When a group of public defenders from the state’s Third Judicial District were asked by their boss to give specific examples showing how excessive caseloads have harmed clients, the lawyers weren’t sure how to respond. Naming clients and detailing harm done could mean disciplinary action. Their solution: an anonymous survey.
MinnPost has obtained a copy of the survey and the full document is posted below. The survey group is small but the responses are consistent with what I’ve been hearing from public defenders all over Minnesota: no time for preparing clients or witnesses, struggles to get to clients in custody, and the nagging feeling that clients have gone to jail who probably shouldn’t have.
When the state’s public defender budget was threatened in the 2004 legislative session, Gov. Tim Pawlenty wrote a letter to the chair of the Minnesota Board of Public Defense asking its leadership not to respond to looming cuts with layoffs.
Cutting staff, he wrote, “would result in a dramatic reduction in the services provided to indigent defendants. Those layoffs could result in demands for speedy trials not being met and the inappropriate release of accused criminals. Moreover, the quality of the services you provide would be greatly impaired.”
Those cuts were avoided at the last minute — but the reprieve was only temporary. The state’s public defender system is likely to face a fourth straight year of debilitating cuts in 2011 and everything Pawlenty warned about six years ago has come to pass — and more.
In a three-page letter from June obtained by MinnPost and posted in full below, Third District Chief Public Defender Karen Duncan appeals to the judges of her district for empathy and cooperation. In some cases, she told them:
“…in consultation with our clients and with their consent, we will be asking that court proceedings be suspended until such time as we are adequately funded to bring attorneys back from leave to attend to those cases. In some cases, we will be filing motions to rescind public defender appointments, as required by the Rules of Professional Conduct, due to our inability to provide competent representation. All counties will inevitably experience a reduction in public defender availability, as we seek to fulfill our Constitutional obligation to provide an adequate and professionally ethical level of representation to our clients.”
Public defenders working under Duncan filed a grievance against her over excessive workloads. Public defenders all over the state are overburdened, but the Third District in southern Minnesota (and includes Rochester) is distinctive in two respects. According to a February report by the Office of the Legislative Auditor, public defenders in the district ended up with cases that go to trial more than their counterparts in other districts for a five-year period ending in fiscal year 2009. And in 2008, the average time it took for a felony case to work its way to a disposition in 2008 was 272 days, more than two months longer than the state average of 198 days.
Here are a few of the issues addressed in the anonymous survey, with the number of respondents included in parenthesis before each answer. The full survey is embedded at the end of the post.
Working With Clients in Custody
On average, once a new in-custody client has been assigned to you, how much time passes before you can meet with that client in person?
(3) 3 – 5 working days
(5) 6 – 8 working days
(3) 9 or more working days
How often are you able to arrange for an interpreter to be present during jail visits with clients who do not speak English?
(1) 75 – 99
(3) 25 – 49
(7) Less then 5%
In the last three years, have you had any clients remain in custody longer than they should have, simply because you did not have the time to review their case or situation?
(2) Did not answer
If you answered “Yes” above, how many of your clients in the last three years have spent more time in custody than they should have simply because of your workload?
(5) 5 or more
(3) Did not answer
Preparing Clients and Witnesses for Court
How often are you able to substantively discuss a client’s case with the client prior to their first court appearance with you?
(3) 25 – 49
(1) 5 – 24
(5) Less then 5%
(1) Did not answer
On average how much time do you spend preparing non-client witnesses to testify?
(4) 11 – 29 minutes
(3) 3 – 10 minutes
(4) Less then 3 minutes
In the last three years, have you put a witness on the witness stand with no preparation?
On average how much time do you spend preparing clients to testify?
(2) 1 – 2 hours
(1) 30 – 59 minutes
(6) 11 – 29 minutes
(1) 3 – 10 minutes
(1) Less then 3 minutes
In the last three years, have you put a client on the witness stand with no preparation?
In the last three years have you told clients that you did not think it was in their best interest to demand a speedy trial or a speedy contested hearing, because either you or investigator would not be able to get ready for the trial or hearing in time?
(1) Didnot answer
“It is unconscionable that our workloads are excessive such that we are not able to do what a minimally competent defense attorney should do,” the Third District public defenders wrote in their grievance. The “core responsibilities of any criminal defense lawyer,” they lamented, “have become luxuries.”MN Third District Public Defender Anonymous Survey 2010 Letter From Third Judicial District Chief Public Defender June 3, 2010