Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Public Defenders: A Weakened But Indispensable Link

Minnesota’s indefatigable public defenders, worn down by staggering caseloads and forced to cut back provision of nonmandated services, are caught in the middle as budgetary pressures, demands for equal justice, calls for efficiency, and the need to preserve public safety bear down on the state’s criminal justice system.

On a December day in Anoka County’s Courtroom 1, public defender Julie Plumitis handled several dozen in-custody probation violations, bench warrants and initial appearances.

It’s a typical scene from a metro courthouse. Some refer to it as a “cattle call,” a long string of people caught in bad decisions or by bad luck. The initial charges included controlled substance possession, burglary, theft, damage to property, driving after revocation, fleeing on foot and more. Some had been released once, violated their conditions and got picked up again. For the most part, guilt or innocence was not on the docket, only bail and scheduling the next court appearance.

Most people qualified for a public defender. Plumitis, a certified student attorney, had started in October and was learning on the job. She got a few minutes to meet each client and make her bail argument before moving on to the next.

Assistant Public Defender Lis Carlson arrived early to handle one plea agreement for Plumitis, then left. In the hallway, Carlson paused briefly. “This morning I was scheduled in four courtrooms between 8:30 and 9:00—two down and two to go,” she said. “It’s been tricky. Six weeks ago, I had 303 open misdemeanor cases.”

And so it is for public defenders. They’re swamped. And as these and other cases play out, some question whether clients get good and timely representation.

William Ward, the 10th District’s chief public defender, said probation violation cases are particularly frustrating. Clients often are in custody and their cases have short timelines. To adequately prepare, public defenders ask for delays. That violates one of the office’s guiding principles: to treat clients as if they were private, paying customers.

By that standard, “we are failing miserably,” Ward said. If hired privately, “you wouldn’t be asking for continuances.”

Public defenders around the state feel the time crunch. The State Board of Public Defense estimates that the average public defender will have a weighted caseload of 787 in fiscal year 2009, nearly double the American Bar Association standard of 400. (A case unit is approximately a misdemeanor.)

Problems are not unique to Minnesota. The New York Times reported in November that, “Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.”

With the Minnesota state budget facing large deficits, things are likely to get worse here before they get better.

Budget Woes

Last year, facing budget deficits, the Minnesota Board of Public Defense cut 53 staff attorneys, approximately 12 percent of its total. To preserve its core defense work, it cut all nonmandated services. It stopped representing clients in postadjudication problem-solving courts, such as drug courts, and parents in child-protection cases. (See “Abused & Neglected Kids,” below.)

This coming biennium, the state faces a $4.8 billion deficit. Most agencies would feel lucky to get flat funding. The Board of Public Defense is asking for a 14.7 percent budget increase next biennium to restore lost positions. (It would not restore the nonmandated services, only shore up criminal defense.) The governor released his budget proposal January 27, and it recommends a $5.1 million cut in the Board of Public Defense, or 3.8 percent. The odds are stacked against the public defenders’ request.

At the legislature, public defenders will make a two-pronged appeal, one on principle, one pragmatic.

On moral grounds, public defenders argue that providing free representation to those who can’t afford it is American judicial bedrock. Included in the fair trial guarantee is not just having counsel, but having effective counsel. If public defender offices are overworked and lack support staff, both clients and our system of government suffer.

On the pragmatic side, public defenders argue cuts don’t save money, but shift costs to court and county budgets. John Stuart, State Public Defender, said if staff had more time to do up-front work, bad arrests could get kicked out quicker, plea agreements could be arranged sooner, and fewer cases would go to trial.

“The earlier we can get in, the better off the entire system is,” Stuart said. By resolving cases in a week rather than months, “you are saving jail time, prosecutor time, subpoenas and court time.”

Who’s Served?

One of the startling statistics about public defense is just how many people depend on it. O.J. Simpson, Tom Petters, and other high-profile wealthy defendants aside, the criminal courts are packed with people who can’t afford attorneys.

People qualify for public defenders in one of two ways, according to statute: 1) They or any dependent living in the same house receive means-tested governmental benefits, or 2) The court finds—based on their assets and income—that they are unable to pay reasonable attorney costs.

The state doesn’t track the average income of people receiving public defenders, said Kevin Kajer, chief administrator for the state Board of Public Defense. Some are indigent. Others make a small income but lack the savings for a retainer, say the $3,000–$3,500 needed upfront for a DWI case. Judges appoint public defenders based on the culture of the county bench and local factors, such as private attorneys’ fees.

Bottom line: Public defenders handle approximately 60 percent of all misdemeanor cases and between 85 and 90 percent of all felonies, gross misdemeanor and juvenile cases, Kajer said.

Given that high volume—179,232 cases in 2007—state funding of public defenders will define how well criminal courts work.

Quality Affected

When attorneys have high caseloads, things get missed, dropped and delayed.

Krista Jass, chief public defender in the 5th Judicial District (southwestern Minnesota) recalled a client charged with felony fifth-degree possession of meth, carrying a presumptive sentence of a year and a day. Police found a pill in her car and it field-tested positive for the drug.

According to Jass: the woman was released pending trial, violated her conditions, and ended up back in jail. The woman had four children, faced home foreclosure, and had cancer and was getting treatments. Frustrated about her inability to talk with her public defender, she pleaded guilty to get out.

In the end, the woman withdrew her plea and the public defender’s office pursued a trial. Before it started, a lab tested the pill and it was aspirin. Charges were dropped. The woman had run-ins with the law before and since, but on this particular case she spent 23 days in jail—and it could have been longer—as public defenders tried to balance overloaded schedules.

“When the attorneys have court appearances nearly every day, it is impossible to do your office work and keep client communication going,” Jass said.

Jim Kamin, the 4th District’s acting chief public defender, said even those who have done something bad and are getting punished need effective representation. If they leave court feeling railroaded, that they haven’t had their questions answered, they leave cynical, he said. “And the criminal justice system hasn’t achieved what it wanted to, which is to be a teacher.”

The public defender shortages are obvious from the bench. Sixth District Judge Gerald Martin said criminal proceedings take longer than they should. Hearings get continued. Public defenders get frazzled. “We give them as much leeway as we can,” he said. “We know they have an impossible load, and it is going to get worse. It affects the quality of the justice system.”
A Dumping Ground

Public defenders’ clients not only are poor but also often have mental health problems, public defenders say. And that adds time. State Public Defender Stuart said the courts have become “society’s dumping ground for problems.”

Public defenders have dispositional advisors to seek sentencing alternatives for clients with mental health and other extenuating issues. Kristen Lee, a dispositional advisor in the 1st District, recalled a Vietnam vet with Post-Traumatic Stress Syndrome. He was getting desensitization treatment at the Veterans Administration. It brought back nightmares and “anxiety through the roof,” she said.

The man called his family, blamed them for his problems, and said he was going to beat up his brother, Lee said. He never went to the house, but left a voice message. He got charged with felony terroristic threats.

Lee spent about 80 hours on the case, visiting the man in jail, driving him to his psychological exam, and more. Eventually he got sentenced for a gross misdemeanor and returned to the VA.

A 2006 paper by the Minnesota Psychiatric Society provides one measure of the challenges faced by public defenders and the entire criminal justice system. It said that severe mental illness affects an estimated 15 to 30 percent of the state’s prison population.

Ward, 10th District chief public defender, estimates that roughly half of clients his staff sees suffer from some form of mental health problem. For some, their families are frustrated that they don’t take their medication. “The next thing you know they are in the cycle of the criminal justice system,” Ward said. “The expectation is somehow we will fix it. None of us are equipped to do that.”

Lacking Needed Support

Public defenders have minimal support staff. For instance, there is on average one paralegal for every 18 full-time public defenders. (That’s a bit more than two hours per attorney a week.)

Public defender offices also have small budgets for other needed supports. For instance, the eight-county 10th District, which handles about 24,700 cases a year, has a $30,000 budget to pay for translators, transcripts, and expert witnesses. When the money runs out, public defenders apply to the court for expenses. If approved, the county pays.

Karen Duncan, interim chief public defender in the 5th District (southwestern Minnesota), said public defenders are drafting their own pleadings, doing their own typing, and sometimes even serving their own subpoenas. It’s the kind of work that lower-paid support staff should be doing, but they don’t have the staff.

The 5th District exhausted its pool of money for translators, transcripts and expert witnesses less than halfway through the fiscal year. In order for lawyers to talk to non-English-speaking clients, they have to file paperwork estimating time and costs and wait for approval. “To have to jump through hoops to access money really slows things down,” she said.

While the number of public defense cases grows, so does their complexity. Public Defense’s Chief Administrator Kajer said there is new science to learn about blood spatters, DNA and how arson fires spread. It’s tough keeping up with the prosecution.

Hennepin County recently received a $500,000 grant to process a backlog of cold cases, he said. (It will pay for a full-time detective, a forensic scientist, a prosecutor, a paralegal and the use of the county’s sheriff’s crime lab for DNA testing, a news account said.)

“No one is saying that is not a good idea,” Kajer said. “But where are we gong to find the people that will defend those folks?”

A Pro Bono Solution?

Minnesota State Bar Association (MSBA) President Michael Ford said he and other court system partners met with lawyer legislators in November and the message about the upcoming session was frank and candid: “There is not going to be the money there has been in the past.”

Ford wants to explore how the private bar could do more to support public defenders. Most attorneys think pro bono is family law or eviction work, but that could be expanded to defense work, he said. The MSBA’s appellate section already helps the Board of Public Defense on appeals.

The State Board of Public Defense says it’s difficult to get pro bono help for trial work because of the time commitment and need for continuity. A retired or part-time lawyer might have time, but not a lawyer in a busy firm.

Ford suggested private attorneys could support public defenders through motion practice, research and writing.

Patrick Burns, First Assistant Director of the Office of Lawyers Professional Responsibility and cochair of the MSBA’s Legal Assistance to the Disadvantaged Committee, said attorneys seeking to do pro bono have traditionally shied away from defense work. People felt the state adequately funded it. “In the times we are living in, I think it would be a mistake to take it off the table,” he said.

At the Capitol

With budget pressures on all sides—the courts, public defenders, county attorneys and more—the legislature faces huge challenges to fund and organize the criminal justice system so that it runs efficiently and fairly.

In addition to the many criminal justice funding decisions on the legislature’s table, policy decisions can significantly affect workloads.  For instance, while Minnesota’s incarceration rate is low compared to other states, its prison population is growing. Paralleling that trend, parole revocation hearings increased 22 percent from fiscal years 2004-2008, from 2,757 to 3,365. That’s more work for the entire criminal justice system that handles those cases, including public defenders.

Rep. Tina Liebling, DFL-Rochester, and Rep. Michael Paymar, DFL-St. Paul, chair of the House Public Safety Finance Committee, held round table discussions during the interim with judges, prosecutors, public defenders and others.

Liebling, a former public defender, and Paymar heard complaints that the legislature increases penalties or makes new crimes without giving thought to the work it creates. Legislative fiscal notes consider how new laws affect the need for prison beds, but not how they affect courts, public defenders, and prosecutors. The legislature needs to find ways to better understand those system-wide costs, Liebling said.

Round table participants also noted that relatively minor cases—driving without a license cases or driving after revocation—clog the courts. Liebling said she thought the legislature would look at what low-level misdemeanors could be handled outside of court, without compromising public safety.

“That is likely to be on the agenda,” she said. “We only have so much capacity.”


Abused & Neglected Kids: A Worrisome Picture

Last fall, a 19-year-old mother lost custody of her baby shortly after giving birth in a Rice County hospital. She had a prior Termination of Parental Rights (TPR) case in Louisiana, creating the presumption that she was an unfit mother.

The woman is in court trying to get her child back. Third District Judge Tom Neuville said she is indigent and during her first TPR case she received no or poor representation. No one disputes she deserves a competent lawyer. The current court battle is over who pays the bill.

Public defenders used to represent parents in TPR and Children in Need of Protective Services (CHIPS) cases, but stopped last summer in the wake of budget deficits and layoffs. The Minnesota Board of Public Defense said it is not mandated to provide those services, and the state has repeatedly turned down requests to fund them.

So when the 19-year-old mom faced the TPR hearing, the court ordered Rice County to pay for a private attorney. The Rice County board has refused and voted Jan. 13 to appeal the district court’s order to the Court of Appeals. Rice County Attorney Paul Beaumaster said the county board believes it is the public defender’s duty to represent parents. If the state meant to shift costs to counties, it should do it legislatively, not by public defender fiat, he said.

The Rice County case is the tip of the iceberg. Crow Wing and Wabasha counties also are declining to pay, according to a November report by the Children’s Justice Initiative (CJI), a collaboration between the Minnesota Judicial Branch and the Department of Human Services.

While many counties are paying legal fees for CHIPS parents—at least for now—services vary county to county. In some counties, “family law attorneys or other attorneys, some with little to no child protection background or experience, are being appointed to represent parents,” the CJI report said.

CHIPS cases are time-intensive. Judges issue orders describing what parents need to do before
children can return home, including working on chemical dependency, mental health, or other issues. Follow-up hearings monitor progress, at least one every 90 days.

The attorneys’ role is part social work, part legal; they make sure parents understand their rights and responsibilities and encourage them to follow through with the parenting plan. Most importantly, they let parents know that if they don’t follow through, they could lose their children.

According to the CJI report, there is no statewide funding or standards of practice for attorneys representing parents: “Instead, it is currently left to each county to decide whether they will pay for court-appointed legal representation for parents; what amount to pay attorneys; and what minimal practice standards to impose, if any.”

Even before the cut in public defender services to CHIPS parents, Minnesota had troubling foster care statistics. In 2007, it had the worst foster-care reentry rate in the nation. About 25 percent of children who left foster care were back in foster care in less than 12 months. The federal target is 9.9 percent.

The courts alone can’t fix the problem, but courts are one part of the solution. Court delays and lack of parent representation could mean longer foster care stays for children and ultimately more costs for counties.


In Hennepin County, A Battle Brewing

The 4th Judicial District (Hennepin County) handles a quarter of all public defender cases and operates by different rules than the other nine districts.

Unlike other districts, the 4th District public defenders still represent parents in child protection cases and serve post-adjudication drug court. They even provide stand-by counsel for pro se litigants, a unique service. Unlike any other district in the state, the public defenders’ office gets property tax support. Hennepin County provides approximately $8 million a year, roughly one-third of all operating costs.

Jim Kamin, the 4th District’s interim chief public defender, said Hennepin County had a public defender’s office in the early 1960s. When the state took over public defense in the 1990s, it left Hennepin County with a foot in two worlds.

As part of a compromise, the 4th District office has two sets of public defenders: county employees (those hired before 1999) and state employees. As county public defenders retire, their replacements are state employees. Turnover has been slow. The state and county staff have different union contracts, holidays, benefits and pay scales. “It is a very complicated mess,” Kamin said.

Some attorneys with similar backgrounds and skills have salary differences of $20,000 a year, he said.

State statutes require Hennepin County to share in public defense costs with the state, but they don’t say how much. Kamin said the state and county don’t have an agreement on what county property tax dollars pay for—and that’s led to friction. During the county board’s 2009 budget talks, it initially cut $900,000 and eight attorney positions from its share of the public defender’s budget. It eventually added back $225,000, but only if the state matches it with $225,000 in new money.

Hennepin County Commissioner Mark Stenglein said the board is frustrated the state hasn’t taken over public defense costs like it has elsewhere. He thinks Hennepin County will continue to wean the public defenders office from financial support, particularly given the upcoming budget problems.

In 2009, the state budgeted $68 million for public defense for all ten districts. Hennepin County’s $8 million contribution is significant, roughly 12 percent of all state spending.

Kevin Kajer, chief administrator for the Board of Public Defense, said there are historical reasons for Hennepin County’s contribution.  They have tried, unsuccessfully, to get the legislature to resolve the issue. He doesn’t blame the county for being upset.

“The question is, given these budget times, what are we or anybody able to do to mitigate that without an influx of money from somewhere?” he said.


SCOTT RUSSELL is a freelance writer and reporter resident in Minneapolis.  A regular contributor to MinnPost.com, he has previously written for Bench & Bar on topics including unbundled legal services and working with pro bono clients.  This is the second of three articles he is preparing on challenges facing Minnesota’s judicial system.

Leave a Reply

Articles by Issue

Articles by Subject