

Joe Saia, a public defender in Fayetteville, Ga., said he is thrilled that furloughs are off the table.

“I feel great about it,” Saia said. “It would have been really, really tough to tell someone they took a job without a lot of money, with a lot of extra work and extra sensitivity, and now they are not going to get paid one day a month. That was going to be awful.”

In Florida, only two offices have had to implement furloughs, at least so far.

Read the entire story

From Ozarks First.com (MO):

District defenders all around the state are getting ready to make a change that will impact many Missouri courtrooms.

Starting October 1, people who can’t afford an attorney will find legal council hard to come by.  Nearly every office in the Missouri Public Defender System is operating at over capacity, but a new caseload rule issued by the Public Defender Commission hopes to change that.

“As the population grows, the number of criminal cases grows.  Very often, most of the people charged with a crime are indignant and fall under the people we would be representing. And without additional funding each and every year, it gets harder and harder to do the job we’re asked to do,” said Rod Hackathorn, District 31 defender.

The new rule allows public defenders to turn away cases, if an office exceeds its maximum caseload six months in a row. 

“Those that have a case that we would be turning away, we’re not exactly sure what is going to happen because this is pretty new, only two offices have been doing this and they just started turning away cases at the beginning of this month,” said Hackathorn.

Read the entire story

Yikes. Poor GA lawyers. From the local Fox affiliate:

Georgia’s struggling public defender system has begrudgingly agreed to slash its budget, but defiant members say they will also search for ways to mount a legal challenge.

The system’s decision on Wednesday comes two weeks after leaders angrily defied Gov. Sonny Perdue’s order to cut the program’s budget by 6 percent. The extent of the cuts won’t be decided until later this month, but it could require employee furloughs and other reductions.

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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.

Read the entire story

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.”

Read the entire post

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.

Read the entire story

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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