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.
The undue interference by Utahan prosecutors also fails state law. Utah statutes require a measure of quality in the provision of right to counsel services, including that 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, of course, 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. With no statewide accountability, flat fee contracts with defense counsel hand selected by county prosecuting attorneys have been allowed to proliferate as counties with less resources struggle in the current economic difficulties to provide counsel.
This column has written before on the problems of flat fee contracts (see also Jon Mosher’s article on flat fee contracts). The same problems of a lack of accountability and adequate representation displayed in other states also exist in Utah, as reported by both the August 24, 2011 Salt Lake Tribune and August 25th Deseret News. But when adding in direct supervision by what is supposed to be a court room adversary, Utah falls to new depths for failing to uphold the Sixth Amendment as displayed in the ACLU-Utah chapter on San Juan County.
San Juan County is Utah’s largest geographic county (approximately 8,000 square miles, or a little more than the size of Connecticut and Rhode Island combined). The population of the county is predominantly Native American (50.4%) and has a very high rate of poverty (28.3%, as compared to the Utah average of 11.7%). According to the ACLU of Utah, 64 felonies and 635 misdemeanors were filed in fiscal year 2010 (7/1/09-6/30/10), the vast majority of which were assigned to a single attorney working for a flat fee of $70,000 per year.
If one takes the national average of 85% of all cases requiring the right to counsel, this would equate to a caseload of 54 felonies and 540 misdemeanors, or a workload that is 171% above national workload standards. And, that is before factoring the attorney’s private caseload. The flat fee contract does not have any provision for overhead, support staff, or case related expenses (including gas mileage to cover courts in a county the size of two eastern states). Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case, pocketing the fixed fee and use his time to do other more lucrative private work.
In the past, the county offered additional compensation to the defense attorney for appellate work, but that provision was removed from the 2009 contract for cost-containment reasons. So the costs of any appeals were also coming out of the attorney’s personal income in that year. This serves to underscore that people in need of defender services have little ability to redress constitutional violations through the appellate courts. In Utah, as in many states, the same overwhelmed, untrained, unqualified and financially conflicted lawyer who failed to adequately advocate for a client at trial is appointed to also represent that same person on direct appeal (the court proceeding to review the fairness of the trial and raise issue with, among other things, whether or not the trial lawyer did a good job). Chances are low that such lawyers will raise concerns about the quality of their own lax work or conflicted financial interests. Unfortunately, failure to question the attorney’s effectiveness at this juncture precludes it from coming before a court again until what is known as a post-conviction proceeding – a court proceeding in which a defendant no longer has a constitutional right to an attorney.
All of this is bad enough for clients, but the ACLU report also reveals that the substantive work of the San Juan County public defense attorney was also being reviewed by the county prosecuting attorney before it was submitted to the court.
The first of the American Bar Association’s Ten Principles of a Public Defense Delivery System requires an independent non-partisan oversight board, whose members are appointed by diverse authorities, and which is responsible for all aspects of indigent defense services. In this way, no single official, branch of government, or political party has unchecked power over the public defense function. In this way, policymakers can guarantee to the public that critical decisions regarding whether a case should go to trial, whether motions should be filed on a defendant’s behalf, or whether certain witnesses should be cross-examined are based solely on the factual merits of the case and not on a public defender’s desire to please a judge or a county administrator or a district attorney in order to maintain his or her job.
Because American jurisprudence is based on an adversarial court process, competent defense lawyers are necessary to scrutinize and challenge the police investigation, the lawfulness of any searches and seizures, the arresting officers’ tactics, the credibility of the evidence, and the district attorney’s theory of the case. In this way, an effective defense serves to improve the overall quality and effectiveness of law enforcement itself. Arguably, it is because of a strong adversarial process when private criminal defense lawyers are employed that the United States is in the forefront of cutting edge public safety technologies – like DNA evidence – that help to exonerate the innocent while convicting the guilty. That cannot occur in places, like Utah, where the defense is beholden to the prosecution.
[Editorial Note: The ACLU report goes into depth on the parity of resources between the prosecution and defense function (ABA Principle 8). For more on that subject, please see Phyllis Mann’s Understanding the Comparison of Budgets of Prosecutors and Budgets for Public Defense.]
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