Gideon Alert: right to counsel threatened after Utah public defender office closes

BY David Carroll on Thursday, April 22, 2010 at 11:35 AM

Utah statutes require a measure of quality in the provision of right to counsel services.  By law, counties must provide “timely representation by competent legal counsel” who must have “undivided loyalty” to their clients and the “investigatory resources necessary for a complete defense.”  But there is no statewide commission or regulatory department to ensure that these minimum requirements are met, let alone develop and enforce standards related to caseload controls, attorney qualifications or training.

On top of that, Utah is one of only two states in the country that does not contribute any state funding at all for the right to counsel (Pennsylvania is the other).  Collectively, Utah counties spend only $5.22 per capita for the right to counsel, or 57% below the national average ($12.09).  Only Missouri ($5.20) and Mississippi ($4.15) spend less. 

Counties are allowed to create and administer any delivery system they desire, and most have either contract or assigned counsel systems.  For years, national advocates – including NLADA - have reported that only two of Utah’s 29 counties have established staffed public defender offices (Salt Lake and Weber Counties).  But in an effort to save money, Weber County (Ogden) defunded the public defender office in 2009 and moved to individual flat-fee contracts in which private attorneys take an unspecified number of cases (the county reduced its investment in public defense by over $100,000).

This morning, the Salt Lake Tribune reports on what those changes mean to actual clients.  In a move similar to the Weis case out of Georgia, prosecutors have asked a judge to remove the attorneys of a client facing the death penalty, because those attorneys were part of the public defender office that was eliminated and the county no longer has any agreement to pay them to handle trials.  The two attorneys have been representing their client for 21 months -- appointed at a time when they were employed asstaff public defenders.  They are arguing that removing them now would be prejudicial to their client.  The would-be replacements for the client have never handled a death penalty case. 

The ACLU of Utah is intervening in the case with a hearing coming up on May 7th.  The ACLU reports that other systemic deficiencies in Utah include attorneys carrying twice as many felonies as recommended under national standards -- in addition to their own private caseloads.  Excessive caseloads force attorneys to regularly waive preliminary hearings and fail to file motions because of a lack of time.