The Guarantee of Counsel: Advocacy & Due Process in Idaho’s Trial Courts

On January 27, 2010, NLADA publicly released its report, The Guarantee of Counsel: Advocacy & Due Process in Idaho’s Trial Courts.  The report finds that the state of Idaho fails to provide the level of representation required by our Constitution for those who cannot afford counsel in its criminal and juvenile courts.  Idaho has sewn a patchwork quilt of under-funded, inconsistent systems that vary greatly in defining who qualifies for services and in the level of competency of the services rendered.  While there are some admirable qualities in some of the county indigent defense services, NLADA finds that none of the public defense systems in the sample counties are constitutionally adequate.

One of the most glaring deficiencies is what passes for justice in Idaho’s district courts, where all misdemeanors are heard and where all felony charges begin.  People of insufficient means are routinely processed through Idaho’s district courts without ever having spoken to an attorney.  Local jurisdictions get around their constitutional obligation to provide lawyers in misdemeanor cases in a myriad of ways, including accepting uninformed waivers of counsel, pressuring defendants to “work out a deal” with the prosecutor prior to being given publicly-financed defense counsel, and threatening unfair cost recovery measures. 

Juveniles facing delinquency proceedings are even more of an afterthought.  In most instances, juvenile representation is provided by private attorneys under flat fee contracts that create a conflict of interest between a lawyer’s ethical duty to competently defend each and every client and her financial self-interest to invest the least amount of time possible in each case.

In June 2007, (NLADA) released a comprehensive management audit of the Idaho State Appellate Public Defender.  The report noted that many of the workload issues facing the appellate defender office could be remedied with improvements to the various county-based, trial-level indigent defense systems across the state.  Subsequently, the Idaho Criminal Justice Commission (CJC) authorized NLADA to conduct an evaluation of Idaho’s adult trial-level services, under a limited grant from the Open Society Institute.  The Idaho Juvenile Justice Commission (JJC) contracted NLADA in April 2008 to expressly make juvenile representation an equal focus of the evaluation.  To ensure that a representative sample of counties was studied — and to prevent against cherry-picking only the best or worst systems — NLADA requested the CJC, chaired by Idaho Chief Justice Daniel Eismann, to identify the Idaho counties to be evaluated.  A sub-committee of CJC selected seven counties representing diversity with respect to geography, population and services delivery model: Ada, Blaine, Bonneville, Canyon, Kootenai, Nez Perce, and Power.  Site work was conducted from the fall of 2007 to the spring of 2009.

At the DOJ Symposium on Indigent Defense in February 2010, Idaho Chief Justice Eismann, speaking as part of one of five plenary sessions, called the report “excellent” and expressed his desire to move quickly toward a statewide system with a public defender office in each appellate district that could provide oversight to component counties.  NLADA continues to provide technical assistance with DOJ support to Idaho policymakers as they work to correct their right to counsel system.

Publication Date: 2010