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Task Force Hears About Problems with Public Defense System

Public defenders say they simply need more attorneys to handle a backlog of cases

HELENA — Overworked public attorneys and a civil rights group on Thursday told Montana lawmakers and lawyers that funding problems may be seriously hurting the defense of the accused.

Niki Zupanic, the policy director for ACLU of Montana, said a 2005 overhaul of the state’s public defense system has not corrected the problem of inadequate representation for defendants. The issue has persisted since the ACLU’s 2002 lawsuit that led Montana to rethink its approach to providing for the right to legal counsel, Zupinac said.

A county-based system was replaced with the Office of the State Public Defender a decade ago, but running the office has been increasingly expensive. “Even though that inadequate (county-based) system no longer exists, the issues still persist,” Zupanic said.

Public defenders say they simply need more attorneys to handle a backlog of cases.

“Clients get hurt by this,” said Chris Abbott, a public defender of eight years based in Helena. “They sit in jail longer than they need to, which causes people sometimes to plead guilty.”

Chief Appellate Defender Wade Zolynski said his department’s turnover rate has dropped from about 40 percent to 20 percent since the Legislature raised public attorneys’ pay two years ago.

Abbott said he has also noticed retention has improved since the pay raises, but the funding didn’t come with additional staff.

Abbott said he has been assigned one felony case every day since late August. He compared Montana’s public defense system to a classic “I Love Lucy” episode called “Job Switching” in which Lucy and Ethel fail in their task to wrap every chocolate that passes by on a fast-moving conveyor belt.

“The problem that we’ve faced in more recent years is that attorney burnout is becoming an increasing problem,” Abbott said. “I know I’ve felt that when that conveyor belt moves faster.”

Mark Murphy of the Montana County Attorneys Association said the entire criminal justice system is affected when one aspect, like defense, is bolstered.

“If you give them more people, the district courts need more people, the prosecutors need more people,” Murphy said. “Mostly the Department of Corrections needs more space.”

The Legislature turned down a proposal this year that would have eliminated jail sentences for some misdemeanor crimes. Because a person is only entitled to a public defender if he or she faces jail time, Sen. Nels Swandal’s proposal would have saved the state more than $500,000 annually.

Montana Supreme Court Chief Justice Mike McGrath said that approach would certainly be helpful, “but, honestly, the caseloads are driving the problems we have now and I don’t know if there are any simple solutions to those.”

ACLU attorney Jim Taylor said virtually every state in the nation is facing the same problems in the realms of funding, retention, training, caseload and the ethical conundrum of postponing a case or sacrificing its quality. “We incarcerate more people per capita than any other country in the world, and this is part of the cost of that,” Taylor said.

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