JEROME • Idaho's public defender system has been called a deficient, unconstitutional patchwork and a magnet for lawsuits, and a new law addressing the problems won’t accomplish much, critics say.

In Idaho, public defenders carry caseloads far bigger than the recommended limit of 150 felony cases a year. They lack the time and privacy they need with clients. Defendants are pressed to strike plea agreements before even meeting their attorneys, and some indigent defendants are routinely processed through the courts without ever even speaking to a lawyer.

These findings are reported in a 135-page study by the National Legal Aid and Public Defender Association. The group focused on Idaho public defender offices because of previously documented problems in the state’s judicial system.

Idaho is behind other western states in reforming its defense system. Cash-strapped counties have under-funded their public defenders offices, and inconsistencies from county to county abound.

The Public Defense Act, signed into law last week by Gov. C.L. "Butch" Otter, is intended to to solve some of these problems. But critics say the law will burden counties with higher costs and doesn't go far enough to fix the flawed system.

The law bans fixed-fee contracts that pay attorneys a lump sum to tackle all of a county’s cases. That could increase costs in counties that will need to hire more lawyers.

In the Magic Valley, only Twin Falls County and Mini-Cassia have in-house public defender’s offices. Gooding, Jerome, Blaine, Lincoln and Camas counties all contract with private attorneys.

Jerome County Commissioner Charlie Howell said the law will cost his county more money. It has three public defenders on contract: one for misdemeanors, one for felonies and one for juveniles’ cases.

Stacey DePew, who handles the felony cases, said she is happy with how things have been run in Jerome County.

“We all have a good working relationship with the county commissioners,” she said. “They work hard to make sure we have what we need to do a good job.”

But that’s not the case through much of the state, she said.

Canyon County, despite a huge caseload, terminated its contract with a public defender law firm because of budget constraints. The county's proposal suggested the firm with the lowest bid would get the new contract, the national association’s study noted.

Nez Perce County began to seek cheaper ways to provide defense services to the poor and re-opened bidding for a new law firm after 36 years with one firm. An employee of the county's elected prosecutor helped choose the new firm.

While flat-fee contracts can pose problems, DePew said, she negotiated an “extraordinary cases provision,” so she is paid by the hour for cases that take more time or resources than usual.

Experts say public defenders shouldn’t handle more than 150 felony cases a year. DePew is near that number.

“Other offices far exceed that,” she said.

Indeed, Canyon County public defenders average 223 felony cases a year; a Bonneville County public defender had 209; and Ada County defenders average about 200.

Some have criticized Idaho’s system, saying public defenders who also take high-paying private cases won’t spend as much time on their public work.

“I’m offended by that, by the idea that I’m not going to equally represent my clients,” DePew said. “I’m a public defender because I believe in the system and that every defendant has a right to a zealous advocate.”

Now DePew and the commissioners must renegotiate to meet terms of the new law.

“We really don’t know how it’s going to affect us,” she said.

But eliminating flat-fee contracts is a good start to reforms, said Monica Hopkins, director of the American Civil Liberties Union of Idaho.

“They’re unconstitutional, everyone has agreed,” she said. “It doesn’t allow the attorney to come back and say, ‘I’m going to need more money for investigating the case.’”

After three years of study, several problems were noted by the Public Defense Subcommittee of the Idaho Criminal Justice Commission.

When completing a financial affidavit to qualify for a public defender, some suspects are put in a constitutional predicament. If they own illegal assets, the choice is to commit perjury or incriminate themselves.

“In such a situation, the person is forced to choose between the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel,” the findings say.

The subcommittee also found inconsistencies across the state on whether people have to reimburse the public defender or contribute to the cost. But requiring repayment to a public defender could discourage a defendant from accepting help at all, the panel found.

“Idaho’s public defender system today has significant deficiencies; it is a patchwork of offices and contracts paid for by our already cash-starved counties,” Idaho Supreme Court Chief Justice Roger Burdick said in his annual State of the Judiciary address to the Legislature on Jan. 21.

“Eliminating single fixed-fee contracts, providing training funds for defending attorneys, and authorizing the counties to establish public defender offices or contracts that best meet the needs of their communities are positive developments. For the future, we must maintain our commitment to Idaho’s constitution and history,” Burdick said.

The new Public Defense Act missed many points that the subcommittee brought up, said the ACLU’s Hopkins.

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“Nothing in this bill will stop the Sixth Amendment violations that are going on across the state,” she said.

DePew said she hopes to see a statewide discussion on how to remove politics from public defense.

“Whether contracted or in-house, public defenders have to answer to county commissioners,” she said.

Prosecutors get paid more, get more money for continuing education and have investigation funds, DePew said, while public defenders often must appeal to a so-called money judge to get more investigation funds.

In Twin Falls County, elected Prosecutor Grant Loebs makes $98,051 a year. Chief Public Defender Marilyn Paul’s salary is $96,013.

And while Chief Deputy Public Defender Ben Andersen gets $76,814, Chief Deputy Prosecutor Suzanne Craig makes $94,224.

The Twin Falls County Public Defender’s Office has its own investigator, but Jerome County’s doesn’t, DePew said. “It puts us at a disadvantage.”

The new law will replace the Public Defense Subcommittee with a state Public Defense Commission consisting of one member each from the state House and Senate; four gubernatorial appointments from the Idaho Association of Counties, state Appellate Public Defenders Office, the Idaho Juvenile Justice Commission and an experienced defense attorney; as well as a representative appointed by the Idaho Supreme Court chief justice.

That Public Defense Act sets aside $300,000 to establish the commission, pay members’ travel and provide training for public defenders statewide.

That’s a “paltry” sum, Hopkins said. “We should be appalled.”

Public defense is poorly funded because political will is lacking, Hopkins said. Despite constitutional provisions, some believe criminal suspects don’t deserve a public defender.

“They set up a commission that doesn’t have enforcement power. It doesn’t have the power to make any administrative rules,” she said. “It has to give suggestions back to the Legislature.”

The Public Defense Subcommittee study also noted that litigation against Idaho is likely if nothing changes.

“The Subcommittee believes that the legislative interim committee should be aware of the potential for litigation from special interest groups, including those from outside the state, aimed at forcing change in Idaho,” the subcommittee wrote.

The ACLU convened last month and planned town hall meetings around the state to talk to public defenders and people who have had personal experience with them, Hopkins said.

Town halls are scheduled in Nez Perce, Kootenai, Canyon and Ada counties. More in central and eastern Idaho will come, she said.

“We want to learn more about what’s going on on the ground,” Hopkins said. “We’re watching this very closely.”


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