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

In Defense of Public Defenders

Minnesota’s chronically underfunded public defender system is looking for more resources at the Minnesota Legislature this year in hopes of increasing staff and reducing caseloads. It’s part of a six-year funding plan designed to get Minnesota PDs closer to the ABA’s national standards for public defenders.

In nearly half the counties in Minnesota, a poor person arrested for a crime, whether a DWI or an assault, must head to court for that daunting first appearance, where bail is often set, with no lawyer.

0415-Bill-Ward“We are not staffed to send an attorney,” said State Public Defender Bill Ward, who became Minnesota’s top defender last July after serving as chief in Hennepin County. “That is an embarrassment. If they are in custody, they are held over until one of us can show up. They sit in jail. We wouldn’t let that happen to our own kids.”

Minnesota’s constitutionally mandated and historically malnourished public defender system has too few attorneys to reasonably handle the nearly 150,000 cases it takes on each year. It’s not uncommon for a public defender to spend fewer than 15 minutes meeting with a client for the first time, evaluating the case, explaining to the client the consequences of a conviction versus a plea, talking with the prosecutor, and eliciting a decision on how to proceed. National standards recommend four hours for the same amount of work.

Surviving as a public defender in Minnesota seems to come down to the ability to triage, to calculate where to put the most effort when there isn’t time to do everything. Defenders tend to work grueling hours, yet still don’t always have time to thoroughly research and review evidence—despite mounting questions surrounding the reliability of fingerprint analysis and eyewitness accounts—or adequately prepare clients and witnesses for the stand. Sometimes there isn’t enough money to hire expert witnesses in the first place.

“Our ratios are so out of whack it’s not even funny,” Ward said. While the American Bar Association endorses a maximum annual weighted caseload per attorney of 400, the state’s 390 full-time-equivalent public defenders manage an average of 614. “There is not a lawyer in my office who works 8:00 to 5:00. It’s impossible. It is eye-opening how many times I have had lawyers in my office in tears because they feel so overwhelmed. People want to think, I’m a superhero. It’s bullshit. You are not. As soon as we stop doing what we can’t, everyone will be better served.”

OLA Report

A 2010 report by the Office of the Legislative Auditor examining the state’s public defender system cited the results of a survey in which nearly half of responding defenders disagreed that they had felt well prepared for each of their cases during the previous year. In addition, 45 percent felt they “ran into potential ethical issues surrounding my obligation to provide competent and diligent representation.”

“We have gotten by,” Ward said. “It’s been okay for us to think it’s okay to get by. But how many exonerations do we have to have because of DNA and misidentifications? A cross-racial identification from 20 yards away should not be sufficient to convict somebody. Yet it’s [deemed] okay. The jury isn’t given an expert witnesses to talk about it. Until there is enough funding to fight for this stuff, we are not even close.”

“We are always behind the curve,” he said. “We are behind compared to California and other jurisdictions. We in Minnesota pretend we are better than everybody else, but we aren’t.”

“The whole system is stressed, but when the public defender is not there, nothing else happens. They are the most overcommitted.”

– Minnesota Senate Judiciary Committee Chair Ron Latz

Ward hopes to change that this session at the legislature, where he and others, including the Minnesota State Bar Association, are pushing for a significant increase in the budget for the Board of Public Defense, which coordinates and funds the 10 districts representing indigent defendants across the state. This is the middle phase of what Ward calls a “six-year plan” to reduce case loads, increase the number of lawyers and support staff—including investigators and legal secretaries—and improve the overall standard of representation. “We have 44 investigators for [145,000] cases a year for the whole state,” Ward said, stacked against entire police departments and crime labs. “That is ridiculous.”

Progress was made during the last biennium, when—following recession-spawned funding cuts in 2010 and 2011—the state’s public defender budget was raised to a current fiscal-year appropriation of $73.6 million. The state was able to hire more defenders and caseloads declined, helped by a drop in misdemeanor charges. But there is still a long way to go. The board is looking for an additional 13 percent increase during the next biennium, bringing the budget to $83 million by 2017. That would afford the statewide system dozens more attorneys, enough to reach 75 percent of what the American Bar Association considers reasonable.

“Our budget goes up a little bit and then it’s gone down and then up a little bit,” said Kevin Kajer, the board’s chief administrator. “We’ve been on a roller coaster, if you will. Not a steep one. But we haven’t been able to make progress toward reasonable caseloads.” The six-year-plan, he said, “is a way of getting off the roller coaster.” He thinks there is growing will at the legislature to address the predicament, thanks to outreach by public defenders themselves, Chief Justice Lorie Skjerven Gildea, and others. “The Bar Association has done a great job of supporting us,” he said.

“We are not like the Department of Transportation,” he added, “where if you have 20 potholes between Minneapolis and St. Paul on I-94 and you don’t have the staff to fill all 20, you fill 15 of them and we dodge around the other five.” Public defense isn’t optional, ever since Gideon v. Wainwright in 1963. If there are 20 people in a room waiting to see a defender, Kajer noted, “We can’t tell the last five or six people we will get to you some other time. It doesn’t work that way.”

Six-Year Plan

A group of district chiefs came up with the six-year funding plan during a meeting three years ago, figuring that if they could make winning arguments to juries, they could do the same with lawmakers. They crafted what they deemed a reasonable message, with a measurable end goal—conceding up front that the state lacks the money to raise the public defense system to 75 percent of the national standard all at once, and arguing instead for doing so over the course of three two-year state budget cycles. (According to Ward, asking to get to 100 percent was never a realistic option.)

Governor Mark Dayton has backed the funding increases. The legislature will take up the budget later this session, and many think the atmosphere is ripe for another increase. DFL Senator Ron Latz, chair of that chamber’s judiciary committee and himself an attorney, said, “I see the public defenders in court almost every day when we are not in session. I know how heavy the workload is and the good job they do. They don’t have the resources they deserve. They are on the edge in that respect. We need to get the resources to them to ensure the constitutional protection is there for every criminal defendant.”

One broadly shared concern is that the shortage of defenders slows the entire court system, as prosecutors, judges, and defendants suffer delays and continuances. “I have observed in the courtroom, where public defender clients are waiting around because the public defender hasn’t gotten to them yet,” Latz said. “This is also frustrating to the courts and the county attorneys, who also have places to be. The whole system is stressed, but when the public defender is not there, nothing else happens. They are the most overcommitted.

“The state’s rights are not at risk in any of these situations,” Latz added. “But the defendant’s rights are. And they are the ones risking going to prison.”

The spillover effect also concerns Bryan Lake, an attorney and lobbyist for the State Bar Association, who has been discussing it with lawmakers. “Other lawyers are both shocked by and in awe of the number of cases public defenders handle, but we also worry about the heavy burden they carry,” he said. Lake thinks a funding increase has a good shot. “In recent years, lawmakers have allocated some extra money for them, and there seems to be an increasing awareness of the vital role that public defenders play in keeping our justice system healthy and functioning.”

However, he cautioned, “The legislature is always unpredictable, especially with a partisan divide between the two bodies.”

Bipartisan Push

Nationally, the argument to boost public defender funding has found odd bedfellows as some conservatives and liberals alike are now espousing the view that incarcerating huge numbers of people is not only intrusive and destructive, but expensive. Even surprising players like the libertarian-leaning industrialists Charles and David Koch are working to build a bipartisan coalition around criminal justice reform and pushing efforts to reduce prison populations, overhaul sentencing, and examine racial and economic disparities.

This emerging tide of humanity, combined with fiscal conservatism, could serve the cause of public defense everywhere, including Minnesota. “Public defenders are struggling with too many cases, which leads people to stay in custody longer,” said Sarah Walker, founder of the Minnesota Second Chance Coalition. “It’s not a fiscally sound approach. If you put money on the front end, you will keep people from being incarcerated for long periods of time. This is a justice issue, a liberty issue, and a fiscal issue.”

The very idea of justice in Minnesota rests on the belief that everyone, including the indigent, receives fair representation. “The public defense system is fundamental to Minnesotans having the trust that we have a rule of law that works for the citizens,” Walker said.

It also helps that the state is swimming in a projected $1.9 billion surplus, though that figure is roughly halved when inflation on current programs is added to the calculus. “We made some progress two years ago,” said Latz of public defender funding. “That was good. The budget is better this year than it was two years ago. But there is a lot of pressure on the budget.” He said everybody has a hand out and high expectations, but many will be disappointed. “I am going to do all I can to direct as much as I can to public defense. This is a pretty high priority.”

If the funding increases are realized, public defense attorneys will receive raises after years of staff cuts and pay freezes. Currently, public defender salaries—starting at just under $53,000; one defender in Dakota County famously works part-time as a waitress—are significantly lower than the prosecutors they meet in court. The difference averages between 5 and 12 percent, according to the Board’s most recent budget report.

That makes recruiting and keeping attorneys difficult. “If you are doing a job, a comparable job to what the prosecutor is doing, and you are in the same room doing the job every day, how is it fair that your counterpart is making so much more than you are?” asked Mary Moriarty, who became chief of the Hennepin County district last summer, after Ward moved up. “It kills morale and it isn’t fair.” On top of that, she said, her office has a lot of attorneys who have been on the job for four, five, and six years. They came out of law school with a lot of debt and now they want to buy a house. “Nobody gets into public defense to make money,” she noted, but some are lured away by bigger salaries. “It’s a huge retention issue for us.”

Or, as Patrick Kittridge, the chief in Ramsey County, put it, “Some people think this is not a rational way to lead my life. People can find a job that doesn’t have the same physical, mental and emotional demands and make as much or more money.”

“I have witnessed a couple of colleagues essentially [having] a moment where they couldn’t go back in the courtroom and we had to go in,” he said. “The stress is just so overwhelming. I have seen adults, strong adults, break down. They were unable to walk back into the courtroom because they couldn’t quite take it. It’s a testament to the people who come in and do it day to day. The more rational response may be to throw your hands up.”

The problem is doubly tough in rural areas, which, with their sparse populations and low case numbers, are served by very small staffs. Already, for efficiency, the Board of Public Defense has merged administration of the 7th and 8th districts, which stretch all the way to the state’s western border. “In the 9th district, which is almost the size of Indiana, we have to cover all of the court houses and we have no staff to do it,” said Ward. Public defenders are often scheduled to be in two courtrooms at once, and those courtrooms might be a hundred miles apart.

“I’m not an opponent of the criminal law,” said Rex Tucker, chief of the combined 7th and 8th districts, who works out of the St. Cloud office. “There are some things people shouldn’t do. But they shouldn’t go to prison for things they didn’t do. They shouldn’t be rushed through a [legal] process. That means adequate numbers on both sides.”

New Challenges

In some respects, the challenge for public defenders has never been greater. Cases have become more complicated owing to technology and increasingly complex forensic issues. A National Academy of Sciences report several years ago drew into question many of the forensic techniques courts have relied on for decades. “Any type of forensic issue in a case has to be scrutinized,” said Moriarty, who is an expert on the topic. “And that takes much more time. All of those things have made this job more complicated than it used to be.

“You get a case with a fingerprint, where do you get the time to educate yourself to know what’s wrong with it?” she asked. “It’s an intimidating and time-consuming process for someone with a huge caseload.”

Nor is there always money to hire an expert witness to explain forensic defects to a jury, said Kittridge. “One of the dangers is that due to our lack of resources, our expert witness budget is extremely limited,” he said. “I worry that sometimes our people don’t pursue the option of getting an expert witness because they know we are financially strapped and they find another way to do it.” That might mean relying on the prosecution’s expert during cross examination.

In addition, the stakes for defendants keep rising. Not only have the penalties for certain crimes increased, but so have the so-called “collateral consequences,” thanks to databases and the broad availability of personal information via the internet, meaning that even a fairly minor conviction has the potential to keep a person out of a job or housing for life. That weighs heavily on defenders. “We have done too much damage to too many people in this country,” said Ward. “Even if a case is dismissed, it’s on the file forever.”

Public defense is one of the few government services regularly discussed as if it’s a cause. And maybe that’s because, given the workloads and pay, lawyers have to believe indigent defense is a cause just to show up in the morning. Moriarty said an attorney recently came into her office to quit. “She was extremely upset to be leaving, but she was a single parent and was just going to make a little more money someplace else. When you have people leaving, but crying because they are so upset that they have to leave, there is something wrong with that.”

Still, the job has its charms despite it all, said Tucker. “It’s kind of a cool thing to take a complicated mess and after one side has built a case and had the support of law enforcement and the community and the television news, be able to put up a zealous and valiant defense against all of that,” he said. “You have to like a challenge if you want to be a public defender.”

Perhaps, this legislative session, the challenge will be made a little less daunting. s

Jennifer Vogel is a longtime Minneapolis writer and editor. She has covered legal issues for various publications, including City Pages.

Leave a Reply

Articles by Issue

Articles by Subject