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ACLU: Public defense system in rural Utah counties failing
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's public defender system is failing to protect citizens' constitutional rights as Utah remains one of only two states that do not provide state funds or oversight for public defense services, a new report from the American Civil Liberties Union of Utah claims.

The report released Wednesday, titled "Failing Gideon: Utah's Flawed County-by-County Public Defender System," addresses the state as a whole, but focuses specifically on nine Utah counties: Box Elder, Daggett, Duchesne, Iron, Kane, San Juan, Sevier, Uintah and Weber.

Emily Chiang, an associate professor at the University of Utah's S.J. Quinney College of Law, summarized the ACLU's report in two words: Not good.

"Utah has really fallen behind the rest of the country in terms of providing for its citizens," said Chiang, whose students conducted interviews and watched court proceedings to help compile the report. "The main takeaway message for me is across a variety of counties, there are certain consistent failures and a lot of that goes to the state's failure to supervise and provide any sort of guidance as to what [public defenders and the counties overseeing them] are supposed to be doing."

Only Utah and Pennsylvania do not provide state funds for public defenders. State legislators decided that each county must bear the financial and administrative responsibilities for providing public defense services. Counties in Utah on average spend $5.22 per capita on public defense services — 44 percent below the national average of $11.86 per capita, according to the ACLU report.

Nearly 20 years ago, the Utah Supreme Court called attention to the issue of adequate public defenders when ruling there was a "significant problem with inconsistent appellate representation of indigents" and recommended the state create an appellate public defenders' office. That never happened, however, and the ACLU outlines several criticisms of the current system including:

• Public defense budgets are often 25 to 35 percent of the amounts budgeted for county attorney offices in Utah, which prosecute cases. For example, the fiscal year 2011 budget for the Box Elder County Attorney's Office was $551,198, while the public defender budget was $170, 929. Similar scenarios are found in other rural counties.

• Utah residents assigned a court-appointed public attorney receive those who have not had access to ongoing training, may practice with little support staff and who don't have sufficient access to experts and investigators.

• Most of Utah's 29 counties have no criteria or guidelines to awarding public defender contracts to represent indigent defendants in court. Contracts are generally awarded to the lowest bidder and based on the recommendation of a county attorney, which creates a conflict of interest.

• Counties don't track public defender caseloads or screen for conflicts.

The findings are problematic for several reasons, said Karen McCreary, executive director of the ACLU of Utah.

"Public defenders in the counties we studied appear to be chronically underfunded and overworked, with some handling caseloads that, based on the contract fee, result in $400 [or less] per felony. Those same caseloads may result in an average of less than 10 hours to spend on each case," the report states.

"Consider what you would do if your daughter or son were charged with a felony — rightfully or wrongfully —and the case were assigned to a public defender who had only 10 hours to devote to the case, or whose compensation for the matter would come out to only $400 no matter the outcome. And then ask yourself: Would that be enough for you?"

The report says Utah must do a better job with its public defender system in order to adhere to a 1963 U.S. Supreme Court decision, Gideon v. Wainright. In the Gideon case, the high court ruled that a person accused of a state crime for which jail time is a consequence has a right to a state-appointed attorney to defend them against the charges, if they cannot afford an attorney of their own.

The ACLU suggests that Utah meet its constitutional mandate set in the Sixth Amendment by taking a number of measures, including adopting statewide standards and overseeing county public defender offices. It also suggests the state subsidize counties' public defense budgets.

Patrick Anderson, associate director of the Salt Lake County Legal Defenders Association, said the ACLU's concerns should be taken seriously.

Anderson said Salt Lake County isn't in as dire circumstances as some of the state's rural counties, and he believes Salt Lake County adequately funds criminal defense.

Some believe other parts of Utah need a major overhaul when it comes to public defenders.

Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said issues raised in the ACLU's report are long overdue. Hart sits on the Utah Judicial Council committee, which has embarked on its own three-year project to study indigent defense issues at the appellate and trial levels.

Hart called the ACLU's report "relevant" as the Judicial Council grapples with how to ensure Utah funds indigent defense in a trying economic climate.

Hart said providing qualified public defenders will save taxpayers money down the line, and points to the recent cases of Debra Brown and Roger and Pamela Mortensen as examples.

Brown was released from prison in May after spending 17 years behind bars for murder. A judge found Brown, 53, "factually innocent" of the November 1993 shooting death of her friend and employer, 75-year-old Lael Brown. The case was overturned as a result of a 2008 statute allowing convicts to challenge the facts of their cases when new evidence is discovered, even if there is no new DNA evidence.

The Mortensens were wrongfully arrested and detained for five months in the murder of 70-year-old Kay Mortensen, whose throat was slit during a home-invasion robbery in Payson on Nov. 16, 2009. Police later learned the Mortensens had nothing to do with the crime, and Martin Cameron Bond and Benjamin David Rettig, both 23, were charged with first-degree felony murder.

"If our system doesn't function ... those kinds of mistakes will not be exposed," Hart said of cases such as Brown's and that of Roger and Pamela Mortensen. "This country is founded on protecting underprivileged and accused people ... beyond that, it is the right thing to do."

"A shoddy criminal defense system will cost more in the long run. If people are not adequately represented up-front, there will be appeals and challenges after convictions. If the public wants to look at a bottom line, they should be concerned about doing it right the first time and not just doing the bare necessities," Hart said.

mrogers@sltrib.com

Twitter: @mrogers_trib —

How the report was researched

The ACLU in 2008 sent out information requests under the Utah Government Records Access and Management Act to Utah's 29 counties questioning systems for public defense. The requests asked questions pertaining to qualifications for public defenders, procedures for evaluating bids for public defender contracts, public defender contract terms, public defense budgets and systems to track public defender caseloads.

Similar information was requested from county attorney offices to compare resources. The University of Utah's S.J. Quinney College of Law Civil Rights Clinic assisted with the project in 2009, with students sending additional GRAMA requests and carrying out research. Utah's current public defense system was compared to the American Bar Association's Ten Principles of a Public Defense Delivery System and the U.S. Department of Justice National Advisory Commission's standards for public defender caseloads.

Source: ACLU of Utah

State doesn't provide funds, oversight for public defense services.
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