Defensive holding

ACLU’s public defender suit deferred to 2005 Legislature

In Lake County, a man insists he’s innocent of felony assault and intimidation charges, but his busy court-appointed attorney advises him to plead guilty. After repeated protests, the man is finally granted another attorney and is eventually acquitted.

In Missoula, a man spends 170 days in jail awaiting trial on drug charges. In that time he speaks just twice with his court-appointed attorney, who fails to act on his client’s claim that police conducted an illegal search in the case. A second court-appointed lawyer gets the case dismissed.

In Butte, another suspect awaiting trial on drug charges spends most of two years in and out of jail, trying with little success to contact his court-appointed defender. Twice he is re-arrested for missing court dates he says his lawyer never bothered to tell him about.

These claims and others like them lay at the heart of a thick class-action lawsuit brought by the American Civil Liberties Union against the state over the quality of Montana’s patchwork system of indigent defense, which aims to provide lawyers for criminal suspects who can’t afford them on their own.

Quietly simmering in Helena’s Lewis and Clark County Courthouse, the suit has received scant notice since its filing in February 2002, but it could affect every county, every taxpayer and every indigent defender in the state.

Missoula County Attorney Fred Van Valkenburg describes the lawsuit as the “800-pound gorilla” in Montana’s ongoing debate about quality of public defense.

“If that judgment goes against the state then I think it’s likely we’ll see major changes come out of that,” he says.

Although most county and state officials deny the suit’s specific allegations and its broad criticism of the quality of public defense work, most contacted for this article concede that Montana’s system of indigent defense is overdue for an overhaul. In fact, some say it’s hardly a system at all.

“There’s no uniformity, there’s no consistency,” says Chief Justice Karla Gray of Montana’s Supreme Court. “It isn’t efficient and these systems are not necessarily ensuring quality defense for indigent defendants across the state.”

Like much of local government, Montana’s public defender system developed county by county, with some urban counties maintaining public defender offices staffed with full-time lawyers, while others contract with individual private attorneys or law firms to do the work required by the state and U.S. constitutions.

Consequently, the quality of representation varies among counties, says Gray, who, like the ACLU, hopes to replace the county-by-county arrangement with a system that is organized, supervised and paid for by the state.

“I’m hopeful that the Legislature in the 2005 session will draw up some kind of systematic approach to a public defense program,” she said. “It will be a major legislative package and it won’t be cheap.”

After months of negotiation, ACLU lawyers and state attorneys agreed last week to postpone a scheduled late-May trial on the case to allow the 2005 Legislature a chance to solve the problem within a framework outlined by both sides. If it fails, the suit would go to trial next May.

Under the agreement, the attorney general would lobby lawmakers to create a state commission and a chief state public defender to establish and oversee a system of regional public defense offices, staffed with full-time, state-hired attorneys to serve Montana counties with full-time prosecutors. The state—and not local judges—would also hire lawyers to serve defendants in rural areas.

In addition, the commission would be responsible for creating criteria for hiring public defenders and evaluating their work.

The agreement also calls for adequate funding of such a system, though determining what “adequate” means promises to be the Legislature’s trickiest decision—along with the competition for funds from other areas of government.

Recently a Helena District judge ruled in favor of another class-action lawsuit, this one on behalf of public schools, which, like indigent defendants, have argued for millions more in state money to resolve the district-by-district inequities of local school funding.

Meeting those demands, plus requests that the state spend more on indigent health care, won’t be easy, predicts state Sen. Dan McGee, a Laurel Republican and chairman of the Legislature’s Law and Justice Interim Committee, which has been studying the problem since legislation to create a statewide public defender system crashed in the 2003 session.

In 2002, the counties spent $7.8 million for indigent defense. By contrast, McGee estimates a state-run system could cost anywhere from $10 million to $15 million.

“Many, many of the decisions in the Legislature, when it comes down to it, are based on the dollar,” he says.

Putting a price on the quality of justice may prove difficult, ACLU officials concede, but they insist Montana needs a uniform state system guaranteeing that every public defender in each county is properly funded, adequately trained, and not excessively overworked.

“A lot of research has been done and we think there is a systemic problem,” said Scott Crichton Montana’s ACLU Executive Director. “This has been a problem in Montana for over 25 years now and it must be fixed. Everyone has a constitutional right to adequate legal representation.”

The system’s problems vary, its critics say. Inadequate pay discourages some attorneys from seeking public defender work, while in some rural areas judges struggle to find lawyers qualified to handle criminal defense cases.

Meanwhile, public defenders in Montana’s urban counties often shoulder heavy caseloads. For example, the Missoula County’s Public Defender’s Office, in a Feb. 24, 2002, story in the Missoulian, reported that it is common for each of its lawyers to handle as many as 175 active cases at one time with little additional money left over for staff to track or investigate clients’ cases.

Although the state helps counties with extraordinary public defense costs, it has little control over the quality of local public defense work or costs. A major case requiring expert witnesses or outside investigators could be crippling, even for urban counties. Last year’s Nathaniel Bar-Jonah kidnapping and murder case alone cost Cascade County’s public defender budget $600,000.

Cost control remains a major motivation for the state’s interest in a uniform public defender system. In its 2003 session, the state Senate unanimously passed a bill to establish a state-run public defender system, only to watch it die in the house amid confusion about costs.

Since then, McGee’s committee has studied public defender systems in other states, and is debating whether a new system would employ all public defenders as state employees or as a mixture of state-contracted attorneys and full-time state employees working as public defenders.

Under any system, McGee said it is crucial that all public defenders be trained in accordance with state-ordained minimum standards, and that they be adequately paid and supervised. But the devil is in the dollars, he says.

“We still lack a tremendous amount of fiscal information,” McGee says. “How much will this cost?”

Regardless, Helena attorney Ron Waterman, the ACLU’s lead lawyer in the suit, is optimistic the Legislature could find a solution that fits the budget.

“The reason the current public defender program is facing a serious deficit is because the costs of indigent defense have never been properly identified and managed,” Waterman says. “Between now and next May, the Legislature has a golden opportunity to not only provide constitutionally adequate representation to the poor, but also to require state administrators to properly manage the costs of the program.”

Montana Attorney General Mike McGrath, whose staff negotiated the settlement framework with the ACLU, says he too is optimistic about the odds for a legislative solution, adding that McGee’s committee has agreed to introduce and promote a bill based on that framework.

As for his own role, McGrath said, “I will continue to campaign to the best of my ability for a statewide system.”

Meanwhile, the debate over the quality of Montana’s public defense work rattles on.

Larry Nistler, Lake County’s chief public defender, with 23 years of experience in criminal defense work, says public defense work isn’t as bad as the ACLU suit portrays, but there’s room for improvement.

However, he adds, if the state doesn’t pay public defenders better salaries, there’s little incentive for experienced criminal lawyers to do the work.

“If the state goes on the cheap here, you’re going to see experienced defenders go right out the window and you’re back to the lowest common denominator,” he says. “They should encourage people that know what the hell they’re doing.”

Eric Olson, Cascade County’s chief public defender, agrees that the consistency of public defense in Montana can definitely be improved, and adds that concerns about the quality and fairness of Montana’s indigent defense aren’t going away.

“It’s clearly important that we get this thing fixed,” Olson says. “If the problem does not get fixed, it will spawn more lawsuits.”

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