Counsel cuts 

Federal Defenders of Montana goes on the offensive

On Friday, May 10, John Rhodes, a public defender who works in the Federal Defenders of Montana's Missoula office, stood outside the Russell Smith Federal Courthouse holding a sign that read, "What about the Sixth Amendment right to counsel?" Another man, who had joined Rhodes for the lunch-hour protest, held a sign with the message, "You have a right to an attorney. If you can't afford one ... Sorry, furloughed."

The focus of Rhodes' efforts was the more than 10 percent budget cut FDOM—and all federal defender offices in the United States—is facing in the wake of Washington, D.C.'s recent austerity measures, commonly called "sequestration." According to Rhodes, the penny pinching is not only affecting the way his office spends money, but it's restricting his and his colleagues' ability to properly represent their clients.

click to enlarge Missoula Independent news
  • photo by Cathrine L. Walters
  • Federal defender John Rhodes says recent budgets cuts to the federal defense system are restricting his ability to represent his clients.

One of the immediate effects of budget cuts is furloughs. Since mid-April, Rhodes and every other employee of the FDOM have been forbidden to work the second Friday of each two-week pay period. It may not seem like a lot, but Rhodes says given his already hectic work schedule—he represents as many as 35 clients charged with felonies at any given time—one less day in the office is significant.

"When you're prohibited from working one out of 10 business days, it interferes undoubtedly with the flow of work," he says. "I've already had an instance where I had to reschedule a motion to suppress because the hearing was set for a furlough day."

He says in another instance, he was forced to ask a judge to push back a sentencing hearing that was scheduled for a Friday he was not allowed to work. That client, he says, will be forced to remain in the county jail until the scheduling issues can be resolved.

FDOM Executive Director Tony Gallagher says the effects go beyond furloughs. Federal defenders, he says, are now forced to justify every expense. Expert witnesses must be thoroughly scrutinized and are only hired if deemed "absolutely necessary." Additionally, FDOM can no longer send its attorneys to out-of-state conferences to receive continuing legal training. Two such conferences, the Seminar for Federal Defender Paralegals and Investigators and the National Seminar for Federal Defenders, have been altogether canceled.

While no FDOM employees have lost their jobs (Arizona's office was recently forced to cut 10 employees), Gallagher says "the cuts are having a devastating impact." If any of his attorneys or staff decide to quit, Gallagher says a mandatory hiring freeze will prevent him from filling their positions and he will have to distribute their work among an already stretched office. And while this round of cuts is set to expire September 30, he adds there is no reason for optimism beyond that.

"We still have to deal with Fiscal Year 2014," he says. "It could be worse than 2013."

Rhodes understands why the federal government has turned to extreme budget cuts. Less clear to him is why the cuts are being implemented the way they are. When sequestration was announced last February, the average federal agency, including the Defenders Program, was slashed 5.17 percent. But the federal defenders took an additional hit when the U.S. Court, which controls the program's funding and is constitutionally prohibited from reducing certain costs, voted to cut an additional 5.52 percent.

"Right now, in Montana federal court, it's only the defenders who are being furloughed," Rhodes says. "But my clients haven't changed, the charges against them haven't changed, and their rights haven't changed. But now I'm forbidden from working on my furlough days."

The May 10 protest was sparsely attended. Support seemed to pique when a group of rugby players in town for the annual Maggot Fest tournament wandered by and briefly offered their pot-valiant support. Otherwise, Rhodes' efforts didn't seem to elicit much attention from passersby.

At one point, the man holding the sign next to Rhodes wondered out loud how many people understood Rhodes' sign and its reference to the Sixth Amendment.

Rhodes stared into the street and appeared to consider this idea, before mentioning the 1963 Gideon v. Wainwright decision, in which the U.S. Supreme Court ruled that an indigent Florida man who was convicted of larceny had been denied his right to legal counsel. The case was sent back to the Florida court in which the man was convicted, where he was afforded an attorney, retried and acquitted.

Gideon v. Wainwright is remembered as a landmark moment in the history of the United States' public defense system—a decision not only affirming the rights of indigent people accused of crimes but, by proxy, the rights of all Americans. Rhodes can't believe that on the 50th anniversary of the decision, "when we should be commemorating the constitutional right to counsel, federal defense is having a budget cut that is twice as large as any other agency."

"The Sixth Amendment is the right that shines light on all other rights," Rhodes says. "The irony is evident."

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