Public defender backlog reaches the breaking point

On March 6, Alan Wayne Williams wrote from Fergus County Jail to the Montana ACLU, saying that he's going to represent himself because his court-appointed attorney refused to return his calls.

"I have eliminated the service of my public defender and am now preceding pro-se," wrote Williams, who's incarcerated for violating the terms of his probation on a 1998 forgery conviction.

Williams' claim is similar to dozens of others lodged against the Office of the State Public Defender and compiled by the American Civil Liberties Union of Montana. Among the most serious allegations are those that hold that defendants are being denied their constitutional right to a speedy trial and that bond reduction hearing requests are ignored, leaving criminal defendants to sit in jail longer than they would otherwise.

Montana ACLU Executive Director Scott Crichton says those allegations are symptoms of a state-funded public defender system that's stretched to the breaking point. "The complaints we see, I think, are just the tip of the iceberg," he says.

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  • photo by Cathrine L. Walters
  • The ACLU of Montana has compiled dozens of letters that allege the Office of the State Public Defender is failing to provide effective legal representation to low-income clients.

This year, Montana's public defender system will represent roughly 32,000 new low-income clients in civil and criminal cases across the state. As a gateway to the corrections system, Crichton notes that OPD's problems have broad implications.

"If we can do it right on the front end," he says, "we should be seeing cost savings for the counties, in terms of how long they're holding people. The county jails are overcrowded all over the state, the courts, every part of the criminal justice system is affected by an underfunded public defender system."

The issue is timely as the Montana Legislature this week is working to craft OPD's budget, one that will set staffing levels for the next two years.

Richard "Fritz" Gillespie chairs the Public Defender Commission and is charged with overseeing OPD. He's the first to acknowledge there's a problem. The office simply doesn't have enough resources to fulfill its obligations, Gillespie says, and he's repeatedly told lawmakers as much, to no avail.

"It's frustrating," Gillespie says.

On Feb. 15, frustration prompted all 10 members of the Public Defenders Commission to unanimously approve a resolution stating that if cases don't decline, or if lawmakers don't increase funding, or some combination of both, regional offices will stop taking new clients.

"The criminal justice system will probably be disrupted," Gillespie wrote in a letter distributed to the governor, legislature and state Supreme Court. "Charges may have to be dismissed. Jail time may not be imposed without the assistance of counsel. Surcharges, fees, fines, and costs may not be collected."

Gillespie says that the commission felt compelled to give notice after a disheartening couple of months. In August, the office asked the governor for 77 additional full-time staffers and additional funding to pay contract attorneys—a total of $12 million annually for the next two years to top off its existing annual base budget of more than $22 million. The governor trimmed that request back to 37 staffers. By the time OPD's request came out of the House last month, lawmakers had pared the proposed budget back even further.

"If it stays where it's at, that means we're going to have to lay off three lawyers," Gillespie says.

Since 2011, there's been a 21 percent caseload increase for public defenders. OPD attorneys, meanwhile, earn less than their counterparts. Office attorneys with five or more years experience receive an annual salary of $58,762. According to a study conducted in 2010 by the state Human Resources Division, that's about $40,000 less than market value for lawyers in the region.

For attorneys, the issue is about more than just money and time. Gillespie notes that lawyers have an ethical obligation to give clients an effective defense and a failure to do so could jeopardize professional standing. "These public defenders can be sanctioned," he says.

Low pay, a high workload and ethical concerns drive attorneys from OPD, Gillespie says. For instance, he says that during the past 18 months, seven of OPD's 11 Helena office attorneys resigned. The office serves clients as far south as Whitehall and as far north as Augusta. In 2012, OPD had an overall lawyer turnover rate of 27 percent; among support staff, that number was 34 percent.

Missoula Democratic Rep. Kim Dudik served in the House subcommittee that helped craft OPD's budget during the current legislative session. She was dismayed as her colleagues allocated OPD less than $6 million in additional funding for the next two years and essentially ignored a mounting issue.

"It was just like putting a Band-Aid on a gushing vein, or something" she says. "(It) was going to hold the blood in for a little bit but it wasn't going to solve the problem."

Unsatisfied with the House's work, Dudik, who's also an attorney, is now asking state lawmakers to pass House Joint Resolution 20. It would authorize a comprehensive study of OPD.

"This is what I see as another way to fine tune our system, not wait for a lawsuit," Dudik says.

Helena Republican Rep. Steve Gibson is supporting the effort. He agrees that OPD is underfunded, but says money isn't the only issue. "The answer is just not to throw more and more FTE's every session, the problem is bigger than that," he says.

The Senate is scheduled to address OPD's budget this week. Crichton warns that if legislators don't come forward to adequately fund constitutional mandates, the state could be looking at a lawsuit.

"(Lawmakers) need to take bold action to make up for eight years of negligence," he says. "And if they aren't willing to that, than we'll have to look at our other options."

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