An unwelcome fix 

Flathead ushers in new public defenders

In February 2002, the Montana chapter of the American Civil Liberties Union (ACLU) sued the state and seven of its counties, including Missoula, Lake and Flathead, alleging the counties’ public defender systems were constitutionally inadequate.

In May 2004, the state settled with the ACLU, on the terms that it would create a statewide public defender system.

According to Scott Crichton, executive director of the Montana ACLU, the incentive under the old system “was to have the quickest and cheapest defense possible.”

At the same time, he says, when there wasn’t enough money to pay the defenders, clients could get stuck in jail for weeks before seeing a lawyer. Numerous complaints about the quality of the public defenders’ work, and the time it was taking to see one, were the basis of the ACLU suit.

According to James Park Taylor, chairman of the state Public Defender Commission, the Flathead was no exception.

“Clients were not getting the level of service they needed,” he says. “Some attorneys were just pleading everything,” rather than taking the time to go to trial.

Montana’s public defender system at the time was decentralized, and each county administered its own system. Most of the state’s larger counties, including Missoula and Yellowstone, had their own public defender offices. Flathead County, on the other hand, contracted the work out to local attorneys.

But while public defenders in some counties actually advocated for a statewide system, the change has been decried in Flathead County by former public defenders, county attorneys and local judges as costly and unnecessary.

The Flathead’s public defenders, according to Flathead County Deputy Attorney Dan Guzynski, were of high caliber and provided excellent defense for their clients.

“I don’t think there was any merit to the allegations that the contract public defenders were not aggressively defending their clients’ rights,” Guzynski told the Independent.

During meetings in which the Public Defender Commission was trying to decide on the fate of the Flathead defender system, both Flathead District Court Judge Stewart Stadler and Flathead County Attorney Ed Corrigan told the commission that the Flathead system wasn’t broken, and didn’t need fixing.

Ted O. Lympus, a Flathead County District Court judge, agrees.

“[Public defender clients] were well represented in the past,” he told the Independent. “It was working.”

And according to Lympus, the new public defender system also “is working well over all,” but it may be more costly and is certainly no better than the old one.

That’s the problem, according to Ed Falla.

Falla, a Kalispell attorney and former public defender who declined an offer to work under the county’s new system, asks, “If you’re not getting any better work, what would you spend more money for?”

The price of the public defender system statewide went up from $9.5 million in the final year of the old system to $14 million in the first year of the new one. But Pat Gervais, a legislative fiscal analyst for the state, says those numbers provide an inexact point of comparison, because the state has taken on more responsibilities under the new program, including lower court jurisdiction and defending child-neglect cases.

And, of course, a good part of the point of the ACLU suit was that the state wasn’t spending enough to give clients adequate and timely defense.

But the price in the Flathead has risen from $700,000 for fiscal year 2006 under the old system to $881,300 in fiscal year 2007 under a new system that many legal insiders in the Flathead say was unnecessary.

Falla suspects that, at least in the Flathead, the extra expense is paying for new bureaucratic positions, such as supervisors, managers and secretaries, that weren’t needed before and aren’t needed now.

In March of this year, Falla and seven other public defenders working under the old system signed a letter to the Montana State Public Defender Commission, asking it to leave the Flathead system alone. The letter, in part, charged that research into whether the Flathead needed a new system was inadequate, and that the new system would “cause enormous and unjustifiable expense to the taxpayers.”

It also challenged the ACLU’s assertion that Flathead County was experiencing the same problems as the rest of the state. Specifically, in regards to charges that too many clients were entering pleas rather than going to trial, they noted that it’s the client’s choice, not the attorney’s, as to whether a case goes to trial.

In the letter, the public defenders say they asked Randi Hood, Montana’s Chief Public Defender, to apprise them of “How many jury trials should take place in Flathead County on an annual basis and—more to the point—which clients who do not wish such trials must be forced into them in order to satisfy the quota.”

Hood, according to the letter, did not reply. She did not return calls from the Independent.

Deputy County Attorney Guzynski also questions the need for more trials in the Flathead courts.

“In my experience, we went to trial often,” Guzynski says.

According to Nick Aemisegger, managing attorney for the new Kalispell public defender office, he has not been directed to steer more cases toward trial, but, he says, “With effective and zealous advocacy, you’re going to get some cases going to trial.”

He also believes that the increased expense of the new system is partially due to startup costs, such as office furniture, computers, etc.

But Falla expects those costs to rise, and points out that, at the state level, the public defender office is already getting a budget increase in its second year, from $14 million to $19 million.

Ultimately, Falla says, the Flathead was forced to abandon a system that worked well for one that is more expensive, and for dubious reasons.

“I’m still waiting for anyone anywhere to show up with evidence that we weren’t doing a very good job,” he says.

ppeters@missoulanews.com

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