Facing Budget 'Crisis,' Public Defenders May Refuse Cases

Budget crisis may leave legions of poor criminal defendants without lawyers.

November 9, 2008, 10:03 AM

June 13, 2008— -- Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants.

Statewide public defenders in Kentucky and Minnesota and local offices in cities such as Atlanta and Miami say budget cuts are forcing them to fire or furlough trial lawyers, leaving the offices unable to handle misdemeanor and, in some instances, serious felony cases.

The cuts leave states scrambling to find a solution to a constitutional dilemma: The Sixth Amendment requires the government to either provide poor defendants with lawyers or release them.

"It is an impending legal crisis in our state," Joseph Lambert, the chief justice of the Kentucky Supreme Court, told ABC News.

The conflicts have prompted at least one lawsuit, brought on Wednesday by several criminal suspects in Atlanta who may temporarily be without lawyers, and could result in some public defenders being held in contempt of court.

"Without adequate defense counsel, the public simply cannot be confident that persons are not being wrongfully convicted of crimes," Lambert said.

Participants expect the states to reach a temporary solution and do not expect criminal defendants to be freed because they do not have lawyers.

The cuts to defenders' offices come as the economic downturn has trickled down to the state level across the country, forcing local governments to look for every chance to trim their budgets, including cutting the criminal justice system.

"The criminal justice system is under extraordinary strain because of the budget cuts which have become necessary," said Buddy Jacobs, the general counsel of the Florida Prosecuting Attorney's Association.

Public defenders in Minnesota, Kentucky, Florida and Georgia say they will not be able to handle all their cases beginning next month. Miami-Dade County Public Defender Bennett Brummer said his office would reject all but the most serious felony cases and several other public defender offices in the state have also said they will begin rejecting cases.

Brummer said a state agency will provide lawyers, after which judges will appoint private lawyers to take the cases.

But the refusals have raised the prospect that judges could hold local defenders in contempt for refusing to take cases. A 2006 opinion from the American Bar Association says lawyers representing indigent defendants should withdraw if their caseloads prevent them from providing "competent and diligent" representation.

Prosecutors and others say that opinion appears to conflict with state law, which says that judges may not allow a public defender to withdraw from a case based only on inadequate funding or excess workload. Brummer claims he is not withdrawing from cases, but merely refusing to take new cases.

"On the prosecution side, we are in even more dire straits," Florida's Jacobs said. "But we can't refuse to take cases. Our job is to seek justice. And we're doing the best we can."

Florida Republican State Sen. Victor Crist, chair of the Justice appropriations committee, said the justice system had been cut less than other areas of government and said the public defenders were trying to circumvent the legislature and force the budget issue into the courts.

"I think what they're doing is greedy," he said. "This is nothing more than a power play on their part to try to take the decision making out of the legislature and put it in the courts in terms of funding.

"But at who's expense?" he said. "Do we cut the schools? Do we cut health services? Everybody has had to share in the reductions."

John Stuart, the head of Minnesota Public Defenders, said his office would cut 72 of its 440 attorneys, or about 16 percent, and will stop representing parents in child welfare cases and in some drug court cases.

The Kentucky Department of Public Advocacy, facing a $2.3 million budget cut, plans to stop taking cases involving multiple defendants charged with the same crime, involuntary commitment cases and family court cases -- between 10,000 and 20,000 a year, said Erwin Lewis, the state public advocate.

Lewis said he planned to ask local judges to force the state finance cabinet to pay for private attorneys in extra cases, though it was unclear if that plan would be successful. "We're trying to facilitate it so court doesn't grind to a halt," he said.

A spokeswoman said the finance cabinet had no comment on the proposal.

Under Kentucky law, public defenders must have a judge's permission to be removed from a case. Lewis or local public defenders could face contempt of court citations and jail if they refuse to follow a judge's order to represent a client.

"This is an action for which I am ultimately responsible, and any sanctions or retribution should be directed at me rather than a directing attorney or individual staff attorney," Lewis wrote in a letter to the state's judges.

In Atlanta, where the state public defender services recently announced plans to close one of its offices, leaving 1,850 defendants temporarily without lawyers, the local chief judge said this week that the situation may lead to a "legal crisis."

The Georgia state government is working out plans to provide those defendants with other attorneys or to keep the current public defenders on the cases at least temporarily.

But several of those suspects and their lawyers filed a proposed class-action lawsuit on Wednesday against the Georgia Public Defender Standards Council, charging that the firing of 16 attorneys violates their right to due process and right to counsel. They are seeking a restraining order to keep the lawyers, who are scheduled to lose their jobs at the end of the month, in place for at least three months.

The firings will mean defendants will receive "only perfunctory representation by lawyers contracted to handle a high volume of cases for meager compensation," the lawsuit claims. "Representation by knowledgeable public defenders will be replaced by lawyers who meet, greet and plead their clients in as little time as possible."

The cuts come to the Metro Conflict Defender Office, which handles cases in which it would be a conflict of interest for the public defender's office to represent more than one client charged with the same crime. The cuts would eliminate conflict public defenders in Atlanta in juvenile and superior court.

The local district attorney, Paul Howard, told ABC News that the cuts could make it difficult to prosecute some cases. He also worried that a proposed plan to pay lawyers $200 for a plea bargain and $600 for a trial could diminish the quality of representation.

"I have seen a system where lawyers are simply collecting checks rather than representing people in a quality manner," he said. "And that's something we don't want in our community."

Mack Crawford, director of the Georgia Public Defender Standards Council, did not return phone messages left at his office. He told the Associated Press earlier this week that he was forced to close the office because the council only received $5.4 million from state lawmakers for the next fiscal year, down about 40 percent from $9 million last year.

"We've been told repeatedly, 'You need to live within this budget,'" Crawford said. "There will be no compromise for the representation of these clients."

Timothy Spruell, one of the public defenders slated to lose his job, was skeptical that the state would be able to provide the same level of representation to his 260 juvenile clients.

"I've talked to the child, the child knows me, I know the case," he said.

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