State's public defender system takes the stand


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Mike Sherwood likens the past three and a half years for Montana's Office of the State Public Defender (OPD) to a group of greenback smokejumpers dropped onto a remote wildfire. The lesser details of management and paperwork–now under critique by an independent review group–simply got lost in the struggle for survival.

"None of us are management pros," says Sherwood, chairman of the Montana Public Defender Commission. "None of us have any experience in setting up what is in effect the largest law firm in the state of Montana."

Earlier this month, American University released a study on the efficiency of Montana’s 3-year-old Office of the State Public Defender. The study listed 32 recommendations for improvement, prompting a 37-page response from defender commissioners.
  • Earlier this month, American University released a study on the efficiency of Montana‚Äôs 3-year-old Office of the State Public Defender. The study listed 32 recommendations for improvement, prompting a 37-page response from defender commissioners.

That's the case Sherwood makes in response to a 66-page draft recommendation report from American University (AU) on how to improve the fledgling OPD, which is responsible for representing roughly 26,000 defendants a year. AU conducted the in-depth study over the past year, highlighting 32 specific areas for urgent improvement. Sherwood's 37-page response addresses each, and explains that the suggested overhauls to the system could cost the state millions annually.

"We're certainly not to where we'd like to be," Sherwood says. "But I think that the system itself, the creation of it, has improved representation for people across the board in the state."

As recently as 2005, Montana was one of the few states left in the country without an official public defender system. Public defenders existed, Sherwood says, but in a "hodgepodge" of county-based offices. Montana lacked any coordinated effort or central funding to protect the indigent in matters of justice.

State Sen. Dan McGee, R-Laurel, says problems with the old system–or complete lack thereof–came to a head in 2003. A bill revising the state's approach to defense of the poor in felony cases bottomed out in the Legislature that year, and followed on the heels of a lawsuit filed against the state by the American Civil Liberties Union (ACLU) in February 2002. McGee says the ACLU and then-Attorney General Mike McGrath agreed to shelve the suit until legislators had a chance to address the situation.

"It's not just about defending criminals," says Scott Crichton, executive director of the ACLU. "It's about defending people accused of's about defending innocent people as well as providing good defense for guilty people, it's about saving tax dollars by having shorter pre-trial incarceration."

In 2005, McGee and then-Rep. Mike Wheat of Bozeman sponsored the Montana Public Defender Act. The bill passed, establishing both the OPD and an 11-member commission to oversee operations.

The subsequent three-year period saw major improvements in defense for Montana's poor, but the AU study rattles off a rash of criticisms, from mundane items like poor inter-office communications to more serious charges of lack of management.

The system continues to evolve, Sherwood argues, adding many of the problems AU identified have already been remedied.

"Was it better immediately?" Sherwood asks. "I hope so. Is it better now? I'm committed to the fact that it is. Should it be better? Yeah, we're trying to make it better than it is now. But we're learning."

Some of the AU study's findings could result in considerable costs for Montana. According to the American Bar Association, start-up expenses for Montana's OPD in 2005 totaled more than $13 million. But with unexpected or uncalculated costs, Sherwood offers an estimate closer to $20 million. Annual costs haven't dropped much since, Sherwood says, and implementing the review's suggestions will likely drive the number up further.

Specifically, Sherwood takes issue with AU's concerns over how much the state pays the roughly 200 contract lawyers it employs for felony, misdemeanor and civil defense cases. Those lawyers receive $60 an hour at present, compared to the $120 they typically net when contracted directly by clients. Sherwood and the commission have pushed both Gov. Brian Schweitzer and the Montana Legislature to up hourly pay to $80, to no avail.

"Every $10 increase is a million dollars," Sherwood says. "If we get them to $80, our budget has to go up $2 million a year. If we got them up to $110, our budget would have to go up $5 million a year. They'd have to increase our budget by 25 percent."

Sherwood admits the commission may have acted prematurely in requesting the review–a move strongly encouraged by the ACLU. But Caroline Cooper, assistant director for AU's Criminal Courts Technical Assistance Project, commends former commission chairman Jim Taylor's early push for an independent analysis. It gives the OPD time to make "mid-course corrections" and address the hiccups common to newly formed defense systems, Cooper says.

"I think that's common with any justice system initiative," Cooper says of the recommendations in the report. "Just having the idea and putting it into practice are two different things...the legislation in Montana has really established a great foundation for a very effective system."

The OPD faces its biggest challenge in management, an area in which Sherwood says the commission has "acted poorly." AU's report says Montana's new defender system is "adrift" regarding management, with no clear chain of command below Chief Public Defender Randi Hood. Sherwood doesn't argue the point, and McGee says the problem isn't entirely surprising.

"They've been attorneys," McGee says of those in charge of managing OPD affairs. "They've been looking at things from the world of legal defense, not the world of business management."

Hiring a separate management team would again drive up OPD expenses.

The final version of AU's report is due out no later than next week.



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