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

We don’t have a public defender crisis in Minnesota; we have a calamity. “I can barely breathe,” says a public defender from the Second Judicial District. “I’m worried my clients are not well served,” says another.

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.