Defense strategy

Will a new chief public defender be enough?

| January 12, 2012

Last month, Scott Crichton went before the state legislature's Law and Justice Interim Committee in Helena to once again voice concerns about the state of Montana's public defender system. The date of the discussion—Dec. 15—was particularly fitting, as it marked the 220th anniversary of the adoption of the Bill of Rights. Crichton, executive director for the ACLU of Montana, stated as much in a preamble to his presentation.

"I think it's important that we start there today," Crichton said. The very discussion before the committee was about "the rights of people whose liberty is taken by the state. They are entitled to due process."

Then Crichton passed out bookmarks to the state senators—Bill of Rights bookmarks.

Missoula news
  • Photo by Chad Harder
  • The state will name a new chief public defender on Jan. 20. And the newbie’s job won’t be easy.

The ACLU has remained highly critical of the state's Office of the Public Defender since the agency was created nearly six years ago. Last October, that dissatisfaction reached another crescendo as the organization underscored how little has been done to remedy some of its earliest concerns. Its five-year evaluation found that the system was a vast improvement over the hodge-podge of county offices previously charged with defending the indigent in Montana, but said, "The system continues to fall short of achieving its full potential...largely in areas involving central administration, oversight and supervision, and management."

The report—along with a less-than-flattering 2009 study by American University—appears primed to influence another moment in Helena this month. On Jan. 20, the Public Defender Commission will select a new Chief Public Defender to replace Randi Hood, who stepped down from the position last October. It's already been a complex selection process, says Commission Chairman Fritz Gillespie. The state trimmed the applicant pool down to seven in early December. Of those, four now remain. Gillespie hopes to narrow the list to three this week. Those three will be publicly interviewed at the capital, with a public comment immediately following.

"I couldn't say we've found anybody who has a background in managing large groups of attorneys like this job requires," Gillespie says, "but each in their own way has managerial background as well as experience as lawyers."

One candidate, Dave Stenerson, is already well versed in the challenge that lies ahead for the commission's final pick. He's served as interim chief since Hood's resignation last fall and has worked for the system in western Montana since 2006. He says there's significant work to be done.

"During those five-and-a-half years or so, I became aware of—and suffered under—a lot of the issues that face us still today," Stenerson says. "Truthfully, some of these issues will never go away and they're inherent to any public defender system."

One is tracking how hard attorneys in the system work. The OPD last year had 108 staff attorneys to cover over 27,000 cases. Following its investigation at five offices statewide, the ACLU reported that the attorneys it talked to "were nearly uniformly unaware of what their yearly caseloads are." The report also found it "shocking" that the OPD central office has "failed to collect and track data on yearly caseloads."

Gillespie says it's not unusual for public defender systems to appear so taxed, but says the ACLU's allegation that attorneys in Montana don't know their caseloads is not true; in the past few months, the OPD has begun to identify ways to solve ongoing issues like centralized data collection. "One of the things you come to realize is that as much as you'd like to change things, to snap your fingers and make things different, that isn't the reality. But we'll keep trying to improve."

Ultimately, the problems are interconnected and boil down to one simple factor: funding.

Attorneys might not feel so burdened, Stenerson says, if their offices had more support staff. The ACLU identified the small number of investigators—19 statewide—as a major detriment, as the state's ability to adequately investigate misdemeanors is virtually non-existent.

The main audience here, Crichton says, is not the OPD but the Montana Legislature. "There's a surplus, there's a boom in eastern Montana," he says. "We're not talking about billions of dollars, we're talking about some millions of dollars—and the lives of literally hundreds of thousands of Montanans who are either in the system or connected to family that is wrapped up in the criminal justice system."

Stenerson says he couldn't agree more. And it will be partly the job of a new Chief Public Defender to educate the public and the legislature on "what the public defender system is and what we do." OPD has already "shouted as loud as we can," Stenerson says. The only thing that will solve the system's problems is more money; the agency spent more than $21 million last fiscal year, 25 percent of which went to contract attorneys hired to fill in gaps and alleviate workloads.

It's not the most popular request. "People really don't like the idea of tax dollars being used to defend criminals," Stenerson says. "Well, they're not criminals to me when we get the case. They're accused citizens, and it's our job to monitor and make sure if there is a conviction, it comes legally and by everybody playing by the rules."

A new helmsman could be a boon for a system still struggling to work out all the kinks. But will it be enough to meet the standards of critics like the ACLU, and to fulfill the agency's mandate?

"It's going to take a lot more than just a new chief to correct morale problems, to convince the legislature that we're a viable and necessary organization," Stenerson says. "That can't be done by the chief alone."

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