This is an archived article that was published on sltrib.com in 2015, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Harry Miller was in a New Orleans hospital recovering from a stroke the night that an elderly woman was robbed in Salt Lake City, some 2,000 miles away.
But when a witness backed out, Miller's overworked public defender was unable to prove his client's alibi. It wasn't until another attorney tracked down Miller's niece and boss, who had picked him up from the hospital, to vouch for his whereabouts that Miller's conviction was overturned.
That was 2007 and Miller by then had served three years for a crime he didn't commit.
Eight years later, problems persist and the state's entire system of providing defense lawyers to impoverished Utahns accused of crimes soon may be on trial.
A report due out next month by the Sixth Amendment Center is expected to point to significant flaws in how indigent defendants are represented. Administrators of the state court system plan to recommend structural changes and better funding, and legislators already expect to overhaul state law.
If they don't, the American Civil Liberties Union, which for years has warned that the failure of Utah's indigent defense system is jeopardizing justice for the poor, is expected to sue the state and likely prevail.
"We are really hopeful we can get the legislative solution first, before we have to sue for it," said Anna Brower of the ACLU's Utah chapter. "But all options are on the table."
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Litany of issues • The problems stem from a lack of a uniform structure, crushing caseloads, inconsistent and often inadequate funding from county to county, and incentives for state-appointed defense attorneys to churn through cases as quickly as possible.
It is not a problem isolated to Utah, and states nationwide are trying to cope with the burden of assuring justice for the poor. Michigan, for example, is in the midst of overhauling its indigent-defense system, and Idaho, after failing to fund proposed reforms, is being sued by the ACLU.
Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, who helped get Miller's robbery conviction overturned — despite opposition from the state attorney general's office — said it's impossible to know whether other innocent people are being wrongly convicted.
"I don't know how common it is and we'll never know. That's what's troubling about it," because most cases without DNA evidence don't get a second look, Hart said. "I think it ought to be troubling to even the average person."
The U.S. Supreme Court ruled in 1963 that defendants in criminal cases are entitled to counsel, even if they can't afford it. It's the "if you cannot afford an attorney, one will be appointed" warning police read when they arrest a suspect.
But, in Utah, it falls to the counties to come up with the money to pay for those lawyers and, faced with other budget burdens, defending criminals is nowhere near the top of the list.
Most counties contract with an area attorney who agrees to handle the defense for a flat fee — whether it's five cases or 50 — and any investigators or expert witnesses come out of that fee. That provides an incentive for the lawyers to move through cases quickly and potentially cut corners on gathering evidence or preparing defenses.
"It puts the incentives in all the wrong places," said the ACLU's Brower, a public policy advocate with the Utah chapter. "There's no situation you can contemplate where that would be fair for the defender or the client."
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Juggling act • Salt Lake and Utah counties are alone in the state in each having a full-time public defenders office, complete with investigators and social-service coordinators. But the number of cases each attorney has to juggle still can be daunting.
A national advisory commission recommended in 1973 that public defenders not handle more than 150 felony cases a year — a guideline that remains in effect.
Line attorneys in the Salt Lake Legal Defenders' office were handling 109 cases on average in 2013. Supervisors and those who deal with time-consuming death-penalty cases had 88 per attorney, said Patrick Anderson, director of the office.
But the caseloads have grown dramatically since then, Anderson said, with line attorneys juggling 189 cases apiece and those handling the more intricate cases dealing with 153.
"Both of those are grossly disproportionate with what they should have," Anderson said. "If you look to the capital [case] attorneys having anywhere close to 150, it is just absurd."
The reason for the spike is twofold. First, prosecutors are filing 1,900 more cases annually than they were two years ago. Second, the state recently changed the way many criminal cases are managed.
Under an early case-resolution system, which was a three-year pilot program in the 3rd District Court, hundreds of cases could be rapidly processed. Prosecutors would offer a plea deal at the time of initial filing of charges, allowing cases to fly through the courts.
The problem was that sentences typically ended up being lenient, and there were much higher recidivism rates, so the program ended in 2014.
"What [early case resolution] forced was early resolution, but it also did exactly what you don't want to do: Judges were ending up sentencing the offense and not the offender," Rick Schwermer, assistant state court administrator, said. "What we know is you get worse results that way."
Some public defenders were handling more than 420 early-resolution cases a year. Now those have to go through the normal process and those cases have to be dispersed among the other lawyers. It's common, Anderson said, for attorneys to work late nights and weekends trying to stay on top of caseloads.
"There are hardly enough hours in the day," Anderson said. "We bust our butts and do everything we can to provide [defendants] due process. But the longer you go, and you have to sustain that level, the harder it gets."
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Changes coming? • For four years, a state task force has been delving into issues with Utah's indigent-defense system. As part of that, the task force hired the Sixth Amendment Center to review the way the accused in Utah are represented.
That report is due out late next month, along with a series of recommended changes to the system, said Schwermer, who is part of the group.
"What's important to us," he said, "is that we give the public a solution along with a statement of the problem, rather than [saying], 'Give us a minute. We'll figure out the solution.' "
Among things the task force is looking at, Schwermer said, is instituting some state-level oversight to ensure counties are hiring qualified attorneys and to review contracts. Some restrictions may also be recommended to end the practice of flat-fee contracts that provide incentives for quick turnover and corner-cutting.
"Obviously," Schwermer said, "that's not an appropriate way to provide representation."
A third change under consideration is to have the state start picking up part of the indigent-defense tab, easing the burden on counties.
There also needs to be uniformity in the type of representation the accused receive, regardless of where they live, said state Sen. Todd Weiler, R-Woods Cross, an attorney who has been on the task force for three years.
"We have this patchwork where, if you're a poor person in Salt Lake County charged with a crime, you're going to get a much better defense," Weiler said, "than a poor person in any of the other 28 counties."
Weiler will sponsor legislation in January to adopt changes recommended by the task force and said he anticipates it will be a multiyear effort that will cost the state millions of dollars.
"There are absolutely problems," he said, "that need to be addressed."
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Scrutiny • The ACLU's Utah chapter is watching closely. For years, the organization has been sounding the alarm about shortcomings in the system and threatening a lawsuit if they aren't addressed.
The group has been gathering horror stories from defendants.
For example, one individual who was charged with two counts of aggravated assault told the ACLU he met with his attorney for 10 minutes, took his advice to accept a plea to one count, then was told by the judge he was actually pleading guilty to two counts.
Another, who was charged with a drug offense, claimed he called his lawyer 50 times with no response.
And an individual charged with aggravated assault and possession of a deadly weapon said he was in jail for two weeks before he met his attorney, who advised him to plead guilty without hearing the client's version of events.
The ACLU is researching the complaints, but did not have permission to release the individuals' names.
Weiler said the ACLU has been patient while the state works to fix the problems, but it is clear if legislation doesn't pass in the upcoming session, the organization will go to court, win and a federal judge will craft a solution.
"I don't feel like we're negotiating with a gun to our head," Weiler said. "But there is maybe an element of that, because we know if we don't do something, and do something significant, there is enough there from what I've seen that the court would be inclined to side with the ACLU that there are problems that need to be fixed."
Brower said she hopes the state can address the problems without litigation. At a minimum, she said, there needs to be some state standards and oversight for indigent-defense counsel, and she would like to see county or regional defenders offices set up with full-time staffing and budgets — just like prosecutors have.
And since there is a constitutional obligation to provide counsel, it should be the state, not counties, footing the bill.
"We are really, really hopeful," she said, "for a legislative solution."
And if there is not?
"A lawsuit would be very likely at that point."
The Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."