Printed on: April 14, 2014

Times-News: Public defenders must prove their value

Idaho's counties have spent too long ignoring the rights of the poor accused of a crime and treating the attorneys tasked with providing them a defense as annoying afterthoughts. And, while a new state law takes a first step in fixing the constitutional abortion of out-gunned and overworked public defenders, it's up to the public defenders themselves to make their case and demand a level playing field.

Funding prosecution is easy for county commissioners. The public loves law and order. Spending tax dollars defending "scum bags" isn't as politically convenient. It's resulted in many counties contracting out indigent defense to the lowest bidder.

Anew law, signed by Gov. C.L. "Butch" Otter late last month prompted by the threat of an American Civil Liberties Union lawsuit, takes a necessary step in the right direction. Idaho has long been one of eight states without a public defense oversight body, which H454 establishes. It also bans the "flat fee" pay system that's dominated public defense in most Idaho counties, especially cash-strapped small ones, in an attempt to end the lowest bidder contracting system that's seen green attorneys from private firms swamped with untenable caseloads. But it provides almost nothing in additional funding for local defenders. It does little to fix the game.

But even in counties with established, full-time public defenders, inequities remain when compared to the prosecutorial end. Minidoka and Cassia counties, for example, operate the only joint public defender's office in the state, a 9-year-old experiment designed to deal with the cash issues plaguing small counties. Even the Mini-Cassia Public Defender's Office, where county commissioners are generally supportive (not always the case), defense attorneys make less than their prosecuting counterparts and turnover rates are high among the underpaid lawyers.

"I can't afford to keep people," said Mini-Cassia Public Defender Dennis Byington. "I get them trained and they leave for a prosecutor's office or private practice. Why should there be such a disparity?"

Ask a public defender their caseload and they say "a lot." Ask them how much time is spent researching a felony case and they often say "not enough." The situation has gotten so bad that U.S. Attorney General Eric Holder and Idaho Attorney General Lawrence Wasden both publicly ripped the system.

But the jobs of a defender and a prosecutor aren't an apples-to-apples comparison, so public defenders must prove not only their value to lawmakers and county commissioners, but also exactly how unmanageable their massive caseloads really are. It's time for public defenders to organize and bring their plight to the public.

Public defenders in Missouri are doing just that. The American Bar Association released in January the "Missouri Project," a study lawyers are calling the most comprehensive look at the nation's broken defense system for the poor in history. Missouri public defenders spend an average of nine hours preparing for serious felony cases, the study concludes. Private lawyers spend 42 hours on similar cases. Just two hours of research are devoted by public defenders to misdemeanor cases when 12 is actually needed, the report concludes. Armed with that data, the Missouri State Public Defender wants another $25 million from lawmakers to staff up and level the playing field.

The Missouri Project, which public defenders in Miami now plan to replicate, proves what Hollywood has personified for decades with the burned-out public defender, rushing into court leaving a trail of papers in his wake. The study shows the American justice system is only as fair as what a defendant can afford.

Ours is a justice system forged over centuries in the fires of presumed guilt. It's one where the presumption of innocence dictates the process and the prosecution should bear all of the burden. But too many counties shirked that responsibility and relied on private contractors, while in-house county defenders can't match the prosecutorial weight of law enforcement.

Until the game is fixed, justice remains rigged.