JSERI Blog Archives

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.  

In Polk County v. Dodson, 454 U.S. 312 (1981), the United States Supreme Court found that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages,” noting that a “public defender is not amenable to administrative direction in the same sense as other state employees”. In fact, the Court noted, a “defense lawyer best serves the public not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client.” A new report by the American Civil Liberties Union of Utah (ACLU-Utah) finds that the state of Utah fails to uphold this constitutional obligation.  In “most” of the nine counties studied by the ACLU-Utah, the local prosecutor “routinely” is responsible for hand-selecting opposing defense counsel and often helps to negotiate the terms of defender contracts. Worse, the report highlights that in several counties defense attorneys must request trial-related expenses from the county attorneys.  

“When it comes to balancing the scales of justice for the poor with the expense, there simply are no easy answers,” concludes the Knoxville News Sentinel on August 21, 2011 in part of an in-depth, three-part series. The Tennessee Supreme Court proposed a new rule change that attempts to find an easy answer to controlling indigent defense costs by allowing flat-fee contracting for right to counsel services, but the Court has neglected to provide institutional safeguards that would protect the adequacy of representation.  If implemented, this move will buck the trend of other state Supreme Courts, in places like Iowa and Washington, that have recently banned these types of low-bid contracts because they create a direct financial conflict of interest between the attorney and each client.  Tennessee’s high court is accepting public comment on their proposed rule until September 1, 2011.

“The insidiousness of overburdening defense counsel is that it can result in concealing from the courts, and particularly the appellate courts, the nature and extent of damage that is done to defendants by their attorneys' excessive caseloads,” declared the Arizona State Supreme Court in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (Ariz. Apr. 4, 1984).  The Smith Court found that the lowest bid system for obtaining indigent defense counsel in Mohave County (Kingman) violated the defendant’s right to due process.  In light of the Smith case, Arizona counties struggle to provide fiscal predictability to the taxpaying public, while ensuring the rights to counsel and due process of each indigent defendant. The Wilcox Range News reported on August 10, 2011 that one county – Cochise County (Bisbee) – is currently considering a proposal to switch from an assigned counsel system paying an hourly rate of $50 to a system paying a “flat fee of $150 per misdemeanor case and $900 per felony case.”

On August 9th, 2011, the Washoe County (Reno) District Attorney will ask the County Board to contract with Washoe Legal Services (WLS) to provide representation to criminal defendants in a reinstituted early case resolution (ECR) program.  The proposed contract is for WLS to handle every ECR case for a single flat fee of $80,000 with no extra funds set aside for investigations.   

On June 10, 2011, a class action lawsuit was filed in the Superior Court of Skagit County, Washington, by the law firm of Terrell Marshall Daudt & Willie PLLC and The Scott Law Group P.S., as reported in the June 20 Seattle Times.  The suit alleges that the cities of Mount Vernon and Burlington have breached their constitutional duties to operate a public defense system that provides effective assistance of counsel to indigent persons charged with crimes in their municipal courts. The complaint alleges that the defendants failed to: a) impose caseloads restrictions on public defenders; b) “monitor and oversee the public defense system;” c) “provide adequate funds for public defense;” and, d) “provide representation at all critical stages of the prosecution;” among others.   The cities’ failures, the complaint contends, have resulted in a constructive denial of the right to counsel under Gideon v. Wainwright.  The lawsuit asks for injunctive and declaratory relief to prevent further violations and to protect the constitutional rights of all indigent persons charged with crimes in the municipal courts of Mount Vernon and Burlington. Or, as co-lead attorney Matthew Zuchetto states in the plaintiffs’ press release,“[a]t the end of the day, our clients are simply asking for one thing: to fix the system."

The Iowa Supreme Court handed down a unanimous decision in Simmons v. State Public Defender, No. 07-0870 (Iowa Nov. 24, 2010), finding that a rigid fee cap of $1,500 per appellate case would “substantially undermine the right of indigents to effective assistance of counsel.”  The Court explained that “inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants” and that “the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. … Low compensation pits a lawyer’s economic interest … against the interest of the client.”  Reasoning that the fee caps at issue in the case would have a “profound chilling effect” on the right to counsel and that the legislature intended to uphold the right to counsel, the Court held that Iowa rules imposing a hard-fee cap are unenforceable.