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Minnesota's public defender shortage: 'We are fast becoming the courts of McJustice'

This is the first in a series of posts rooted in what we've learned from the judges, county attorneys, public defenders, clerks, court reporters, and others working in the courts.

We don't have a public defender crisis in Minnesota; we have a calamity.

"I can barely breathe," says Carole Finneran, a public defender from Minnesota's Second Judicial District. "I'm worried my clients are not well served," says another public defender from the Tenth District.

"My name is Mike Berger," one public defender tells his new clients. "I am your lawyer, but come next month I might not be."

Berger's misdemeanor clients might be assigned two or three attorneys as their case drags on — the constitutionally guaranteed right to a speedy trial is trampled.

"A case that could be resolved in two hearings takes eight because of attorney substitution," Berger explains. "There is a notion that the public defender is interchangeable; that you can substitute one lawyer for another. I have been substitute on multiple cases, in multiple jurisdictions, one week or less before trial. Why? Because the court and county also feel the budgetary pressure and simply want to clean their plates."


Judge Sharon Hall of the Tenth District puts it bluntly: "Quality is sacrificed for efficiency," she says. "We are fast becoming the courts of McJustice."

The funding problems in the state's justice system have led to staff cuts in public defender offices; the ones who remain are carrying twice the caseload recommended by the American Bar Association.

Counting part-timers, going into 2008 the state had the equivalent of 423 full-time public defenders. After budget cuts that year that number fell by 53 —  about a 13 percent cut. Since that time the ranks have fallen by another 20 lawyers to 350. And it may get worse.

Looking ahead to next year, federal grant money funding the work of nine public defenders will run out and the public defender system risks losing an additional $1.9 million in funding from registration fees paid by new attorneys.

Funding from the fees was diverted temporarily to the public defender system through a 4-3 vote in the Minnesota Supreme Court. In June there is a vote to extend the funding and it's not clear at all how the justices will vote. Retired Chief Justice Eric Magnuson was one yes vote and the other, Justice Paul Anderson, said at the time that he couldn't vote for the funding twice, according to John Stuart, the state's chief public defender.

Stuart was appointed to the position in 1989. For 12 years before that he was a trial lawyer in the Hennepin County Public Defender's office. "This is by far the worst it's ever been," he says. "We get public defenders now who are having health problems — people in their 30s or 40s going to the doctor with heart and blood pressure issues. I know of people who are on leave because of emotional breakdowns."

He also says his office is hearing more complaints from people who say their public defender didn't spend enough time with them. "And you know what," says Stuart, "That might be true."

Another new development, he says, is judges holding public defenders in contempt "because they were in Courtroom A when the judge wanted them in Courtroom B."

In many cases, that means courtrooms a county or more apart. "Due to the budget cuts and the necessity of shifting people around to cover cases, I now work 140 miles from my home and family," says Nancy Bowman, a Seventh District public defender. "I receive no mileage or living expenses and it affects my clients because I'm not accessible."

Lauri Traub is a mother of three who works a waitressing job on the side to pay off school loans. She wonders if it's worth staying on as a public defender in the First District. "I find myself thinking it would be better to be laid off than to be the one left behind," she says, "because I cannot and will not cut corners and the case loads are huge. Our clients cannot advocate for us because they are poor, many are uneducated and a large number are disenfranchised because of their criminal history."

There is no question corners are being cut. Public defenders have always struggled with higher caseloads and lower pay than the prosecutors they square off against, but there seems to be near unanimity that that the system is at a breaking point.

Mixing empathy with exasperation, a district court judge who once worked as a public defender provides a sobering glimpse into his courtroom: "Public defenders are woefully unprepared. I get continuance requests much more often. Many times I've had a defendant ask for a different lawyer because he hasn't even talked with his public defender before a trial or plea hearing is set to begin."

MinnPost is drilling deeper into the situation facing public defenders and how it affects our justice system. The secure form below was created in response to tips submitted over the past two weeks and I'm looking for information that is as specific as possible for this next phase of reporting.

I also welcome tips and further comment from anyone who works in the courts or has passed through them. If that describes you, please tell me your story using the form included with my initial post on Minnesota's underfunded court system.

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Comments (9)

As far as King Timmy and the fabulously wealthy people who hold his leash, the deterioration of the Public Defender system simply restores the judicial system to it's proper role, as a venue the wealthy can use to extract money from those of lesser means (and from each other), and, of course, to lock up anyone who might even be suspected of a crime while throwing away the key.

That those "little people" have no recourse and no adequate legal representation, is simply as King Timmy and his friends think it should be (but, of course, someone ELSE should pay for the massive numbers of prisons the system, as they are trying to make it become, would require).

My suggestion for a remedy would be to slap a surcharge on damages awarded in lawsuits above a certain amount, to be paid by those upon whom those damages are assessed, sufficient to fund an adequate statewide system of public defenders. What amounts to pocket change for our wealthiest corporations and individuals, who often tie up the courts for months at at time fighting with each other, would be more than adequate to solve this problem.

You say you want relief? I've got a plan 100% guaranteed to cut your caseload in half.

De-criminalize drugs.

I've seen numbers as high as 80% to describe the drug and drug related cases that come through the legal system.

We've spent more money "fighting" the "war on drugs" than all the genuine military actions in the past 20 years...and we've yet to win our first battle, much less the war.

Why?

The police do not want to see the "war on drugs" end because it is responsible for building departments to the size they are today.

The politicians do not want to see the "war on drugs" end because it is responsible for the usurpation of our civil rights by a strengthed federal government.

The last thing a drug cartel wants to see is a white flag, for obvious reasons.

How say the public defenders?

BTW, in my opinion, as long as we tolerate the death penalty, we have McJustice.

I'm sorry, was Tom Swift just, uh, right? Will wonders never cease?!

Well said Tom. The drug war is the biggest economic stimulus to law enforcement and the prison industries bar none.

The sooner the better. The only rational policy would be to fully legalize, intensely regulate, and heavily tax (as with alcohol and tobacco) drugs on a case-by-case basis, starting with marijuana.

Downside; political death sentence. It would take some big stones to carry this one over the goal line.

Good call both Richard and Tom. Pretty much our only hope on this is referendums, like the one in California this year. Obama just makes stupid, smarmy jokes when confronted with the issue.

Not only has it ballooned our police departments, but the very lucrative prison industry as well.

One could even draw some comparisons to the now re-named war on terror if they were so inclined.

tom made another good comment as well. the death penalty is much like mcdonalds. pay for instant gratification now, but end up sick and unhealthy.

There is a price to be paid for Lower Taxes/Smaller Govt and in this instance, the price is justice.

Sometimes we need to refresh folks' memory of why we have some aspects of government spending, why these programs are considered important and in some cases vital.

The book entitled Gideon's Trumpet* describe the story of the Clarence Gideon (played by Henry Fonda in the movie), the defendent in a landmark ruling of the US Supreme Court that confirmed that the US Constitution requires that criminal defendants in State cases have a right to an attorney appointed by and paid for by the State where the defendent cannot afford one. (No doubt that court was accused of both 'judical activism' and 'legislating from the bench' - but I digress.)

Budget cuts to the MN court system and public defender program have eroded this right to the point where here in our State, Gideon's Trumpet has been sadly muted. At a time when more and more of our fellow citizens are being pushed into poverty, for some, sooner rather than later, that trumpet of justice will be silenced.

This is not, or should not be, a partisan issue. The recently retired, Republican appointed, Chief Justice of Minnesota Supreme Court Eric Magnuson has said:

"Minnesota's justice system is stretched to the breaking point," said Magnuson. " Further budget cuts will jeopardize the justice system as we have known it. Without prompt adjudication of cases, civil and criminal consequences for illegal behavior won't be imposed. Nothing less than the rule of law is at stake." **

So why all the fuss? Is this just liberal, weepy-eyed, soft-headed welfare-socialism run amok or more scary tyranical big government taking over our private legal practice? No.

It's a question of protecting individual liberty and American principles of justice that take the form of fundamental rights guaranteed by the US Constitition.

The US Supreme Court ruling in Gideon explains:

"The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."
...
"[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not `still be done.'"
...
" That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him...."

We are in hard times.
We are facing hard decisions and a time of choosing what path our State and our Country should take.

We must face those decisions in a manner that is consistent with the most deeply held beliefs of our society, the most fundamental values of our people and the longstanding rules governing our relationships between each other and between ourselves and our governments as they are defined by our highest law.

If I had originated it, it would seem exaggerated, but in repeating the words of a former Chief Justice of Minnesota's highest court I find I must agree: "Nothing less than the rule of law is at stake."

* http://en.wikipedia.org/wiki/Gideon%27s_Trumpet
** http://www.mncourts.gov/?page=NewsItemDisplay&item=44518
*** http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol...

Tom, thanks for this. A critical line of inquiry for this series of stories I'm working on. Trying to put numbers to that argument now.

And Joel, thanks for your thoughts. They echo much of what I'm hearing from judges, public defenders, and others.