On November 15, 2011, the Emery County Progress reported that the county attorney -- the same office that prosecutes crimes in the county -- not only plays a major role in selecting opposing counsel, but also controls the budget of the local indigent defense system. Though this column has reported on undue prosecutorial interference in Utah before (click here to read about Utah district attorneys involved in the selection and oversight of public defenders), this is the first documented instance in which there is a direct financial conflict of interest between the two adversarial components of the court system.
As reported, Emery County solicited proposals from local law firms to provide representation in right to counsel cases. When the bids were opened, the county prosecutor stated that they were higher than expected and the decision was tabled. “During the interim period between commission meetings,” the Emery County Progress reports that the prosecutor contacted the law firms “to ask them to lower the fees outlined in their applications so they would fit in the county attorney's budget.” The county attorney was concerned that “the public defender fees would eat his entire budget leaving no funds available for issues that may arise and also for any cases that go to trial.” The prosecutor said “he likes to keep $20,000 in the budget as a cushion for unknown expenses, but with the increases in the public defender budget he will only be able to keep about $12,000 for trials, appeals and other expenses.”
The story notes that Emery County undertook the bidding process for its public defense contract in the face of added “scrutiny from the American Civil Liberties Union” over systemic indigent defense deficiencies. Though the ACLU of Utah has not filed suit against any Utah county as of yet, the publicly available minutes of the Emery County Commission meeting highlight the commission’s concerns about its own exposure. The Commission also speculated that “if the law suit does pan out” and results in an influx of state money for indigent defense, “then there will be more money in the budget for County Attorney Blackwell.”
We have yet to encounter a county manager or state legislator who intends for his or her jurisdiction to shirk its constitutional duties. Instead, they think they know what is required and honestly believe their systems meet their obligations to the accused, given the resources they have to work with. In the case of Emery County, we do not believe the county would misuse state funding intended to improve indigent defense services by redirecting funds to the prosecutor. Surely what the Commission meant was that any influx of state funding for indigent defense would increase the indigent defense line item currently held within the prosecutor’s budget.
This highlights the true grist of the problem with how Emery County is managing defense services. One of college athletics’ greatest rivalries offers a perfect analogy. No one would want Brigham Young University dictating the amount of money the University of Utah could spend on recruiting, equipment, and coaching. Games between the two programs would be inherently unfair. Likewise, an adversarial criminal justice system where the defense is beholden to the prosecution for its budget is simply no longer adversarial.
The constitutional imperative for the independence of the defense function was explained by Justice O’Connor’s in her dissent in Georgia v. McCollum. Justice O’Connor wrote: Gideon “‘established the right of state criminal defendants to the guiding hand of counsel at every step in the proceedings against [them].’ Implicit in this right ‘is the assumption that counsel will be free of state control. There can be no fair trial unless the accused receives the services of an effective and independent advocate.’ Thus, the defense's freedom from state authority is not just empirically true, but is a constitutionally mandated attribute of our adversarial system.”
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