County weighs in on local, state battle to improve public defender system

Composite image using background photo by Utah778/iStock/Getty Images Plus, overlay photo by Pattanaphong Khuankaew/iSTock/Getty Images Plus, St. George News

ST. GEORGE — An outburst during a recent court hearing prompted a closer look at the public defender system in Utah and beyond – as the state doubles its efforts to ensure that all Utahns have access to an attorney whether they can afford it or not.

File photo of Kevin Mcatlin murder trial, St. George, Utah, April 16, 2019 | Photo by Cody Blowers, St. George News

During an open hearing at the beginning of June, St. George attorney Ed Flint made a comment on the number of cases he was handling after his indigent client said he wasn’t contacting her about the case.

Flint said the client was correct, pointing out that he is doing the best he can to manage more than 270 open cases.

During an interview the following day, Flint went on to say that not all of the cases are active and include past cases that have active warrants and probation violations and remain dormant until there is an arrest or new charge. He also said the number of active cases he is currently working is lower.

The public defender said his comments in court were fueled by frustration about a common misconception that a public defender should be at the beck and call of the client and is no different than one that is privately retained at $350 an hour, adding that he met with the client in question.

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According to a 2015 report by the Sixth Amendment Center, Utah is ranked as having one of the worst indigent defense systems in the country, spending less than half the amount per defendant than even the average spent by other states.

An indigent defense system comparison chart that was developed by the Sixth Amendment Center in a 2015 report | Image courtesy of the Sixth Amendment Center, St. George News

One factor that may play a role in Utah’s relatively low ranking is the state’s funding structure. Instead of allocating state funding to the public defense system, the financial burden falls to county or municipal governments, according to the Utah Judicial Council.

In Washington County, nine public defenders are supervised by Douglas Terry, who has been tasked with overseeing the public defender program.

Eric Clark, an attorney in the civil division of the Washington County Attorney’s Office, told St. George News that Terry supervises the attorneys to ensure that quality indigent defense services are universal.

Clark said the 2015 study from the Sixth Amendment Center prompted changes that have taken place throughout the county, one of which involved completely removing the county attorney from the public defender interviewing process, as well as establishing an oversight committee to track numbers and to make sure caseloads aren’t leaving indigent clients underrepresented.

“There are no hard lines here. I can go to the mayor or to a county commissioner to solve a problem,” Clark said. “We have an open system to find solutions that isn’t marred by position or agency – we work together.”

Clark added that the attorneys who are under public defender contracts work together to manage case loads, and if one attorney has several high-profile cases, for example, other attorneys pitch in to help.

The 2015 study revealed that the lack of state funding or oversight created “a patchwork system of providing indigent defense which varies greatly from county to county,” and most either assign private attorneys to the cases and pay them on an hourly basis or have contracts with private attorneys that stipulate a flat fee for their services.

In this file photo, 5th District Judge Michael Westfall (background) hears from defense counsel Gary Pendleton (foreground) during the Brandon Perry Smith trial in early 2017. Smith was found guilty by a jury in the Dec. 11, 2010, murder of 20-year-old Jerrica Christensen, St. George, Utah, Feb. 3, 2017 | Photo by Kevin Jenkins via Utah court pool, St. George News

The report used 10 sample counties that included Washington County, along with Cache, Davis, Salt Lake, San Juan, Sanpete, Tooele, Uintah, Weber and Utah County.

According to the commission’s findings, “very high caseloads” in some locations may make it unlikely that “contract counsel is able to spend the necessary time on each case to adequately represent defendants.”

The first of several steps to address the issues revealed in the report took place in March 2016 when Utah legislators created the Utah Indigent Defense Commission– the first state-level body in Utah created to establish state oversight of those local systems.

While counties and cities are still responsible for providing, overseeing and funding indigent counsel programs, some state funding is now allocated to assist local governments with the cost.

Gideon versus Wainwright; 1963 U.S. Supreme Court Case 

The U.S. Supreme Court decided in the 1963 case Gideon versus Wainwright that the Sixth Amendment requires that the state provide counsel to those who cannot afford it in any case where the accused faces the possibility of being incarcerated.

Stock image by Pixabay, St. George News

More than 50 years later, U.S. Attorney General Eric Holder said in a statement the country’s indigent defense systems were “in a state of crisis,” as overworked and poorly prepared attorneys could no longer provide effective representation to indigent clients.

Research conducted in 2011 by the U.S. Department of Justice supported Holder’s comments and revealed that, across the board, more than 70% of public defenders exceeded the maximum recommended case limit of 150 felony cases per year.

The report went on to say the costs associated with “ineffective assistance of counsel are often greater than the costs associated with providing adequate counsel in the first place.”

Even so, heavy caseloads are common in many areas, and may play a part in the fact that 95% of criminal cases are settled by plea deal, research by the Cato Institute revealed, showing that little attention has been given to the critical state of indigent defense.

That lack of attention is supported by the research. In fact, a recent study by the Gideon at 50 Project revealed that most public defenders carry caseloads that are at least double the recommended number. The findings also revealed that public defenders simply do not receive the same resources as prosecutors for investigations, expert witnesses and other essentials of a “complete and effective defense.”

A continuing effort

The Washington County Commission recently increased funding by 5% for its public defender fund, leaving the total at $1 million. Efforts such as enhanced oversight, the creation of an indigent committee and continued communication are ongoing to mitigate the caseload taken on by the public defender’s office.

Those same sentiments were expressed by the Washington County Commission when they made an inquiry on the matter after Flint’s comments in court.

The inquest was made to ensure that all indigent clients throughout the county were receiving “zealous and constitutionally guaranteed representation,” Washington County Commission Administrator Nicholle Felshaw said in a letter to Flint.


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