Wheel of misfortune 

MT Supreme Court rules on “attorney-shopping” case

The state Supreme Court gave its opinion last week on a Missoula drug case in which the defendant went through three different public defenders and was refused a fourth.

The decision in State of Montana vs. Arthur Paul Kaske, which came down on the side of the state, comes in the wake of a lawsuit by the Montana chapter of the American Civil Liberties Union alleging that the state and seven counties (including Missoula County) are inadequately funding and maintaining their public defender programs. Kaske’s appellate defender says the case is a good example of how strains on the system play out, though other attorneys, including Missoula’s lead public defender, say the Kaske case only proves that the system is working.

Arthur Kaske was charged with criminal possession of dangerous drugs in February of 1994. In April of that year, Kaske complained that he was unsatisfied with his public defender, J. Dirk Beccarri, and was assigned a new one, William Boggs.

A jury convicted Kaske in September of 1995, and Boggs filed a motion requesting a new trial. Kaske did not show up for his sentencing hearing or for two conferences on the motion for a new trial.

Kaske was arrested in New York in March of 1999, and extradited to Montana where he was given the additional charge of bail jumping. Kaske objected to Boggs’ representing him at his next hearing, so the court appointed Margaret Borg, Missoula County’s chief public defender. Kaske became dissatisfied with Borg as well and asked the court for a new public defender. In April of 2000, the court ruled that Borg’s defense was adequate and refused Kaske a new attorney. At the time the judge said he would no longer allow Kaske “additional spins of the roulette wheel of representation.”

Kaske opted to represent himself and his case went to trial in August, 2000. A jury convicted him on the drug charge and on bail jumping.

Meanwhile, Kaske had filed a motion requesting more time and a lawyer. In January of 2001, the state granted his request and directed his case to the Appellate Defender Office, which represented him in his appeal before the Supreme Court.

The Supreme Court considered whether he had actually jumped bail or whether the district court had not adequately notified him that he needed to appear again, and whether the court should have appointed him another counsel after Borg.

“Mr. Kaske is a fairly vocal person with a lot of his own ideas, and it takes a lot of patience to work with him,” says Kristina Guest of the Appellate Defender Office, who represented Kaske in his appeal. Kaske felt that Borg was not responding to his ideas and requests, and that their one substantive meeting was not enough, Guest says.

Kaske made multiple requests of the court, including access to more documents and evidence. According to court papers, he complained that Borg was not pursuing exculpatory evidence, and Borg stated that she did not believe such evidence existed.

“Mr. Kaske thought he was more capable of running his case than his lawyer was,” Borg says. “I was his third attorney and it just appeared that Mr. Kaske was attorney shopping, hoping to get someone he could order around.”

In a unanimous decision, the state Supreme Court ruled in favor of the state on both the bail jumping issue and the court appointed attorney issue. “While Kaske and Borg clearly had a difficult relationship, the court also had sufficient evidence to conclude that the difficulties occurred because of Kaske’s behavior,” wrote Justice Jim Regnier in the decision. “We will not require the court to continue replacing Kaske’s counsel until he finds one that he likes.”

Guest maintains that institutional strains are responsible for the poor communication between Kaske and his public defenders.

“Mr. Kaske’s kind of a high demand client,” Guest says. “He writes frequently and you need to talk to him frequently. When you have a high caseload you’re not able to do that, whereas if you’re able to sit right up front at the beginning of your representation of someone like Mr. Kaske and spend a lot of time talking to him your breakdown in communication doesn’t happen.”

She adds that “with the type of budget and type of caseload they have, [Borg] didn’t have the time to go down and respond to his letters.”

But Borg argues the case was about ethics, not budgets.

“This has, in my opinion, nothing to do with anything other than a criminal defendant who couldn’t order his lawyer around and wanted to keep looking for a lawyer he could order around,” Borg says. She adds that the high court’s decision “shores up our sense that we’ve been doing what we should be doing.”

Assistant Attorney General Jim Wheelis represented the state in the case before the Supreme Court. Large caseloads may have played a role, he says, but it was not the dominant factor.

“From what I can tell, the Missoula public defender’s office is pressed but not overwhelmed,” Wheelis says. With public defenders regularly handling well over 100 cases (though not all cases proceed at the same time), he adds that with their clients “they have to be pretty efficient. They can’t just drop by and chat.”

“If this were the only client they had, I think Mr. Kaske still would have been a problem,” Wheelis says. “He’s used to going his own way, doing what he wants, and he just ran into people who didn’t agree with him.” Although the Kaske case is unique, it is relevant to the caseload and budgetary issues surrounding the ACLU lawsuit, says Beth Brenneman, legal director for the Montana ACLU. While Kaske was challenging his conviction, though, the ACLU’s clients are pre-trial detainees, she says. A hearing was held on the state’s motion to dismiss the ACLU lawsuit last week. If the motion is granted, Brenneman says, the ACLU is prepared to appeal the case to the Supreme Court.

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