June 21 MONTANA: Montana aims to fix public defender system----State's effort is 1st to use guidelines suggested by ABA This state's system for providing criminal defense lawyers for the poor was so flawed that some defendants sat in jail waiting for their day in court for longer than the maximum sentence that could have been imposed. This month, with the state facing a lawsuit filed by the ACLU, legislators approved a public defender law that is designed to bring sweeping changes and is being hailed as a national model for providing defense lawyers for the poor. The legislation would be the 1st in the country designed to address key principles of a public defender system adopted by the American Bar Association in 2002, according to David Carroll, of the National Legal Aid & Defender Association, the organization that recently studied Montana's system. The study was conducted at the request of the American Civil Liberties Union as part of its lawsuit. Though the study covered several counties, it was particularly harsh in assessing Missoula County: One defendant waited 23 months to get to court on a charge that carried a maximum sentence of 13 months. Not a single indigent defendant in the misdemeanor courts had a defense lawyer. A public defender was assigned a rape case where the defendant faced a life prison sentence even though the lawyer had never handled such a case before. A former public defender said conducting a defense investigation of the charges before trial was an "aspirational" activity. In essence, the study found that even after the U.S. Supreme Court ruled in 1963 that it was an "obvious truth" that defense lawyers for the poor are "necessities, not luxuries," the Montana public defender system was "ineffective, inefficient, unethical, [and] conflict-ridden." In 1976, a U.S. Justice Department-funded study found the state's system for providing criminal defense lawyers for the indigent to be systemically flawed. But according to the study that was filed in court last year, nothing had changed. The new legislation mandates the establishment of a commission appointed by Gov. Brian Schweitzer to hire and oversee a chief public defender and set statewide standards for legal education, caseloads and performance and evaluation criteria, said Carroll, the association's director of research and evaluation. The program will cost $12 million. "This is a huge and significant step," Carroll said. "I think there is no greater value in America that is believed more strongly by the citizens and yet is not realized in practice. "I get a real sense that because of shows like 'Law and Order' and 'CSI,' that people believe that if you demand a lawyer, that a public defender appears," he said. "Nothing could be further from the truth." Vincent Warren, a senior staff attorney with the ACLU, said, "A year ago, poor people accused of crimes in Montana regularly had the doors to justice slammed in their faces. Thankfully, for them today is a new day." Carroll said the public defender system in Illinois, which is funded through county governments on the trial level and by the state for appeals, is largely considered a good system. "While there are undoubtedly some issues of representation on the trial level, particularly in rural counties, the appellate system is considered very good," he said. "The problem is that indigent defense is nearly 100 % county funded on the trial level and when you get that, you get variations in quality. The counties with the least amount of revenue are usually the places where people live who need the services most," he said. Other states, Carroll said, have major problems in the public defender system. In Louisiana, for instance, defendants may sit in jail for years before trial. One defendant waited eight years before trial, he said. In 2002, a defendant in Louisiana was convicted of second-degree murder in a trial that lasted six hours, even though his public defender had been representing the victim at the time of his death as well as an eyewitness against her client, which were clear conflicts of interest, Carroll said. The lawyer had met with her client all of 11 minutes prior to trial, he added. In Clark County, Nev., Carroll said, public defenders assigned to juvenile cases are expected to handle more than 7 times the number of cases recommended by national standards. 2 states, Pennsylvania and Utah, provide no state funding for public defender systems--despite the 1963 Supreme Court ruling requiring such funding--and fewer than 1/2 of the states provide only partial funding, Carroll said. Wisconsin funds a public defender program, Carroll said, but the eligibility threshold is so low that an estimated 11,000 defendants who meet the federal poverty guidelines failed to qualify for a public defender. The Mississippi Legislature created a statewide public defender program, but never funded it and last year the legislation creating the system was revoked, he said. In Virginia, public defenders who handle felony cases are allowed a maximum of $395 per case, even if the case goes to trial. The Montana legislation was spurred by a 2002 lawsuit filed by the ACLU. The lawsuit was put on hold to allow the legislature to take up the matter after the study was issued last August. "What makes the Montana legislation a model is that it sets up a statewide commission that will represent a number of different constituencies and empowers it to move things around to address different needs in different parts of the state," said Malia Brink, indigent defense counsel for the National Association of Criminal Defense Lawyers. Providing the commission with flexibility is what allows such a model to work in rural and less-populated states as well as more urban, more populous states, Brink said. Carroll said he believes Montana's public defender system has not improved in 3 decades because the state "has a wild-West rugged individualism where public defenders believe they will take on cases and shoot from the hip and get things done." Still, the anecdotal findings, gleaned from sworn statements taken from public defenders in the counties surveyed, were seen as stunning. One Lake County public defender reported that he had to travel 70 miles to get access to Internet legal-research tools. Although the Missoula County public defender's office did have such access, not all lawyers had the passwords, the study said. Defense lawyers rarely hire investigators or expert witnesses to handle pretrial investigators of cases in part because judges frequently refuse to allow it or the reimbursement rates are too low. In Flathead County, for example, defenders said they were limited to $500 for an investigator or expert witness. In Ravalli County, an expert witness submitted a bill of $1,200 and the judge cut it to $100, according to the study. Appeals were rarely filed, the study also found. No appeals in any cases were filed for 2 years in Flathead County. A public defender in another county said he had filed a dozen or fewer appeals in 17 years. One former Missoula County public defender reported that he did not inform his clients who pleaded guilty of their right to appeal. It remains to be seen, Carroll said, how the Montana commission implements the legislation and how it is funded. "As our American troops are engaged overseas fighting for democratic principles, we must ask ourselves what message we are sending the world when we do not meet our own constitutionally enshrined values here at home," he said. (source: Chicago Tribune)
