ACLU critical of public defender system
A recent report sharply critical of the state's public defender system has Columbia Falls city officials concerned it could translate into higher prosecution costs if local public defenders step up defenses for their clients.
The American Civil Liberties Union of Montana's October 2011 report was based on interviews they conducted with public defender staff in Kalispell, Billings, Polson, Missoula and Miles City over the past summer. The ACLU said it was responding to 143 complaints made by public defense clients from 2006 through 2010.
Columbia Falls city manager Susan Nicosia told the city council on Dec. 17 that she had called around Montana to see if other towns and cities were seeing increased prosecution costs as a result of the ACLU's report. She said she was concerned about public defenders requesting more trials for misdemeanor cases heard in Columbia Falls City Court or appealing cases to district court.
Nicosia said she didn't find any definitive evidence of changes by public defenders across the state, but she advised the city council to modify the city attorney contract just in case. She recommended adding $3,600 for possible increased prosecution costs, along with $4,000 for other additional work by city attorney Justin Breck and a 2.4 percent cost-of-living adjustment.
The total with the additions comes to $64,000 for the 2012 calendar year. If the additional prosecution money isn't needed, it can be withdrawn, Nicosia told the council. She also noted that city court could become a "court of record" without costly changes, which could save money if cases are appealed to district court.
The current public defender system was created by the Montana Legislature in 2005 following a lawsuit filed by the ACLU in 2002. The ACLU settled with the state attorney general's office after a legislative solution was found, but a 2009 report by American University found issues with the system and made recommendations for improvement.
The ACLU conducted its own evaluation in 2011 to see if the American University recommendations had been implemented. They concluded that while public defense services had "greatly improved in some counties," the system "continues to fall short of achieving its full potential" and many of the American University recommendations "have yet to be followed."
Generally, the ACLU found the failure to collect caseload data was "nothing short of shocking" since that was one of the primary complaints in the 2002 lawsuit. Caseload data is needed to evaluate whether the public defender system has enough attorneys and funding.
The ACLU also cited problems with micromanagement, poor morale, favoritism, insufficient training and failure to control caseloads. Using a point system to determine caseloads, where an attorney should have no more than 12.5 points, attorneys at the Kalispell public defenders office were found to carry from 13.5 to 21.7 points.
One attorney in Kalispell reported having 260 open misdemeanor cases at a time, when national guidelines recommended no more than 300 per year. A supervising attorney in Kalispell noted that the office was still "finding its way," but the ACLU concluded that "no one in the Kalispell office appears to supervise the roughly 15 contract attorneys for Region 1."
The ACLU also found misdemeanor attorneys in the Kalispell office "do not appear to request investigators particularly often" and noted that "misdemeanor clients are still entitled to a presumption of innocence and to have prosecution prove its case beyond a reasonable doubt, and some of them can go to jail if convicted."
As to harming clients, the ACLU cited a client with a chronic drinking problem who said he was trying to sober up when "his public defender called him up drunk to ask him for good fishing spots." The client also said the attorney told him she was entering the same treatment facility as the client and "wanted to know if she could bring snuff inside with her."
The client told the ACLU his public defender had recommended he begin serving a 10-year sentence, but he was able to work out a deal with his judge for a second chance if he stayed sober for six months.